After looking into this a bit further, here are some observations for other regulars who may deal with other PNs issued by the likes of APCOA or SABA. Whilst these never actually get enforced because they time out after 6 months, there are legal issues that are not resolved and should be raised in any POPLA appeal.
Based on the Penalty Notice (PN) you received, issued by APCOA Parking (UK) Ltd at Amberley Station, here are some key details and potential issues:
Breakdown of the PN:
• Issuer: APCOA Parking (UK) Ltd.
• Location: Amberley Station (governed by the Railway Byelaws).
•Offence: The notice claims a failure to park "wholly within an authorised, marked parking bay."
•Statutory Basis: The PN references Section 219 of the Transport Act 2000 and Railway Byelaws, specifically section 14, supposedly giving APCOA the lawful authority to issue this notice. (we'll come back to that later)
•Penalty: £100, reduced to £60 if paid within 14 days.
•Enforcement: It mentions possible prosecution for breach of the Railway Byelaws if not paid, with the potential for conviction and a criminal record.
Problematic Issues:
1. Ambiguity in the Legal Basis:
• The notice references the Railway Byelaws, which generally relate to statutory enforcement. If this is indeed a statutory Penalty Notice, then any failure to pay should lead to prosecution under the byelaws (with a potential fine through the magistrates' court).
• However, the notice mentions payment directly to APCOA, a private company. This raises questions about whether this is being treated as a statutory penalty under the Railway Byelaws (which would normally lead to court action if unpaid) or a private parking charge (where they may be using contract law instead of byelaw enforcement).
• If they are attempting to enforce this as a private contractual penalty using byelaws as justification, this is legally questionable because byelaws should not be used for private contractual enforcement.
2. Reference to Criminal Record:
•The PN mentions that failure to pay could lead to prosecution and a criminal record. However, this is only true if the breach is prosecuted under the Railway Byelaws in a magistrates' court. A private company cannot issue a criminal penalty or record. If APCOA is threatening criminal prosecution but is actually enforcing this as a private charge, this is misleading.
3. Confusion Between Byelaws and Contract Law:
• There seems to be confusion between the legal frameworks. If APCOA is enforcing this under the byelaws, they should pursue non-payment through criminal prosecution, not through private contract law (which would be a civil matter, not a criminal one). If APCOA is trying to mix byelaw enforcement with private parking enforcement, this is problematic.
4. Recipient of Payment:
• If this is a statutory penalty, the funds should go to the Train Operating Company (TOC) or the relevant public authority managing the site, not directly to APCOA. The fact that payment is directed to APCOA indicates they are treating this as a private matter, even though they mention statutory enforcement and criminal penalties. This is a violation of statutory processes.
5. Appeals Process:
• The notice outlines an appeals process, including the independent appeals service (POPLA), which is common in private parking charge disputes. However, POPLA is generally used for private charges issued under contract law, not for statutory penalties. As this is a byelaw offence, then the appeals process should follow statutory procedures, not private appeal systems like POPLA.
Potential Challenge Points:
1.
Clarify the Legal Basis: You could challenge the notice on the basis that it is unclear whether APCOA is enforcing this under the Railway Byelaws (in which case, prosecution should follow for non-payment) or under private contract law (in which case criminal penalties should not be mentioned).
2.
Misleading Threat of Prosecution: If APCOA is enforcing this as a private matter, the mention of criminal penalties and prosecution is misleading and an attempt to pressure you into paying.
3.
Appeals Process: The fact that POPLA is referenced suggests this is being treated as a private parking charge, but they are using byelaw language. This inconsistency is grounds for challenging the legitimacy of the notice.
4.
Payment Recipient: Why is APCOA, a private company, the recipient of payment for a statutory penalty? If the charge is under byelaws, payment should be to the relevant authority (e.g., the TOC or Network Rail)
As APCOA is an unregulated private company, possibly operating with the permission of the TOC to issue PNs for bylaw breaches, shouldn't the authority (ToC name or other authority) is operating under be identified on the PN?
