Legality of Vehicle Seizure

[u1s57]

I represent a client who recently had his scooter seized from him under s.59 Police Reform Act 2002 becasue a PCSO said he had been riding it on the street. Client stated that he did have one previous warning within 12 months for the same offence. However, both allegations are disputed.

Client paid �105 to get the vehicle back just one hour after it was seized.

Can anyone tell me if they think this is a breach of my client's human rights (Article 6 right to fair trial). Clearly the payment of �105 is a quasi-fine that has been imposed without trial.

Does anyone know of any case law that has tested this?

Thanks

[u1s57]

If it makes you feel any better Tetjam, I'm only dealing with my client's enqury as a side-line freebie whilst dealing with other matters. As such, any concerns you have that I am charging for expertise that I do not have are simply not merited.

I have not prefessed to my client that I am a motoring law expert, and I do think that this area of law, although often considered minor, is complicated and requires specialist knowledge.

However, I have agreed to look into the matter purely as a favour rather than for any reward. For this reason I have sought guidance from the online community as a first port of call before I start wasting hours of research for no payment.

The whole purpose of Answer Bank is for people to ask for the opinion of others. If you do not agree with this, and you simply want to post snide remarks, may I sugegst that you cancel your subscription and make those remarks elsewhere.

I do still seek opinion from other, genuine, users of Answer Bank.

[Ethel]

What is your client disputing? That he wasn't causing alarm, distress or annoyance, or that he wasn't on the road?

S.59 applies to any public place and is not restricted to a road. If he was riding it in a manner to cause alarm, distress or annoyance to the public, that is suffice for the warning to be valid.

I assume your client was issued with the T53 at the first offence.

[stonekicker]

i agree with tetjam...if you are a lawyer, why are you asking the general public for an answer? surely all those years of law school/practice enable you to read all the relevant sections of law and decipher the big long words all by yourself? i pity your client...

[New Judge]

If this is a genuine matter then one possible approach would be to challenge the status of a PCSO.

As far as I know the powers of seizure are only to be exercised by a police constable in uniform. PCSOs are not police constables and do not have anything like the powers PCs have.

Your point regarding Article 6 is interesting, though. From what you say, the complainant has had no opportunity for a court hearing as he has (I assume) been charged with no offence nor been offered any fixed penalty (which he can decline and ask for a court hearing).

If this is so he is he is effectively being tried and sentenced by the person undertaking the seizure and this does clearly not constitute a "fair trial".

I don't know if this has been challenged.

[jlordy20]

The money he had to pay is not a fine, its a charge to the company who came out to seize the vehicle, and if it were to be kept overnight, then its �12 a night.
Weather its a PCSO, a member of the public or a police officer, the police just need a statement saying that the vehicle caused a person either harassment, alarm or distress. That way if it is contested they can produce that statement in court.
I would imagine it is not worth a PCSO or PC's job to lie in a statement, nor any member of the public either as it comes with quite a harsh punishment itself.

So in answer to your question - its not a breach of there human rights, its just a charge to pay for the service of the recovery company.

[Golf38]

A PCSO CAN remove a vehicle under s59 and as quite rightly stated the charge is for the recovery, not a fine. The date of the previous S59 notice within the previous 12 months will be recorded on the PNC so can't really be disputed. No proceedings need to be taken for the first offence, hence why the initial notice is a S59 warning.

It sounds like your client/friend/pal has been driving like an idiot and has got caught out and is now trying to wriggle out of his responsibilities. You shouod advise him to pay his dues and grow up when he's out on his scooter!

[New Judge]

Section 59:

Vehicles used in manner causing alarm, distress or annoyance
(1) Where a constable in uniform has reasonable grounds for believing that a motor vehicle is being used on any occasion in a manner which�
(a) contravenes section 3 or 34 of the Road Traffic Act 1988 (c. 52) (careless and inconsiderate driving and prohibition of off-road driving), and
(b) is causing, or is likely to cause, alarm, distress or annoyance to members of the public,
he shall have the powers set out in subsection (3).
(2) A constable in uniform shall also have the powers set out in subsection (3) where he has reasonable grounds for believing that a motor vehicle has been used on any occasion in a manner falling within subsection (1).
(3) Those powers are�
(a) power, if the motor vehicle is moving, to order the person driving it to stop the vehicle;
(b) power to seize and remove the motor vehicle;
(c) power, for the purposes of exercising a power falling within paragraph (a) or (b), to enter any premises on which he has reasonable grounds for believing the motor vehicle to be;
(d) power to use reasonable force, if necessary, in the exercise of any power conferred by any of paragraphs to (a) to (c).

