Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: krissiwissi on September 09, 2024, 02:07:23 pm
-
Outcome (https://drive.google.com/file/d/1eyEasBq76fPl2WXtEUc0hNMafCle8-Wy/view).
-
@cp8759 Plus the incomplete TMO supplied. 8) 2230528523
After getting over the bridge for the de novo to occur, this case did the trick.
I threw these in too plus the date of service faux pas:
https://drive.google.com/file/d/1kUnpR6AeimZ0uSMUcxhmIiK5j9eSHnka/view
https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/brent-contravention-code-53-mount-stewart-ave-jw-manning-gardens/msg39730/#msg39730
-
Review allowed. ;D Greek champagne it is. CAIR from Rhodes. A fair swim from Kos. :-X
-
@cp8759 Plus the incomplete TMO supplied. 8) 2230528523
-
ETA Register of Appeals
Register kept under Regulation 20 of the Road Traffic (Parking Adjudicators) (London) Regulations 1993, as amended and Regulation 17 of the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022.
Case Details
Case reference 2230528523
Appellant Mitesh Varsani
Authority London Borough of Brent
VRM M111TSX
PCN Details
PCN BT20124501
Contravention date 18 Sep 2023
Contravention time 15:43:00
Contravention location Kempe Road Junction with Chamberlayne Road
Penalty amount GBP 130.00
Contravention Fail comply restriction vehicles entering ped zone
Referral date -
Decision Date 13 Feb 2024
Adjudicator Andrew Harman
Appeal decision Appeal allowed
Direction
cancel the Penalty Charge Notice.
Reasons
This vehicle on the council's case failed to comply with a pedestrian zone restriction.
Upon the point being raised by the appellant: the council does not provide any schedule to the Traffic Management Order upon which it relies specifying the streets to which it applies and I am not accordingly satified that it provides support for the contravention that is alleged. The appeal must accordingly be allowed.
***
Well, if I get a chance, I will raise this!
-
@cp8759 The main issue is that it undermines the reasoning and that the camera cited in the certificate is not the one used. I have the FOIR. And the camera is just identified by a number in the WS. The council must prove its case. If a de novo hearing is allowed, I will use everything as per usual.
-
@Hippocrates that's a good point, so it'll basically come down to what mood the adjudicator is in on the day. They could say the certificate would have made no difference, or that it vitiates the original decision.
-
@cp8759 Yes to the no need for an approved device; but, the issue is simple as the certificate supplied refers to the wrong camera.* So, I have a chance for a de novo hearing, particularly when you read what she said about the certificate in terms of corroborating her decision. We'll see. As for the bubbly stuff, unfortunately I am on the wagon.
I have to make a decision on the evidence which clock I find the more reliable, the appellant’s or the Enforcement Authority’s on a balance of probabilities.I find on balance, when considering the summary of facts that the Enforcement Authority’s clock is the more reliable.
*
I am further convinced by the Approved Device Certification relating to the CCTV camera in question as provided in Evidence C.
-
@cp8759 What is the Network computer? Reliability and maintenance records to be raised.
@Hippocrates I presume the camera is synchronized to the atomic clock via Network Time Protocol, just like my computers are:
(https://i.imgur.com/LydBies.png)
I don't have any certificate from the Secretary of State but it works pretty well, at least to within 0.001 seconds:
(https://i.imgur.com/84UjRDx.png)
Furthermore there is no requirement for cameras to be prescribed or approved by anyone, so the council has gone above and beyond if it has got a certificate anyway.
There is also a common law presumption that an electronic or mechanical device is working correctly unless there is evidence to show otherwise. In this case the evidence to show otherwise would be the dashboard clock, but the adjudicator made a decision on the balance of probabilities that the network-cynec camera clock is probably more accurate, and to be frank she is probably right about that. There was no evidence before the adjudicator that the car's clock was network-synced, and on the basis of that information it is more likely than not that the clock in the car was just running a little fast.
