Made | 27th January 2004 | ||
Laid before Parliament | 30th January 2004 | ||
Coming into force in accordance with regulation 1(2) |
and Part IV of these Regulations shall come into force on 29th March 2004.
(3) These Regulations shall cease to have effect on 31st March 2005.
(4) These Regulations apply to petty sessions areas in England and Wales to which the provisions of Schedule 5 have effect in accordance with the Collection of Fines (Pilot Schemes) Order 2004[2].
(5) In these Regulations -
and, save where the context requires otherwise, a reference to clamping or storage includes release from clamping or, as the case may be, release from storage.
(6) In these Regulations a reference to a numbered regulation is a reference to the regulation so numbered in these Regulations.
(1) Net earnings | (2) Percentage deductions rate |
Not exceeding £55 | 0 |
Exceeding £55 but not exceeding £100 | 3 |
Exceeding £100 but not exceeding £135 | 5 |
Exceeding £135 but not exceeding £165 | 7 |
Exceeding £165 but not exceeding £260 | 12 |
Exceeding £260 but not exceeding £370 | 17 |
Exceeding £370 | 17 in respect of the first £370 and 50 in respect of the remainder |
(1) Net earnings | (2) Percentage deductions rate |
Not exceeding £220 | 0 |
Exceeding £220 but not exceeding £400 | 3 |
Exceeding £400 but not exceeding £540 | 5 |
Exceeding £540 but not exceeding £660 | 7 |
Exceeding £660 but not exceeding £1,040 | 12 |
Exceeding £1,040 but not exceeding £1,480 | 17 |
Exceeding £1,480 | 17 in respect of the first £1,480 and 50 in respect of the remainder |
(1) Net earnings | (2) Percentage deductions rate |
Not exceeding £8 | 0 |
Exceeding £8 but not exceeding £15 | 3 |
Exceeding £15 but not exceeding £20 | 5 |
Exceeding £20 but not exceeding £24 | 7 |
Exceeding £24 but not exceeding £38 | 12 |
Exceeding £38 but not exceeding £53 | 17 |
Exceeding £53 | 17 in respect of the first £53 and 50 in respect of the remainder"; |
(f) in section 6(7)(c) after "in the case of an order made by a magistrates' court," insert "a fines officer of that court or";
(g) in section 8(5) for "section 1(3)(b) and (c) of this Act" substitute "paragraph 1 of Schedule 5 to the Courts Act 2003 or section 1(3)(c) of this Act";
(h) rules of court under section 9(3)(b) shall not apply to attachment of earnings orders under Schedule 5 to the Courts Act 2003;
(i) in section 14 -
(j) rules of court having effect under the words from "and of any other prescribed matters" to the end of section 14(4) shall not apply;
(k) in section 15, in paragraph (a) after the reference to "the court" insert "or, as the case may be, the fines officer" and in paragraph (c) after the reference to "what court" insert "or, as the case may be, which fines officer" and after the reference to "that court" insert "or, as the case may be, that fines officer";
(l) in section 17(1) after "under those sections" insert "or under Schedule 5 of the Courts Act 2003" and at the end insert "or in paragraph 1 of that Schedule"; and
(m) in section 25 after subsection (1) insert the following subsection -
Application with modifications of the Fines (Deductions from Income Support) Regulations 1992
5.
In the case of a person aged 18 or over liable to pay a sum to which Schedule 5 applies, the Fines (Deductions from Income Support) Regulations 1992[5] apply to applications for benefit deductions made under Schedule 5 as they apply to such applications made under those Regulations but with the following modifications -
(b) delete regulation 2;
(c) in regulation 3, for paragraph (1)(g) substitute -
Application with modifications of the Magistrates' Courts Act 1980
6.
