Statutory defences to traffic offences
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With the best will in the world an operator in some circumstances may find himself seeming to break the law. Say a speedo fails during a journey. Don't panic, but take 'reasonable expedition' to right the matter. And be ready to prove this
IT IS ALMOST as if the law recognises that, in certain circum stances, a man is justified in breaking the law. It is helpful to be aware of these "let outs" and take advantage of them whenever possible and it is perfectly legitimate to do so.
One such case concerns Regulation 98 (1) of the Motor Vehicles (Construction and Use) Regulations 1978, which requires that instruments for indi cating speed, le, speedometers be kept free from obstruction which might prevent them being easily read and be maintained in good working order.
However, there is no need to panic if a speedo fails on a journey because the second part of the Regulation makes a special exemption for "a vehicle being used on a journey during which, as a result of a defect, the instrument ceased to be in good working order".
In other words, if the speedo stops working for any reason, for example because a cable snapped — there is no offence if the journey is continued.
The Regulation goes on to say that a vehicle may be legally used, even if the speedometer is not working, if "steps have been taken to have the vehicle equipped with all reasonable ex pedition, by means of repairs or replacement, with an instrument which is in good working order."
There is no guideance as to exactly what the term "reason able expedition" means but one would think that the courts would take the everyday meaning of the words. Ordering a speedo head by telephone or telex explaining that it was required urgently might be con sidered an action which was "reasonably expeditious" while ordering by second-class post would not be.
Incidentally, restorers of vintage and veteran motor vehicles will be pleased to know that speedometers are not required on vehicles first used before October 1,1937.
Although tachographs are, among other things, instruments for recording speed, they are not covered by the Construction and Use Regulations discussed above but by the Transport Act 1968, European Community law and the Passenger and Goods Vehicles (Recording Equipment) Regulations 1979, but similar defences are provided.
Section 97 of the Transport Act provides that a person will not be convicted of an offence of using a vehicle without a tachograph if he proves, to the satisfaction of the court: • that the vehicle was travelling to a place to have a tachograph fitted; or • (a) where a tachograph is not in working order it has not become reasonably practicable for it to be repaired in the approved way, and (b) while it was unserviceable crew members had marked on the record sheet, or on a temporary sheet attached to the permanent one, details not recorded correctly by the tachograph.
At first sight this relaxation is of limited value as Article 18 of the Community Recording Equipment Regulations requires faulty tachographs to be repaired by an approved fitter or workshop as soon as the vehicle returns to the premises of the undertaking and if it is unable to return within one week for the repair to be carried out en route, but I understand that the defence afforded by the Transport Act takes precedence over the EEC Regulation,
One of the problems facing truck operators is preventing their vehicle being overloaded and, in spite of what the antilorry brigade says to the contrary, most of them do their best to keep within the law. When an offence of overloading is committed, Section 40 (6) of the Road Traffic Act 1972 provides two possible defences. It is a de. fence to prove that at the time o the offence the vehicle war travelling from the place wher( it had been loaded to the neares available weighbridge, or, hay ing been found overweight a that weighbridge was travellinc to the nearest point at which i was reasonably practicable t( off-load the vehicle so as to re duce the weight to within thi relevant limit, without causini an obstruction.
It appears that the courts wi interpret this law very strictly a in Lovett v Payne (1979) Crim LI 729, it was held that the nearer weighbridge is the one nearer by road and not the one nearer
-as the crow flies. In this partici. lar case the weighbridge wa situated at the same place a where the load was to be c1( livered and the court held that i any event this defence is n( available to a driver going to weighbridge solely to weigh th load in connection with cll livering it.
In cases where the permitte weight is not exceeded by me(' than five per cent it is a defenc to prove that the limit was ni exceeded at the time the vehic was loaded and nothing hz been added to the vehicle sin( that time. This defence is usef when a load has shifted causir one axle to be overweight. It sometimes suggested thi heavy rain or snow may cause vehicle to become overweigl and if this is the case this pan cular defence could be used.
It must be emphasised that any of these defences ar brought forward then defen( must be in a position to proN the facts. This point is er phasised in the appeal cal Thurrock District Council v L. , and A. Pinch (1974) RTR 26 where it was held that when defendant relies on a defeni under Sub Section 6 the onus on him to prove the facts support of his defence on tl balance of probabilities. F example, if the defence is th the vehicle was under the lin when loaded there must be witness in court to produce ti relevant weighbridge ticket ai this should be the weighbrid, attendant who actually weigh the lorry.
• by Les Oldridge