Jim Duckworth, editor of Road Transport Law and head of
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Transport Law Services, Woking, Surrey, helps solve your legal problems in this regular column. Write to Commercial Motor, Room H203, Quadrant House, The Quadrant, Sutton, Surrey SM2 5AS giving your name and telephone number. Duckworth's answers are an interpretation of the law and should not be seen as definitive.
NO EVIDENCE OF 'USER'.
III One of my lorries was stopped in a weight check by Trading Standards officials and it was found to be overweight. They took the driver's name and address and said he would be reported. They made no contact with me whatsoever but I have just received a summons for the overloading. They appear to have taken my name and address from the side of the lorry.
I used to trade in my own name but became a limited company nearly a year ago and the lorry was being operated by the company. The lorries have not been re-painted with the company name yet
• The failure of the Trading Standards officers to ascertain precisely who the driver was working for at the time of the check is fatal to their case. From what you say, he was not working for you and they have no evidence he was employed by the company.
The fact that a vehicle has a name painted on it or is owned by a particular person does not mean that that person is using the vehicle at the relevant time. If the lorry was owned by the company that would not be evidence that it was the user of the vehicle at the time. There is an important difference between owning and using.
Over the years there have been many High Court decisions on who the 'user' of a vehicle is for construction and use offences—which place liability on a person who uses, or causes or permits another person to use, a vehicle. The most recent is an insurance case, Jones vs DPP [1999] RTR 1, where the High Court ruled that when an offence involves 'use' with the alternatives of 'cause or permit' a vehicle owner who is not driving the vehicle is only a 'user' if the driver is employed by him under a contract of service and is driving on his employer's business.
In that case there was no evidence that the owner of a vehicle was also the user.
Consequently, because the driver was working for the company and not yourself you should plead not guilty to the charges against him.
Generally, in such situations, Trading Standards make a follow-up visit to the vehicle operator to ask whether the driver was employed by him at the time in question. In some areas Trading Standards make such inquiries by letter to try to obtain an admission from the operator that he was using the vehicle at the time.
Incidentally, operators are under no obligation to reply to such letters from Trading Standards.
PRISON AND GOOD REPUTE • I am serving a sentence for murder and while in prison have taken and passed the CPC exams for goods and passenger vehicle international operation so that, hopefully on release, I can become a transport manager.
I read a report (CM13-19 April) of an ex-prisoner who had been granted an 0-licence but who had to appear at a public inquiry to get it—and his offences were not as serious as mine.
Can you advise me what the law is on ex-prisoners and vehicle licensing?
• A person who wishes to obtain a standard goods or PSV 0-licence or be nominated on such a licence as a transport manager must satisfy the Traffic Commissioner that he is of good repute.
The matters which a TO can take into account in assessing a person's good repute are set out in Schedule 3 of the Goods Vehicles (Licensing of Operators') Act 1995 and Schedule 3 of the Public Passenger Vehicles Act 1981.
In deciding whether an individual is of good repute the TC can have regard to anything and in particular to: • relevant convictions of the individual; • other information in his possession which relates to the person's fitness to hold a licence (in the case of a PSV this is restricted to previous conduct in the operation of vehicles of any kind in the course of a business).
Each Act contains its own definition of relevant convic tions but, in general, they are traffic offences relating to the operation of goods or passenger vehicles or both.
Both schedules also provide that a TC must find that a per son is not of good repute if he has more than one conviction for a serious offence or has been convicted of road transport offences.
A serious offence is defined as one in which the sentence was more than three months' imprisonment; a community service order for more than 60 hours; or a fine exceeding £2,500. Offences committed outside the UK and for which a corresponding punishment was imposed are included.
Road transport offences are defined as offences relating to drivers' hours and rest; weights or dimensions of vehicles; vehicle safety; protection of the environment; and any other offence concerning professional liability.
There is an overlap here with relevant convictions.
Under goods vehicle licensing a conviction which is spent under the Rehabilitation of Offenders Act 1974 is disregarded for all the above pur poses but, in relation to PSV licensing, it is disregarded only for the purposes of the serious offence paragraph.
However, both Acts provide that a TO can disregard an offence if such time as he thinks appropriate has elapsed since the date of the conviction.
Your conviction for murder is one which will never be spent under the 1974 Act so you will have to disclose it on any application form which requires details of previous convictions.
The TC can take it into account in assessing your good repute but, as stated above, when that time arises he can disregard the offence if he considers sufficient time has passed since the date of the conviction.
It appears that part of the problem in the public inquiry report you refer to was that the licence applicant did not disclose his convictions for serious offences.
TCs take a serious view of applicants who do not disclose convictions which are not spent.