In the case of a person aged 18 or over liable to pay a sum to which Schedule 5 applies, the provisions of the Magistrates' Courts Act 1980[6] specified below apply with the following modifications -
(c) where the transfer is from a court in a non local pilot petty sessions area to a local pilot petty sessions area all functions under this Part of this Act relating to that sum which, if no such order had been made, would have been exercisable by the court which made the order, or the justices' chief executive for that court, shall be exercisable by a court acting for the petty sessions area to which the fine is transferred, or the justices' chief executive for that court, and not otherwise, but subject to the modifications made by the Fines Collection Regulations 2004, and the court may, if the case comes before it, make a collection order under paragraph 12 of Schedule 5 to the Courts Act 2003 relating to the payment of the sum due, and that Schedule (as modified by the Collection of Fines (Pilot Schemes) Order 2004) and those Regulations shall have effect in relation to the sum due."; and
relating to that sum, which, if no such order had been made, would have been exercisable by the court which made the order, by the justices' chief executive for that court or, as the case may be, a fines officer of that court, shall cease to be so exercisable."; and
(c) section 91 (transfer of fines from Scotland or Northern Ireland) -
(d) section 150 (interpretation of other terms) with the insertion in subsection (1), after the definition of "fine" of the following definition -
Delivery of increase notice or further steps notice
8.
An increase notice under paragraph 28 or a further steps notice under paragraph 37 of Schedule 5 may be delivered by hand or by being sent by post to P's last known address.
Another step available against defaulters
9.
- (1) For the purposes of paragraph 38(1)(e) of Schedule 5, another step which may be taken under that Schedule is the exercise of the enforcement powers of section 87 (enforcement of payment of fines by High Court or county court) of the Magistrates' Courts Act 1980[7] as modified for those purposes by paragraph (2) below.
(2) The modifications of section 87 of the 1980 Act referred to in paragraph (1) above are -
Execution of warrant of distress
10.
A warrant of distress issued by the court or by a fines officer under Schedule 5 shall be executed as if it were a warrant of distress issued by a justice of the peace and sections 78 and 125 to 126 of the Magistrates' Courts Act 1980 shall apply accordingly.
Summons for ensuring attendance of P before the court
11.
A fines officer may for the purpose of ensuring that P attends a magistrates' court to which he has referred P's case under paragraph 35, 37 or 42 of Schedule 5, issue a summons requiring P to appear before the court at the time and place appointed in the summons.
Standard powers of the court
12.
Any power that a magistrates' court would have had if P had not been subject to a collection order but had been liable to pay the sum due applies for the purposes of Schedule 5, that is where a case is referred to the court by the fines officer, or on an appeal to the court, under that Schedule, subject -
Matters to be included in a clamping order
14.
A clamping order must specify -
(c) details (including date) of the increase notice,
(d) details (including date) of the further steps notice, if any,
(e) details of the vehicle or vehicles to be clamped,
(f) the date on or after which the order must be executed if the fine is not paid,
(g) the name, official address and telephone number of the fines officer and the court, and
(h) how the fine may be paid.
Procedure on making a clamping order
15.
- (1) On the making of a clamping order by the court or the fines officer, the fines officer must send a copy of the order to a clamping contractor who, if the fine is not paid, must execute the order in accordance with these Regulations on or after the date specified in the order.
(2) The copy of the clamping order sent to the clamping contractor must be accompanied by details of P's last known address, the vehicle or vehicles to be clamped and, if known, the likely whereabouts of the vehicle or vehicles to be clamped.
Places where vehicles may be clamped
16.
Vehicles may be clamped at any place (including on any highway or road) to which the public has access or on any private land to which access may be had at the time of clamping without opening or removing any door, gate or other barrier, and authorised persons and other employees of the contractor may enter such private land with their equipment and with or without a vehicle or vehicles for the purpose of clamping a vehicle on the land, releasing it from clamping or removing it to secure storage.
Defect in clamping order or irregularity in its execution
17.
- (1) A clamping order made for the purpose of enforcing payment of a fine shall not be held void by reason of any defect in the order.
