Even saints would cut some corners
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Mlles, damned lies and statistics", Jonathan Lawton's Legal Commentary in the September Bulletin had a fresh illustration of this old jibe. He described three prosecutions in circumstances which 'defy satisfactory explanation. Two involved overloading, the other a defective tyre and breaking a prohibition These "inexplicable" prosecutions were brought to produce statistics to "demonstrate the lack of responsibility shown by those who operate heavy goods vehicles" he suggested.
I discussed the article with what the Official Secrets Act forces me to call an Informed Source", henceforward known as "IS". While IS knew nothing of these individual cases, he knows the enforcement system, from the inside, and commented on points of principle.
His first point was the importance of deterrence in the enforcement process. "An operator who combined the qualities of Mahatma Gandhi, Albert Schweitzer and Mother Teresa could not operate a lorry without sometimes breaking the law," he said. "Most are less saintly and, without the risk of detection and prosecution, would cut some corners. Reports in the trade press about convictions remind them of this risk."
Lawton's first case involved a "thrown' tyre tread. By the time the wheel had been changed the examiner had gone home for the day. So the driver broke the prohibition because he was carrying fresh vegetables to market. Lawton asks, in effect: Why prosecute the driver and operator for a mere tread separation? And why leave a vehicle carrying fresh produce under a prohibition when only a tyre change is needed?"
Tread separation "is not an Act of God", but predictable and, as litter on motorway verges shows, much too common, IS maintained The prosecution would remind operators of the need for proper inspection. He was less confident about the prohibition, arguing that he needed more information. "Did the driver tell the examiner that he was carrying perishables? Has the operator a bad record?" Normally, according to IS, prohibitions are only used where necessary for safety. Unless the examiner had reason to doubt that the defective tyre would be changed, IS thought that prohibition would be "inappropriate".
In the second case, an alleged overload on the driven axle, the driver claimed that, because of snow, he had moved his load forward to make the vehicle safer. Lawton criticises such prosecutions. First, "axle weight is difficult, if not impossible, to ascertain on a plate bridge and dynamic bridges are not yet generally available". Second, the driver's concern about safety had led him to "position the load to the best advantage". Did the weighers hold a Class 1 licence?
The logic of these arguments was to abandon any legislation on axle weights, said IS. Yet it was a fact that they, and not gross weights, caused the wear and tear on roads. Rightly or wrongly, Parliament had set a drive axle weight limit of 10.6 tonnes. To allow higher limits by not prosecuting loads in excess of this would mean civil servants changing the law instead of enforcing it. This was questionable in principle. And, when political pressure at home had compelled the Govenment to fight for a derogation from the relevant EEC Directive, it was simply 'not on". The proper course was for the industry to make a case for higher axle weights, and get the law changed.
As to the Class 1 licence, IS thought it just as relevant to ask the same question about the defending solicitor. He guessed that a higher proportion of examiners than solicitors held Class 1 licences.
Prosecutions are not mounted simply to "up" the statistics for the glory of the enforcement staff, he said. On the other hand the process has been affected by the introduction of stringent financial disciplines previously unknown in the civil service. Each incident is subjected to cost-benefit analysis to ensure that resources are not wasted on hopeless cases. This was following the practice of the Director of Public Prosecutions over criminal cases generally.
In the final example a vehicle was found to be overloaded on the train weight, but not on any axle, while carrying a customs sealed container. Why not prosecute consignors who produced misleading documents for "causing' or "permitting" the overload? Lawton suggests this is because such cases may be lost and so involve the prosecution in costs. It is much safer to charge the driver and operator with an absolute offence.
The award of costs was not the point, said IS. Experience had shown that most of these prosecutions were unsuccessful. Mounting them was not just a waste of time; acquittals actually encourage consignors' existing propensity to under-declare weights.
IS has played a large part in determining what happens on the ground. So his answers to Lawton's complaints are important, even if they provoke an acid Legal Commentary another month.
by Keith Vincent