Crown decides not to prosecute
Defence Attorney John Furniss never
got the chance to argue in Grand
Court about “these wretched clamps” because, on
Friday, Crown Counsel John Masters advised Justice Charles Quin that he had
decided to discontinue prosecution.
Michael Charles Lemay, 26, who was
charged with stealing two clamps after they were placed on his tyres, replied
“Much obliged” when the judge told him he was free to go.
Before offering no evidence, Mr.
Masters asked permission to explain his reasons, noting that the matter had
attracted considerable public interest and raised some important issues.
He emphasised that the Crown was
not questioning the legal or moral right to clamp vehicles in the appropriate
circumstances. This case highlighted ”some rights and duties when a company
takes the most distressing and important decision to immobilise an individual’s
If this case were simply an issue
of whether or not the public was sympathetic to drivers who are clamped, Mr.
Masters said he would not hesitate to prosecute because that was an irrelevant
consideration. But the case required legal analysis because it involved three
important and distinct issues: removal of clamps by the vehicle owner, payment
for removal and clamping in a fire lane.
“As a minister of justice, I have
taken the liberty to actually closely consider some of the legal issues, both
criminal and civil, that need to be taken into account before clamping a motor
vehicle and, of course, before the decision to prosecute is made.”
Mr. Masters explained that the
matter before the court started when mr. Lemay’s van was wheel-clamped at Grand
harbour on Friday, 25 September 2009, at 8.08pm. “The defendant claims that he
was lawfully parked, which is very different from the more usual case where the
defendant believes that, whilst he was unlawfully parked, he should not have to
pay for his unlawful conduct.”
Mr. Lemay’s van was in an area that
allowed 15 minutes parking and it had been there only 12 minutes before the
wheel-clamping company clamped it. The reason given was that the van was
allegedly parked in a fire lane.
Mr. Lemay (who had been delivering
speakers for a function) phoned the company and asked for the clamps to be
removed without payment. When the company refused, he deflated his tyres,
removed the clamps and left them at the scene.
A company representative went to
the scene the next day and discovered that the vehicle and the clamps were not
there. The matter was reported to police and Mr. Lemay was subsequently charged
with theft of the two wheel clamps, valued at $300 each, the property of Parking
However, Mr. Masters noted, the
company could provide no evidence that Mr. Lemay took the clamps or that he
damaged them in any way. Police photos supported Mr. Lemay’s contention that he
was in a 15-minute parking area; there were no photos to support an allegation
of parking in a fire lane.
When a driver parks unlawfully, he
does not lose the rights of ownership of the vehicle, Mr. Masters pointed out.
“There is nothing in the law that I can find that says a person cannot remove
the clamps themselves unless they have expressly or implicitly contracted not to
As to payment to a company for
having the clamps removed, he said there seemed to be no problem in principle
with a release fee. He questioned, however, whether any non-governmental agency
has the power to issue a
As to the allegation that Mr. Lemay
was parked in a fire lane, Mr. Masters said this surely raised safety issues.
If companies are clamping vehicles in fire lanes, they should be reviewing that
Mr. Furniss said he was delighted
on behalf of his client that Mr. Masters had taken “this sensible view”. He
said he had raised the same issues in Summary
Court, but the decision to discontinue was not
made by the Crown Counsel dealing with the matter at that stage.
In setting the date for a
preliminary inquiry, Mr. Furniss commented, “I look forward to arguing in Grand Court about
these wretched wheel clamps.” (Caymanian Compass, 22 January).