4. Summary of current legislation
4.1 This section aims to provide a general explanation of the powers of the police to remove and dispose of vehicles. This will help set in context the proposals in regard to the current statutory charges for removal, storage and disposal of vehicles.
4.2 Under section 99 of the Road Traffic Regulation Act 1984 the Secretary of State is able to make regulations for the removal of vehicles. Using this regulation making power, the Removal and Disposal of Vehicles Regulations 1986 were made. These Regulations (in brief) give the police the power to remove or order the removal of vehicles that are illegally, obstructively, or dangerously parked, abandoned or broken down. The physical task of removal and subsequent storage and disposal are normally carried out on behalf of the police by contracted recovery operators. Police Scotland currently utilise managing agents to manage the scheme on their behalf.
4.3 In detail, regulations under section 99 provide for the police to have powers for the removal of vehicles which have been permitted to remain at rest:
- on a road in contravention of a statutory prohibition or restriction ( i.e. they are illegally parked);
- on a road in such a position or in such condition or in such circumstances as to cause obstruction to other persons using the road or as likely to cause danger to such persons;
- on a road, or on any land in the open air, in such a position or in such condition or in such circumstances as to appear to an authority empowered by the Regulations to remove such vehicles, to have been abandoned without lawful authority; or
- which have broken down on a road.
4.4 Removals are also necessary in order to help prevent theft of the vehicles, their use for criminal purposes, their becoming a focus for crime or environmental degradation and their being driven whilst in a dangerous condition (which may not be immediately apparent). In some cases the police may need to remove a vehicle for forensic examination. Removals are therefore an important routine activity for all police forces.
4.5 The following table provides a breakdown of the number of recoveries being carried out per year in Scotland under the separate pieces of legislation:
Number of annual recoveries
(January – December 2016)
|The Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) Amendment (Scotland) Regulations 2005 (1984 Act)||16,004|
|The Police (Retention and Disposal of Motor Vehicles) (Scotland) Regulations 2005 (2004 Act)||109|
|The Road Traffic Act 1988 (Retention and Disposal of Seized Motor Vehicles) (Amendment) Regulations 2008 (section 165A of the 1988 Act)||8,214|
4.6 Section 102(2) of the 1984 Act authorises the police to recover from the vehicle owner, or other responsible person:
- prescribed charges in respect of removal;
- charges by reference to a prescribed scale for storage; and
- charges determined in a prescribed manner in respect of disposal.
4.7 Section 103(3) of the 1984 Act allows different charges to be prescribed for different cases or classes of case or in respect of different areas. Section 101(4) requires the release of a vehicle to its owner, provided these charges are paid.
4.8 Section 142 defines "prescribed" as "prescribed in Regulations made by Scottish Ministers". Section 134 requires that Scottish Ministers must consult with such representative organisations as they think fit before prescribing charges.
4.9 The current 1984 Act charges are set out in the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) Regulations 1989, as most recently amended for Scotland by the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) Amendment (Scotland) Regulations 2005.
4.10 Section 127(2)(c) of the 2004 Act contains a power to make regulations about the payment of fees, charges or other costs relating to the removal, storage and release of vehicles seized in relation to their use in a manner likely to cause alarm distress or annoyance to members of the public. There is no authority to charge for disposal of vehicles in these circumstances. The current charges date from 2005 and are set out in the Police (Retention and Disposal of Motor Vehicles) (Scotland) Regulations 2005.
4.11 This consultation is concerned with possible changes to the Regulations made under the 1984 Act and the 2004 Act. Its aim is to establish the most appropriate charges. As explained above, the consultation is not concerned with the circumstances in which police use their power to order vehicle removal or the way in which they use the power. These are operational matters for the police, in consultation with interested parties as they consider appropriate. Similarly, this consultation is not concerned with the contracts which police forces might enter into with managing agents or recovery operators: that is a commercial matter for those parties.
4.10 The Scottish Government does, however, recognise the length of time that has elapsed since the last change to the statutory charges, the changing situations involved in removal, storage and disposal and the difficulties that may have resulted. The intention is to avoid problems arising in the future. A possible solution would be annual increases in line with the rate of inflation. This would, however, require consultation and the laying of a Scottish statutory instrument ( SSI) each year to achieve what might be only a very small increase. The Scottish Government's initial view is that a full-scale review of the charges (covering both inflation and any other relevant costs) every three years should be undertaken. This would allow the system to be reviewed as well as the charges themselves. Any views on this proposal or other suggestions would be welcome.