Crown drops clamp charges

| 15/06/2010

Cayman Islands News, Grand Cayman Island headline news, Cayman courts(CNS): A man who was facing a Grand Court trial for theft after his van was clamped in the Grand Harbour shopping area has been exonerated after charges were discontinued on Friday. Michael Lemay had been accused by the complainant – the clamping company — of stealing its two clamps after he deflated the tires on his vehicle to remove them and drove away. The prosecution told the court that there was no case against Lemay for theft and if anything charges could have been brought against the wrong party, as it was the clampers, in this case, that were a fault for immobilizing the vehicle unlawfully. (Photo by Dennie Warren Jr)

Acknowledging the public interest regarding the issue, Senior Crown Counsel John Masters explained the reasons for the prosecution’s decision to drop the case.
In the first of a number of cases where victims of clampers have faced the courts and drawn attention to what is a growing public concern about the legality of this immobilization of vehicles, the court heard that Lemay had not parked in a ‘no parking’ area after all but had been in a 15 minute parking bay for only 12 minutes before the firm clamped his van.
Masters told the Grand Court that the case should never have reached the courtroom. He said there was no evidence that the man had stolen the clamps that he had left by the roadside after removing them from his vehicle, which seemed to have been clamped illegally.
According to the complainant, the clamps had disappeared after the removal, but Masterson said this was not a question for the defendant, as he explained to the court the crown’s decision to dismiss all charges against Lemay.  He said in cases of theft there had to be evidence of dishonesty and in this case there was certainly no intent to deprive the clampers of their property. The crown prosecutor pointed out that it was the clampers who had interfered with the defendant’s van and therefore he had a legitimate right to remove them.
During his explanation regarding the discontinuation of the prosecution, counsel said that the dismissal should not be seen as a message than all clamping was in question. Masters said he was not talking about cases where drivers had unlawfully parked and each case had to be seen on its own merit, but he said it certainly raised the question of the legality of the behaviour of some clamping firms. Masters pointed out that they were not above the law and there was room for some examination of how these firms were operating.
In this particular case, the clamping firm had told police that Lemay had been parked in a fire lane. However, evidence later revealed this was not the case, and Masters pointed out that in any event, if the driver had been parked in an emergency lane there would certainly be questions about the dangers of clamping cars in such places.
Following the discontinuation by the crown of the case, John Furniss, who was representing Lemay, said he was delighted with the outcome on behalf of his client but said it was a pity the case had ever made it to the Grand Court. He was, however, grateful to his learned friend for researching the incident properly and discovering the realities of the case. 
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Comments (40)

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  1. GQ says:

    This is obviously  not an issue about blocking any fire lanes or parking in an illegal space if they lock your car and you can leave it there for days, its all about the NEW $85 fee that they are charging people its ridiculous!  Its just a very clever money making scheme!

  2. Anonymous says:

    This all sounds rather fishy – a private company being allowed to levy fines and basically confiscate property from citizens on private property until money is paid over? Get real. I thought only duly-elected governments, or government agencies, could fine people, silly me. No wonder this highly suspicious practice was outlawed in Scotland. All you folks carping on about the need to obey "the law" and "keep fit" rubbish. You’re surely missing the point. If they can take your car and refuse to release it back to you before payment, what next – your wife or child? Or maybe your wristwatch? This nonsense has to stop, and soon. This is nothing short of extortion and theft. "Parking whatever you call yourself", stop posting nonsense to attempt to justify your robbery and move on – your days of "stand and deliver" are surely numbered in this country.

  3. Anonymous says:

    I’m not a supporter of people parking wherever they feel like parking, but if a car is parked where it is an obstruction and could prevent an ambulance or fire truck from passing, and thereby possibly contribute to the death of some innocent person, surely the remedy is NOT to immobilise the vehicle and thus enhance that possibility, but have the vehicle towed instead.

    It should be a crime for anyone to immobilise a vehicle that is obstructing a fire lane. The vehicle owner should be ticketed, and made to pay, but those wheel-locking morons should be fined ten times the amount for their stupidity.

     

  4. dxtr says:

    You could place a warning like this on your car:

    Warning!
    Unauthorised wheel clamps
    will be forcefully removed
    on the expense of the owner.

    It would be just as legal as the other warning.
     

    Then call "locks on wheels" to remove the wheel clamps and bill the clamping company. Or take an angle grinder …

  5. Anonymous says:

    No wonder there are so many fat kids at the school when they have parents like the posters here. You get your wheels clamped for parking illegally. If you were not so lazy and could be bothered to walk a little further you would not be clamped, simple.

