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Fair cops Guy are out
Page 7
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by Colin Ward
HEN YOU receive a summons for an alleged offence and you are innocent, do not for a minute expect that you will automatically be found not guilty. Remember, for instance, that the Freight Transport Association and the Road Haulage Association are pressing the Government for a "due diligence" clause in the legislation covering overweight offences.
Without such a clause, all overweights are "absolute" offences — that is, you are guilty, there is no defence, and you can only plead mitigation.
While it is true to say that United Kingdom law is extremely complex, it has become so partly because of man's ingenuity in defence. So perhaps some of the responsibility lies with advocates. In Britain, and specifically in the road transport industry, because of the way our law has come about, increasingly the burden of proof of innocence falls upon the defendant.
Until a few years ago it was common practice for operators to hold their hands up and say "Fair cop, Guy," but, with the advent of advocates specialising exclusively in road transport, the industry has begun to fight back.
ANY OFFENCE OF WHICH YOU ARE FOUND GUILTY OR THAT AFFECTS GOOD REPUTE, FINANCIAL STANDING OR PROFESSIONAL COMPETENCE, MUST BE REPORTED TO THE LICENSING AUTHORITY WITHIN 28 DAYS. (Regulation 7, The Goods Vehicle [Operator's Licence, Qualification and Fees] Regulations 1984).
It is imperative that every summons is dealt with professionally — preferably by those advocates who do not need to have a fifth-wheel drawn for them in order for it to be explained.
I must stress again the importance of expert defence or mitigation (where an "absolute" defence is being considered) and you can never, contrary to popular belief, have too many witnesses. There can be no doubt that a clear and precise statement of facts from a driver, mechanic or operator has a positive affect on benches.
There are three types of offence (Focus on courts: March) and it depends on which offence you are summonsed that determines which court you go to.
An insecure load is a summary offence to be tried before magistrates; falsification of tachographs is triable either way — it can be heard before magistrates or in a Crown Court. You may elect to stay in the magistrates' court, but if they find you guilty they can send you on to a Crown Court for a higher penalty.
Additionally, magistrates can also refuse to hear a case and send it on direct to a Crown Court. A charge of causing death by reckless driving is an indictable offence and must be tried in the Crown Court.
You have the right to appeal to the Crown Court against conviction if your case is strong on law and fact. If the Crown Court allows your appeal on the facts the matter ends there, but if it is on a point of law the prosecution has the right to appeal to the High Court (Divisional Court of the Queen's Bench Division). If you feel a prosecution witness has distorted the facts you must clearly analyse the situation with your advocate. When you attend Crown Court you are in a different world. Depending on the type of case, your appeal will be heard only by the judge and perhaps two magistrates. If you are in a Crown Court on a "triable either-way" matter — either you have elected to go to Crown Court or the magistrates have sent you there — you will be heard in front of a jury.
Guilt or innocence should be decided purely on the facts. However, last month I wrote that many solicitors complain that magistrates are only too ready to believe the police when disputes over evidence arise. Let me clarify this: I frequently have discussions with advocates and police officers and I find that those officers who have specialised in haulage and bus and coach matters do, in the main, get their facts right. It is those officers with little or no experience of our industry who tend to create the problem. Two case studies highlight the situation. CASE 1 A driver is in the righthand lane with seven cars waiting to turn right behind traffic lights at a busy T-junction. The lights change, the traffic Moves off, our driver just gets across on amber and he has turned right. A motorcycle police officer stops him and tells him that he went across on the red. A Fixeti Penalty Notice is issued, but our driver wants a hearing.
After extensive research it was established that the officer could not have seen the traffic lights, but even so, the magistrates convicted. Our driver wanted to appeal and the police officer changed his evidence in the Crown Court. The appeal was allowed and costs were awarded from central funds.
• Point — it should never have got that far; the magistrates had in front of them the same evidence as the judge. The police officer was believed. How many people accept that Fixed Penalty Notice and the endorsement?
Case 2 A 38-tonner was directed to a dynamic weighbridge by a police officer and was weighed at 40,150kg. The driver was cautioned and in due course a summons appeared.
On investigation it was discovered that it was likely that the officer had not conducted the weighing as per the Code of Practice, but the operator was convicted.
On appeal, the driver said the time between being stopped and weighed was no more than three minutes and his tachograph (signed by the officer) proved this.
The Code of Practice had not been observed as it states that the equipment, once switched on and the zero and 16tonne test, completed, should be left for at least 10 minutes.
At the appeal the police officer said that he had been to the weighbridge 45 minutes beforehand and had done these tests.
He never said that in the magistrates' court. The appeal was allowed with costs out of central funds.
• Point — this matter should have been thrown out by the bench.
It may be claimed that the magistrates did not follow the technical argument in the first case and, therefore, believed the officer because that was the safest way out (or the easiest?).
But in the second case it not only serves to highlight the problem of evidence but also shows the advocate was not aware of the Code of Practice.
Whichever the court, do not be embarrassed by your lack of knowledge. It is the court's responsibility to ensure that you understand the proceedings. Magistrates' clerks who talk down to defendants should be admonished. It is obvious to me that our legal system needs overhauling. Perhaps we need specialist courts for industry.
One of the best benches I have seen in action was where the chairman was an ex-British Rail technical officer and his colleagues had been in industry.
We are an emotive industry and I end with a few lines of verse that I think brings it all home: For every one-horse power mind has brought a 38-tonne juggernaut, That rideth handsome high and wide In licensed registered homicide.