'Lawyers are trained to look at all sides of an argument'
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6 hate bureaucrats, whatever shape they
I come in, but I hope I can put this prejudice aside when dealing with the problems caused by their ever-increasing ranks. Lawyers are trained to look at all sides of an argument—underneath it, over it and then back round the sides again. Nowhere is the dead hand of bureaucracy felt more than in the way transport law is meted out.The "normal" lawbreaker has only the police to fear where the bringing of prosecutions is concerned. No charge brought by the police will go through the courts without having first been screened by the Crown Prosecution Service.
Although newspapers have reported that the CPS is being stifled by its management, the individual Crown Prosecution Solicitors manage to hold on to the essential concept of independence. They withdraw and discontinue charges when looked at dispassionately, taking into account not only matters of evidence but also questions of the public interest and the chances of success at trial and the costs which would be involved in a trial.
Regrettably no such safeguards exist where other prosecuting authorities are concerned. The haulage industry is one of the few which faces prosecution not only by the police but also by Trading Standards, the Vehicle Inspectorate and for those who carry waste controlled products, the Waste Regulation Authority.
The majority of haulage companies are far more likely to be prosecutec by these bodies than the police, whether it be for overloading, drivers' hours or vehicle defects. Very rarely, if at all, will the bringing of that prosecution be subject to scrutiny by anyone other than a bureaucrat. Only if the matter comes to a full trial will a solicitor be involved. Indeed the problems of inter-department accounting in the public sector is now such that local government officers are required to deal with trials and heavily contested issues in court—not even these are being placed in the hands of solicitors, either inhouse or external.
I firmly believe that this system is wrong. It is particularly wrong in haulage cases where so many of the offences are absolute and the haulier has no alternative but to plead guilty as long as the facts are made out. Minor defects and small axle overloads are easy pickings. The defendant has to plead guilty and it keeps the conviction Figures up, even if the court only imposes small fines or absolute discharges. However, the courts are increasingly reluctant to take the latter course, even when the mitigation is excellent. The costs
for the haulier can be substantial.
If solicitors were involved more in the prosecution of these charges then a greater discretion would be exercised, in particular as to whether both company and driver were charged with the some offence. The Travel Gas case in 1 989 was seen by defence lawyers as a landmark in that there was recognition of the fact that blame did not always attach to everyone where an overloading charge was concerned. The judge pointed out very clearly that it was a matter of important discretion for the prosecuting authority whether to charge both company and driver and that only where there were special circumstances should the driver also be charged. Trading Standards and the VI in my area decided that, save in exceptional circumstances, they would always exercise their discretion to charge both; a cynical disregard of judicial advice if ever there was one.
Bureaucrats do not make good prosecutors. I would like to see it compulsory that any charge brought before a magistrates court should be screened by a solcitor before it progresses. We can always hope.,