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Impounding demands belief
Page 29
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Mere suspicion of illegal operation is not a valid reason for VOSA to impound a vehicle. Mike Jewell reports on a landmark ruling.
AN IMPOUNDED TRUCK has been returned to its owner after a landmark ruling that a traffic examiner must genuinely 'believe' that a vehicle is being used illegally rather than merely harbouring a suspicion.
It transpired that the vehicle in question was being legally operated while on lease from the owner to a third-party haulier: William Leith & Co of Berwick-upon-Tweed had sought its return at an Edinburgh public inquiry Scottish Deputy Traffic Commissioner Richard McFarlane ruled in Leith's favour. despite the fact that its MD had been disqualified from holding an 0-licence after his own licence was revoked.
Traffic examiner Michael Dunlop said that following the detention of a vehicle belonging to the company in the North Eastern Traffic Area. information was received that the company was using vehicles at the Wick County Show. The Thurso police checked the showground and found a vehicle in 'William Leith' livery. Dunlop saw that it was displaying an 0-licence disc in the name of Colin Patterson. The driver told police that he was employed by William Leith: the vehicle was subsequently impounded.
However, MD William Leith told Dunlop that the vehicle was leased to Patterson. who was paying the driver. In reply to John Reid, for the company. Dunlop agreed that at the time he examined the vehicle it appeared tobe lawful as it was displaying an 0-licence identity disc and there were many circumstances in which trucks were being lawfully operated when the name on the 0-licence disc was different to that in the vehicle's livery.
Leith said he had held an 0-licence for 20 years until it was revoked in September 2001 by the North Eastern Traffic Conunissioner. He understood the TC to say that he would need to reschedule his transport arrangements. That prompted him to approach Patterson who had enough capacity on his 0-licence to accommodate the company's vehicles. A lease agreement was drawn up in which the company charged Patterson for the hire of its trucks and Patterson charged the company for his haulage services.
The DTC concluded that when the vehicle was impounded Patterson did not give evidence at the enquiry. William Leith employed the driver and it was being used by the company.
The DTC said he was satisfied that Dunlop did not have reason to believe that the vehicle was being used unlawfully. The all-important word here was "believe" as the impounding regulations did not refer to a "reasonable suspicion". Dunlop had informed the driver that there might be a problem with the vehicle but did not say what that problem was because he did not know. The driver said nothing to assist him in establishing if there was a problem over the lawful operation of the vehicle.
Dunlop had no information which would entitle him to believe that the vehicle was being used unlawfully. •