(2) A person acting in the execution of a clamping order shall not be deemed to be a trespasser from the beginning by reason only of any irregularity in the execution of the order.
(3) Nothing in this regulation shall prejudice the claim of any person for special damages in respect of any loss caused by a defect in the order or irregularity in its execution.
Matters to be included in a clamping contract
18.
- (1) A clamping contract must authorise the contractor to undertake -
(2) A clamping contract must specify -
within the range approved by the Lord Chancellor for such charges.
(3) The charges mentioned in paragraph (2)(b) above must be inclusive of value added tax and together with the fine represent the total amount that P may be required to pay. There must be no surcharge for payment by debit or credit card.
(4) In the case of the charge mentioned in paragraph (2)(b)(iii) above the contract must specify the daily or weekly rate of charge.
(5) A clamping contract must specify the descriptions of vehicles which may not be clamped in accordance with regulation 19(1).
(6) A clamping contract must require the contractor to authorise persons in his employment (the "authorised persons") to carry out, or direct and supervise, the clamping, release from clamping, removal and release from storage, of vehicles on behalf of the contractor.
(7) A clamping contract must specify the functions of the clamping contractor and of the authorised persons and other members of the contractor's staff under these Regulations.
(8) A clamping contract must specify the grounds for termination of the contract including the contractor ceasing to be a member of an approved clamping organisation.
Duties of an authorised person and other members of the contractor's staff
19.
- (1) An authorised person must not carry out, or direct and supervise, the clamping of -
(2) If a vehicle to be clamped is so positioned that, while the vehicle is clamped in that position, there would be at any time a contravention of any prohibition or restriction imposed by or under any enactment, the authorised person must, before the vehicle is clamped, have it repositioned to the nearest place where there would be no such contravention while it is clamped there.
(3) If a repositioned vehicle is not visible from the place in which it was originally positioned, the authorised person must ensure that a notice is placed at or near the original position of the vehicle indicating that the vehicle has been clamped as required by the clamping order, where the vehicle may be found and giving a telephone number available during all reasonable hours for enquiries by P or a person acting on his behalf.
(4) No extra charge may be required in respect of the repositioning of the vehicle.
(5) On clamping a vehicle the authorised person must affix in a prominent position on the vehicle, and where access to the site where the vehicle is clamped is not possible during certain hours, at the entrance to the site, a clamping notice specifying -
(6) The authorised person carrying out, or directing and supervising the carrying out, of the clamping of a vehicle must take or cause to be taken a photograph of it, in the case of a repositioned vehicle, in the original position as well as the position in which it is clamped.
(7) The authorised person and any other member of the contractor's staff engaged on the clamping, release from clamping, removal, storage or release from storage, of a vehicle must, on demand by P or a person acting on his behalf, permit him to inspect the identification card required by regulation 20(9).
(8) In the event of a complaint by P or a person acting on his behalf in connection with the clamping, removal or storage of a vehicle the authorised person must give him a leaflet about the complaints procedure under regulation 25.
Duties of the clamping contractor
20.
- (1) The contractor must conduct clamping, removal and storage operations, and must ensure that authorised persons and other persons in his employment carry out such operations, under the contract in accordance with Schedule 5, these Regulations, guidance issued by the Lord Chancellor and the code of clamping practice of the approved clamping organisation of which he is a member.
(2) The contractor must transmit the amount of any fine, collected directly or by an authorised person, to the court which made the collection order in respect of the fine.
(3) The contractor must use only clamps of a type approved by the Secretary of State.
(4) The contractor must display the clamping sign of the approved clamping organisation of which he is a member on all his signs, stationary and literature.
(5) The contractor must ensure that vehicles used for clamping, removal or storage operations are -
(6) The contractor must ensure that authorised persons and other members of his staff engaged on clamping, removal and storage operations have gained the award of the Parking Control National Vocational Qualification or are undergoing training which is expected to lead to this award within 6 months of the commencement of their employment with the contractor.