If APCOA, an unregulated private company, is issuing Penalty Notices (PNs) on behalf of a Train Operating Company (TOC) or under the authority of the Railway Byelaws, the specific authority under which they are operating—in this case, the TOC or relevant public body—should be clearly identified on the Penalty Notice (PN). It isn't. This is essential for a few reasons:
1. Clarity of Enforcement:
• If APCOA is enforcing byelaw breaches, the TOC or other statutory authority (such as Network Rail) should be explicitly mentioned as the entity responsible for the enforcement of the Railway Byelaws. This is because the authority to issue statutory penalties for byelaw breaches lies with the public body or TOC managing the land, not with the private parking company itself.
• This provides transparency and ensures that recipients of the PN know under whose authority the notice has been issued and who has the legal power to enforce it.
2. Legitimacy of the Penalty Notice:
• For a PN issued under the Railway Byelaws, it should clearly state the name of the TOC (or other relevant authority) as the body with the lawful authority to pursue any enforcement action, including prosecution for non-payment. This would ensure that the statutory process is followed correctly, which could eventually involve the magistrates' court.
• As the TOC is not named on the PN, it raises doubts as to whether the notice is being correctly issued under byelaw authority or if it is simply a private contractual matter dressed up in byelaw language. Without the TOC being named, there is ambiguity about the legitimacy of the enforcement process.
3. Responsibility for Payment:
• If this is a byelaw enforcement matter, payment should be made to the TOC or statutory body, not the private parking company. Naming the TOC ensures clarity on who is the beneficiary of any penalty payments and reinforces that it is a statutory charge, not a private parking charge.
4. Potential Misrepresentation:
• If APCOA is issuing PNs without explicitly naming the TOC or authority under which they are acting, they are misrepresenting their authority. If the penalty is intended to be enforced under the Railway Byelaws, it is important that the notice reflects that APCOA is acting as an agent for the TOC, not as the direct issuer of the statutory notice.
In Summary:
If APCOA is issuing a Penalty Notice for a breach of the Railway Byelaws, the PN should identify the TOC (or other statutory authority) as the body under whose authority the notice is being issued. This is crucial for transparency, ensuring that the recipient understands who holds the legal power to issue and enforce the penalty. If the TOC or authority is not identified, this is a significant point of challenge, as it creates uncertainty about the legal basis of the notice and who has the actual authority to prosecute or enforce the penalty.
How can APCOA enforce payment of the PN?
If APCOA were to attempt to enforce payment of a Penalty Notice (PN) issued for a breach of Railway Byelaws, there are only specific legal avenues they can follow, particularly if the notice is a statutory penalty rather than a private parking charge. The process and legal framework would depend on whether the Penalty Notice is genuinely being issued under statutory byelaws or if APCOA is trying to enforce it as a private contractual penalty.
1. Enforcement Under Railway Byelaws (Statutory Penalty)
If the Penalty Notice is issued for a breach of Railway Byelaws (such as failing to park in a designated bay on railway land), it is governed by statutory law. This is how APCOA could try to enforce the penalty in a legally valid manner:
a. Prosecution in a Magistrates' Court:
• Legal Process: For penalties issued under the Railway Byelaws, the enforcement process would involve criminal prosecution, not civil action. This means that APCOA, acting on behalf of the Train Operating Company (TOC) or Network Rail, would need to refer the case to the magistrates’ court if the penalty remains unpaid.
• Statutory Authority: Since the Railway Byelaws have statutory backing, APCOA can only enforce the penalty through the magistrates' court under the authority of the TOC or the statutory body that manages the land. A magistrate would then determine the outcome and could impose a fine if the byelaw breach is proven.
