The Private Security Industry Act 2001was introduced on 11 May. Caroline DeLaney discusses what it means for owners and occupiers
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Key points |
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” The 2001 Act will ensure that the private security industry will be fully regulated ” Specific provisions cover wheel clamping ” Non-compliance with the requirements of the Act will constitute a criminal offence |
Wheel clamping is a necessary management tool in a society where there are more vehicles than space. Owners and occupiers of shopping centres, leisure parks or, indeed, anyone who has land upon which you can park (invited or not) often use management services, either in-house or third-party contractors, whose work includes the clamping of vehicles unlawfully parked.
Current law
The law on wheel clamping is clear, albeit antiquated. Its origins lie in the common law of trespass, developed long before the arrival of the car. The vehicle owner commits a trespass by parking his vehicle on private land without consent or in breach of any prescribed parking permission. The landowner, or agent, who immobilises the vehicle by clamping it is also committing a trespass, but this may be justified on the grounds of consent or volenti non fit injuria. Arthur v Anker [6] 3 All ER 783 sets out the basis upon which clamping is, in principle, legal, provided it complies with certain conditions, namely that: notice is given of possible clamping; the release fee is reasonable; the vehicle is released promptly; and it is possible to contact the clampers.
Despite the legality of wheel clamping, the activities of unscrupulous operators have resulted in adverse publicity and sensational headlines. Consider Vine v Waltham Forest London Borough Council [0] 4 All ER 169. Mrs Vine, returning from hospital, pulled over to the side of the road to be sick, whereupon her car was clamped.
Private Security Industry Act 2001
The government has intervened to address the problems in the private security industry. On 11 May 2001, the Private Security Industry Act 2001 was introduced, making provision for the regulation of the industry as a whole. It established the Security Industry Authority (SIA), which will be responsible for licensing security personnel, setting standards across designated sectors of the industry and monitoring an approved companies scheme. As well as car clamping, it will cover door supervisors or “bouncers”, security guards, private investigation services, security consultancy and keyholder services. It will make recommendations as to best practice, carry out inspections and approve standards of conduct, training and supervision. Funding will come primarily from the collection of licence fees.
Licences will be granted following checks with the new Criminal Records Bureau. Although the precise details are to be laid down by further regulations, it is anticipated that the licences will be valid for a period of three years for a fee of around £35-40. In addition to this check, applicants are expected to satisfy the authority on a range of matters that will prove their fitness to take part in their chosen security service.
The Act is not yet in force, but the Home Office aims to implement its provisions towards the beginning of 2003. Steps are already in hand. With effect from 1 April, the Home Office appointed Molly Meacher and John Saunders as chairman and chief executive of the SIA. Over the coming months, their task will be to put in place the necessary infrastructure.
How will this impact on wheel clamping?
Companies that provide wheel clamping services will need to ensure that their operatives, as well as their directors and supervisors, are licensed. Where clamping is undertaken in-house, the particular individuals who undertake the clamping will need to be licensed, but it is anticipated that their employer (or its directors in the case of a company) will not. But this needs to be clarified, and further guidance is expected.
Not having a licence will incur penalties. In the case of clamping, the Act contains two relevant provisions. By section 3, it will be an offence to engage in “licensable” conduct without a licence. This includes private investigation, manned guarding, security consultants, keyholders and wheelclampers, covering both in-house providers and third-party contractors. An offence under section 3 is punishable by up to six months’ imprisonment or a fine of up to £5,000.
More significantly, section 6 creates a separate specific offence of “using unlicensed wheelclampers”. An “occupier of any premises” is guilty of an offence if he carries out clamping without a licence or it is carried out with his permission. In other words, it covers the use of in-house staff and third-party contractors. It is a defence under section 6 if you did not know, or had no reasonable grounds to suspect, that the individual did not have a licence or you took reasonable steps to ensure that the individual did not engage in licensable conduct.
In a magistrates’ court, an offence under section 6 will incur a maximum period of imprisonment of six months or a fine limited to £5,000. In the Crown Court, however, the punishment may be imprisonment of up to five years or an unlimited fine.
Be prepared
Property owners, occupiers and managers should be aware of the legislation if they use wheel clamping for property management. Non-compliance with the requirements of the Act will constitute a criminal offence.
On the assumption that the provisions of the Act are introduced at the beginning of 2003, you will need to audit your security arrangements – in-house or contracted out – with a view to ensuring compliance when the licensing requirements are introduced.
Unfortunately, this will not guarantee that the owners of lawfully clamped vehicles will receive the news with any more satisfaction.
Caroline DeLaney is a partner in the real estate disputes team at CMS Cameron McKenna
