Highway robbery 2009
Thursday 16th July 2009, 3:00PM BST.
From David Schofield.
FROM the outset I would like to state that I have the greatest of regard for the private landlord who is reasonably trying to control parking on his land. However, wheel clamping is not the solution.
Neither is regulating the practice, to do so presupposes that wheel clamping is a lawful activity in Jersey and there is strong legal argument that it is not. In Scotland, unlike England, clamping is considered theft and extortion. The reason for this is the absence of the Theft Act (1968) in Scottish law.
Section 6 of the act requires intention to permanently deprive a person of his property, whereas the Common Law definition requires merely intention to deprive. Therefore in Scotland placing a clamp on a vehicle deprives the owner of his property and fits within the definition of theft, the resulting demand for money from this unlawful act being extortion.
Under Jersey law, like Scotland, theft merely requires the mental element of intention to deprive. Therefore there is persuasive argument that clamping is unlawful here in Jersey. Sadly there is no case law to settle the matter.
However, there is evidence that as recently as 1990 the Attorney General regarded the practice as contrary to public interest. In that year a clamper was prosecuted under section 54 of the Road Traffic Act for clamping a vehicle on private property, but unfortunately the conviction was overturned on appeal.
If clamping was deemed to be not in the public interest then, nothing has changed materially over the last 20 years to make it so now. Therefore perhaps the best solution now would be to amend the Road Traffic Act and make clamping on private and public land illegal, thus clarifying the law.
Would this mean the reasonable landowner is denied a remedy for unwanted vehicles trespassing on his property? I would argue no. The correct course of action where there is clear signage would be to issue the vehicle owner with a notice requiring he pay a reasonable fee. Any arising dispute should then be dealt with in the Petty Debts Courts.
Private security companies are permitted to trace a vehicle owner’s details via the DVS, where they can show reasonable cause. The reason clampers immobilise a vehicle and demand cash there and then is that they know the courts will not uphold demands for unreasonable amounts of money.
The good news is that our present Home Affairs Minister is best placed to understand the legal issues and I feel sure he will act accordingly and ban this form of modern day highway robbery.
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When my landlord was clamped in the UK while visiting his mother at a private care home (he had permission to be there), he was told that he would still have to pay the fine as a private company was responsible for the car park, even though it was owned by the home itself.
His solution? He employed a sympathetic mechanic to remove the clamp forcibly with an industrial cutter for £50 (half the amount of the supposed “fine”), without damaging the car, regrettably the clamp was damaged beyond repair.
Were something similar to happen in Jersey, the company in question might reflect on the fact that clamps are a lot easier to sabotage than to replace.
The problem really is that simple. Please let’s remember we have much bigger issues at stake at the moment!
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Maybe a quick fix, however in both UK and Jersey you would be committing criminal damage, no grey area here. One wrong does not make another lawful. Your quite right about bigger issues and regulation would be costly and bureaucratic. Are you happy though for an person who is neither registered or vetted taking your daughter to a cash point in their clamping vehicle and having them withdraw up to £160. There are cases of this happening.
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David, if there is any risk of this happening to your children then tell them instead of going to an ATM to go to a local police station.
Human beings have the right, first and foremost, to ensure their own safety.
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David, I’m sure you would do the same as I, in asking our respective daughters to wait inside the car and call for a taxi under the circumstances, goodness knows the car isn’t going anywhere anytime soon!
There seems to be a lot of discussion about this very issue on the article about the States debating the legality of the issue. I for one would be more than happy to argue the point with the clamper in court under the circumstances as firstly, a Crown Advocate has pointed out that such activities are indeed illegal and secondly, in clamping your vehicle you are being deprived of peaceful enjoyment of your property.
In practice even if it were illegal to sabotage the clamp in some way in order to remove it, it would also be impractical to secure a conviction of criminal damage due to the aforementioned interference with your own property, the prohibitive costs of employing an Advocate in Jersey which would exceed the value of the clamp and also the fact that you would not be obliged to give out personally identifiable information to the clamper which would make it difficult for them to issue you with a court summons.
Naturally I cannot encourage anyone to break the law so I would advise anyone reading this post against doing the above but I am free to reflect on the probability of a successful conviction were they to do so.
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V- Again you make good points, however it seems to me you are an educated man and on that basis would feel confident to embark on litigation against a clamper. I myself followed that route and won. Naturally the clampers always settle rather than test the law and set new precedent.
However there are many in Jersey who would not feel confident to take this route, the elderly perhaps.
For the record I hope my daughter when she is old enough to drive, has better sense
than to get in a stranger’s vehicle, however the young lady in question didn’t.
In reply to Leah the standard response of the police is that it is a civil matter and they
cannot interfere or attend.
Although 29th on the list of Home Affairs priorities, the level of debate on this site
alone suggests there is lots of public interest in this issue.
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David wrote:
“In reply to Leah the standard response of the police is that it is a civil matter and they
cannot interfere or attend.”
No doubt this attitude would miraculously turn about face if the police were called to the aid of the clamper who wanted to have someone done for cutting up their clamp.
I would suggest that if you are going to grind off their clamp you should do it without entering into prior discussion with them or the land owner.
Wear a hoodie, gloves and if asked for an admission say that it must have been done by an unknown third party.
Better still, try not to park anywhere where you might get clamped.
But with so may people needing your money in their mitts you really need your wits about you nowadays.
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I am not sure where the law stands with respect to cut off clamps in the island but there are a few that are visible at low tide if you care to look!
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When these clamps were introduced in France. Many people carried tubes of superglue and, upon spotting a clamp on any vehicle, would proceed to fill the lock. Clampers soon decided it was not possible to make a profit and pulled out of the area!
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