(7) The contractor must use equipment for the clamping, removal or storage of vehicles which is so designed and maintained as not to cause damage to the vehicles.
(8) The contractor must when undertaking clamping, removal or storage operations be covered, and must ensure that their authorised persons and other employees are covered, by public liability insurance for not less than £5 million and employer's liability insurance for not less than £10 million.
(9) The contractor must ensure that any authorised person and other member of his staff engaged on such operations receives appropriate training and is dressed in an identifiable uniform with attached to the uniform in a prominent position an identification card which has a photograph of the member of staff, his name or identification number or both and the name, address and telephone number of the contractor.
(10) The contractor must be and remain a member of an approved clamping organisation.
Payment of the fine and any charge or charges and release of the vehicle
21.
- (1) The office of the contractor where payment of the fine and charge or charges due may be made must be readily accessible from the place where the vehicle is clamped during all hours when the contractor undertakes clamping and for at least 2 hours thereafter.
(2) A vehicle in respect of which the fine and charge or charges due have been paid in full must be released from clamping or, as the case may be, storage within -
(3) Payment of, or towards the payment of, the fine and charge or charges due -
(4) If a payment made by P or a person acting on his behalf at any stage is less than the amount of the fine and charge or charges due, it must first be applied to meet the charge or charges and any balance remaining must then be applied towards payment of the fine.
(5) On payment by P or a person acting on his behalf of, or towards the payment of, the fine and charge or charges due, the contractor or the authorised person must issue a receipt which includes the following information -
Removal for storage
22.
- (1) A vehicle clamped under a clamping order must, unless released from clamping under regulation 21, 25 or 26, remain clamped where it is positioned or repositioned for the period of not less than 7 clear days from the date of clamping.
(2) When the period referred to in paragraph (1) above has expired, if -
the contractor must have the vehicle removed by, or under the direction and supervision of, an authorised person to secure premises for storage.
(3) When a vehicle is removed to storage the contractor must send by post to P at his last known address or have delivered to him by hand, with a copy to the fines officer, a written notice specifying -
Storage
23.
- (1) A vehicle removed to storage must remain in storage, unless released on payment of the fine and charges due in full or pursuant to a decision under regulation 25 or 26, or sold or otherwise disposed of by order of the court under paragraph 41(2) of Schedule 5.
(2) The clamping contractor may subcontract the storage of vehicles to another person or storage may be undertaken by another person under a contract with the Lord Chancellor and, in any such case, references in these Regulations to the "clamping contractor", except in this paragraph, and "the contractor", so far as applicable to the storage of vehicles under these Regulations, shall be construed as references to that other person.
(3) Premises used for the storage of vehicles must be secure and such as to protect the vehicles from damage or deterioration.
Sale of clamped vehicles
24.
- (1) The period referred to in subparagraph (1)(b) of paragraph 41 (power to order sale of clamped vehicle) of Schedule 5 at the end of which that paragraph applies in respect of a vehicle clamped under a clamping order if at the end of that period the fine or any part of it remains unpaid, shall be the period of 3 months from the date the vehicle was clamped.
(2) If the fine has not been paid in full before the expiry of the period of 10 clear working days from the date the vehicle was clamped the fines officer must apply in writing to the court, sending a copy of the application to P by post at his last known address, for an order for sale of the vehicle under paragraph 41(2) of Schedule 5 but the application must not be listed for hearing before the expiry of the period of 21 days from that date.
(3) When the application under paragraph (2) above is listed for hearing the court must notify P in writing -
and must notify the fines officer of the date and time of the hearing.
(4) The fines officer must ensure that the file concerning P's case, information available about P's means, his conviction and the fine imposed, the terms of the collection order made, the dates and amounts of any payments received, the likely value of the vehicle and copies of the increase notice, any further steps notice and the clamping order, are provided to the court via the listing officer in readiness for the hearing of the application.
