Clarke v Ryley & Anor

Under regulation 4(c) of the Removal and Disposal of Vehicles Regulations 1986, the issue is whether the vehicle appeared to the constable to have been abandoned, not whether it had in fact been abandoned by its owner. A claimant challenging removal must show either that abandonment did not appear to the relevant constable, or that, if it did, it was unreasonable for it to appear so. Theft does not automatically establish that removal was lawful, since the circumstances may not justify that conclusion. The police must act reasonably. A person who is not the vehicle owner cannot obtain return of the vehicle where statutory charges are payable by the owner.

A car belonging to Mrs Carmel Killian was stolen and later found damaged on a road. The police arranged its removal to Bournville Garage after unsuccessful attempts to contact a telephone number given when the theft was reported.

Roy Clarke, who had reported the theft, applied in the Birmingham County Court for the vehicle’s immediate return. The recorder dismissed the application, holding that the vehicle had been abandoned by the thieves and that Clarke, not being the owner, could not claim its return without payment of the lawful charges.

Clarke appealed. The central issues were the meaning of abandonment under regulation 4(c) and whether a non-owner could obtain an order for return.

Appeal dismissed. The Court of Appeal upheld both grounds on which the recorder had dismissed the application.

1. Regulation 4(c). The relevant question was not whether the vehicle had in fact been abandoned, but whether it had been left in a position, condition or circumstances such as to appear to a constable to have been abandoned. The statutory scheme enabled the police to take swift action to remove and protect vehicles.
2. A theft did not necessarily mean that a constable was entitled to conclude that the vehicle appeared abandoned. A claimant challenging removal had to prove either that abandonment did not appear to the relevant constable, or that, if it did appear so, it was unreasonable for it to have appeared so. The police, as a public authority, had to act reasonably. There was no evidence that the vehicle did not appear abandoned to the constable who found it, or that the police action was unreasonable.
3. Ownership and charges. The recorder was also entitled to treat Clarke’s lack of ownership as a ground for refusing return. An order for return could not be made unless the custodian’s charges were paid, and under section 101 of the Road Traffic Regulation Act 1984 those charges were payable by the vehicle’s owner. The proceedings remained in Clarke’s name.
4. By the time of the appeal, the vehicle’s whereabouts were unknown and the claim for its return appeared academic. The order for costs below remained, and Clarke was ordered to pay £2,000 including VAT for the appeal.

Mr Justice Carnwath agreed that regulation 4(c) concerned the perception formed by the constable on seeing the vehicle and that an over-analytical approach was inappropriate. The police had to make a reasonable decision about the action required.

• Birmingham County Court: Mr Recorder McCahill Q.C. dismissed Clarke’s application for the immediate return of the vehicle and stayed proceedings until a small amount of costs had been paid.
• Court of Appeal (Civil Division): The appeal was dismissed unanimously. The order as to costs below remained, and Clarke was ordered to pay £2,000 including VAT for the appeal.