The power of words
Page 4
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A CONTINUING problem for hauliers is the misdescription by their customers of the load they are to carry. This usually occurs in terms of weight but it can happen with the nature of the load. The consequences of the former can be witnessed in magistrates courts up and down the country with distressing regularity. The latter has been brought into sharp focus by the recent Ashwell "supergun" affair.
I see that a recent survey by Commercial Motor (14-20 June) shows that 68% of hauliers asked believe that they are misled, with 14% saying that this is a regular occurence. Statistics like these do force us to consider the question of consignor liability.
For weight offences (and indeed any other Construction and Use offences), prosecutions are made under 5.42, Road Traffic Act (1988). That section provides (at 42(1) (b)) that an offence is committed if a person "uses on a road a motor vehicle or trailer which does not comply with any such regulations or causes or permits a vehicle to be so used". The three key words here are "uses", "causes" and "permits". Each can constitute an offence and each has a different legal definition. For hauliers, both drivers and owners, the most com mon charge is of "using". In the context of Construction and Use, this usually means absolute liability so that neither intent nor knowledge by the driver or business is needed. The mere fact that the offence is committed is enough to justify a conviction and penalty. The question of an appropriate penalty where there is no intent or moral blame is something of a running sore for anyone who appears before magistrates courts. I have no doubt that the prosecuting authorities favour the "using" charge because they know that it will generally bring convictions.
"Causing" is altogether a less attractive option for prosecutors. This requires proof of what is known as "mens rea" or a guilty mind a degree of intent or knowledge.
Similarly, "permitting" also needs a degree of knowledge or, at least that the accused should have shut his eyes to the illegality. Both "causing" and "permitting" demand a degree of actual control over the action which is found to be illegal.
How does this assist us in the area of consignor liability? Simply, it is open to the prosecuting authorities to prosecute a consignor who deliberately misleads a haulier. If this happens, you may think as I do, that overloading offences would be much reduced as a result Why doesn't it happen? Because those who prosecute know it to be more difficult to prove, while the haulier is an easier target as "user".
Prosecutors will claim that there will be insufficient evidence on which to base a prosecution, but surely the provision of written information by a consignor to a haulier must satisfy at least the test of "shutting eyes" to the illegality if the information is wrong and results in an overload. Hauliers vehicles are manufactured to operate comfortably at a weight substantially in excess of the maximum allowed by law. Many overloads will go unnoticed by drivers.
Meanwhile, keep any documentation you receive, pass it to the police or other prosecuting authority if you are charged with using, and encourage them to take steps to punish those who deserve it.