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Parking Enforcement: The Story of Private Wheel Clamping in the United Kingdom

Wheel clamping as a form of parking enforcement on private land is and has been a contentious subject. We regard most British vehicle immobilisation as of only historical interest because public opinion and Parliamentary will are united to remove this aspect of British life. The motoring public applauds.

Parking enforcement solution

Experts in this disappearing technology think that vehicle immobilisation as parking enforcement and vehicle protection has five functions

At this time, we do not know of any other major uses for the wheel clamp.

Our research points in the direction of this kind of vehicle enforcement being an American parking enforcement import originally from the City of Denver where a musician by name of Frank Marugg, (a violinist in the Denver Symphony Orchestra) invented the wheel clamp for and on behalf of the police department there. It proved to be a generally accepted success in terms of fine money collected and possibly for reducing illegal parking. This was in the 1950s. The vehicle immobiliser was named ‘The Denver Clamp’ in honour of the city and not its inventor who, nevertheless, patented his invention and no doubt collected royalties.

It is important to know that Mr Marugg was responding to the call of the city fathers for an answer to the problem of illegal parking and asked him to submit his inspirational ideas on parking enforcement . He answered that call brilliantly. He stopped the terrific expenses of towing to the car pound. He also developed a species of immobiliser to stop theft of spare tyres (rubber was in short supply just then) on the exteriors of vehicles. This was first used in 1944 (WWII was in full swing then) and it might have been the direct ancestor of the Denver Clamp.

Some people think this spare tyre device in turn had an ancestor in the unsavoury form of ‘The Oregon Boot’ used to make escape for prisoners of the state difficult/impossible.

We think that the first ‘auto immobiliser’ appeared on the streets of Denver on January 5, 1955 with the result you now know. After a while Mr Marugg stopped using steel construction and substituted lighter aluminium. The parking enforcement industry in the USA had definitely started and was on the rise and rise.

Readers in the USA might want to visit the vast Smithsonian Institute, Washington DC and see a replica of ‘Marugg’s Boot’ (as it is named in the museum’s exhibit listing) on display. This is one of the largest museums in the whole world and well worth a lengthy tour.

The very first off-street wheel clamping as parking enforcement started in England in the 1980s. Records are sparse but we do know that off-street wheel clamping began in earnest in the cities of England and Wales during the early 1990s. The private contractor operatives were, according to the reports, all sorts and included various kinds of fast and loose persons who sailed close to the wind in terms of legality.

Not surprisingly, there were all manner of confrontations and fights. One clamper started a trade association and declared afterwards that he could tell who were the clampers and who were not at the first meeting on account of the broken noses, bruises and tattoos of the wheel clamping fraternity (!).

Local authorities in England and Wales and anxious to have parking enforcement started doing that during the 1960s contrasting with private contractors who started doing this on private land during the early 1990s; a typical release fee at the time was £50.00.

After a while, the original North American design widened by a sort of metastasis to a bewildering range of different models.

Of these, one was the London Wheel Clamp, the brainchild of Trevor Whitehouse who patented his design in 1991. At first he called it the ‘Preston’ after his home town. It was first in use on private land and, after the decriminalising of parking offences, it became a feature on public streets. The 33 boroughs of London were the first to decriminalise parking offences and that brought about the change of name.

The range of wheel clamp includes:

A read through the Amazon website section concerned with vehicle immobilisation articles for sale amongst other parking enforcement indicates the large number of types and names of immobilisers. Among these, the London Wheel Clamp features prominently.

The wheel clamp was hugely unpopular with the general public and especially the motoring public. This section of the public was and is anti-parking enforcement generally anyway. The fact that the motorist got deprived of the use of his vehicle until after release which was in turn after payment raised tempers, In Scotland the wheel clamp was illegal (except recently for a narrow category of situations all to do with non-payment of court fines) on the ground that it was a kind of extortion.

Common law (roughly speaking, judge-made law dating all the way back to the deep reforms consequent to the Norman Conquest that unified Danelaw, Mercian law and Wessex law) provides the legal basis for wheel clamping. Essentially, the presence of a warning notice advising the motorist of one or more parking spaces being forbidden on pain of paying a charge constitutes an ‘offer to treat.’ Some readers will be intrigued to know, if they do not already know, that exactly the same legal principle applies to an item on sale in a self-service store. If the driver goes ahead and parks nevertheless, he/she is deemed to have ‘accepted’ the offer with full knowledge of the ‘valuable consideration’ that is a term of the contract, in other words, the charge. The law of contract which is highly developed in this country is explicit on this important point.

The driver has in law agreed to accept a service from the proprietor of the parking space, to wit, the use of the parking facility, and, having availed himself of the service, must now fulfil his part of the bargain by paying the ‘valuable consideration’ which is the parking charge.

The legal basis of vehicle immobilisation goes back into the mists of English and Welsh legal history. Essentially, a landowner was entitled to hold onto animals that had strayed onto his property until any and all damage and/or loss had been paid. The legal textbooks call this ‘distress damage feasant.’

