Decriminalised Parking Enforcement

There is a tendency in academia at times to shy away from making concrete proposals for reform of the law.   It is so much easier to "critique" than offer positive solutions that have real practical input.  That being said I am going to offer my suggestion for a change to the law in parking enforcement, specifically in relation to local authorities.

At present there is a dual system of parking enforcement (outside London) local authorities may adopt the provisions (accept to be bound by them) of the Traffic Management Act 2004 and operate a system of decriminalised parking enforcement.  Otherwise the authority acts under the old criminal law contained in section 35 Road Traffic Regulation Act 1984.  That means that if you receive a parking ticket in certain authorities and do not pay that authority may prosecute you in the magistrates court and you may be convicted of a criminal offence.

I have yet to come across a person, be it an official, magistrate or member of the public, who believes that such matters should be dealt with in court.  As one senior official once quipped to me 'no court wants to deal with this shit, only weirdos like you and me are remotely interested in parking.'

When it comes to the criminal law that is certainly a fair assumption I think, the criminal law should not be used for parking enforcement.  No one sees it as a criminal offence and no one who has received a parking ticket would even consider their actions as criminal.  Be that as it may approximately 20 local authorities still use the criminal law offence (i.e. they have not adopted the provisions of the Traffic Management Act 2004)

This cannot be right and I would, for my part, amend the law to make it far harder for local authorities to use the criminal law for parking transgressions.

Of course it is not right to dictate to a local authority how they must operate parking enforcement, that is a matter of local democracy.  I suspect that few of the electorate in these boroughs realise the difference, but authorities are legitimately entitled to operate how they see fit.

How then should the law be altered so that the choice of decriminalising enforcement still exists but but clearly encourages authorities to adopt the decriminalised method?  I think the criminal law concept of mens rea is helpful hear.

Mens rea, or guilty mind, essentially means that a prosecutor must prove that the defendant either intended to commit the criminal act, or appreciated how reckless his / her actions were in committing the act.    At present parking criminal offences are strict liability, this means that the defendant's thoughts and intentions are immaterial all that matters is that the act was committed.  Even if by accident the defendant would still be guilty.  Speeding is an example from general motoring criminal law, it matters not why you were speeding, it only matters that you were.

If you think about this for a second the concept of mens rea can be incredibly difficult for prosecutors.  Imagine trying to prove that a defendant intentionally drove above the speed limit (where that defendant categorically denies they did so intend), I would suggest that most speed prosecutions would fail.  It would be far too high a burden on the prosecution to prove intentional speeding.

Back to parking:  authorities do not have to prove that you intentionally parked your vehicle in contravention of the law, all they need prove is that your vehicle was present and contravening the authority's rules.

This is the point at which I believe the criminal law should be amended.  If authorities want to continue to use the criminal law in parking enforcement then parking offences should carry a mens rea requirement.  Authorities should have to prove, in criminal cases, that those who commit parking offences intended to do so, or acted with clear reckless disregard for the parking rules.  The criminal law is too powerful an instrument to use against actions that are so widely regarded as not criminal.

Whilst this proposal would not force authorities to adopt the decriminalised method (thus keeping local democracy within the system) it would force authorities to reflect on whether they actually think parking transgressions are criminal offences.  I would suspect that those few authorities who do use the criminal law would soon see the benefit of the decriminalised process.

For what it is worth that is my proposal for reform of the law, with the deregulation bill currently going through parliament perhaps it is time to look again at this matter.