Monday, 3 August 2009

A Guide to Illegal Clamping in Jersey

What do do if you are clamped? Well, for starters you shouldn't be parking on private land anyway, but there are several reasons why you might be:

a) an emergency
b) not seeing the signs
c) just dropping off or picking up someone / something.

The Jersey Evening Post (30 July 2009) recently gave the comments by Ian Le Marquand, the Home Affairs Minister. It should be stressed that he is speaking not as a Minister, but as a lawyer. Nonetheless, the legal advice he gives has not been challenged, and as Home Affairs Minister he will be helping support the drafting of a law that will ban clamping, and replace it with a fairer system of fines, which will put illegal parking in private areas on equal footing with parking on a yellow line, or in a public parking place without a scratch card. For the benefits of those who missed his excellent advice, or lost the paper, here is what to do.

An Illegal Practice

WHEEL clamping is illegal and drivers should stop `giving in to it', the Home Affairs Minister has said. Indicating his firm support for new efforts to outlaw the deeply unpopular practice, Senator Ian Le Marquand, the former Magistrate, warned clampers that they risked being sued for substantial damages and could be committing a criminal offence if they demanded money for removing clamps. He said it was his legal opinion that clampers who demanded money to release vehicles and those who `marched people down to the cash machine' could be criminally guilty of 'demanding money with menaces'.

Here are his step by step guidelines. He doesn't specify what amount of money should be offered, but I would say that the maximum to be offered would be that incurred as a parking fine in the public sector, that is £50, which is considerably less than most clampers are demanding.
1. Offer Money

'If I was clamped, the advice I would give myself as a lawyer would be to offer the clampers the sum of money I regarded as reasonable in settlement for the damage I had done,' Senator Le Marquand said.
2. Make A Written Note

'If they refused to take that sum off me, I would make a written note that I had offered this sum and they had refused it. I would say to them that if they did not release the car, I would bring damages against them.' He explained that he would seek recompense for the loss of the use of his vehicle and any expenses incurred, such as taxi fares and car hire.
3. Ask for the Boss

'I would suggest that he [the clamper] might like to phone his boss and say that he might be liable to this claim if he does not release the car,' he added. 'That is what I would do and that is what I would advise anyone else to do. I would sue the clampers for the total sum lost.'
4. Call the Police

And he said that if the clampers refused to release the car, he would call the police as, in his legal opinion, the demanding of cash in such a context could constitute the criminal offence of demanding money with menaces.
Finally, he gives his legal opinion on clamping, citing case law, and explains how the system needs to be reformed.

Legal Opinion
'My legal opinion is that if a person parks where they should not they commit a trespass and there is a claim for damages in relation to the value of those damages, but a person who then wheel clamps also commits a trespass which gives rise to a claim or damages the other way. 'Clampers are putting themselves at subtantial risk of claims for damages."
'Wheel clamping is unlawful, not criminal, but unlawful, and it can lead to practices that can be criminal offences. I would advise people to stop giving in to it.'
Senator Le Marquand, who stressed that he was speaking as a lawyer and not as Minister for Home Affairs, added that his legal position was supported by a court decision in Jersey. The court ruled that a clamper had no legal right to clamp and the clamper in question has since stopped operating.
Local Law, not UK Law - Warning Signs are not enough
Mr Le Marquand explained that dampers seemed to think that Jersey followed UK law and could clamp if they erected signs warning that vehicles could be clamped. However, the minister stressed that was not the law in Jersey. He spoke out after Deputy Paul Le Claire lodged a proposition calling for clamping to be outlawed earlier this week. It is expected that it will be debated by the States in the autumn. Senator Le Marquand said that he had instructed his department to help draft the proposition and would be supporting it. He said he would favour a fining system that would reflect the level of damages incurred by illegal parking on private land.

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