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ouble jeopardy
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Page 27
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Community service orders have risen by a third. How do drivers who offend do the time and stay within the rules on rest periods?
Words: Mtke Sherrtngton Are HGV drivers who fall foul of the law and ordered to do community service being discriminated against because of the rules that determine the hours they can work?
The road haulage industry is one of the most heavily regulated in the country on the number of hours that can be worked and what rest periods should be taken; and it can be argued that driversfind it impossible to do community service without breaking these regulations.
The number of community service orders imposed has risen considerably over the past decade. Currently. 160,000 are issued every year — a rise of more that 33% compared with 10 years ago. It would be naïve to expect that HOV drivers are not included in that total for non-work-related incidents.
One such driver contacted CM. He was sentenced to 100 hours' community service earlier this year, after being found guilty of using abusive language at a football match.
He said: "I was not represented in court, but didn't expect anything more than a fine because I wasn't violent. The community service order was a shock and I didn't query it at the time. It was only afterwards that I realised the effect that it could have on my work."
Getting an order varied
'J im (not his real name) was also barred from attending football matches for three years and has to surrender his passport whenever I'ingland are playing away. He is an agency driver working five days a week.
'1 am meant to carry out the community service every Saturday between Ram and 4pin until I have clocked up the
100 hours, but if I do this. I won't be able to take the 45-hour rest period laid out in the drivers' regulations," he. explains. "I feel! am being penalised because of my job. If I was a brickie or a plumber, I could do the service with no bother."
He continues: "The regulations stipulate that I must not work under supervision, and that 1 mustn't do any unpaid work and that I must freely be able to dispose of my time.
"I quite often start work at 4am on a Monday morning, and what worries me is if 1 am involved in a serious or fatal accident at five o'clock on a Monday morning, then VOSA will throw the book at me for breaking drivers' hours. This could result in a jail sentence."
Jim is currently appealing to Wiltshire Probation Services, but is worried he may have to go back to court to get the community service order varied, and claims this will cost him £2,500 in legal fees.
Wiltshire Probation Services assistant chief officer Mike Hazeltine says: "We cannot comment on individual cases, but we are a law enforcement agency and we always uphold the law or relevant regulations. Locally, we have taken legal advice, which said we should do nothing that contravenes the working time rules. If we discover that an individual finds it hard to comply with the terms of an order, we will take the matter back to court and get the order varied."
VOSA, however, refuses to be drawn on deciding whether or not community service that does not involve driving counts as violating the rest period.
A spokesman says: "The EU drivers' hours rules dictate that a driver must have a weekly rest period of at least
45 consecutive hours. This can be reduced to 24 hours once every two consecutive weeks, providing that reduction is compensated for. Unfortunately, if a driver is doing community service at the weekend, this offers him little opportunity to take his minimum weekly rest periods.
Awaiting a decision
Leading transport lawyer Tim Ridyard, a partner at Barker Gotelee, agrees with Wiltshire Probation Services that the probation service is sympathetic to people who are in work.
He states: "It will try not to require work that disrupts somebody's ordinary employment because, in many cases. stable employment is a positive factor in an offender's life.
"This case can be argued both ways. The first thing is to look at the definition of rest. The regulations define rest as: Any uninterrupted period during which a driver may freely dispose of his time' and, in one sense, he may not freely dispose of his time, when a court says he has to go and do something."
"However, he has still been sentenced, and he is required to carry out that sentence. It is debatable whether or not doin community service is any more arduous than, say, digging his garden during a rest period. As far as I know, this has never been tested in court," Ridyard adds.
Jim feels he is between a rock and a hard place, and that he will either have to break the rules or his community service order, but there is hope that Wiltshire Probation Services will resolve the issue quickly Its decision will be key. because it could set a precedent for other drivers in a similar situation. •