Guidance on: Seizure of Vehicles

Transcription

1 Guidance on: Seizure of Vehicles

2 Guidance on: Seizure of Vehicles Scottish Executive, Edinburgh 2006

3 Crown copyright 2006 ISBN: Scottish Executive St Andrew s House Edinburgh EH1 3DG Produced for the Scottish Executive by Astron B /06 Published by the Scottish Executive, January 2006 Further copies are available from Blackwell s Bookshop 53 South Bridge Edinburgh EH1 1YS The text pages of this document are printed on recycled paper and are 100% recyclable

4 CONTENTS PAGE Introduction 1 Contact 1 Context and background 1 Exercising the power to seize a vehicle 2 Location of vehicle use 3 The power to seize a vehicle 4 Retention and disposal of a vehicle 5 Vehicle seizure notice 5 Payment of charges 6 Disposal of a seized vehicle 7 Annex A Sample of Police vehicle seizure warning notice Annex B Sample of Fife Constabulary s vehicle seizure notice Annex C Sample of Fife Constabulary s vehicle release notice

5 INTRODUCTION 1. This guidance relates to the provisions contained in Part 10 (sections 126 and 127) of the Antisocial Behaviour etc (Scotland) Act 2004 ( the Act ). It is designed to provide operational guidance primarily to the Police to assist with implementation of the provisions and to enable officers to: use the powers effectively and efficiently; see the use of the powers in the broader context of tackling antisocial behaviour; and understand the implications of the powers as they relate to affected persons and the communities in which they occur. The Act received Royal Assent on 26 July 2004 and the power to seize vehicles commenced on 17 March The Act can be accessed at: CONTACT 2. If you have any queries about this guidance please contact the Scottish Executive s Community Safety and Antisocial Behaviour Team, Justice Department, on or e mail: antisocialbehaviourunit@scotland.gsi.gov.uk 3. In addition, as part of the wider programme of support for the implementation of the Antisocial Behaviour etc (Scotland) Act 2004, the Executive is funding a telephone advice line for practitioners. The service provides telephone advice and support on a wide variety of technical issues such as how to apply for an Antisocial Behaviour Order, the process of granting a closure notice, how to issue a warning notice to seize a vehicle etc. This service is available on , Monday to Friday 9am 5pm. CONTEXT AND BACKGROUND 4. Seizure, retention and disposal of vehicles is dealt with in sections 126 and 127 of the Act. The new powers build on existing road traffic legislation. By authorising the seizure of a vehicle being used in an antisocial manner and contravening sections 3 or 34 of the Road Traffic Act, the power enables the police to deal more immediately and more effectively with the nuisance and distress caused. The new powers will inconvenience those who, through misuse of their vehicles, not only increase danger on the roads but also cause alarm, annoyance or distress to members of the public. Vehicles used in this manner can now be seized and owners will be liable to meet the resulting costs in order to recover their vehicles. This will stop the nuisance at the time and act as a deterrent to further misbehaviour. 1

6 5. The powers contained in the seizure of vehicles provisions are not intended to be used as a first resort or in isolation. There is certainly nothing in these provisions which would allow a police officer to seize a vehicle from a person who is driving their vehicle in a considerate manner. Rather they are intended for use as part of a package of measures agreed with partner agencies. The power to seize a vehicle will only be used if it is believed that the behaviour of the driver caused, or was likely to have caused, alarm and distress to members of the public and the driver has contravened either section 3 or 34 of the Road Traffic Act The provisions, where possible, should be used in line with the National Intelligence Model and as part of the normal Tasking and Co-ordinating process. The approach to seizure of vehicles should also be considered within the overall context of the statutory duty applying to forces under Part 1 of the Antisocial Behaviour etc (Scotland) Act 2004, namely to participate in the creation of a local authority antisocial behaviour strategy. 7. These guidelines set out in a practical way the issues which police officers should consider when faced with the question of whether or not to seize a vehicle. The aim is to ensure as far as possible that a consistent approach is taken across Scotland. 8. Evidence of antisocial behaviour could come from those who have been alarmed and distressed by such behaviour. It could also come from a range of other sources police officers, neighbourhood or community wardens, community safety partnerships, housing officers, social work officers, other members of the public or CCTV footage. 9. The police officer should normally support his or her decision that there has been an incident of antisocial behaviour with other corroborative evidence, such as receipt of several calls/complaints about the behaviour made to the police, either directly or through third party reporting, by members of the public, local officials (including community wardens) and/or evidence by police officers themselves or CCTV evidence. Calls/complaints made by a single person or family and not supported by other evidence such as from near neighbours etc should be considered in light of the prevailing circumstances. Clear signs of the kinds of alarm and distress that the power is designed to relieve are people becoming afraid to leave their homes when it is dark, people feeling terrorised even when in the supposed safety of their homes or sheltered accommodation (for example as a result of the antisocial use of vehicles in the street) and people being afraid to walk along the streets. EXERCISING THE POWER TO SEIZE A VEHICLE 10. Section subsections 1 and 2 - enable a police constable, in uniform, in defined circumstances to exercise powers to seize a vehicle. The triggers for seizing a vehicle (under section 126 of the Act) are the officer has reasonable grounds for believing that a vehicle is being used or has been used in a way that: 2

7 contravenes section 3 or 34 of the Road Traffic Act 1988 (c.52) (careless and inconsiderate driving and prohibition of off-road driving); and is causing, or is likely to cause, alarm, distress or annoyance to members of the public. Both conditions have to be satisfied before authorisation can be considered. 11. While such reasonable grounds will depend on the circumstances of each case, there must be an objective basis for those grounds based on demonstrable facts, information and intelligence relevant to the driving behaviour and contravention of the Road Traffic Act by any vehicle user. This could be, for example, from: recorded observations by a police officer or special constable; recorded observations by a community warden; as captured by public space CCTV; or as reported by members of the public identifying individual drivers either by name or by providing a description, or by providing a vehicle description or a vehicle registration number. What the constable should be concerned with is whether the use of the power will lessen the alarm and distress to members of the public. The powers cannot be exercised unless the driver is both using the vehicle in an antisocial manner and is committing either the section 3 or section 34 offence. Someone driving in a way that might be considered antisocial but without reasonable grounds for believing that they are committing either of these statutory offences is not liable to have their vehicle seized. In the same way, someone committing a different motoring offence or indeed an offence under either section 3 or 34 but without any element of antisocial behaviour would not be liable to have their vehicle seized. LOCATION OF VEHICLE USE 12. The powers can be used where vehicles are being used: On the public road where the vehicle is being driven without due care and attention or without reasonable consideration for other road users in contravention of section 3 of the Road Traffic Act 1988, or Off-road where it is being driven without lawful authority on common land, moorland or any other land that does not form part of the road or on a footpath or bridleway in contravention of section 34 of the Road Traffic Act 1988 Act. 3

8 THE POWER TO SEIZE A VEHICLE 13. Antisocial Behaviour etc (Scotland) Act 2004, section 126 (3) subsection 3 sets out the new powers. These are: to order the driver to stop a vehicle; to seize and remove the vehicle; to enter premises, other than a private dwelling house, where there are reasonable grounds to believe the vehicle is; and to use reasonable force if necessary to exercise the preceding powers. Although the power of entry does not extend to a private dwelling house, it does cover a garage or other out-building. 14. The person using the vehicle must be warned before the vehicle is seized, unless it is not practicable to give a warning or a warning has been previously given. A warning can be given verbally, however, it is good practice to also issue a written warning. Where possible this should be issued to both the vehicle driver and the vehicle owner if they are not the same person. A draft sample of a warning notice is contained in Annex A. 15. To ensure that forces are aware of warning notices that have been issued, it is good practice to record warnings on the Police National Computer (PNC). An information report is entered against the vehicle recording details of the warning and a locate / trace entry in respect of the driver. A warning notice is valid for a period of 12 months, therefore effective procedures need to be in place to ensure the removal of entries after the 12 month period. 16. A vehicle cannot be seized unless a second similar incident takes place involving the same person or the same vehicle within a period of 12 months from the date of the warning. A previous warning given does not have to have been given by the same constable. Nor does it have to have been given to the same person or in respect of the same vehicle. It could have been given to the same person using another vehicle, or to a different person using the same vehicle. This covers the situation where a number of people gathered together are using their vehicles antisocially and swapping them around. This provision is designed to stop the repeat offender. 17. It is an offence to fail to stop when ordered to do so. The penalty on summary conviction is a fine not exceeding Level 3 on the standard scale, currently 1, For the purposes of sections 126 and 127, driving has the same meaning as in the Road Traffic Act 1988 (c.52). 19. Motor vehicle means any mechanically propelled vehicle, whether or not it is intended or adapted for use on roads. 20. The new powers can only be exercised when Regulations under section 127 are in place. The section 127 Regulations have been made and are effective from 17 March

9 RETENTION AND DISPOSAL OF A SEIZED VEHICLE 21. Regulations, made under section 127 of the Antisocial Behaviour etc (Scotland) Act 2004, provide for the retention, safe keeping, release and disposal of vehicle seized under section 126 of the Act. A copy of The Police (Retention and Disposal of Motor Vehicles) (Scotland) Regulations 2005 SSI 80 - can be found at: They include particularly the charges that may be levied on the owner before a seized vehicle is released to them, but provide specifically that an owner shall not have to meet such charges where they can demonstrate that when the vehicle was seized; they were not the person using it, they had not consented to its use in that way; and they could not by taking reasonable steps have prevented its use in that way. The Regulations are based as closely as possible on the Removal and Disposal of Vehicle Regulations 1986 and the Police (Retention and Disposal of Vehicles Regulations 1995) with charges being the same as those set in the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc) (Amendment) Regulations When a vehicle has been seized it remains in the custody of the police or other authorised party until it is released or disposed of in accordance with these Regulations. During this period the police or other authorised party has to take such steps as are reasonably necessary to keep the vehicle safe. 23. The other parties that may have custody of a vehicle are those authorised by the relevant chief officer of police. They can include a recovery operator or other agent who already acts on behalf of the police in respect of vehicles removed, retained and disposed of under other powers. VEHICLE SEIZURE NOTICE 24. The Retaining Authority must give the owner or apparent owner a notice of seizure as soon as possible. No precise time limit is set in recognition of the fact that the time it takes to identify the owner will vary. In some cases the owner may be immediately identifiable, in others never. The notice must, however, always be given as soon as possible. 25. The precise format of the notice is not prescribed, but the information it must include for the owner is where the vehicle was seized, where it is now being kept. The notice should also state that an owner should claim their vehicle within 7 days of the date of issue of the notice or it will be disposed of. In addition the notice should state that before the vehicle is released to the owner they will have to pay prescribed 5

10 charges to meet the costs of its removal and retention. (These charges are not a fine). A draft copy of a sample seizure notice is contained in Annex B. The notice must also make it clear that the charges will be waived if the owner of the vehicle can demonstrate that when the vehicle was seized, they meet the conditions in paragraph 22, regarding use and consent. 26. The seizure notice can be given by delivering it to the owner, by leaving at their usual or last known address or by sending it via registered post. If the vehicle is owned by a body corporate, for example if it is a fleet or hire car, the notice can likewise be delivered or sent to the body s secretary or clerk at its registered or principal office. PAYMENT OF CHARGES 27. Provided the appropriate charges are paid the vehicle should be released to its owner. The person claiming the vehicle must satisfy the retaining authority that they are the owner. It is for the Retaining Authority to decide what constitutes adequate proof of ownership, taking into account any documentary evidence the person supplies. It may be considered good practice for the relevant police force to issue a vehicle release notice on production of documents, which the owner can then hand to the Retaining Authority. A sample copy of a release notice is contained in Annex C. 28. The appropriate charges must be waived where the owner can demonstrate they fulfil the conditions in paragraph 22. In the event of dispute, it would be for the courts to decide what constituted reasonable steps in any particular case. 29. Charges which the owner of the seized vehicle has to pay, if they are not waived are specified in the Regulations. They are 105 for the removal of the vehicle following its seizure and 12 for each period or part period of 24 hours during which it is kept. The first such period begins at noon on the day following seizure, provided that the place where the vehicle is stored is open for the vehicle to be claimed before noon that day. This means, for example, that if a vehicle is seized on a Saturday, but it is taken to a pound which does not open on Sundays, the first 24 hour period will begin at noon on Monday. A person will not have to pay a storage charge if they claim their vehicle before noon on the first day after its seizure that its holding place is open; they will still have to pay the removal fee. 6

