Recovery legalities
Page 38
If you've noticed an error in this article please click here to report it so we can fix it.
We operate a 7.5-tonne Mercedes 814 rigid truck equipped with winch and spectacle lift for dealing with disabled and accident-damaged vehicles. It had been taxed as a recovery vehicle but we had forgotten to renew the licence.
The police stopped it when it was carrying three cars from a garage to a body repairers and the driver was not using the tachograph.
We have received summonses for using the vehicle without an Operator's Licence, without tax and without tachograph records.
Have we any defence?
A You have a defence to the tachograph charge but not the others.
Your description of the vehicle suggests that it will come within the exemption from the EC drivers' hours and tachograph law given in Article 4(10) of EC Regulation 3820/85 to a "specialised breakdown vehicle".
Such a vehicle is not defined in the Regulation but in the case of Hamilton vs Whitelock, case 79/1986 (reported at [1988] RTR 23) the European Court ruled that a specialised breakdown vehicle is
"a vehicle whose construction, fitments and other permanent characteristics are such that it will be mainly used for removing vehicles that have recently been involved in an accident or have broken down for another reason".
Notice that the vehicle does not have to be used exclusively for accident or breakdown work.
How the vehicle is taxed is not relevant to this tacho exemption.
While Schedule 5 of the Goods Vehicles (Operators' Licences, