Tuesday, 8 March 2011

Fine

There has been a lively debate on private parking charges on a mailing list I am on. I won't go in to the debate in detail (phew!), but it is clear people have different views at a moral level on some things.

I am keen to learn how things should work, and do work, and have actually purchased and started reading a book on tort law. Interesting stuff. It does however surprise me how much things can be down to policy rather than a clear long standing idea of right and wrong. It is also interesting how much things have changed over the last few decades even. What is right clearly changes over time. That does make some sense, but gives rise to disputes where both sides are absolutely sure they are right.

The one policy thing which makes a lot of sense to be is that fines belong to criminal law, not civil. A fine is a financial charge that is there to punish and deter. It is not there to compensate for damages or losses.

You can be fined for something criminal even when there is no damage caused by your action and no risk of damage (e.g. speeding on a clear motorway on a dry sunny morning in a new car). The fine is not there to compensate for damages it is to punish and deter.

What seems odd to me is that people think there is any place for fines in civil disputes. The idea of me fining you for something you have done wrong to me. That really does not work. It creates all sorts of incentives that are not good for society. I mean, if it is a fine, what is to stop me fining you £250 for walking on my driveway? You may think that is silly and unreasonable but it is the same as some parking fines which are the same basic civil wrong (trespass). Basically, any fine is unreasonable. A charge for damages, yes, but not a fine.

Fines are for the courts...

I'll read more of the book though :-)

P.S. I can debate commercial late payment penalty charges another day. Truth is they raise less money than the cost of pursuing late payments and people going bust owning money that they would not have, and so are not a fine or penalty but a pre-estimate of damages for a breach of contract helpfully set in law to minimise the work for everyone. They are probably too low.

11 comments:

  1. So don't call it a fine, call it a penalty charge. The intent - to deter - is the same.

    Forget about walking on your driveway; presumably you don't want people *parking* on your driveway? If you take away any financial penalty then how exactly do you propose to persuade people not to do so?

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  2. It does not matter what you call it - the principle is the same. Civil law should seek to compensate for damages and to put things right as if the wrong had not been done (at best).

    I am not suggesting "taking away" a financial penalty - I am pointing out there is no financial penalty. Civil and contract law do not allow fines or penalties. The concern is not taking away anything, it is adding the option for have effectively fines in civil cases as some new legislation seems to be considering for some cases.

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  3. You don't have to persuade someone from parking on your driveway. That's not your job. If someone does that you ask them to move and if you refuse you call the police - it's trespass.

    What you can't do is hand them a bill.

    Even in in the extremely silly case of inviting someone to park on your driveway, then revoking the invite an hour later (which is essentially what the parking companies do) It's still trespass (once they refuse to move) and you still can't send them a bill.

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  4. Sadly, trespass is just a civil wrong which means typically the police will not get involved.

    If it was causing an obstruction that would be a different matter, as would a likelihood of a breach of the peace, or criminal damage.

    But a fine or penalty is not right in any civil case, and I am not alone in believing that this right and correct.

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  5. The question then is what can I do when I can't park on my drive due to someone trespassing, and can't sensibly park elsewhere near my home due to lack of legal on-road space.

    Right now, as things stand, the practical impact of the law is that I can go swivel - my costs in parking somewhere other than my drive cannot be reclaimed from the trespasser, and I cannot get the police to remove the trespasser.

    What's more, if I attempt to remove the trespasser myself, I have to pay the costs of having them towed.

    Something needs to change; maybe trespass should become a criminal matter that the police are expected to intervene in, maybe I should be practically enabled to recover my costs in having a trespasser's car removed from my drive.

    It's no use having something be illegal if there is no practical way to enforce the law even when the trespasser is identified.

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  6. Indeed, there are ways of tackling this - but changes to something as long standing as trespass need to be considered carefully and be very well defined. When I have finished reading the section on trespass as it currently stands I may have more insight in to what can be done now.

    My point here is that as long as something is just a civil wrong, people can't fine people. That is not to say that you don't have to pay for doing something wrong, but it is paying to put it right at most. It is that principle / policy that some people have a strong feeling should not apply!

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  7. The thing is that with parking charges in Oxford at the levels they're at, the cost of putting things right if you trespass on my (hypothetical) drive is generally much, much lower than the cost of complying with the law.

    For starters, I can't claim the cost of a taxi to and from the park and ride to enable me to park away from home (as I could get the bus, albeit that parking at the park and ride is *already* a massive inconvenience, made worse by the need to wait for the bus). I can't claim the cost of a parking fine if I choose to park on the road for longer than the permitted stay time. I can't legally obstruct your vehicle and deprive you of it (e.g. by chaining my gates shut). I can't claim for the time I lose driving out to the park and ride and back again when you're gone.

    And note that all of those are assuming I've identified the trespasser - in the more common case (IME of living in London), you can't identify the trespasser, so you have no civil case in the first place.

    What is the point of the law if it's easier and cheaper (even when caught) to break it than it is to comply with it?

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  8. In a few circumstances, the courts will award damages with the intention of punishing rather than compensating; see for example http://goo.gl/idipN .

    Suppose the local police 'billeted' a police car on your drive, refusing to stop parking there, and treating your drive as its regular parking place. Obviously you would be entitled to an injunction and compensatory damages for any losses you experienced. Would you also be entitled to punitive damages? It seems to me that perhaps you would.

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  9. "I can't legally obstruct your vehicle and deprive you of it (e.g. by chaining my gates shut)."

    Wow, really? I would have thought you were perfectly within your rights to fence your own property and anyone trespassing on it at the time would just have to deal with it. Law seems ass-backwards there.

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  10. Oh, I agree. Discussing different levels of what people feel is morally right (as is the point of this thread)... I fully understand the issue of not damaging someone else's car as that is clearly wrong the other way, but closing your own gates is a different matter.

    I am not sure what the law is. I suspect holding the car to ransom may not be allowed. I would hope I can close and lock my gates if I want, just not refuse to open them when asked (assuming you can find me and ask).

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  11. Pete: You do that, and the police consider that you're attempting to take the car without consent - a crime. At which point, they can get involved, and not on your side - in particular, they believe they can damage your gates to get the car out.

    It's a fundamental problem with the law as written; it basically assumes that trespass means a person on your land, who can be asked to leave, or maybe, if you're unlucky, something you can move with ease yourself. Nowadays, there are people leaving 1,000 kilogram or heavier weights on your land - you're quite entitled to move it off your land at your expense, but that's all you can do without falling foul of one law or another.

    I'm not claiming to have the answer, BTW; possibly a sensible level of statutory damages would be the answer (enough to cover towing a car away), payable by the registered keeper if they wish to recover the car. Maybe there's a better solution - but I think the current situation is untenable, and I'm not seeing people come up with better solutions than statutory damages.

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