(5) The fines officer must make himself available for the hearing but only for the purpose of answering the court's questions or providing information.
(6) If at the hearing the court decides that it will order the vehicle to be sold on the expiry of the period of 3 months from the date the vehicle was clamped if the fine is not paid in full before the expiry of that period, the fines officer must so notify P in writing.
(7) If at the hearing the court decides that the vehicle should not be sold it may direct that the vehicle be released to P with or without payment of the charges due.
(8) In considering whether or not to order the sale of the vehicle the court must consider the history of P's case, in particular whether the clamping order was justified, reasonable and proportionate.
(9) After the court's decision on the application the case remains with the fines officer under the collection order, and if the court makes an order for sale he must send a copy of the order for sale to the contractor who must thereupon arrange for the vehicle or vehicles to be sold by an agent for sale or by auction.
(10) On the sale of a vehicle pursuant to an order under paragraph 41(2) of Schedule 5 the ownership of the vehicle shall vest in the purchaser and the contractor must secure the registration of the vehicle in the name of the purchaser under the Vehicle Excise and Registration Act 1994.
(11) When the vehicle has been sold the contractor must first deduct from the net proceeds of sale an amount equal to the charges due in respect of clamping, removal and storage and must then transmit the remaining balance to the fines officer who, after deducting an amount sufficient to discharge P's liability in respect of the fine, must send P a cheque for any balance remaining within 10 working days of the date of sale of the vehicle, accompanied by a written statement of account.
(12) If when a vehicle is sold the net proceeds of sale are not sufficient to meet the amount of the fine and charges due the net proceeds of sale must first be applied towards meeting the charges due and then if a balance remains towards discharging P's liability in respect of the fine and the fines officer must then seek to recover the outstanding amount of the fine under the collection order and the powers conferred by Schedule 5 including his power to refer the case to the court under paragraph 42 of that schedule.
Complaints procedure
25.
- (1) A senior manager of the contractor and the fines officer must be available during the hours that a vehicle may be released from clamping or storage to consider any complaint about clamping, removal or storage and, if justified, to order the release of the vehicle.
(2) If a complaint to the senior manager concerns the content or making of the clamping order he must refer the complaint to the fines officer and if a complaint to the fines officer concerns the execution of the clamping order, removal or storage the fines officer must refer the complaint to the senior manager.
(3) On receipt of a complaint concerning the execution of the clamping order, removal or storage the senior manager of the contractor must -
(c) within that period investigate and consider the complaint and send a letter to the complainant recording his decision on the complaint and his reasons for it;
(d) notify the complainant in that letter that if he is not satisfied with the decision he may under regulation 26, within 10 working days of the date of the letter or such further time as the court may allow, refer the complaint to the court for decision and enclose a leaflet explaining the procedure for such a reference; and
(e) if his decision accepts the complaint in whole or in part, send the complainant with that letter a form on which he can claim reimbursement of expenses and compensation for loss and inconvenience together with the necessary proof.
(4) If the senior manager's decision is to the effect that the vehicle should not have been clamped he must arrange for the immediate release of the vehicle without charge.
(5) On receipt of the completed claim form from the complainant the senior manager must send him a letter recording his decision on the claim and his reasons for it and, if the claim is accepted in whole or in part, together with a cheque for the reimbursement of the expenses and compensation for the loss and inconvenience accepted.
(6) If the claim is not accepted in whole or in part the letter to the complainant must notify him that he may under regulation 26, within 10 working days of the date of the letter or such further time as the court may allow, refer the claim or part of it to the court for decision and enclose a leaflet explaining the procedure for such a reference.
(7) On receipt of a complaint concerning the making of the clamping order the fines officer must -
(c) within that period investigate and consider the complaint and send a letter to the complainant recording his decision on the complaint and his reasons for it;
(d) notify the complainant in that letter that if he is not satisfied with the decision he may under regulation 26, within 10 working days of the date of the letter or such further time as the court may allow, refer the complaint to the court for decision and enclose with the letter a leaflet explaining the procedure for such a reference; and
(e) if his decision accepts the complaint in whole or in part, send the complainant with that letter a form on which he can claim reimbursement of expenses and compensation for loss and inconvenience together with the necessary proof.
