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Chart f op
Page 38
Page 39
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When police and VOSA clash who is really driving enforcement policy? Tim Ridyard of lawyers Barker Gotelee offers an insider's view.
On Friday 24 September at Chelmsford Crown Court north Essex driver Nigel Rudkin successfully appealed against five convictions for creating false records — and he called a senior Vehicle and Operator Services Agency advisor as one of his witnesses.The case highlights how a driver may be prosecuted by the police when VOSA might not do so.
The judge ruled that only one tachograph chart may be used by a driver during a duty period (except, of course, where tachograph heads are incompatible). But he added that Rudkin had acted entirely innocently when recording his day on more than one chart. Therefore the charts had not been correctly used —but they were not 'false'.
This decision may have consequences for operators who permit drivers to make out new charts when taking over a second or subsequent vehicle because the drivers may be prosecuted by the police for wrongful use of a chart.
Different attitudes
The position of some police forces appears to be out of step with VOSA, the body nominated by the Department for Transport to interpret and enforce the drivers' hours rules. VOSA's policy is not to prosecute drivers using several charts during the course of a day unless they are attempting to conceal driving, other work, breaks or rests in which case they will be guilty of creating false records.
In June 2002 Essex police carried out an investigation of Rudkin's former employers. Charges brought against the directors were dismissed but Rudkin, among other drivers, was charged with creating false records.
The employer permitted, indeed expected, drivers to start fresh charts when transferring between vehicles, even when the tachograph heads were compatible. This was to ensure there were no 'lost kilometres' for any vehicle: the tachograph records would show a complete vehicle movement history whenever VOSA visited. All charts were handed in to produce complete records of the drivers' working days.
At Chelmsford Magistrates' Court in December 2003 Rudkin was convicted of producing false records by using more than one tachograph chart per day. He lodged an appeal.
Two of the charges Rudkin appealed against related to England's soccer World Cup campaign. He had a television in his cab and agreed with a colleague, who had no television, that during the course of the day, after tipping, they would swap vehicles, so his colleague could watch an England game. They duly met and swapped vehicles.
During the course of that day each driver drove two vehicles, completed a chart for each vehicle and in due course each handed in two charts. No attempt was made to conceal or hide anything. Read together, the four charts showed a complete record.
The prosecution argued that this was unlawful because only a single chart should have been used,unless the tacho heads were incompatible. They also said the charts were 'false' because the drivers knew they were recording their work on more than one chart, regardless of whether they were acting dishonestly.
VOSA's official policy on the use of two charts is that the drivers' hours' rules do not expressly outlaw the use of more than one chart, but they imply it is forbidden. According to VOSA,drivers should use one chart—but it is not in the public interest to prosecute them if they use more.
Sound operational reasons
In reality, most traffic examiners do not object to drivers recording their working day on several tachograph charts because some drivers have sound operational reasons for driving more than one vehicle during the course of the day, such as dock shunting where several units are used by one driver. However, VOSA will always prosecute if something is hidden, because false records will have been created.
Some trade associations, including the Road Haulage Association, and training firms have long advised and taught that multiple chart use is permissible. Others advise that vehicle changes should be endorsed and timed on the reverse,as the regulations suggest, and only one chart should be used in the day.
The Freight Transport Association agrees there are occasions when a driver will need to use more than one chart: "If a driver changes the vehicle he can continue to use the chart if it's compatible," says Robin Sharp, FTA head of health and safety. "The fact that he uses more than one chart is not a problem for us. A shunter driver may use a dozen charts. Providing the charts are consecutive and nothing is missing. that's line."
At Rudkin's appeal hearing the judge heard evidence from the driver,his colleague, a tachograph expert and a VOSA policy advisor who was called by the driver.
The judge quashed the magistrates' guilty verdicts, recognising that while a driver should normally only use one chart per day Rudkin had acted 'innocently' at all times, having always understood he could legally use more than one chart.
No intent to deceive
misjudgment clearly indicates the difference between a 'false record' (an imprisonable offence which involves dishonesty) and simple misuse of the chart (offences punishable only by a fine). In other words, to be guilty of creating a false record a driver must be trying to hide something —strangely, there is little case-law in this area.
However, many operators who permit multiple chart use (not least because VOSA has endorsed it) face prosecution of them and/or their drivers if this practice is discovered by the police rather than VOSA. Such a prosecution would he for wrongful use of the chart rather than creating false records.
Many operators, particularly those with larger fleets, find it easier to order and file tachograph charts by vehicle rather than by driver, allowing them to show vehicle records to VOSA and the police on demand. If charts are filed in driver order it can be difficult for operators to show continuity of vehicle use, risking an accusation of 'missing kilometres'.
Rudkin's ease is only one example of differing prosecution approaches. For example, VOSA's policy on drivers who extend their daily driving to 10 hours gives a little grace, and they will not be prosecuted unless their driving exceeds 10hr 15min.
The police do not offer this tolerance. One driver represented by the author is being prosecuted by the police for daily driving of 10hr and 1.0hr 12min on two occasions — offences VOSA would not prosecute.
Clear and consistent Operators and drivers alike must be wondering how it can be right for different enforcement agencies to have different enforcement policies on the same regulations. If VOS A is the primary enforcers of tachograph policy in the UK, should it not drive prosecution policy? At the very least VOSA and police policy should be consistent so operators and drivers know where they stand.•