I see no mention of a PCSO having these powers, nor can I find any amending legislation.

Although a private firm may effect the removal, they are not "seizing".

I'm not saying I'm right in this, but the question raises interesting points. Buenchicho may have a view.

[THECORBYLOON]

On the Home Office website, about PCSOs it says,

"Police powers

Depending on your role, you may also be given some police powers, including the power to:

* detain someone until a constable arrives
* direct traffic and remove vehicles
* issue fixed penalty notices for anti-social behaviour"

[Ethel]

It is no good referring to outdated law that has been amended and hope to rely on it. This is the current law:

3.1. Police Powers

3.1.1.

S.59 Police Reform Act 2002 provides powers to a constable, in uniform. Paragraph 9, Part 1 of Schedule 4 of the Police Reform Act 2002 refers to the powers of suitably designated Community Support Officers (PCSOs)) with the same power as a Constable under Section 59

[New Judge]

Thanks, Ethel.

That just leaves the issue of Article 6.

Although the fee for release may not be a "fine" its effect is the same. If (heaven forbid) the person whose vehicle has been seized did not commit any offence he has to pay a fee to have his vehicle released for no reason. The judgement that he did commit a relevant offent lies solely with the person doing the seizing.

As far as I can see, he would have no opportunity to put his case before a court (i.e. have a fair trial).

As I said - interesting.

[Golf38]

Although bizarrly A PCSO cannot enter premises to seize under the act, whereas a PC can!

[DEFRA]

Part 1: The s59 legislation is VERY POOR LAW.
People must remember that it was brought into do a specific job and to deal with a specific problem and it was rushed through like many of the New Labour laws.
There is NO RIGHT TO APPEAL. Yes that's correct, THERE IS NO RIGHT to challenge any action taken under s59.
Some police service areas and even Jane's Police Review Q&A give differing advice. Some police areas don't give an option about seizure on a second warning but others clearly state the seizure is ONLY to be used if there is a likelihood of the offence continuing.
Also note that just because you might be using a vehicle other than on a road in the case of a Restricted Byway it must be noted that the use of the vehicle MUST be such that it would cause alarm and distress to a reasonable member of the public because of the manner of it's use (Including loud music emitted directly from the vehicle). I.E. if you were driving along a Restricted Byway (RB) then the manner of vehicle use MUST be such that if you did the same thing on the local High Street it would also cause alarm and distress to a member of the public.. JUST being there cant be a cause of alarm or distress.. A RB is also still a ROAD under the Road Traffic Act.

[DEFRA]

Part II: Other bad bits about this s59 is that a member of the public can report any registration number to police. They don't have to make a statement or even give a name and address and if they do it's not even checked! It can also be third of fourth hand.. Whoever is given the "complaint" to investigate simply writes to the registered keeper of the vehicle registration given with a standard letter and inform the PNC (Police National Computer) to place a report associated with that registration or persons name.

It has already come to light that some police areas were very slack in their dealings under s59 and without checking out the complaint or doing any further investigation they simply put a report on the PNC for both the vehicle and it's registered keeper and sent out a standard letter! Can you see the problem with this? There are several..think about it for a while and remember there is NO RIGHT OF APPEAL.

You could for instance buy a second hand vehicle.. That vehicle could have a s59 warning on the PNC register. You would NOT KNOW THIS and there IS NO WAY TO FIND OUT!!! If the person who reported that vehicle previously then sees a similar vehicle and ring the police and thinks it's the same vehicle as before then gives the same registration them wham..expect an unannounced and unexpected visit from the police to seize the vehicle.. NO RIGHT TO APPEAL...

Also you might be driving a friends vehicle or even a hire vehicle or works vehicle when your name, unknown to you is on the PNC with a s59 warning... and wham you get it seized...

This is a very bad law... it needs to be changed...