(8) If the fines officer's decision is to the effect that the clamping order should not have been made in respect of the vehicle he must arrange with the contractor for the immediate release of the vehicle without charge.
(9) On receipt of the completed claim form from the complainant the fines officer must send him a letter recording his decision on the claim and his reasons for it and, if the claim is accepted in whole or in part, together with a cheque for the reimbursement of the expenses and compensation for loss and inconvenience accepted.
(10) If the claim is not accepted in whole or in part the letter to the complainant must notify him that he may under regulation 26, within ten working days of the date of the letter or such further time as the court may allow, refer the claim or part of it to the court for decision and enclose a leaflet explaining the procedure for such a reference.
Reference of a complaint or claim to the magistrates' court for decision
26.
- (1) A complainant who is dissatisfied with the senior manager's or fines officer's decision on his complaint or claim may, within 10 working days of the date of the decision letter or such further time as the court may allow, refer the complaint or claim to the court for decision.
(2) A reference to the court under paragraph (1) above must be made in writing on the form provided by the senior manager or the fines officer with his decision letter.
(3) On receipt of a reference the listing officer must list it for expedited hearing.
(4) When the reference is listed for hearing the court must send written notice to the complainant -
and must notify the fines officer and, as the case may be, the senior manager of the date, time and place of the hearing.
(5) When a complaint or claim is referred to the court against a decision of the senior manager of the contractor, he must ensure that a copy of his decision letter and such further information about the complaint or claim as the court may require is provided to the court via the listing officer in readiness for the hearing of the reference.
(6) When the complaint is referred to the court against a decision of the fines officer, he must ensure that his decision letter, the file concerning P's case, information available about P's means, his conviction and the fine imposed, the terms of the collection order, the dates and amounts of any payments received and copies of the increase notice, any further steps notice and the clamping order, are provided to the court via the listing officer in readiness for the hearing of the reference.
(7) The senior manager or, as the case may be, the fines officer must make himself available for the hearing but only for the purpose of answering the court's questions or providing information.
(8) On the hearing of the reference the court must make such a decision and give such directions to the senior manager or, as the case may be, the fines officer to implement the decision as the court thinks fit and the senior manager or, as the case may be, the fines officer must comply with the courts decision and directions.
On the authority of the Lord Chancellor
Christopher Leslie
Parliamentary Under Secretary of State, Department for Constitutional Affairs
27th January 2004
[3] Schedule 5 to the Courts Act 2003 is modified by the Collection of Fines (Pilot Schemes) Order 2004 (S.I. 2004/175).back
[4] 1971 c. 32. Section 3(3B) was inserted by section 53 of the Criminal Procedure and Investigations Act 1996 (c. 25) and section 6(7)(c) is amended by section 90(1) of, and paragraphs 64 and 66 of Schedule 13 to, the Access to Justice Act 1999 (c. 22).back
[5] S.I. 1992/2182. The relevant amending instruments are S.I.s 1999/3178 and 2003/1360.back
[6] 1980 c. 43. Sections 89, 90 and 91 are amended by section 90(1) of, and paragraphs 95, 107, 108 and 109 of Schedule 13 to, the Access to Justice Act 1999 (c. 22).back
[7] 1980 c. 43. Section 87A is inserted by section 62(1) of the Criminal Justice Act 1988 (c. 33) and sections 125A, 125B, 125C and 125D are inserted respectively by sections 92, 93(2), 94 and 96 (as amended by the Powers of the Criminal Courts (Sentencing) Act 2000, section 165(1) and paragraph 204 of Schedule 9) of the Access to Justice Act 1999 (c. 22).back