Baker, R (on the application of) v Traffic Penalty Tribunal [2016] EWHC 1641 (Admin)

Case No CO/6444/2015[2016] EWHC 1641 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 8 June 2016
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE KEYSER QC
(Sitting as a Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF BAKERClaimantv
Between
TRAFFIC PENALTY TRIBUNALDefendantVDERBY CITY COUNCILInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI Global165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
for The Claimant was not represented and did not attend. for The Defendant was not represented and did not attend. for The Interested Party was not represented and did not attend.
J U D G M E N T

JUDGE KEYSER:

[1]This is a claim for judicial review of two decisions of the Traffic Penalty Tribunal. The first decision, made on 25 November 2015, was a review of an earlier decision to dismiss the claimant's appeal against the imposition of a £70 traffic penalty charge, specifically a parking ticket for parking on a double yellow line on 7 February 2015. The second decision, made on 4 December 2015, was a decision to refuse to review the first decision.[2]The present claim was commenced on 15 December 2015. On 8 March 2016 Helen Mountfield QC, sitting as a Deputy High Court Judge, granted permission to apply for judicial review. Neither the defendant tribunal nor Derby City Council, the interested party, has defended the proceedings. Both have maintained a position of neutrality. The defendant has, in fact, made clear its willingness to make a new decision investigating various aspects of the case. But the case has not actually been compromised; it has not been withdrawn and there has been no concession to the judicial review as such.[3]The relevant legal provisions were summarised shortly by Hickinbottom J in R (On the Application of Deeds) v The Parking Adjudicator [2011] EWHC 1921 Admin. What it comes to for present purposes is that there is a three-hour exemption for parking on a double yellow line if one is displaying a blue badge (a disabled driver badge) on the dashboard together with a parking disc which is in the nature of a clock-face showing the time at which the period of waiting began.[4]The claimant's case was that he ought not on this occasion to have received a ticket because he was displaying a valid blue badge. He set that out in a letter dated 22 July 2015:
"My case is simple. My partner, who holds a disabled badge, sought the parking attendant's permission, who then allowed this short stay, but on return the car was ticketed. The car was on double yellow lines with the badge— both parts, with clock—on display but the council pictures do not do not clearly show my partner's badge was on display or wasn't on there as the pictures are inconclusive. But I state that the badge and clock were on display and so, as I can prove that the contravention did not happen in the format the council say and as there are witnesses to the permission being given by the council's warden that it was ok to park for a short time, then this ticket cannot stand and my challenge must be successful."
[5]The decision of 25 November 2015 was made after a telephone hearing on that day. (It is a point of interest that the present claimant—whose identity I shall discuss later—does not attend hearings in person. He attended the hearing before the adjudicator by telephone, when he appeared to be manning a café.) The claimant's evidence was to the effect that the blue badge was not displayed on the dashboard, because there were repeated problems with things falling down between the dashboard and the chassis, but was displayed in the front rectangular window of the passenger door of the vehicle. He said that he had checked with the civil enforcement officer that he could park there as he had a disabled person badge and he was told that it was all right for him to do so. The transcript of the hearing shows that the adjudicator questioned why permission to park would be sought from the civil enforcement officer in circumstances where the blue badge and the clock conferred (as the claimant was maintaining) a right to park. The adjudicator also investigated the question of the position of the blue badge and the clock, in view of the legal requirement that they be on the dashboard.[6]Two features of the hearing need to be mentioned. First, the person representing the local authority interjected to say that GPRS tracking of the civil enforcement officers on duty that day showed that the only one who fitted the description given in a letter purportedly from the claimant's partner Deeds, was in fact nowhere near the scene of the incident at the time of the illicit parking. Second, there was the following exchange between the adjudicator and the claimant:
"Q Have you got the photographs in front of you, Mr Baker?"