I cannot see that the adjudicator has made any error at all and she is only required to deal with the issues that are raised and the evidence before her, the website ground and the PCN wording issues might have changed the outcome if they had been raised but weren't hadn't. This case is a typical example of why DIY appeals are not such a great idea.
I wish you every success with the review but I think you'll have an uphill battle: a review isn't an opportunity to see if we could have won a case (I'm sure any of us could have), don't take it too badly if the review is refused and pop the champagne if you win. If the review adjudicator concludes that he would have allowed it based on your arguments but that the original adjudicator did not make an error in refusing the appeal based on what she had before her, then the review adjudicator is bound to refuse the review.
-
@cp8759 Re case 2230509438 "I was sympathetic to the ground of appeal relating to the grounds of representation presented online (i.e. that no specific grounds of appeal were available) but prefer not to express a concluded view upon it."
I have a screenshot of the same. Also, I assume you used the date of service issue?
Furthermore I dispute the validity of the PCN because the payment deadlines are ambiguous and unclear. The PCN asserts that I have 28 days from the date of the notice to make payment, but this is follow by text indicating that the date of service is considered to be 2 working days from the date of the notice. If the payment period is 28 days from the date of the notice then the date of service would be irrelevant, so is appears that the PCN should assert the payment period is 28 days from the date of service of the notice. On the other hand if the payment period is 28 days from the date of the notice, then it would make no sense to indicate how the date of service is to be calculated, as the date of service would be irrelevant. The same ambiguity and uncertainty applies to the 14 day discount period.
In the circumstances the PCN is ambiguous and confusing as to what the payment period is, so the PCN should be cancelled.
-
The Local Authority would inform the Learned Adjudicator....
Buttering up - an absolutely classic example
I cannot possibly comment on either the sender or the recipient. :D
-
The Local Authority would inform the Learned Adjudicator....
Buttering up - an absolutely classic example
-
@cp8759 What is the Network computer? Reliability and maintenance records to be raised.
@Korting Could you please inform me of any policy re issue of such moving traffic contraventions?
In response to the Appellant’s comments that the location was entered at a minute after 4pm in
contrast to PCN incorrectly stating that it was 61 seconds before 4pm; The Local Authority would
inform the Learned Adjudicator that since the CCTV camera times are set by the Network
computer; the time shown on the PCN is the actual time the vehicle entered the restricted location.
The date, timings, frame number, camera number, longitude and latitude are all shown on the
bottom of each still image. This proves the sequence of the images and their location. CCTV
PCNs are issued instantly and no grace periods are not given.
Also:
The information on the PCN complies with the legislation and
the timings on the CCTV are automatically transmitted live. The Secretary of State has issued
Brent Council with Certification of "Approved Device". For the Learned Adjudicator’s perusal a
copy of the Approved Device Certification relating to the CCTV camera in question has been
enclosed (please see Evidence C).
As stated previously, they produced the wrong certificate. And there are issues with the PCN wording. Also OP will be obtaining a witness statement from their friend re similar timings discrepancy.
-
A story referencing this case was included in the appellant's evidence.
RUCA Register of Appeals
Register Kept Under Section 21 of the Schedule to the Road User Charging (Enforcement and Adjudication)(London) Regulations 2001
Case Details
Case reference 9180006508
Appellant Raymond Bryce
Authority Transport for London
VRM DT66HAA
Decision Cost award refused
PCN Details
PCN TZ18525198
Contravention date 16 Nov 2017
Contravention time 07:02:00
Contravention location Waterloo Bridge
Penalty amount GBP 130.00
Contravention Failure to pay Congestion charge
Referral date -
Decision Date 05 Feb 2018
Adjudicator Maggie Kennedy
Appeal decision Appeal allowed
Direction TfL will cancel the PCN.
Reasons
Mr Bryce attended a personal hearing of his case; Transport for London (TfL) did not attend.
Mr Bryce works in Croydon and regularly stays in accommodation in and around the charging zone. He is particular about ensuring that he does not drive within the zone during its charging hours. He is so careful that in six months of operating in this way he has never before received a penalty charge notice (PCN).