• Outcome: If found guilty of breaching the Railway Byelaws, the vehicle owner or driver could face a fine. The magistrates' court can impose a fine that could potentially be more than the original penalty, and a criminal conviction could result if a prosecution is successful.
b. Key Legal Requirements for Statutory Enforcement:
• Proof of Byelaw Breach: APCOA would need to present sufficient evidence in court that a breach of the byelaws occurred (e.g., evidence that the vehicle was not parked within an authorised bay).
• Correct Process: They must ensure that the penalty was issued and processed in full compliance with the Railway Byelaws and statutory requirements. This includes identifying the statutory authority under whose name the penalty was issued, providing proper evidence, and following the prosecution route via the magistrates’ court.
• No Civil Enforcement: They cannot seek to recover statutory penalties through private civil debt recovery methods (e.g., using debt recovery agents, pursuing civil court action) because statutory byelaws only permit enforcement through criminal prosecution.
2. Enforcement as a Private Contractual Charge
If APCOA is attempting to treat the Penalty Notice as a private parking charge rather than a statutory penalty under the Railway Byelaws, the enforcement would follow a different process. However, this would be legally problematic because the notice was issued in the context of Railway Byelaws, not private contract law.
a. Civil Claim for Debt Recovery (Private Enforcement)
• Claiming Breach of Contract: APCOA could try to claim that by parking in the car park, the driver entered into a contract with the parking operator (APCOA). If they allege a breach of contract (e.g., parking outside of a bay), they could pursue the unpaid charge as a civil debt in the county court.
• Legal Issues: This approach would be legally questionable because the notice issued refers to Railway Byelaws, which suggests statutory enforcement, not private contract law. If APCOA pursued this as a private charge, they could be challenged on the grounds that the breach is being misrepresented as a contractual matter when it is, in fact, a byelaw breach that should only be handled via prosecution in the magistrates' court.
• Challenging in Court: In such a case, the recipient could argue that APCOA has no legal grounds to pursue a private civil claim because the car park is governed by statutory byelaws, not by a private contract. The court may dismiss such a claim as improperly brought.
b. Problems with Private Enforcement:
• Mixed Legal Framework: Trying to enforce a byelaw breach as a private contract claim creates legal confusion. Statutory enforcement and private parking enforcement are distinct legal avenues, and mixing them could be considered an abuse of process.
• Misleading Threats: If APCOA tries to pursue this as a private parking charge while still threatening criminal prosecution, this could be seen as misleading and potentially unlawful under consumer protection regulations (for example, as an unfair practice under the Consumer Protection from Unfair Trading Regulations 2008).
Summary of Legal Enforcement Routes:
• Statutory Enforcement: If APCOA wants to enforce a byelaw breach legitimately, they must pursue it through the magistrates’ court, where the issue will be treated as a criminal matter. They cannot use private debt collection or civil court action for byelaw breaches.
• Private Contract Enforcement: If they attempt to enforce the penalty as a private parking charge (i.e., as a civil matter for breach of contract), this would be inappropriate in the context of Railway Byelaws, and such action could be challenged in court as improper or unlawful.
What Should Happen:
• If APCOA truly intends to enforce the Railway Byelaws, they must clearly indicate this and follow the criminal prosecution route via the magistrates' court.
•Any attempt to enforce this as a civil charge (through debt collection or county court action) would be improper, given that the land is governed by statutory byelaws, and such matters must be dealt with through criminal enforcement.
How would APCOA be able to pursue a prosecution in the magistrates court as a private company?
APCOA, as a private company, cannot directly prosecute individuals in a magistrates' court for breaches of the Railway Byelaws. Only public authorities or entities specifically authorised by the law can initiate criminal proceedings under statutory provisions like the Railway Byelaws. However, there is a process that allows private companies like APCOA to act on behalf of a Train Operating Company (TOC) or another public authority to enforce byelaws. Here’s how the process works:
1. Acting as an Agent for a Statutory Authority:
• APCOA’s Role: As a private company, APCOA can issue Penalty Notices on behalf of a Train Operating Company (TOC) or Network Rail if they are contracted to manage the car park. However, APCOA itself does not have the statutory power to prosecute breaches of byelaws. Instead, APCOA acts as an agent for the TOC or other public authority that holds the statutory enforcement power.
