Playing Devil's Advocate - PPCs often issue Penalty Charge Notices on behalf of LAs. Is this any different?
Yes, there is a significant difference between Penalty Charge Notices (PCNs) issued by private parking companies (PPCs) on behalf of Local Authorities (LAs) and purported Penalty Notices issued by PPCs under other circumstances, such as for railway byelaw breaches or private land parking enforcement.
When PPCs issue Penalty Charge Notices on behalf of Local Authorities, they are acting under the statutory powers delegated to the LA, typically under the Traffic Management Act 2004 (TMA 2004) in England and Wales or Road Traffic Regulation Act 1984 or other legislation applicable to the relevant area.
These notices are lawful because they are issued under the authority of public law and relate to enforceable statutory regulations (e.g., parking restrictions, controlled zones).
PCNs issued by or on behalf of LAs are part of the civil enforcement system, but they carry statutory backing. Recipients who wish to contest the notice can appeal to the Traffic Penalty Tribunal (TPT) in England and Wales or the Parking and Bus Lane Tribunal for Scotland in Scotland.
If the notice is upheld and the charge remains unpaid, it can be enforced through the Traffic Enforcement Centre (TEC) or equivalent, leading to debt recovery action. Any penalty collected from a PCN issued under LA authority goes to the Local Authority and is reinvested in public infrastructure, transportation improvements, or other community benefits. PPCs issuing these notices do not retain the fines as profit but are paid a fee by the LA for their management services.
The process for handling Penalty Charge Notices (PCNs) issued by Local Authorities (LAs) is firmly rooted in civil law, not criminal law, and any disputes or enforcement related to PCNs are managed through the County Court system rather than the Magistrates' Court.
If the recipient neither pays the penalty nor appeals successfully, the enforcement process moves forward as a civil matter:
a. Charge Certificate
If no payment is made after the PCN becomes enforceable, the LA issues a Charge Certificate, increasing the penalty amount (typically by 50%).
b. Registration as a Civil Debt
If payment is still not made, the LA can register the debt at the Traffic Enforcement Centre (TEC), which operates as part of the County Court system (not the Magistrates' Court).
Once registered, the PCN is treated as a civil debt, similar to any unpaid invoice or financial liability.
c. Enforcement via County Court
The LA can apply for a warrant of control to enforce the debt through civil means, such as instructing bailiffs (enforcement agents) to recover the outstanding amount.
Importantly, this is a civil enforcement action. No criminal record or criminal penalties are involved.
Of course the BPA would like railway land to become "relevant land" for the purposes of PoFA. However, I attach below the response I received from POPLA when I queried their right to adjudicate on Penalty Notices issued by APCOA and SABA.
POPLA claim that they queried this with the DfT in 2018 and the attached a copy of their communication saying (paraphrasing) "The DfT told us we can so we do!"
(https://i.imgur.com/tJEVKYu.jpeg)
(https://imgur.com/D4BZGI0.jpeg)
(https://imgur.com/7ZJZzp4.jpeg)
(https://imgur.com/akBncMM.jpeg)
(https://imgur.com/GlmZPKf.jpeg)
Any highlighting mine. I believe that POPLA have chosen to make their own interpretation of the recommendation by the DfT because of the misuse of the word "penalty" in this sentence in their response:
Further, it is stated in by byelaw 14(4)(i) that the owner of a vehicle may be liable to pay a penalty if it has been used, placed or left in contravention of byelaws 14(1) to (3).
In the next sentence, the DfT state:
The ability to render a charge under byelaw 14(4)(i) is distinct from the general enforcement power in byelaw 24(1), under which a person can be prosecuted in the Magistrates Courts.
The DfT use of the term "penalty" in reference to byelaw 14(4)(i) appears to be a misnomer. In context, it seems intended to refer to a "charge" rather than an actual "penalty" as defined under the railway byelaws. This interpretation is supported by their subsequent clarification:
"The ability to render a charge under byelaw 14(4)(i) is distinct from the general enforcement power in byelaw 24(1), under which a person can be prosecuted in the Magistrates' Court."
This statement indicates that while a private parking company, if contracted, may issue a "charge" (such as a Parking Charge Notice or PCN) for breaches of railway byelaws, this is entirely separate from the enforcement of penalties through criminal proceedings in the Magistrates' Court. Consequently, the use of the term "penalty" in the context of byelaw 14(4)(i) should not be conflated with the formal penalties enforceable under byelaw 24(1). This distinction is critical, as it underscores the limited powers of private parking companies and highlights that any charges they issue are not equivalent to criminal penalties.