A No. I haven't. Q ... A ... We haven't received the actual, we've got the evidence bundle but there's no — what do you call them? There are no, erm, certainly the ones that I've seen, any erm, what's the word I'm looking for, sorry? Q Photographs? A ... photographs, yes. ... Q ... A ... well I ... haven't got the photographs. I've got the submissions but no photographs." The bundle that had been prepared by the council contained photographs that showed clearly that there was nothing on the dashboard; they did not show clearly whether or not there was anything on the passenger window, though such parts of the passenger window as were visible did not show any blue badge.[7]The adjudicator, Mr Pearson, rejected the claimant’s case. I refer, without reading it, to page 2 of the decision.[8]On 4 December 2015 another adjudicator, Mr Knapp, refused an application for a review of Mr Pearson’s decision. He noted that the power to review existed only where there was an error of law or some serious error of procedure that required the case to be opened. He noted that the application for a review was made on the basis that it was unfair not to take into account that the claimant had not seen any of the photographs taken by the civil enforcement officer which were included in the appeal papers before the adjudicator, and that the claimant was further suggesting that there was evidence to show that, by its reference to the GPRS, the council had lied about the movements of the civil enforcement officer. The adjudicator listened to the recording of the earlier hearing, of which I have a transcript. He identified the most relevant photograph on page 35 of the appeal papers, which he said showed the off-side of the car although the view of the passenger-side window was largely obstructed by the seat, and he continued:
"It is unlikely that this photograph could have determined the outcome of the appeal. The adjudicator has made the decision on the basis of the evidence taken as a whole, including the observations of the CEO, and the suggested reason why the badge could not have been displayed behind the windscreen. The adjudicator has made a finding of fact that the badge was not displayed and I am satisfied that this finding was open to him on the evidence available. The decision is not an error of law and even if Mr Baker did not have access to the photographs this does not mean that the hearing was inherently unfair, because they clearly did not determine the outcome of the case. The adjudicator clearly understood that Mr Baker was saying the badge had been displayed in the side window but preferred to rely on the notes made by the CEO."
[9]I note that the transcript of the hearing on 25 November shows that Mr Pearson was in the course of saying something when he was interrupted. "Ok, well, look, I'm going to dismiss the appeal, Mr Baker, and say that you do have to pay the penalty charge notice. There is one, there is one photograph that is very clear and it would have shown ..." Then the claimant interrupted: “I'm going to leave. I will be taking this matter to the High Court now. Ok? [Adjudicator] Ok, thank you. [Claimant] And that will cost the council a lot more and as far as I'm concerned you're biased towards ... The fact that you've not listened to anything I've had to say. Please put that on record and hope this tape recording is ..." The adjudicator then brought the hearing to an end. His written decision issued later that day referred to the council's submissions concerning the photographs, and said: "There was no evidence of the disabled person's badge on the dashboard, and had the badge been displayed somewhere elsewhere in the vehicle the CEO would have seen it. ... I have considered carefully the evidence provided by the parties and the evidence they gave at the hearing. The conversation Mr Baker says he had with the CEO is not particularly relevant. He indicated in his evidence that the permission given was reliant on the disabled person's badge being displayed. The Traffic Regulation Order that applies to this part of the road prohibits waiting at all times and the restriction is properly marked by double yellow lines marked to the road surface. The photographs show them to be reasonably clear. There is an exemption to the restriction for holders of disabled person's badges provided the badge and parking clock are displayed in the correct manner. The correct manner is by placing it on the dashboard of the vehicle. Mr Baker accepts it was not on the dashboard, he explained why and TOLD me where it was placed. Sadly there is no photograph of the passenger-side window, although part of it can be seen from the photographs of the windscreen itself. I cannot see any part of a badge and/or parking clock. In a case where a motorist relies upon an exemption such as being the holder of a disabled person's badge, the onus rests with the motorist to satisfy me that it is more likely than not the badge and parking clock were correctly displayed. Mr Baker has not satisfied me that is the case. I find as a fact the contravention occurred and Mr Baker has failed to establish the exemption applied in his case."[10]The claimant's grounds for the present claim complain that he was denied natural justice and fair hearing. The complaints really are these: first, he had not been given the photographs that were before the adjudicator; second, the adjudicator's finding failed to have regard to the photographs submitted by the claimant showing that the badge was on the passenger window; third, there was some kind of failure to challenge GPRS evidence adduced by the council to show the likely whereabouts of the civil enforcement officer with whom the claimant claims he spoke.[11]There is nothing in any of those grounds.[12]As regards the first ground, the initial part of the transcript relating to the interjection by the council's official shows that there was reference to the GPRS information. On page 4 of the transcript the claimant said:
"There's no GPRS evidence been erm, put forward from this appeal at all."