•TOC or Network Rail’s Role: The Train Operating Company (TOC) or Network Rail, as the entity with the statutory authority, can decide to pursue a prosecution in the magistrates' court for breaches of the Railway Byelaws. The authority to prosecute lies with the TOC, and APCOA would simply provide evidence or assist in preparing the case, but the prosecution must be brought in the name of the TOC or the public authority, not APCOA.
2. The Prosecution Process in the Magistrates’ Court:
• Issuing a Summons: If the penalty remains unpaid, the TOC (or Network Rail) could issue a court summons to the registered keeper or driver of the vehicle for a breach of the Railway Byelaws. The TOC would be the party bringing the case, not APCOA.
• Presenting Evidence: APCOA can assist by providing the evidence (such as photographs, parking records, and witness statements) to support the claim that a byelaw was breached. However, APCOA itself cannot initiate or prosecute the case. This evidence is handed over to the TOC, who would then proceed with the prosecution.
• Magistrates’ Court Hearing: If the case goes to court, the TOC (or its legal representatives) would be responsible for presenting the case. The magistrates would determine if a breach of the Railway Byelaws occurred and, if so, impose a fine. The recipient of the Penalty Notice would then be legally obliged to pay the fine, which is usually higher than the initial penalty issued by APCOA.
3. Private Companies and Statutory Prosecutions:
• Limitations of Private Companies: APCOA, as a private company, does not have the power to enforce statutory byelaws through the criminal justice system. That power rests solely with the public authority or statutory body that owns or manages the land (in this case, the TOC or Network Rail).
• Private Companies’ Role: Their role is limited to issuing Penalty Notices and assisting with evidence gathering. APCOA would not be able to independently prosecute anyone for a breach of the Railway Byelaws, as they do not have statutory authority.
4. APCOA Cannot Recover Penalties via Civil Debt Recovery:
• If APCOA attempted to recover the penalty through civil debt recovery methods (as they might with a private parking charge notice), this would be inappropriate in the context of Railway Byelaws. Byelaw breaches are criminal matters, not civil contract disputes. Therefore, APCOA would be restricted from pursuing payment through the county court or private debt collectors for a byelaw breach.
5. Use of Statutory Powers by the TOC:
• The TOC or Network Rail: Since APCOA is acting as an agent, the prosecution would need to be brought in the name of the TOC or Network Rail, the body with statutory authority under the Railway Byelaws. If the TOC decides to prosecute, they will act under their powers to enforce the byelaws and pursue the matter in the criminal court system.
Summary of APCOA's Role in Legal Enforcement:
• APCOA cannot prosecute anyone for byelaw breaches in its own name. It lacks the statutory authority to bring criminal proceedings.
• APCOA can issue a Penalty Notice and act as an agent of the TOC or Network Rail, but any legal action to enforce unpaid penalties must be brought by the TOC or public authority that has the legal power under the Railway Byelaws.
• The TOC (or Network Rail) would have to pursue the case in the magistrates' court. APCOA's role would be limited to providing evidence and managing the enforcement process up to the point of legal proceedings.
• If APCOA tries to enforce the penalty through civil means (debt recovery or small claims court), this would be inappropriate for byelaw breaches and would not be legally enforceable.
In conclusion, for APCOA to enforce a Penalty Notice for a byelaw breach, they would need to rely on the statutory authority of the TOC or Network Rail to pursue a criminal prosecution in the magistrates' court. They cannot do this independently as a private company.
If the PN was issued solely in APCOAs name, without any reference to the actual authority that has permitted it to issue PNs, is the PN valid? Could the TOC or relevant authority initiate a prosecution for non payment of the PN if their name does not appear on the PN?