    If you park illegally in a disabled space or especially on yellow lines when you are inconveniencing others and deserve to be fined. Everybody else ends up wasting twice the time getting around because some lazy idiot is blocking the road.

    You should try parking in legitimate spaces and walking the extra distance. That way you would not be so fat and lazy and you might encourage your kids to do likewise.

    My tax dollars (sorry fee dollars) pay for your healthcare so the least you can do is get some exercise.

  6. Anonymous says:

    Ok so as annoying as clamping is I think legally it comes down to this:

     

    In order to "legally" clamp your vehicle the company (or the owner of the property) must enter into a legally binding contract with the persons who choose to park there. This requires CLEAR AND DETAILED  statements of the terms of that contract which can be done via signs in the parking lot (which MUST BE readable upon entry). Those who enter the premises and drive past the sign(s) are taken to have accepted the contract (impliedly) once they park in that lot.

    If a person fails to abide by the signs and parking requirements they comit a BREACH of contract and can be clamped. The nature of this agreement is purely contractual and the money can be demanded as a breach of the contract.

    The problem however lies in the fact that this required "payment" can be seen to be a "fine" for legal purposes which are not legally enforceable since only the government and therefore the executive branch can demand fines to be paid.

    I will begin to look into how this issue has been dealt with in the UK courts.. certainly an intersting topic especially in cases where the persons whose vehicles were clamped say they were parked there within the guidlines (since there can not have been any breach in that event). In those cases the clamping companies may well have to answer to criminal charges.

    Furthermore it can only be right that the clamping companies have to prove a car was illegally parked (through video surveillance or otherwise) since the onus of proving the breach should rest on the party who rellies on such.

    • Anonymous says:

      Full marks. As I dimly recall from several decades ago – you might want to begin your research with the concepts of "trespass to chattels" and unlawful distraint. I suspect that these may be the concepts that the clearly well read crown counsel was referring to. 

      See if there is any relevant case law in the UK, Canada or other Commonwealth countries relating to clamping as a trespass to chattels or unlawful distraint. I suspect there must be relevant case law as this unregulated and highly questionable method of extracting money from people who do not understand their rights seems to be happening many places. It is only when people who do understand the law stand up to unlawful practices that things may change. Hopefully some politician will now see to it that regulation will be introduced so that only well regulated entities will be allowed to clamp and unlawful clamping is dealt with severly.

    • Dred says:

      Well said. Someone writing something down saying I parked there at X time should never be binding in a court of law. First and foremost you stand to gain from the result so you have a conflict of interest in the matter.

      Who is to say that what was written is in fact correct? Can even a Police do so after the fact? Where is the evidence that his data is in fact accurate?

      There is nothing! That’s your answer. We must take him at his word despite the fact that it is in his best interest for me to be paying money.

      Friends that is crap. In a court of law it should never hold up. It’s a classic case of my word vs your word. There is no evidence for anyone to go on that either side is actually correct and this case should not make it past the initial enquiry.

  7. Anonymous says:

    Congrats John Furniss!!! Another job well done.

    When are they going to make him a judge permanently? Cayman could use a judge with as much local experience as he has.

  8. anonymous says:

    It’s about time someone put this clamping company in their place. They abuse the position. I understand where they become helpful but they definately go WAY overboard with it all!

  9. Time on my hands says:

    XXXX what exactly is [Ezzard] proposing to stop inconsiderate drivers?grand harbour is just one problem – what about outside cnb branch in GT as well. the usual culprit is a ford F150 or Chevy avalanche. these drivers are arrogant and deserver to be clamped and fined more than $75. if you don’t fine small indescretions then they lead to larger ones eg the endless people that run the red light at compass intersection

  10. Anonymous says:

    If you have parked illegally and you know you have, you deserved to be clamped.  How many times have I tried to get into Grand Harbour and people are parked along the curb……..not in a parking bay only 50 feet away.  That is just plain laziness.  And no XXX, it’s not a little old lady parked there but an able-bodied man who walked out of the store with a quart of milk in hand.  How can clamping his car not be fair and just.  I’m in just a hurry as he is but take the extra 2 minutes to legally park my car so I don’t block a fire lane……….if you break the law you deserve to pay to have yourself unclamped………and XXX, you should know better than to support the breaking of the law.

    CNS: No one supported breaking the law, as you are suggesting.

    • Anonymous says:

      You clearly didn’t read the article.  The only one who broke the law in this case was the wheel clampers.

    • PaperCaymanian says:

      The whole point is the clamping companies are illegal.

      Sure would be nice to see cops writing tickets ,they could use the money.