But the same interjection had also referred specifically to the photographs. And the claimant did not say, “What photos are you talking about?” or anything like that. He plainly would have said something at that point, if reliance were being placed on photographs that he had not seen. He first made mention of the photographs only later, when he was asked towards the end of the hearing whether he had them in front of him. Other evidence shows clearly that he did know there were photographs from the council. For one thing, a letter that he had previously submitted to the adjudicator expressly refers to them. For another, they were paginated parts of the evidence bundle that he did have. Again, the photographs were expressly referred to in the original decision of another adjudicator, Mr Barfoot, on 29 September 2015. Mr Pearson's decision was on review of that decision. These matters are sufficient to answer any complaint of unfairness. But, more than this, it is anyway clear what the photographs did and did not show. They showed—what was an accepted matter of fact—that there was no blue badge and clock on the dashboard. They did not show conclusively that there was nothing on the passenger window, but as Mr Pearson pointed out, they provided no support for the claim that there was anything there.[13]As regards the second ground, the failure to have regard to a photograph submitted by the claimant showing a badge on the passenger window, the adjudicator was not bound to refer at all to a self-serving photograph taken by the claimant to show a badge on the window. That takes the matter nowhere.[14]As regards the third ground, the failure to challenge the GPRS evidence, the claimant challenged the reference to GPRS information. It was not relied on by the adjudicator as part of his reasons. The decision cannot be challenged simply because the council representative mentioned GPRS information that was not in evidence.[15]The short point on the merits of the case was that there was nothing on the dashboard where it was required by law to be; there was neither clock nor badge. The claimant cannot say that the rules do not apply to him because he had a defective dashboard on which he cannot put things in case they fall down between the dashboard and the chassis. That is a manifestly feeble excuse anyway.[16]More generally, one is entitled to take the view that the defence was a cock-and-bull story. The claimant’s case before the adjudicator did not make sense, because he was asserting a right to park by reason of the display of the blue badge and the clock, and in those circumstances no question of needing to seek permission from the parking officer would have arisen. The adjudicator was alive to that point and raised it in questions. The case was also inconsistent: the original letter purportedly from Mr Deeds said that he had wanted to pop into a shop, but the claimant’s case at the hearing was that he had wanted to go and queue in the bank.[17]However, the matter appears to go further. The evidence put in by the defendant strongly suggests that this claim is a scam. Not only the car but also the story are identical to those in R (On Application of Deeds) v The Parking Adjudicator, referred to above. The review of the Parking Tribunal records shows that one Deeds has made a number of appeals against the issue of penalty notices to the same vehicle, the common theme being that he has displayed his blue badge and has express permission to park from a civil enforcement officer. It appears that Mr Deeds has not always called himself Mr Deeds. In R (On Application of Deeds) v The Parking Adjudicator, the applicant in the original tribunal case was named as Stephen Fitzgerald, though he used the same address as one John Deeds. The judgment of Hickinbottom J shows the claimant as Stephen Fitzgerald Deeds. Mr Deeds is, in fact, a convicted fraudster who has what may be the unique distinction of being subject to an anti-social behaviour injunction prohibiting him from using any name but his own correct name. Other names that he is known to have used include Wolf and Richards.[18]As I remarked earlier, the defendant made it clear that it was willing to reopen its decision. If it does so, one of the things it is keen to do is to investigate the question whether the blue badge relied on in this case was obtained fraudulently. I note that Mr Deeds has in the past been convicted of benefits fraud; a photograph of him jumping over a garden fence (admittedly a low one) at a time when he was claiming benefits found its way into the national papers.[19]The present claim is without merit and shall be dismissed. In addition, I am minded to refer the papers to appropriate authorities with a view to having the circumstances of the claim investigated.