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Offences and penalties

12th April 2007, Page 39
12th April 2007
Page 39
Page 39, 12th April 2007 — Offences and penalties
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Which of the following most accurately describes the problem?

Who will be guilty of an offence under the new EU drivers' hours rules? Road transport lawyer Tim Ridyard explains what the new regulations mean.

Under the new drivers' hours rules, those potentially liable for prosecution are essentially drivers, their employer/operator and any other entity that can give the driver orders.

Drivers

Drivers who fail to comply with the hew rules, for example by not taking adequate breaks, daily or weekly rest and soon are automatically guilty of an offence. Like many traffic infringements, these offences are ones of strict or absolute liability. It is not a question of what the driver thought or believed to be the case; what matters is whether the limits were breached. (In reality some tolerance is allowed by Vosa and the police before any prosecution, so small infringements may go unpunished.) However, Article 12 of the new regulations provides a defence allowing drivers to depart from the rules "to the extent necessary to ensure the safety of persons, the vehicle or its load". This provision is to enable a vehicle to reach a suitable stopping place, provided road safety is not compromised. Driver must make a manual entry on the tachograph record or a digital printout "at the latest on arrival at the suitable stopping place". They will need to do this promptly to protect themselves from Vosa/the police.

Employers/operators

Article 10 of the new regulations makes transport businesses automatically liable for offences committed by their drivers. Significant concern has been voiced about the UK's possible approach to this, which was regarded as unfair because operators could be guilty of offences over which they had no control — such as infringements on charts which cannot be seen by the responsible operator because the driver needs them for roadside inspection and has not handed them in.

Hard lobbying of the Department for Transport, by the Freight Transport Association for example, has ensured that the UK will take into account circumstances where the business cannot reasonably be held responsible for the infringement committed (part of Article 10 allows the UK to apply such a condition).

This will be introduced into UK law by the Community Drivers' Hours and Recording Equipment Regulations 2007 — the regulations that implement the new drivers' hours rules -and provide a defence for employers to any offence if they can prove all the following: • they took all reasonable steps to avoid the contravention;

*at the time of any contravention they were complying with the rules prohibiting any unlawful bonus payments (ie those likely to compromise the drivers' hours rules);

• they organise their work so the drivers' hours rules are complied with, including proper driver instructions and regular checks. It would appear that a driver's employers can avoid prosecution, or have a defence if prosecuted, if they can demonstrate that they have a proper tachograph compliance structure in place in their business.

But note that it is for the employer to prove this defence, which is a further bone of contention. However, it is not normal for a defendant to have to prove this beyond reasonable doubt, but rather that on the balance of probabilities something is more likely than rot.

Liability of other parties

The new regulations make other businesses responsible for ensuring that any contractually agreed time schedules respect the drivers' hours rules; this will include freight forwarders, consignors, tour operators, principal and subcontractors and driver agencies.

The extent to;which this provision will have teeth remains to be seen, but such businesses will be liable if they fail to take all reasonable steps to comply with the requirement.

This is intended to police those businesses that put ressure on drivers to carry out duties that cannot lawfully e completed in time, or pay insufficient regard to this. Orivers have been known to receive instructions directly from entities other than their own employer that use the 'if you won't do it I'll find another driver who will approach

Penalties

All the above drivers' hours offences will attract a maximum fine Of ..12,500, regardless of who commits the offence. They are not endorsable or imprisonable offences.

The changes r the rules do not alter existing offences relating to the creation of false or incomplete records (a maximum punishment of a £5,000 fine in a magistrate's court, or two years' imprisonment in a crown court), revised in August 2005. It remains the case that if a driver genuinely has problems in complying with the drivers' hours on any given day it is unwise to try to rectify this by running off-chart because this increases the potential penalty and is an aggravating factor in the eyes of a court or traffic commissioner.

Enforcement

The imposition of fixed penalties imposed by the police or Vosa for drivers' hours offences as an alternative to prosecution is due shortly, provision having been made for this in the Road Safety Act 2006 (regulations yet to be published). How drivers should deal with enforcement officers at the roadside will gain importance and will have to be thought through very carefully; this subject will be coverec in a future article.


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