On this occasion his vehicle was seen at 07:02:41, some two minutes and forty seconds after the charging period commenced. He was leaving the zone to go to work. He appeared to be genuinely surprised that he was still within the zone after 07:00.
One might have expected TfL to exercise their discretion in his favour taking into account the timing and also the absence of any previous incident. They declined to do this as they are strictly entitled providing that they do properly consider the representations made and do not fetter their discretion by applying an inflexible policy.
TfL are also obliged to prove the case against Mr Bryce.
They have produced an authorised officer's certificate telling the Tribunal that the clock on the camera is accurate but this appears to be in standard format and does not describe when the cameras were last checked for accuracy or how they are confirmed to be synchronised with the atomic clock. The Tribunal has generally accepted that TfL could satisfactorily produce this information if required but it is unclear when this was last examined for current accuracy.
TfL also rely upon a number of images taken by the camera apparatus. I understand that there are at least two cameras, including a monochrome camera and a colour camera. Images from both cameras are included in evidence to demonstrate the contravention.
Examination of the images shows, however, that the "Colour Contextual After" image comes from a camera located on Victoria Embankment. This incident is alleged to have occurred on Waterloo Bridge. The photograph is not only of a different location but also, clearly, taken at a different time of day. The images themselves are not timed. This significantly undermines the reliability of the principal evidence.
Taking all of this into account, including Mr Bryce's clear belief that he had left the zone before 07:00, I am not satisfied that the camera evidence is reliable in this particular case. I find, then, that TfL have failed to prove that the alleged contravention occurred.
The appeal is allowed and no payment is required from Mr Bryce.
Cost Details
Application by Appellant
Decision date 14 Mar 2018
Adjudicator Maggie Kennedy
Decision Cost award refused
Direction -
Reasons
The Adjudicator regrets the confusion caused by her mistakenly creating the wrong standard correspondence when dealing with Mr Bryce's application for costs. It was her intention to explain to Mr Bryce that his application could not succeed, for the reasons explained in her notes (and repeated below), but that message was contradicted by the covering letter suggesting that his application could be considered further. This was the Adjudicator's error and she apologises and trusts that Mr Bryce will understand that costs cannot be awarded to him.
The Adjudicator, on considering the costs application, noted:
Mr Bryce was successful in his appeal against this penalty charge notice for the reasons set out in my earlier decision. He now seeks costs against Transport for London to reimburse him for the time he has spent fighting the case.
I entirely understand the request made by Mr Bryce but must decline it. Costs are very rarely awarded in this jurisdiction and it would be necessary, for him to be successful, to show that TfL had been "wholly unreasonable" in pursuing the case. Note that mere unreasonableness will not suffice, their conduct must have been "wholly" unreasonable.
There is no evidence to suggest that TfL's conduct fell to this very low level and whilst their evidence in the case was imperfect the sanction for that was losing the case. It is not appropriate for an award of costs to be made in addition.
-
Now the 8th.
-
Application filed.
Just opened up the FOIR response: complete disconnect between the VCA certificate and the actual camera used! As foreseen by Socrates. ;D This alone should ensure a de novo hearing.
-
Application accepted. October 7th.
-
Application filed.
-
Dear Sirs
Under Section 11 of The Road Traffic (Parking Adjudicators) (London) Regulations 1993, I make this application for a review of Adjudicator *******'s decision as follows.
Grounds
1. The Adjudicator said this:
I am further convinced by the Approved Device Certification relating to the CCTV camera in question as provided in Evidence C.
With respect, the Adjudicator has misapprehended the fact that the said VCA certificate pertains to a camera concerning Parking Legislation. Therefore, it follows that the decision is unsafe in this fundamental regard.
2. In light of the above, I ask that a review hearing take place in the interests of justice and that the matter be heard de novo.
Yours faithfully
********
I have messaged you and suggest that I represent you and send this on your behalf as reviews require experienced submissions.
I also recommend that you get a witness statement dated and signed from your neighbour.
