Hospital Car Parking fines Help Help!!

Aretnap

taffy056 wrote: »

Still fail to see where a break of the rules in a civil matter could lead to criminal fraud.

Not fraud itself, but possibly an offence under the Fraud Act - Section 11. It's not the breaking of the rules which would be the problem, but the deliberate non-payment for a service which was provided on the basis that it would be paid for. You'd commit the same offence if you walked out of a restaurant or hotel without paying,* or possibly if you snuck into a cinema without paying. For some of those situations Theft Act 1978 Section 3 - making off without payment - is arguably a better fit, but on my reading either could be applied.

One thing I'm not 100% sure of is whether a parking space would be considered a "service" for the purposes of either of those offences, but I suspect that it might be.

*With the intention of dishonestly avoiding payment, rather than through absent-mindedness or because of a genuine dispute over the quality of the service

taffy056

I can't see a parking space as a service though, and if its dishonesty why aren't all private fake tickets heard as a criminal matter, the answer is because its a civil matter. And as the hospital is pursuing this, they must demonstrate the loss here, they cannot issue a penalty to motorists, no matter how many times the rules are broken.

The OP should offer to pay for the 63 times they failed to pay, at a £1 a time that is £63, if the hospital refuses the payment it just shows that this is not about the parking charge but the penalties that go with it. This if it goes to a disciplinary and then a sacking could be used in a unfair dismissal tribunal. Obviously the OP needs to get help here with someone they can discuss this matter, like a union rep or solicitor if needs be.

HO87

I agree.

My concerns that I alluded to above (I fully understand why others may not wish to wade through the exchanges with mikey72) are that the hospital staff (the OP's employers) have been throwing their weight around and in so doing have made it clear that for some time they have had evidence that might suggest that the OP has committed a disciplinary offence. The problem - from their point of view - is that our employment legislation requires that the employer must act reasonably and this means that they must act with expedition. They clearly aren't and haven't done throughout the affair. One might argue that they allowed the situation to develop to point where it now is and failed to protect the OP by grasping the nettle promptly. This sort of conduct by the employer suggests vacillation and indecision. Its all well and good suggesting that the employee racked the situation up but the reverse of this is that the employer did not act reasonably or responsibly.

I suggest the OP gets themselves off asap to their union/RCN rep and get some backing.

Aretnap

taffy056 wrote: »

I can't see a parking space as a service though,

The Theft Act 1978 defined a service as "where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for". I can see a parking space being made to fit that definition; the car park owner permits the driver to enter and park on otherwise private land in return for expected payment, and the driver derives an obvious benefit from parking there. While that particular section of the Theft Act has been repealed, Section 11 of the Fraud Act (which replaced it) does not offer a new definition. so I reckon a court would be inclined to apply the old definition.

I can see a counter argument that if the defendant simply drove onto a car park with no barrier, the owner was not in fact induced to permit him to be there, and did not permit him to be there. I'm not sure that I'd want to rely on that as my sole line of defence though - "I'm not guilty because I was completely brazen about my wrongdoing" isn't an argument which is likely to go down too well with the average bench of magistrates.

and if its dishonesty why aren't all private fake tickets heard as a criminal matter,

Because nobody's thought of it before?

Because the police and CPS have higher priorities than prosecuting people over a £1 parking fee?

Because a PPC would not be able to make a profit from a criminal process?

Because of the difficulty in proving the element of dishonesty in most circumstances? If I park without displaying a ticket how would you prove that it was because I was deliberately avoiding payment rather than because I forgot to get one or because the ticket fell off the windscreen? But if I did it 50 times in a row, maybe a court would conclude that nobody is that forgetful, or that unlucky with adhesive.

the answer is because its a civil matter.

Not sure I follow the logic - because it's normally dealt with as a civil matter, it's not possible for it to be a criminal one? It's quite possible for a matter to be both. If someone slashed my car tyres he could be prosecuted for criminal damage and I could independently sue him for the cost of some new tyres.

And as the hospital is pursuing this, they must demonstrate the loss here, they cannot issue a penalty to motorists, no matter how many times the rules are broken.

Again the civil and criminal routes are not mutually exclusive. The hospital could only recover their actual losses from a civil suit. However they could also report the matter to the police (if they could persuade them to show an interest), or bring a criminal prosecution themselves. Anyone can bring a private prosecution, in theory at least, and many public bodies besides the CPS regularly do so in practice.

I'm playing devil's advocate here to an extent. I'm not certain that all the elements of either offence are made out, and I'm not suggesting that the actual risk of prosecution is is high. It may well be that the intent is more to scare the OP into paying than to actually pursue the criminal route. But I am saying that I don't think it's completely preposterous to suggest that in some circumstances non-payment of legitimate parking fees (as opposed to unlawful penalties) could be a criminal offence.

taffy056

Thing is what to pay? The actual loss here is £63 for 63 times parking in the car park, what are the trust trying to claim? I would think about £3k or more, at a rate of £50 a shot. Now that is an illegal penalty, if it ever went to court or a disciplinary route for a figure like that they are acting beyond actual losses, and I would in the OP position take it to tribunal with the help of a Union or Solicitor especially if they legal cover under a house insurance.