In this context, the holding onto the vehicle made it a species of security for the payment of the charge. As a result, parking enforcement became hugely unpopular with many people.

This is the time to bring into view the groundbreaking appeal court case Arthur and Another v Anker (1995) The Times, December 1. It was an Appeal Court case that found in favour of the clamper, Anker.

As is to be expected from the exceptionally high standards of legal professionalism that always characterises House of Lords Appeal Court cases (a read through the Appeal Court write-ups in The Times and The Daily Telegraph illustrates this vividly), the whole subject of alleged consent and compensation for damage was looked into and argued with impressive thoroughness by the then Master of the Rolls.

The decision, according to the official report, runs:

‘A motorist who trespassed by parking his car on private property having seen a warning notice there that a vehicle parked without proper authority would be wheel clamped and released on payment of a fee, was to be taken to have consented to the effect of the notice, provided that the release fee was reasonable, the vehicle was released without delay when the motorist tendered the fee and there were means by which the motorist might communicate his offer of payment.

‘Where, therefore, those conditions were fulfilled the wheel clamper's activity was neither tortuous nor criminal.

‘The Court of Appeal held, dismissing an appeal by the plaintiffs, Mr David Arthur and Mrs Annette Arthur.’

A second case of vehicle immobilisation has reached the Court of Appeal. In Arthur vs. Anker, heard in 1995, the court held that the driver of the vehicle clamped had seen the notices warning of clamping and had voluntarily accepted the risk that the car might/would be clamped until he paid the release fee. The court also held that a fee of £40 was ‘reasonable.’

By contrast, in the more recent case of Vine vs. London Borough of Waltham Forest, 2000 the Court of Appeal had to consider a situation where the county court (in other words the trial judge) judge had found that Mrs Vine had not in fact seen the wheel clamping notices. Nevertheless, he had rejected Mrs Vine’s claim for repayment of the release fee, as he took the view that once it had been established that sufficient and adequate warning signs were in place, the car driver could not be heard to say that he (in this case she) had not seen the notices.

The Court of Appeal rejected this approach that the trial judge has adopted.

Consider: There had been two adjacent parking bays and the notice about clamping was not in the bay which Mrs Vine used. A Range Rover had been in the other bay, and although Mrs Vine would have seen the notice above the roof of the Range Rover when she got out of her car, she could not see it when she drove into the space.

It happened that she was feeling extremely ill at the time and she had left her car as quickly as possible. The Court of Appeal said that to show that the car owner had willingly assumed the risk of clamping, it must first and foremost be established that the car owner was aware of the consequences. The court held that Mrs Vine was entitled to a return of the £105 clamping fee. They, therefore, did not have to decide whether such a fee was reasonable.

The court also made the point that it was not intrinsically obvious, apart from the signs, that the area really was private property. It looked as if it could have been part of the highway.

Followers of the parking enforcement industry will be interested to note that what the House of Lords did was to set up two precedents such that future trial judges can choose between two decisions to follow, instead of just being bound by one decision by the law lords. This amply illustrates the versatility of English law and the ability of the judges to self-navigate through the minefield of authoritative previous rulings by the apex court.

The justices of appeal said they had appreciated that their decision might make it easier for people to avoid clamping charges by just saying that they had not seen the warning notices in the first place. However, they were unable to offer practical advice as to how to overcome that difficulty. It seems likely that the controversy about clamping will continue for some time.

It is well known that there is strength in numbers. One person, no matter how able himself/herself can only do so much, and the collective will of a group is much more powerful.

This applies to the rough and tumble environment of this kind of parking enforcement.

These are the words of Mr Costas Constantinou writing in The Daily Telegraph, August 31, 2010:

‘The Association of British Wheel Clamping Companies was formed in 1992 from a combination of less than seven clamping companies across the UK. The basic principle was to agree to a voluntary code of practice. I attended the first meeting, and it was very easy to spot the clampers – broken noses, bomber jackets, trainers, earrings and even facial tattoos advertised their presence. The other few representatives were suited, booted and were very, very serious.

‘Over the years several meetings were held across the country and a code of practice was produced and updated on several occasions. On one occasion the name was changed to the Association of Parking Enforcement Companies with a view to softening the name of the organisation. The code of practice was only recognised by its members; however, it failed to make any impact and get recognition to motoring groups and local government.

‘The Government appointed the Security Industry Authority to regulate the industry. The end result was that every wheel clamper had to attend a course at a cost of £350 per person and then apply for a licence at a further cost of £200; the whole procedure took up to six months. The deadline was set at May 2005. The whole process from start to finish was lengthy, inefficient and uncoordinated.

‘A request was made under the Freedom of Information Act to the SIA in May 2010 to disclose the number of clamping licences. The result is that there are 1,900 licenced clampers in the UK. If we exclude the number of operatives that failed to get a job after leaving the course, the number of redundancies and the number that got a job and left after they saw the confrontations then we can conclude that the number of actual full and part time clampers is closer to £1,200.