As the Penalty Notice (PN) has been issued solely in APCOA's name without any reference to the Train Operating Company (TOC) or relevant statutory authority that has permitted APCOA to issue Penalty Notices under the Railway Byelaws, the validity of the PN is questionable. Here’s why:
1. Statutory Authority Requirement:
• For a PN to be valid under Railway Byelaws, it must be issued under the authority of a public body or statutory entity that is legally empowered to enforce those byelaws. This is typically the TOC (e.g., Southern, Southeastern) or Network Rail, who are responsible for the land governed by the byelaws.
• APCOA, as a private company, does not have independent statutory authority to issue and enforce Penalty Notices for breaches of Railway Byelaws. They can only act as an agent for the TOC or statutory body that holds the legal power.
• If the PN is issued without any reference to the TOC or relevant authority, the notice should be considered invalid because it fails to identify the entity with the statutory authority to enforce the byelaw.
2. APCOA’s Name Alone Is Not Sufficient:
• A Penalty Notice issued solely in APCOA’s name (without identifying the actual authority or TOC) suggests that the private parking company is acting beyond its powers. APCOA can issue notices on behalf of a TOC or Network Rail, but the notice should clearly indicate that it is being issued under the authority of the TOC or statutory body.
• By not mentioning the TOC or statutory authority, the notice lacks clarity about the legal basis on which it is being enforced, and as such, its legitimacy must be questioned in any appeal or legal challenge.
3. Can the TOC or Relevant Authority Prosecute if Their Name Is Missing?:
• Prosecution for Non-payment: For non-payment of the PN, the TOC or statutory authority would need to bring a prosecution in the magistrates’ court under the Railway Byelaws. However, if the PN does not mention the TOC or statutory authority, the following issues arise:
• Lack of Identification: As the PN does not reference the TOC, there is a lack of transparency about who has the authority to prosecute. A court might view this as a procedural flaw, as the legal entity enforcing the byelaw must be identified from the outset.
• Difficulty in Linking the PN to the Statutory Authority: For a prosecution to proceed, there must be a clear link between the PN and the statutory authority (the TOC or Network Rail). If the PN is issued solely in APCOA's name, it could be argued that the required statutory authority was not properly invoked at the time the notice was issued. Without this connection, a magistrates' court could potentially reject the prosecution.
4. Potential Issues with Validity:
• Procedural Errors: Failure to reference the TOC or statutory body that granted APCOA the authority to issue PNs could be considered a procedural error. This could result in the PN being deemed invalid if challenged, as there is no clear indication that APCOA was acting on behalf of the statutory authority at the time the PN was issued.
• Misrepresentation of Authority: By issuing the PN solely in APCOA’s name, it gives the impression that APCOA, an unregulated private company, has the power to issue statutory penalties. This is a misrepresentation of their actual authority, since they are merely an agent, and the real enforcement power lies with the TOC.
5. Defence Against Prosecution:
• If the recipient of the PN were to be prosecuted for non-payment and the case reached the magistrates' court, they could raise a defence based on the argument that the PN was invalid because it did not identify the legal authority (the TOC) under which it was issued. This could lead to the prosecution failing on procedural grounds.
Conclusion:
• The PN is invalid if it was issued solely in APCOA’s name without any reference to the TOC or statutory authority. For a Penalty Notice to be enforceable under the Railway Byelaws, it must clearly identify the entity (the TOC or Network Rail) that has the statutory authority to enforce the byelaws.
• If the TOC’s or relevant authority’s name is not mentioned on the PN, it raises significant questions about whether the notice is validly issued. It would be difficult for the TOC to initiate a prosecution for non-payment of the PN, as they were not clearly identified as the authority enforcing the penalty. Without this crucial link, the magistrates' court may find the PN unenforceable.
In summary, without the TOC’s name on the notice, it is unclear whether the notice was issued with the correct statutory authority, making the validity and enforceability of the PN highly questionable.