any questions
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Jim Duckworth, editor of Road Transport Law and head of Transport Law Services, Woking, Surrey, helps solve your legal problems in this regular column. Write to Commercial Motor Any Questions, Room H203, Quadrant House, The Quadrant, Sutton, Surrey SM2 5AS or phone CM's legal hodne (0181 652 3689) giving your name and number. Duckworth's answers are an interpretation of the law and should not be seen as definitive.
ressive police
I applied for an Operator's Licence and after a few weeks received a letter from the police traffic department saying it wanted to interview me about my application. I was sent a list of documents it might "require" to see, including my CPC, maintenance records, insurance, test and plating certificates, registration documents and tax discs. The list also referred to drivers' names and addresses, dates of birth and driving licence details. It said it would be best if I went to a police station some miles away.
I didn't think my application had anything to do with the police. Does the law say they can interview me and see my documents?
A From similar inquiries it
seems that PCs in some forces are acting in a highhanded and officious manner, with no bacicing in law, towards owner-drivers or small operators applying for licences They do not appear to tackle large companies.
Police are employed to enforce the law, but they can only act in accordance with it.
Section 12 of the Goods Vehicles (Licensing of Operators) Act 1995 enables a chief officer of police to object to a licence application or licence variation on the grounds that the applicant does not satisfy the requirements of Section 13.
This says that to grant an application, a Traffic Commissioner must be satisfied as to the good repute, financial standing and professional competence of an applicant for a standard national licence or, in the case of a restricted licence, that the applicant is a fit person to hold a licence.
He must also be satisfied that there are satisfactory arrangements for ensuring the hours and records law is complied with; vehicles are not overloaded; vehicles are maintained in a fit and serviceable condition; the operating centre(s) is available, suitable and has capacity for all the authorised vehicles; and the applicant has sufficient financial resources to maintain the vehicles.
An objection must be in writing and sent to the Traffic Commissioner within 21 days of publication of details in Applications and Decisions. It must set out the grounds for the objection and give particulars. A copy must be sent to the applicant.
The act does not give a police officer power to require an applicant to be interviewed or to produce the documents you have mentioned, or to give the information about drivers.
Section 40 of the act states that a vehicle examiner or a police constable can, at any reasonable time, enter any premises of a licence applicant or licence holder and inspect any facilities for maintaining vehicles used under the licence.
The term "facilities" would include a workshop, pit, tools and equipment for inspecting or working on a vehicle, but would not include documents of any kind.
Police do not have any statutory power to require production of a CPC, maintenance records, plating certificates or tax discs. They do have power, under Regulation 8(2) of the Road Vehicles (Registration and Licensing) Regulations 1971, to require the owner of a vehicle to produce, at a reasonable time, its registration document.
They can, under Sections 164 and 165 of the Road Traffic Act 1988, require production of a driving licence, certificate of insurance and test certificate from a person actually driving a vehicle on a mad or believed to have been the driver at the time of an accident or traffic offence. But the police officer must have evidence of these situations before the power can be exercised.
In your circumstances, the police have no power to require you to give any information about your drivers. You cannot be forced to take part in any interview at their premises, or anywhere else. From reports I have received, it would be best to refuse. These interviews seem to be nothing better than fishing expeditions in which they try to find a reason for making an objection. I suggest you don't discuss your application with the polite. If they have grounds for making an objection they will make it. You do not have to satisfy the police that you meet the requirements of Section 13—you have to prove it to the Traffic Commissioner.
Weight defences
Can your remind me what the legal defences are to an overloading charge?
Section 41B(2) of the Road
Traffic Act 1988 provides two defences to a person charged with contravening "a Construction & Use requirement relating to any description of weight applicable to a goods vehicle".
First, it is a defence to prove that when the vehicle was on the road it was going to the nearest available weighbridge to the loading place, or it was going from a weighbridge after being weighed to the nearest point at which it was reasonably practical to reduce the weight without causing a road obstruction.
In the High Court case of Lovett vs Payne (1980) RTR 103, it was ruled that "nearest" meant nearest by road and not simply a straight line on a map. And in Halliday vs Burl (1983) RTR 21 it was decided that a weighbridge was "available" even if it was cramped and vehicles entering or leaving created a risk to other mad users.
Second, where a limit is exceeded by no more than 5%, it is a defence to prove the limit was not exceeded at the time of loading and that since then no person has made any addition to the load.
These days, with more computerised weighbridges, you might note that in the case of Connolly vs Lancashire County Council (1994) RTR 79, the High Court ruled that tickets produced by a computerised weighbridge were not admissible in evidence, under Section 69(1) of the Police and Criminal Evidence Act 1984, because there was no evidence that the computer was operating properly at the time.
This case was followed in East West Transport Ltd vs DPP (1996) RTR 184.