11 DISPOSAL OF A SEIZED VEHICLE 30. The Retaining Authority holding a seized vehicle may dispose of it, subject to certain conditions, if it is not claimed and removed from their keeping. The vehicle cannot be disposed of in the three months following seizure. Nor can it be disposed of during the seven day period specified in the seizure notice. This allows for instances where it has not been possible to give the notice at an early date and the end of the seven day period is more than three months after seizure. 31. The vehicle cannot be disposed of in the seven day period stated in the seizure notice. This starts on the day on which the owner notifies the Retaining Authority they are making a claim. 32. Before they can dispose of a vehicle, the Retaining Authority must have been unable to deliver a seizure notice, or if it was delivered, the owner must have failed to remove the vehicle. The Retaining Authority must, where necessary, take the steps described in the Regulations to identify the owner of a vehicle so that they can deliver a seizure notice to them. The steps must include checking DVLA records and - where practicable - making enquiries of any agency that retains records of hire purchase agreements but should include any other measures that appear practicable. 33. The vehicle can be disposed of in any way the Retaining Authority thinks fit, whether by sale or otherwise, eg destruction. 34. Where a vehicle is disposed of by way of sale, the net proceeds of the sale have to be paid to the person who owned the vehicle at the time of the sale, if they make a claim within a year. The net proceeds are the proceeds of the sale less any charges the owner would have had to pay had they reclaimed the vehicle. Scottish Executive Justice Department January

12 ANNEX A SAMPLE OF POLICE VEHICLE SEIZURE WARNING NOTICE WARNING NOTICE Vehicle being used in a manner which causes alarm, distress or annoyance To*: Date of Birth: Of: At (time) (date) (place) Vehicle make: Model: Colour: VRM: Or description of vehicle if no VRM (include chassis VIN if appropriate): You are / have been driving in a careless / inconsiderate manner (Contrary to Section 3 of the Road Traffic Act 1988) OR You are / have been driving on common land / moorland / land which is not part of a road / footpath / bridleway / restricted byeway. (Contrary to Section 34 of the Road Traffic Act 1988) In a manner which has been causing / is causing / or is likely to cause alarm, distress or annoyance to members of the public. Warning is hereby given that if: (a) any person continues to drive the above vehicle in a similar manner on this occasion; or (b) you drive any motor vehicle in a similar manner during the next 12 months; then under the provisions of section 126(3)(b) of the Antisocial Behaviour etc (Scotland) Act 2004, and the Police (Retention and Disposal of Motor Vehicles) (Scotland) Regulations 2005 the vehicle may be seized and thereafter disposed of by the Police unless prescribed removal and storage charges are paid. Notice received by person at* Issuing Officer: Name Collar Number Station: Dated: Subject Copy