       

  11. Anonymous says:

    Excellent outcome. Well done to the prosecution. It is unfortunate that the man who had his vehicle clamped had to go through the ordeal of being prosecuted. Hopefully the clamping company will be made to pay all of his expenses

  12. Anonymous says:

    Yay ! Good Job Mr Furniss there is a certain clamp company here who is totally indiscriminate and does bully!

  13. Anonymous says:

    "………after he deflated the tyres on his vehicle to remove them……"

    Certainly be very interested in the details here. How exactly did the gentleman remove the clamps and manage to escape from these modern-day highway robbers?

     
  14. anonymous says:

    Ha Ha Ha –  Please can I have my CI$75.00 back from Rangers when my wheel was clamped after eight minutes into  Foster’s  at Country Side. This is very unsual for me -only because I had a foot problem which was not permanent but was told I required a "Handicap sticker or sign" or "a Sick Note from the Doctor".

    Hope he makes the company reimburse him for his time and Lawyer Fees.

    • A Concerned Young Caymanian Father says:

      Finally, Justice has Been Served! What I would like to see happen is for a civil suit be brought against the wheel clampers and them having to shell back out the cash they’ve wrongfully taken.

      I can understand certain situations, such as someone parking in a Handicapped parking just because they don’t want to park any further away. I’ve had my wheels clamped and had to shell out $75 before they’d remove the clamps. This is NOT a legitimate business, but more of a get Rich Quick scheme, IMO!

    • Anonymous says:

      You illegally parked in a handicap zone so you were rightfully charged. Stop moaning and try staying within the confines of the law and you won’t get in trouble.

      • anonymous says:

        Yes, I did park their but only because I had a foot problem  which did not allow walking long distance – You inhuman and unscrupulous poster – I hope you will have to beg  for that same $75.00 that I paid.

  15. Anonymous says:

    First dog theft and now this? Our police and legal department seem to have a lot of time to waste!

  16. Anonymous says:

    This is what I have been saying all along: "Masters pointed out that in any event, if the driver had been parked in an emergency lane there would certainly be questions about the dangers of clamping cars in such places."

     

  17. Jingo Jango says:

     That is awesome!  A very nice, and clever, outcome.

  18. Anonymous says:

    I want my $75 back!!! As a matter of fact, I’m intentionally going to park on the double yellows tomorrow!

  19. Anonymous says:

    what a load of CLAMP

  20. Ridicuolous says:

    The police should not be involved in these cases at all. (although I can see why in this case they were, as theft was claimed).  You enter one’s property and agree to abide by the rules of being there, one of which is conditions of parking. If you do not agree you can take your business elsewhere. Let private business manage itself as it want, and if that includes using clamping firms then so be it. Government even use them. Why? To stop people ignoring signs and parking where they shouldn’t. If they didn’t Big Mac would find his spot filled from time to time, and we couldn’t have that could we….

    • anonymous says:

      This incident was not clamp thief, but the Police were involved, and said there was nothing they could do for the return of the $75.00 – this case should be a lesson. The clamps could be sold back to the company or used to "Clamp their Wheels"   as a gesture for their rude and and uncouth way of dealing with customers.

      Government does not receive anything from these companies, only for their Trade and Business Licence and all the collections belong to them. This is  the right time to regulate or set "Clamping Policies" for these money hungry companies, with government getting a piece of the pie. 

      Every hog, dog and puppy comes into Cayman and establishes businesses to make quick and big bucks.  It is the only country in the world that such things can happen, our red tape is too easy, let’s tighten the red tapes, too many springing up like mushroons. If, it was so easy in their country  they would not be here to antagonize its’ people. 

      Some Companies carry  different charges for wheel clamping, at private or public space. This should be regulated. 

  21. Anonymous says:

    Remember Ezzard said awhile back that this clamping of vehicles was unlawful? These vehicle clamping people should be made to repay everyone that they bullied in the past several years!

    • Clamparana says:

      This Company should have to pay the court for wasting time.  They are doing this illegal and someone is going to get hurt one day for clamping peoples vehicles.

    • Dred says:

      And they are idiots too. I went to Hurley’s and I parked for like 30 seconds on the single yellow line. Now as far as I am aware I am allowed to stay on a yellow line for about 3-5 minutes and up to 20 minutes for loading and unloading or something like that.

      This smuck from one of those idiot companies came by and said move my car or else and I told him I am waiting for my wife who just ran into Blockbuster he starts to get out of his car. I told him my wife was pregnant and in last trimester and he said he didn’t care. I told him if he tried to lock my wheels I would run over him and reverse to make sure I finished the job. He started to swear at me and I said I dare you to try. While we are throwing remarks my wife comes out and walk thru the argument and got into the car and I told him him and his company were like the rear end of a horse and got in my car and drove away.

