The activities of less than honest wheel-clampers have been the subject of numerous newspaper articles and Watchdog-style TV shows for many years. Having concluded that selfregulation was not the answer, with effect from 3 May 2005 the government introduced a licensing regime for wheelclampers in England and Wales, making it unlawful (save in limited circumstances) to immobilise a vehicle on private or public land without being licensed to do so under the Private Security Industry Act 2001 (the PSIA).

A right to clamp?

Simply being a licensed vehicle immobiliser or employing one is not enough: first you must demonstrate a right to clamp a vehicle on your land. In order to reconcile the conflict between the trespass against the landowner/occupier by unauthorised parking and the trespass against goods by immobilising the vehicle, the courts have constructed an implied contract, to the effect that where the landowner has clearly indicated that unauthorised parking may lead to clamping (and payment of a release fee) the driver is construed as agreeing to the clamping in return for unauthorised parking. (For the position in Scotland, see box, Scottish power). Prior to the PSIA, the courts had already laid down strict preconditions for lawful clamping in Vine v Waltham Forest. The case is described below, but the conditions are:

(1) prominent display of a clear and easily observable warning of the clamping of unauthorised vehicles;

(2) a reasonable release fee;

(3) an available means of contacting someone to release the vehicle; and

(4) prompt release.

The Vine case

It seems that the facts of Vine v Waltham Forest probably have as much to do with the outcome as any other factor and explain why the Court of Appeal was so keen to help. Mrs Vine had been driving home from hospital and parked in a private road to be sick. On return to her car she found that her vehicle was clamped. Whilst there was a warning sign indicating that the vehicle would be clamped, the Court decided that it was not sufficiently prominent, even though a person in less of a hurry than Mrs Vine should have been able to see it. As a result, it was held that she did not consent or wilfully assume the risk of her car being clamped, the clamping was deemed a trespass against her property and the release fee with interest was returned.

The wheel-clamping industry responded to the Vine decision by issuing various codes of best practice for their members to abide by. For example, the British Parking Association’s code sets out in detail areas where careful discretion is to be exercised before clamping, suitable response times, and a complaints procedures. So far, there has been no statutory code issued to govern wheel-clamping, with the government leaving this to selfregulation by the clamping companies and to the bringing of claims in the civil courts by dissatisfied vehicle owners.

The PSIA licensing regime

The PSIA requires that a person holds a licence before carrying out the immobilisation of a motor vehicle by the attachment to the vehicle, or to a part of it, of an immobilising device. This could include the attachment of a wheel-clamp to immobilise a vehicle, towing away or blocking in a vehicle.

In addition to the large professional landowner/clamper, the PSIA also covers:

(1) private property owners who do their own immobilising or who instruct employees to immobilise vehicles;

(2) volunteers (for example, a person helping a vehicle immobiliser);

(3) employers or employees (including directors or partners) who handle vehicle immobilising, blocking-in or towing-away services; and

(4) directors, managers, supervisors and/or operatives in businesses that provide vehicle immobilising, blocking- in or towing-away services.

However, a licence is not required by those:

(1) immobilising vehicles for their own protection;

(2) immobilising or towing away property with the owner’s consent (eg vehicle recovery firms); or

(3) immobilising or towing away vehicles on public roads and highways within the scope of the Road Traffic Act 1988.

Who needs a licence and how do you get one?

Licences are issued by the Securities Industry Authority (SIA) and must be obtained by each individual carrying out vehicle immobilising, whether ‘front line’ staff installing the clamps or ‘non-front line’ staff administering the clamping.

You cannot simply obtain a companywide licence. However, provision is made in the PSIA for companies to obtain approved contractor status, subject to demonstrating the required degree of internal procedural controls and to the payment of an initial fee (and subsequent annual fees). The key benefit of this status is that it makes concession for the rapid turnover of staff in the PSIA-governed industries, by allowing such an approved contractor to make use of new staff that might be within their initial training/ examination phase, but subject always to at least 85% of the company’s staff involved with licensable activities holding the required PSIA licences.

The licensing process is designed to ensure that each person involved in vehicle immobilising is a suitable person with a sound understanding of the legal issues arising and duties owed. The process consists of criminal record checks to weed out the unsuitable (principally those persons with a criminal record for offences of dishonesty or violence), followed by training and examination of the operators. The training is presently being overseen by Edexcel, with each course expected to take a full week, although some people with prior experience may be able to forgo some of the training. Everyone is required to pass the second, practical assessment part of the course. There are now a number of Edexcelapproved instructors, whose details can be found on the SIA website. At the end of the training and examination process, the successful applicant will qualify with a Level 2 BTEC Award in Vehicle Immobilisation.

After passing the training, ‘front line’ staff must pay for an annual licence and ‘non-front line’ staff for a three-year licence, both currently costing £190. The SIA currently estimates the time for completion of the process, from application to grant of licence, at between nine and fourteen weeks.

Unlicensed wheel-clampers, criminal offences and penalties

Property owners or managing agents who use outside contractors are not entitled to assume that these third parties are licensed. Occupiers of premises using unlicensed wheel-clampers to immobilise vehicles will commit an offence unless they can show either:

(1) that they did not know, and had no reasonable grounds for suspecting, at the time when the activities were carried out, that the individual in question was not the holder of a licence in respect of those activities; or

(2) that they took all reasonable steps, in relation to the carrying out of those activities, to secure that the individual would not engage in any licensable conduct in respect of which they were not the holder of a licence.

Essentially, the employer must choose a reputable firm and demand regular confirmation that all of their personnel are licensed under the PSIA. Sight of suitable insurance would also be advisable.

Non-compliance with the PSIA may result in the commission of a criminal offence, with a maximum penalty of:

six months’ imprisonment and/or a fine of up to £5,000 (on summary conviction in the Magistrates’ Court); or

an unlimited fine and/or five years’ imprisonment (upon conviction on indictment in the Crown Court).

Some points to consider

How should you deal with unauthorised parking on your land?

To ensure compliance with the statutory requirements, every person who might be involved in enforcing parking controls by vehicle immobilising should carry out a regular audit of the processes and of the persons involved, and take all necessary steps to ensure that criminal liability does not arise.

Warning signs should be obvious and easily observed, clear and consistent, and include all details of release fees and how to get released. Old, contradictory signs should be removed.

In relation to immobilisers, one needs to consider who is doing the immobilising, whether they have a current PSIA licence, and whether they are insured.

 © Property Law Journal