‘In effect we have a licensed operative for every 600 sq miles of land in the UK.

‘However there is growing demand for an alternative solution, Companies such as Flashpark police land and issue private parking fines direct to the motorist without having to resort to a clamp which can lead to confrontation.’

That is the viewpoint of a writer deeply conversant with the parking enforcement industry with which we are concerned. The involvement of the SIA is welcome by the industry and the general public.

Persons who have read thus far may not be surprised to learn, if they do not already know, that the end of vehicle immobiliser is at hand in this country – and as far as I can see, nobody is going to be crying about it (bar, possibly certain individuals who will be forced to seek other employment).

Lynne Featherstone, the feisty Lib-Dem MP for Hornsey & Wood Green has waged war on the wheel clamping fraternity (but not on parking enforcement as a whole and it looks as if she is going to win). She has written and spoken extensively about the evils of the wheel clamp and the psychology of certain clampers.

The Home Office has backed up this North London MP and many people will be delighted to know that the end of the clamp is at hand.

Now read this Home Office notification dated August 17, 2010:

‘Wheel clamping on private land will be banned in England and Wales, the Government announced today.

‘The ban will be introduced in the Government’s Freedom Bill in November and will come into force shortly after Royal Assent.

‘Once in place, anyone who clamps a vehicle or tows it away on private land will face tough penalties.’

Chris Elliott
Now read this resume of mine of research Chris Elliott has done on the evils of the vehicle immobilisation industry in the general context of parking enforcement. Dr Elliott is, please note, both an engineer and a barrister. The source of the following article was seen fit to be published in the Royal Automobile Club Foundation’s literature dated July 9, 2009:

Dr Elliott reckoned that the vehicle immobilisation fraternity was breaking the law by charging heavy amounts for clamped and towed away motor vehicles. He chose to implicitly challenge court rulings that were in favour of the clampers.

Dr Ellitt thought that if clamping company A charged motorist B for parking on property owner C’s grounds that amounted to one citizen ‘punishing’ another in the context of a legal system and social environment where the State reserves to itself the exclusive right to punish.

Do note that this runs in implicit contradiction of the contention earlier in this piece that the motorist had received a service from the landowner in the form of the use of the parking space and must now pay the valuable consideration that was a term of the contract between the landlord and the driver of which price the driver was aware on account of the prominent notice displayed thereabouts. In this argument, we think the clamper is the agent of his principal who is, of course, the owner of the parking space.

Controversially, Dr Elliott writes that the process of clamping is a breach of human rights as encapsulated in the Human Rights Act 1998. That act, (in accordance with international law), states that ‘punishment’ should follow in the wake of a legal process worthy of the name. At present the United Kingdom’s authorities have reservations about internationally enforceable human rights in a British context.

Dr Elliott writes: ‘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.’

OK, so imprisoning the car is a punitive measure that perpetuates the evil it purports to deter, namely, the presence of an unpermitted and unwanted vehicle on the parking space of an angry owner who uses agents (hired goons?) to enforce his will.

That is a valid and an important point, we think. Nevertheless, even that does not detract from the basic contractual fact that the driver had received a service from the parking space in the knowledge that there was a charge and after using the facility he is obliged, in contract law, to pay it.

You can gather from this that the whole matter is complex and revolves around an apparent conflict between the law of contract and the legal monopoly of punishment vested in the State and its agents in criminal law.

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:

Dr Elliott, as a parking enforcement expert, 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 do not alter the law as a whole.

Menace ends
‘Home Office Minister Lynne Featherstone said: “The government is committed to ending the menace of rogue private sector wheel-clampers once and for all.

‘“For too long motorists have fallen victim to unscrupulous tactics by many clamping firms. Reports of motorists being marched to cash points or left stranded after their car has been towed are simply unacceptable.'

‘“A ban on clamping and towing on private land will end this abuse and companies who decide to flout new laws will face severe penalties.”

Outrageous practices
Regional and local transport minister Norman Baker said: ‘The rules governing parking on private land should be proportionate and should not result in motorists being intimidated or forced to pay excessive fines.

‘Cowboy clampers have had ample opportunity to mend their ways but the cases of bullying and extortion persist.

‘That is why we are putting an end to these outrageous practices once and for all to ensure that drivers no longer have to fear intimidation from rogue traders, allowing the parking industry to begin to restore its reputation with the motoring public.

‘Currently, any individual undertaking wheel clamping must hold a frontline licence from the Security Industry Authority [SIA], with supervisors or directors holding a non-frontline licence.

‘This activity will cease once the ban is in place.’

Just in case anybody concludes that the end of the wheel clamp spells the end of parking enforcement, we are saying that that is definitely not the case.

Non-physical methods of parking control are now being implemented with excellent results and the Flashpark way that combines the Internet with digital photography points the way to the future.