I have also checked all their VCA certificates. And a FOIR has been sent to Brent. That kind of rhymes! In the meantime, I suggest you pay it and I will do my best to get it reimbursed.
I am fairly certain we will at least achieve a hearing as it is fairly evident that the decision should be overturned on the camera used and the witness statement. I will also incorporate other arguments if the appeal is reheard. There is no way that the camera cited in the certificate was used to capture the contravention.
-
I did. I will take a look later tonight.
This statement is wrong as the VCA certificate refers to Parking Legislation:
I am further convinced by the Approved Device Certification relating to the CCTV camera in question as provided in Evidence C.
I will draft an application tomorrow for you. The Adjudicator is wrong on this point. In any event, a VCA certificate is irrelevant for this contravention; but she cited it and attached misguided weight to it.
PM sent.
-
Thank you so much. I replied to your DM earlier. Please let me know if you did not receive it. If you did, I will await your response.
Appreciate all of your time!
-
I will drop the OP a PM to examine all the documents in the case and possibly craft a draft application for review. 14 days from the date of the decision.
It is impossible to advise re a review unless we have access to all the documents. Or at least one of us.
-
Thank you so much for your responses.
I think it is worth me appealing the adjudicaton "in the interests of justice" as you say. I have nothing to lose. Though I don't have any new evidence as they request...
I am not a lawyer, but I truly believe I didn't drive into the road at the time they say.
From my layman's perspective: the council has firstly not proven how they maintain the timestamp on the CCTV/whether it is linked to the atomic clock, and secondly, the contested time is a second over a minute. Perhaps I can cover both a burden of proof and de minimis argument?
Many thanks,
Krissi
-
IMO, the adjudicator is obliged to establish the facts and then apply the law, not just consider the narrow limits of an appellant's appeal grounds. If this were not the case then every appellant would be prospectively disadvantaged because they're not lawyers.
-
The appeal was made on the council's clock being wrong, which was not the way to go. Had the OP followed through on a de minimis challenge it might have succeeded but it was just over 1 minute so not a cert.
-
I think the adjudicator was wrong in law, but you'll need to use 'interests of justice'.
De minimis has been ignored, in fact the adjudicator went so far as to say: There is no grace period allowed in respect of this contravention.
There is, it's called de minimis.
Miriam-Webster dictionary defines this as:
'lacking significance or importance : so minor as to merit disregard'
-
Full adjudication.
-------
The appellant makes this appeal on the following grounds :
Grounds of Appeal
They turned in at 16.01, checking the time both on their car clock and their phone clock (which is mounted on the dashboard) before choosing to turn in.
The time on the Penalty Charge Notice is incorrect
The appellant refers to the PCN issue time of 15.58.59 on 22/04/2024, prior to turning into the road, both the dashboard clock and dashboard mounted phone clock were checked, both reading 16.01 hours.
The appellant therefore believes the time stated on Brent's camera footage is incorrect which has been referenced with the noting of another vehicle travelling into Kempe Road,as seen in the PCN and CCTV images, suggesting they perhaps believed it was a valid time to pass through.
The Enforcement Authority’s camera’s timing is incorrect and they do not believe they have proven otherwise.
They have included in evidence news articles regarding a comparable case from 2018.
Their neighbour on Keslake Road also received a PCN, heightening the appellant's view that theEnforcement Authority’s timings are incorrect.
Conclusion
I am satisfied on the evidence, most notably the CCTV evidence that the contravention occurred.
I have to make a decision on the evidence which clock I find the more reliable, the appellant’s or the Enforcement Authority’s on a balance of probabilities.I find on balance, when considering the summary of facts that the Enforcement Authority’s clock is the more reliable.
I am further convinced by the Approved Device Certification relating to the CCTV camera in question as provided in Evidence C.
I note that the appellant has cited other cases in her favour but each case is decided on its merits.
There is no grace period allowed in respect of this contravention.