13 ANNEX B SAMPLE OF FIFE CONSTABULARY S VEHICLE SEIZURE NOTICE Dear Sir/Madam SEIZURE NOTICE Seizure of Motor Vehicle Reg. No. In terms of section 126(3)(b) of the Antisocial Behaviour etc (Scotland) Act 2004, and the Police (Retention and Disposal of Motor Vehicles) (Scotland) Regulations , the above vehicle has been seized and is now retained by the Police. The reason for such seizure and retention is that the Police have reasonable grounds for believing that the vehicle was being used in contravention of Section 3 or 34 of the Road Traffic Act 1988 (careless and inconsiderate driving or off-road driving) and caused, or was likely to cause, alarm, distress or annoyance to members of the public. The vehicle was seized by the Police [Constable shoulder No] on (date) at (location) and is currently being kept in the [Western/Central/Eastern] Police Division area, at a storage premises in terms of the Police Vehicle Recovery Scheme. This notice is being sent to you as you are, or appear to be, the owner of the vehicle. You can claim the vehicle following provision of proof of ownership (V5 Registration Document) and proof of identity. If you intend to claim the vehicle you should first make contact with the Duty Officer at [ ] Police Station, Tel [ ] An arrangement will be made for you to call at the Police Station, where after providing proof of ownership etc you will be issued with a Vehicle Release Notice. You should then take the Vehicle Release Notice to the storage premises from where you can reclaim the vehicle. Please note that vehicles can only be reclaimed during the normal office hours of the storage contractor or by arrangement with the contractor. (A separate fee may be required for vehicles reclaimed outwith office hours) IMPORTANT: You are required to claim the vehicle before [insert a date not less than 7 days from the date of the Notice.] If the vehicle is not claimed on or before that date, arrangements will be made for the vehicle to be disposed of. You should be aware that charges are payable by the 1 Scottish Statutory Instrument 2005, No. 80. The Regulations and the Act can be accessed at

14 owner of the vehicle in respect of removal and retention and the vehicle will be retained until such charges are paid. The charge payable under regulation 5 (1) will be 105 in respect of the vehicles removal and in respect of retention the sum of 12 for each period of 24 hours or part thereof during which the vehicle is in the custody of the Retaining Authority (Fife Constabulary.) If the vehicle is disposed of any proceeds, less costs, will be forwarded to you in due course. The financial charges referred to above may be waived if you are able to show that you were not the person using/driving the vehicle in the manner which led to its seizure and you were not aware of the manner in which it was being used at that time and you could not, by taking reasonable steps, have prevented its use in that way. If you were not the owner of this vehicle when it was seized please complete the enclosed Form and return it to: - Fife Constabulary Safer Neighbourhoods Co-ordination Team Safer Neighbourhoods Manager Police HQ Detroit Road Glenrothes KY6 2RJ Chief Superintendent. Divisional Commander.

15 Seizure of Motor Vehicle Reg. No. I was not the owner of the above vehicle when it was seized by the Police on [date]. I disposed of this vehicle on (date) by (insert method of disposal i.e. selling/scrapping etc) to (insert name and address of person to whom you sold/scrapped etc the vehicle) Name and address (please print full name and address) Signature

16 ANNEX C SAMPLE OF FIFE CONSTABULARY S VEHICLE RELEASE NOTICE The Contractor Police Vehicle Recovery Scheme Your Ref: Our Ref: Date: Dear Sir/Madam, Vehicle Release Notice Seizure of Motor Vehicle Reg. No. In terms of section 126(3)(b) of the Antisocial Behaviour etc (Scotland) Act 2004, and the Police (Retention and Disposal of Motor Vehicles) (Scotland) Regulations 2005 the above vehicle was seized by the Police and in terms of the Vehicle Recovery Scheme is retained at The vehicle owner Mr/Mrs has attended at Police Station and has provided proof of ownership of the vehicle. You are therefore hereby authorised to return the vehicle to the above-named on production of this Notice and subject to payment of the required fee. Signed Date Designation

17 Crown copyright 2006 This document is also available on the Scottish Executive website: Astron B /06 Further copies are available from Blackwell s Bookshop 53 South Bridge Edinburgh EH1 1YS Telephone orders and enquiries or ISBN Fax orders orders business.edinburgh@blackwell.co.uk w w w. s c o t l a n d. g o v. u k