      They really iratate me and I hold this against places that give them business.

      • Billy says:

        So it is people like you that bloke the Hurleys entrance road, creating a timewasting obstruction for your laziness.

        In future you may want to just park up and drop off the videos yourself instead of getting your heavily prgnant wife to do it for you.

        Poor woman.

        Then you were going to run someone over for just trying to do their job. Congratulations! You’d happily kill another human for $50. God must be so proud of people like you

         

        • Dred says:

          Next time you try to argue with a woman who wants to do something especially when she’s pregnant and tell me how it turns out for you.

          It’s not about me not being a gentleman its more about her wanting to not seem handicapped. Some women don’t want to feel like they are a burden. I respect that even if I don’t agree with it.

      • Anonymous says:

        Ha ha! That’s a brilliant description! I love the image of two guys "throwing remarks" while the wife blithely walks through. We have all been in some version of this clamping scenario.

      • Anonymous says:

        Oh, Dred! Very disappointed in you!

    • Anonymous says:

      Not only did Ezzard said so but also our good Politician Mr Arden. I was hoping that he was going to follow through with this. This clamping is so wrong, when  the poor person is spending their money to shop at these places. I have for some time been thinking that we should not shop at any of these places that have these people who sit in their cars and watch when we get out and then go and clamp the wheels. This is just a money making scheme. The money that these supermarkets owners spend on security for parking should be spent onhaving security to protect the customers when they are going and coming to the supermarkets. Sometimes we have to park far and in the dark when there is alot of people shopping, there is nobody to protect us from robbers.

    • Anonymous says:

      I agree, however, people who park illegally. or who are repeat offenders and habitually break parking rules at some properties must also understand that in such circumstances there is the risk of their vehicles being clamped and that they will be prosecuted and made to pay. I know at a commercial property where there are government offices some civil servants habitually park in spaces that are for customers of other businesses because they are too lazy to walk to and from the area of designated parking for their departments. The landlord keeps complaining but it still happens and I feel those people should not be allowed to get away with it and their wheels should be locked!

      • Dred says:

        My First Encounter with Kidnappers for Hire…

        In my case it was the business fault why I even had to wait the first time. I still actually did not exceed my time but the clamp dude wanted to get money so he clamped me early.

        I arrived at the GT Cellular World at about 3 minutes to 11am. I know this because I was waiting and was told they would have something for my phone at the GT branch at about 11am.

        I drove thru the parking lot 3 times trying to find a parking spot with no luck. I was cursing cause they would be there any minute and finally a spot opened up a bit further down from their store. I got it.

        When I walked in I remember looking at my watch thinking it should be there. When I asked they showed me the item and it was not the right one. Even though I fully explained what I wanted and they said they had someone coming down in a few minutes. At 15 minutes past the hour the young lady stepped in and we moved to complete the sale. At 19 minutes past the hour I stepped out of Cellular World only to find my wheels locked. I was there from 10:57am to 11:19am. That’s 22 minutes.

        I b’d and moaned with the guy telling him I was there shorter than the 30 minutes allowed he said no I was not. He said I was there 40+ minutes and I told him no. I told him when he logged me he must have written a 3 for a 5 or something like that. He said no. Pay him $75 or remain locked. I was on lunch. I had no choice but to pay or be late for work.

        I went into Cellular World to complain and they said they had nothing to do with it, it was actually the landlord. I told them they just lostmy business.

        How can he lock my vehicle? He is not the law? He can not pass judgement on me as he has no authority. It’s one thing to deny me a service but a completely different thing to capture my property. Only the police should have that authority. Only them have it granted to them under the law.

        I believe if we the consumers are to have a voice in all of this we should boycott businesses that use these creeps. Maybe just maybe we will get our message across.

      • Dred says:

        They have no allowance under the law for this and I’m sure this will be tested soon. This is the first of many I’m sure.

        What they are doing is in fact illegal. They have no right under the law to hold a person’s property ransom. None. Especially when they profit from clamping you. They actually have motive for clamping you early.

        Who is to say that they do not falsify their records on times when people park in spots for the 30 minute time limit? Who checks them? Keep in mind they have an alternate agenda. They make money from clamping you.

        It might be staggering to find out the truth to the whole matter. Many people pay because they feel they have no choice in the matter. Who’s protecting them? This is like extortion. You see many of you see them as honest and trust worthy and protecting the rights of those less fortunate but this is their business. They are not non profit. Their job is to get as many tickets during the day as they possibly can at whatever cost.

        As long as time of logging vehicles is done by hand it can be altered or falsified.