And if you were paying attention to when the remit of POPLA was being setup, the minister in charge said that it would be disproportionate to criminalise private parking, so its not that it has never been thought about, its that its firmly a civil matter.

As for the theft act in this case, paying £63 would bring that matter to a close, and I would argue that the OP hasn't stolen a parking space, just used one and for whatever reason hasn't paid what is due under terms and conditions set out, its hardly called theft unless convicted in court, and as its a civil matter it would go to the small claims.

Oopsadaisy

Surely it is merely trespass???

Aretnap

taffy056 wrote: »

And if you were paying attention to when the remit of POPLA was being setup, the minister in charge said that it would be disproportionate to criminalise private parking, so its not that it has never been thought about, its that its firmly a civil matter.

<Shrugs> A minister's opinion isn't particularly relevant. Ministers don't get to decide what the law is - parliament makes it and judges interpret it. Which is just as well given that the minister also obviously thought that it was OK for private companies to issue penalties - the stated aim of the PFA was to strengthen the private ticketing model and to make it harder for motorists to avoid paying paying them.

But if you fancy an argument from authority here's a legal textbook (full chapter online here) which considers whether non-payment in a private car park is a criminal offence. Specifically it considers what constitutes the required element of dishonesty; it seems to take it for granted that if dishonesty is present then the offence would apply.

As for the theft act in this case, paying £63 would bring that matter to a close,

If only it were that simple. The offence would be complete when someone makes off with the intention of not paying. Subsequently changing one's mind and offering to pay wouldn't retrospectively negate the offence, though it might mitigate it. It would be a similar situation to that of a thief who offers to pay for the goods he's stolen - after he gets caught.

and I would argue that the OP hasn't stolen a parking space, just used one and for whatever reason hasn't paid what is due under terms and conditions set out, its hardly called theft unless convicted in court, and as its a civil matter it would go to the small claims.

You're confusing "an offence under the Theft Act" with "theft". The offence in question is not theft, but making off without payment and/or dishonestly acquiring services. They apply to services as well as goods, so the question is not "did the OP steal something?" but "did the OP make use of a service which he had obtained dishonestly, with the intention of avoiding payment?"

I'm not sure what the OP's best move is from here. Probably it is in his best interests to make some sort of reasonable offer to make the matter go away. Precisely what that reasonable offer might have to be I'm not sure. Speaking to a union rep and/or solicitor is doubtless a good idea.

HO87

@ Aretnap

A good summary of the legal ramifications. I would add that even from the flawed perspective of theft that once the offence is complete it matters not that the person responsible is willing and able to pay. Whilst I'm loathe to do the fraud department's work for them proving dishonesty is difficult but it may be inferred from a persons conduct and let's just say that drawing that inference from what the OP's has described is not too difficult.

I remain of the view that the OP should seek advice asap. As this involves her employers if she is a member of Unison or the RCN then she should see them without delay. From her perspective it seems that the fraud department have or are attempting to disconnect their so-called criminal investigation from a disciplinary one and that, on the basis of what they have done so far, could leave them exposed from a tribunal point of view.

I believe the OP should make a payment. As you say, this would not necessarily negate criminal responsibility but would mitigate it and remove the basis of a civil claim. We should not forget that the Trust may not want its parking regime exposed in court and could be using the fraud allegations as a tool.

298set

Please could someone offer some advice. The hospital I work at introduced parking tickets for staff in July. I was given a ticket by Gemini parking on the second day. I pay for a car parking permit at £12 per month but arriving back from an appointment in time for another. I spent 20 mins looking for a space in the barriered car park but there were none available so I parked in one of 130 empty visitor spaces for 1 hour and had left for another appointment 2 hours before visiting time. I have written to both Gemini and now the debt recovery company who have now said they will take court action. The following day security on the site advised us to park in other car parks but tell the porters office where we had parked! They have no reallocated a car park back to staff but too late for me!

taffy056

298set wrote: »

Please could someone offer some advice. The hospital I work at introduced parking tickets for staff in July. I was given a ticket by Gemini parking on the second day. I pay for a car parking permit at £12 per month but arriving back from an appointment in time for another. I spent 20 mins looking for a space in the barriered car park but there were none available so I parked in one of 130 empty visitor spaces for 1 hour and had left for another appointment 2 hours before visiting time. I have written to both Gemini and now the debt recovery company who have now said they will take court action. The following day security on the site advised us to park in other car parks but tell the porters office where we had parked! They have no reallocated a car park back to staff but too late for me!

Could you repost this question in the link below, just click on new thread at the top left hand corner, the reason is that things could get complicated with you asking advice in someone's else's thread. many thanks

http://forums.moneysavingexpert.com/forumdisplay.php?f=163