The appellant's representations amount to mitigation only and not a ground of appeal. The Court of Appeal held in the case of Walmsley v Transport for London [2005] EWCA Civ 1540 that no Adjudicator is entitled by law to take mitigation into consideration.
I do not allow the appeal.
-
Thank you for your swift responses. I do wish I had found and consulted this forum before, but I really feel that I am in the right here and so I hoped my honest and un-strategic response to the PCN would be listened to. We live and learn I suppose.
I have created a google drive with the evidence provided by Brent and my responses. Please let me know if any trouble accessing these.
https://drive.google.com/drive/folders/1LvF7rKh2NmKvhYtNNerWqy7U3e3bHNnQ?usp=drive_link
https://drive.google.com/drive/folders/1Dfsx2FBKdR5gfDmt8QG7gyKUx9tKTnld?usp=drive_link
The PCN is BT21882094
The Tribunals case ref is 2240286001
Thank you
-
OP, the PCN pl and the ETA case number.
-
You are only likely to be granted a review if the adjudicator has made a clear error such as misinterpreting the regulations and that doesn't seem to be case here.
Cases are won on de minimis (triviality) but once you go beyond a minute as here it gets harder.
I don't know if the camera certification has legs - others will.
-
You can ask for a review of the adjudicator's decision, I would say "in the interests of justice", because with the best will in the world, car clocks can be inaccurate. However, you didn't come on here before going through the process and I'm sure we could have worked-up a much better representation, but we are where we are. It was pretty fatal to your case asking the council to prove their clock was accurate. You should have gone for de minimis, and car clocks generally not totally accurate.
Can you please post-up your reps and also the London Tribunals case ny=umber. YOu only have a short period in which to request a review. No doubt you got one of the "hanging judge" adjudicators.
-
Hello,
Thanks in advance for any thoughts you might have to offer me.
I live right next to a school street, and I am fully aware of the times the entry to the road is restricted. I have never received a ticket for this street before now (it has been in place for almost 2 years).
I received a ticket suggesting I had entered the road at 15.58 when I was sure it was past 4pm when I drove in.
My initial appeal to Brent council was denied and I took it to tribunal. I suggested that the council should have to prove that the time stamp on their CCTV (showing 15.58.59) is accurate.
They provided a certification of "Approved Devices" from 2011 (11 years before this particular school street was put in place) and a certificate signed by an enforcement camera operator which confirms that a contravention has occurred. It is not clear whether this was signed at the time of the contravention or afterwards during a review of the footage, and certainly makes no reference to the accuracy of the time.
I don't believe that either item proves the accuracy/maintenance of the time stamp on the camera.
I referred to another case in my tribunal bumpf, where a congestion charge ticket was revoked because "according to an appeal body, Transport for London failed to confirm that the camera had been synchronised with the atomic clock, meaning that it was unable to prove the timing."
https://www.thetimes.com/uk/article/traffic-fine-revoked-over-accuracy-of-cameras-vzsflb2nq#:~:text=Doubts%20have%20been%20raised%20over,accuracy%20of%20the%20camera%20system.
I believe this is the same as my situation. However, the appeal was refused:
Conclusion
I am satisfied on the evidence, most notably the CCTV evidence that the contravention occurred.
I have to make a decision on the evidence which clock I find the more reliable, the appellant's or the
Enforcement Authority's on a balance of probabilities.I find on balance, when considering the
summary of facts that the Enforcement Authority's clock is the more reliable.
I am further convinced by the Approved Device Certification relating to the CCTV camera in question
as provided in Evidence C.
I note that the appellant has cited other cases in her favour but each case is decided on its merits.
There is no grace period allowed in respect of this contravention.
The appellant's representations amount to mitigation only and not a ground of appeal. The Court of
Appeal held in the case of Walmsley v Transport for London [2005] EWCA Civ 1540 that no
Adjudicator is entitled by law to take mitigation into consideration.
I don't know whether I have any opportunity to take this further, though I would really like to, as I am so sure I didn't break the rules! If you have any thoughts as to where I could go with this I would love to hear them.
Many thanks,
Krissi