Concept of one citizen 'punishing' another, alien in English law.
Clamping is 'perverse'.
Legitimacy of vehicle immobilisation in doubt.
Clamping companies are acting illegally by imposing an exorbitant charge for releasing cars that have been clamped or towed away. And although the courts have upheld the right to clamp and charge a reasonable fee for release, even that is on shaky legal grounds.
This is the damning verdict of Dr Chris Elliott's review of the law relating to parking on private property published today by the RAC Foundation.
He argues that clamping a vehicle left on private land where no parking is allowed is too often used to punish motorists - yet the principle of one individual punishing another is not one sanctioned by the law.
Dr Elliott explains clamping could also breach motorists' human rights: "The Home Office is proposing a new licensing regime for private clampers, but it is arguable that, if the release fee is unreasonable, their actions are incompatible with the Human Rights Act 1998 which demands that punishment should only come after a proper legal process."
Dr Elliott goes on: "The purpose of clamping is to prevent a vehicle being removed from land it should not be on. On the face of it, clamping is perverse since it causes the harm to the landowner to persist. It is in effect a 'self-inflicted wound.'"
"The tactic only makes sense either to punish or deter. Both have little foundation in English law, since they are based on a notion that one person may punish another. But punishment is a power reserved to the State."
"The courts found that, provided there are clear warning signs that the driver saw and appreciated, the driver 'consented' to be clamped. This is the legal basis of many contact sports like rugby and boxing, where the players consent to actions that would otherwise be assault. It's hard to see this idea being extended to parking. But even if it is, just as a rugby player might expect to get hurt, but not beaten up, a motorist might accept a reasonable fee, but not an extortionate one."
The Director of the RAC Foundation Professor Stephen Glaister is now urging the Government to carry out a fundamental review of the law.
"We recognise the right of a landowner to enjoy his property without unauthorised obstruction. However for so many reasons clamping does not fit the bill as a method of enforcement."
"With depressing regularity the Foundation receives calls from distressed motorists who have fallen victim to cowboy clampers whose primary objective appears not to be to protect landowners' property, but simply to take large amounts of money from ordinary people who, for the most part, are doing little harm. Now it seems the actions of these rogue operators are not only disproportionate, but also probably illegal."
"Such blatant injustice undermines society and respect for the law".
"The Home Office is currently consulting on how wheel clamping could be better regulated. This consultation closes on 23 July 2009, and will be the last opportunity for MPs and others to decide whether clamping actually has any future at all."
"In the meantime we would like to see the issues raised by Dr Elliott tested in a court of law by motorists who have been the victims of what, in many cases, amounts to bullying and sharp practice."
Dr Elliott recommends that the Government should:
* Ensure Parliament defines the legal right to clamp cars on private land.
* Ensure that any organisation acting as an accrediting body for the parking industry has its performance monitored and audited by a government agency, and is also adequately resourced.
* Ensure there is an independent appeal mechanism or ombudsman available for those who have been wrongly penalised by private parking enforcers.
* Ensure any system of parking enforcement is based on a flat or capped fee.
Dr Elliott also considered the law as it applies to those who have bought a parking ticket in a private car park and so entered a contract with its operator. In this situation the motorist has accepted the terms of the contract that may include clamping for exceeding the time limit for parking.
He says: "Provided the threat of clamping is known to the car owner at the time he enters the contract, it is part of the terms. However there are two very important conditions: the contract terms must not be unfair or punitive and the car park owner may only recover in damages what he has lost as a result of the breach of contract. Again, clamping seems perverse."
Several motorists, encouraged by the RAC Foundation, have been successful in the county courts after claiming their treatment by rogue clampers was disproportionate, however county court judgements do not set a precedent and alter the law as a whole.
Notes to editors:
* Dr Chris Elliott FREng is a barrister and engineer.
* Currently the Security Industry Authority licences individual clampers to carry out their activities. This is a requirement of the Private Security Industry Act 2001. In April 2009 there were 1,900 valid licences. Clamping companies are not licensed.
* There is no independent appeals process for drivers who think they have been unfairly treated. Their only course of redress is to take issue with the company that issued the ticket or the landowner who employed the clamper's services.
* The British Parking Association (BPA) operates a voluntary code of conduct that it asks its members to recognise, but it has no legal status. Not all private clamping companies are members of the BPA.
* In April 2009 the Home Office launched a consultation paper 'Licencing of Vehicle Immobilisation Businesses' which closes on 23 July 2009.
* In Scotland, clamping without statutory authority is an offence of theft. This is because an intention to permanently deprive the owner of his goods is not a necessary ingredient of the offence. This is not the case in England and Wales.
Chris Elliott's full report can be opened here: