In this case, the driver was not the keeper of the car, so any video evidence they have will clearly show that.
Only if they know what the keeper looks like - and I would wager that they don't.
In neither the civil or criminal courts is there any assumption that the registered keeper is the driver, absent a statutory presumption to that effect
.
Yes thanks for that, sp.
I’m afraid I rather confused the issue somewhat (not unusual for me!) I was really looking back to the earlier question on this topic and the conflation between the private parking appeals process and the criminal prosecution procedure (which this OP’s relative is subject to).
As I understand it, the parking companies take advantage of the Protection of Freedoms Act to transfer liability for parking charges from the driver to the keeper (provided they comply with all the conditions). The "keeper" means the person by whom the vehicle is kept at the time the vehicle was parked and this is presumed to be the registered keeper. unless the contrary is proved. An adjudicator hearing an appeal against the allegation would be bound by these same principles.
Moving to the criminal procedure for a prosecution under the railway bylaws, the charge faced by the OP’s relative under bylaw 14.3 can only be made against “the person in charge of the vehicle.” For a parking allegation this would normally be the person who parked it – i.e. the driver.
Looking back at the earlier case, there was no mention in the “statement of facts” of any evidence to show who the person in charge of the vehicle was. All that was stated was the prosecutor had found out who the Registered Keeper was (someone they referred to as both the “Rightful Owner” and the “Registered Owner”) and they prosecuted him on the basis of what can only be classed as an (un)educated guess.
I believe that the earlier prosecution was deficient in that the prosecutor had no proof to show who had actually committed the offence. I suspect that this is because the people dealing with these matters (via the civil procedures) are used to not having to bother with such trifles and instead rely on keeper liability.
Moving to this case, I suspect exactly the same thing has happened. There is almost certainly no evidence to show who parked the car (though I have asked the OP whether there was a “statement of facts” provided). If there was they would not have prosecuted the registered keeper as he wasn’t there at the time. In this case the only person the TOC could identify was the registered keeper and, being a criminal allegation, the prosecution should not be able to rely on the same presumption permitted under the POFA. Even though the defendant could probably prove he was not responsible for the offence, it should not be incumbent on him to do so as it is the job of the prosecution to prove who committed a criminal offence.
I am going to advise my relative to tick not guilty and then provide proof in the court of where they were that day (not with the car). I am hopeful that this is enough. Will they then start pursuing further or is that it? I am so shocked that a court even thinks this is worth pursuing.
When he does that there will probably be a box headed “I am pleading no guilty because…”
He should simply state there that “I was not the person in charge of the vehicle at the time it was parked.”
One of two things will then happen. Either somebody will see that the prosecution is deficient and it will be discontinued or it will be listed for a hearing in the normal Magistrates’ Court.
Before you advise him to do that, could you find out if there was a “statement of facts” provided with the SJPN and if so, what it said. Also, see what any others on here have to say, particularly southpaw82, who has almost certainly forgotten more about these things than I will ever know.
