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21st July 2011, Page 22
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Which of the following most accurately describes the problem?

for the drivers

Should operators pay their drivers’ fines or subsidise their defence in court? CM reports Words: Lucy Wood and Anton Balkitis All operators will at some point employ drivers who receive a notice of intended prosecution or a summons. Whether they choose to subsidise legal representation, or even pay the ine of the driver as a matter of goodwill, is for them to decide. But when is it in the operator’s own interest to ensure the best outcome for their driver?

Many hauliers have policies stating that drivers with a certain number of points cannot be employed in that role. One of the main reasons for this is to minimise insurance premiums as the cost of insuring a driver with endorsements can be high. For example, on an individual car, a typical policy – costing £550 annually for a driver with no points on their licence – may rise by around £100 for a driver with 3 penalty points, by £300 for a driver with 6 points and by as much as £2,000 for a driver who has received a ban for reaching 12 points or more. When you remember that points stay on a licence for ive years for the purposes of insurance (four years before you can get a clean counterpart and three years for court purposes), it’s not hard to work out that a few hundred pounds spent on legal fees can save money in the long term.

Of course, not every case can be successfully defended. Sometimes it’s a case of using careful mitigation to try to keep a penalty to a minimum. This is particularly the case with offences such as careless driving, failing to stop or report following an accident, driving without insurance and even speeding, where the possible range of penalties can be quite wide ranging. Saying the right or wrong thing in court can make the difference in the number of points or length of ban imposed, ine levied and consequently upon the insurance premiums due. If the driver is to be retained following the hearing, legal representation becomes something worth considering.

Take careless driving, which is a relatively common offence. Upon conviction, the magistrates’ court sentencing guidelines says that penalties will usually range from three to nine points or even a period of disqualiication. Magistrates are not legally qualiied and, although they are guided by a qualiied legal adviser, the legal adviser does not have the same obligations to act in a defendant’s best interests in the way that a lawyer does. Solicitors and barristers are there to clearly state the law and to do their best to ensure it is applied correctly. They should know your case inside out and put forward the best possible argument. It can be extremely daunting appearing in court against a legally qualiied prosecutor who knows the law far better than you.

Loyalty goes a long way

Some employers are lucky enough to have long-term drivers who they will bend over backwards for because of their loyalty and reliability. If that driver is unfortunate enough to accumulate 12 or more penalty points within three years, they will be subject to a mandatory six-month minimum period of disqualiication under the totting-up provisions. However, it may be possible to avoid this ban if a successful exceptional hardship argument is put forward. This gives the magistrates the discretion to ban the driver for a lesser period or to impose the points but not ban the driver at all. The law on exceptional hardship is not straightforward and involves cross-examination from a prosecutor. For the best possible chance of succeeding, it’s best to seek legal advice. After all, the driver’s livelihood can stand or fall by the magistrates’ decision.

Operators should be aware that certain offences must be reported to the Ofice of the Trafic Commissioner if committed by an employee or agent of the business. Such offences include those relating to overloading, keeping vehicles it and serviceable and drivers’ hours – there are many others. It’s important that such offences are dealt with competently; otherwise the operator faces the far more serious prospect of a public inquiry where action could be taken against their licence. Just because a decision has been made not to prosecute the operator as well as the driver, it doesn’t mean that the TC won’t be interested in hearing exactly how the incident arose and what the steps were taken by the operator to prevent it.

Many magistrates simply don’t understand the haulage

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industry and the pressures faced by drivers, let alone understand the rules on something as complex as drivers’ hours. It’s useful to have someone addressing the court who is able to explain these points. Although the driver may know his stuff, is he really the best person to stand up and address the court on technical aspects of law? For those who aren’t used to it, standing up in court can leave them either tongue tied or rambling, which can often do more harm than good.

Lawyers will be aware of additional points of law that could make a signiicant difference to the outcome of the hearing. For example, where the driver is prosecuted for a construction and use offence, such as using a vehicle with an insecure load or with a defective tyre, a conviction would result in penalty points being imposed on the driver’s licence together with a ine. However, if it can be demonstrated that the driver had no knowledge of the defect and also had no reasonable cause to suspect that it existed, it is possible to avoid penalty points, a ine and even prosecution costs which would normally be due. Similarly, lawyers are aware of cases where ‘special reasons’ can be argued in other situations that can avoid the same consequences. These are technical arguments which take the form of a mini-trial with cross examination from the prosecution, so most lay people would feel out of their depth attempting them alone.

Finally, it’s always worth taking legal advice on what plea to enter. Often defendants feel they are not guilty, but in the eyes of the law they are.

Credit is given for an early guilty plea, which is then reduced the closer a matter gets to trial. n

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Organisations: UN Court
People: Lucy Wood

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