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University of London International Programmes

30 Lloyd [1992]: Case Comment

Professor J.C. Smith

Criminal Law Review 1991.

Copyright © 1991 Sweet & Maxwell Limited and Contributors.

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FOR EDUCATIONAL USE ONLY

Crim. L.R. 1991, DEC, 904-906

Criminal Law Review

1991

Case Comment

CRIMINAL DAMAGE ACT 1971, S.1(1) - DAMAGING PADLOCKS IN ORDER TO

REMOVE CLAMP
ON CAR
Copyright (c) 1991 Sweet & Maxwell Limited and Contributors

Case: Lloyd v D.P.P. Times, June 28, 1991 (QBD)

Legislation: Criminal Damage Act 1971 s.1
Subject: CRIMINAL LAW
Keywords: Criminal damage; Motor vehicles; Parking; Trespass to land
Abstract: Whether car owner had consented to risk of wheel clamping and
whether clamping was trespass.

*904 L parked his car in a private car park where there were prominent
notices to the effect that unauthorised vehicles would be immobilised and a levy
of £25 charged for release. When he returned to his car he found that it had been
clamped by agents of the owners of the land. He confronted the person who had
clamped his car, refused to pay the levy and left. Later he returned with a disc
cutter and cut two padlocks securing the clamp to the car. He was charged with
criminal damage to the padlocks. Before the magistrates' court he submitted that
the owners of the land had no right to clamp his car and that he was therefore
entitled to use reasonable force to recover his property. L was convicted and
appealed by way of case stated.
Held, dismissing the appeal, the court was bound by an unreported decision,
Stear v. Scott, March 28, 1984, D.C., a case on substantially indistinguishable facts,
unless that case had been decided per incuriam. (R. v. Greater Manchester Coroner
ex p. Tal & another [1985] Q.B. 67.) The court however agreed with the decision in
Stear v. Scott. It was true that a person could trespass on another's land to recover
his goods placed there by the wrongful act of the other (Clerk & Lindsell on Torts
16th ed. para. 23-28. Howson (1966) 55 D.L.R. (2d.) 582 (Canada); Devoe v. Long
[1951] 1 D.L.R. 203 (Canada) considered). However, that did not appear to extend
to cases where the owner of the chattel had been responsible for the chattel being
on the land; and immobilisation with a reasonable levy seemed a justified deterrent
to trespass by L. It was not however necessary to define the respective civil law
rights of
L and the owners of the land in the present case. The magistrates' court had
rightly found that L had consented to the risk of his car being clamped and he had
not validly withdrawn that consent; accordingly the clamping was not a trespass and
there was no defence to the charge of criminal damage to the padlocks.
Per curiam. Even if the clamping had been unlawful there was a lawful
alternative open to L: he could have paid the £25 under protest and sought to
recover it by civil action.
[Reported by Tom Rees, Barrister]

Can a person consent in law to his car being clamped? The argument that
clamping is an unlawful act to which a person cannot in law consent to
untenable. Public policy precludes a valid consent to some harms, notably death or
serious bodily harm; but the owner of property such as a car can consent to its
wanton destruction if he chooses, so he certainly can consent to its being clamped.
Unreasonable conditions. Whether the owner would be taken to have consented
to a wholly unreasonable condition is another matter. If the condition in the
hypothetical licence or contract discussed above were that cars not removed within
page 202 University of London International Programmes

24 hours would be crushed, or forfeited to the owner of the car park, it seems likely
that the condition would be invalid at common law. The trespasser is not necessarily
in so favourable a position but arguably it would not be enforceable against him
either--he would not be held to have consented to anything so outrageous. If the
condition were invalid, breaking the locks would seem to be reasonable force to save
the car from the crusher.
Is clamping a car criminal damage? The court rejected L's argument that
clamping L's car was an offence of criminal damage, saying that there was no
evidence that any damage was caused to the car. This is not so clear. Machinery can
be damaged by removing a part so as to prevent it functioning: Tacey (1821) Russ.
& Ry. 452. A car would be "damaged" by removing the rotor arm so that it would
not go. If the car can be damaged by removing something, it seems logical that it
can be damaged by adding something. The effect of the attaching of the
clamp is no less drastic than the removal of the rotor arm. But even if the
clamping is "damage" it does not follow that it is criminal damage because it may be
that the clamper has the right to do it. Neither Stear v. Scott nor the present case
decides whether he has the right or not.
Ratio decidendi. The court said that Stear v. Scott was binding on them and the
present case was covered by it, but it is not entirely clear that the ratio decidendi of
the two cases is the same. Stear v. Scott seems to have been decided on the basis
that a person who has brought his chattel on to the land of another by trespass is
not entitled to retake it and is certainly not entitled to use force to do so. The
present case depends on the fact that L consented to the risk. The ratio decidendi of
Stear v. Scott seems broad enough to cover a trespassing motorist who was not
aware of a risk of clamping. [J.C.S.]
CRIMLR 1991, Dec, 904-906