The term "penalty" is being used in two distinctly different contexts, which creates confusion as it is not clearly differentiated:
Under Byelaw 14(4)(i):
Here, the word "penalty" is seemingly being used to describe a civil charge (e.g., a Parking Charge Notice) that may be issued by a private parking company. This usage does not imply a criminal sanction but rather an invoice-like demand for payment, enforceable only through civil proceedings (e.g., small claims track of the county court). This form of "penalty" is essentially a contractual mechanism to deter undesirable behaviour, such as parking in breach of terms and conditions.
Under Byelaw 24(1):
In this context, "penalty" refers explicitly to a criminal offence, enforceable through prosecution in a Magistrates' Court. This type of penalty carries potential legal consequences beyond a mere financial charge, such as a criminal record or fines imposed by the court.
The distinction lies in the nature of enforcement and consequences:
• A civil charge is a financial liability imposed privately, for breaching terms and conditions, and does not carry criminal implications.
• A criminal penalty involves formal legal proceedings, potential prosecution, and the imposition of sanctions by the judicial system.
POPLA refuse to adjudicate on PCNs issue under Railway Bylaws.
POPLA's website (https://www.popla.co.uk/faqs#535CHPaixoD1uJbAFGkV4d) says otherwise:
I have received a penalty charge notice for an alleged breach of parking conditions under bylaws. Can POPLA consider this?
POPLA does have remit to consider penalty charge notices issued for alleged breaches of parking conditions under bylaws. You must appeal to the parking operator first and they will refer you to POPLA and provide a verification code to you if you're eligible to apply. Please check the response to your appeal sent by the operator for more details.
Seeking learned opinion regarding unregulated private parking companies (UPPCs) threatening criminal prosecution under railway bylaws. There are at least two UPPCs, APCOA and SABA, who regularly issue what they purport to be Penalty Notices (PNs) issued under railway bylaws for parking infringements at railway stations where they are contracted to manage the parking.
Having recently been dealing with an actual PN issued by the Train Operating Company (TOC) where they have charged the defendant with a breach of railway bylaw 14.2 which states:
14.2 No person in charge of any motor vehicle, bicycle or other conveyance shall leave or place it on any part of the railway:
(i) in any manner or place where it may cause an
(ii) obstruction or hindrance to the Operator or any person using the railway; or
(iii) otherwise than in accordance with any instructions issued by or on behalf of the
Operator or an authorised person.
The TOC prosecutor has issued a charge under the SJP and the defendant has to now decide whether to plead guilty or not. The case is being discussed here:
Byelaws offence - Taken to magistrates for private parking ticket (https://www.ftla.uk/speeding-and-other-criminal-offences/sjp-for-private-parking-ticket/)
My question relates to the supposed PNs issued by UPPCs. As far as I can make out, the PN issued is not real. There is no mention in them of which authority they are acting under (no UPPC is an "authority" in any way, shape or form) except to say that the recipient has breached the railway bylaws and is liable to criminal prosecution in the magistrates court if they don't pay £100 into the UPPCs coffers.
In my opinion, the PN is fake and a fraudulent attempt to extort money from the recipient by way of coercion through unlawful terms in what can only be described as an "offered contract". In other words, they are asking for a bribe in order not to criminally prosecute them. I will attach a redacted example of a UPPC issued PN below.
Both APCOA and SABA are BPA members and offer a secondary "independent" appeals service through POPLA should the initial appeal to the operator be rejected. However, I do not believe that POPLA have the authority to adjudicate on PNs which are (if they were real ones) criminal matters. As these fake PNs are nothing more than "offered contracts" (under civil law), there is no obligation on anyone to accept an offered contract under any circumstances.
I am fairly certain that neither APCOA nor SABA have ever initiated a private prosecution in the magistrates court. Also, I have never seen one of these fake PNs sued over in the county court as a civil matter, because they can't. They are relying on the recipient to pay up out of ignorance and fear of criminal prosecution (when there is no chance of it).
So, does anyone have an opinion on how these UPPCs could initiate a criminal prosecution in the magistrates court, assuming they were to try and back up their unlawful threats in the "offered contract" disguised as a PN?
Here is an example of what I believe to be a fake (fraudulent) PN issued by APCOA:
(https://www.ftla.uk/index.php?action=dlattach;topic=4211.0;attach=9420;image)
(https://www.ftla.uk/index.php?action=dlattach;topic=4211.0;attach=9418;image)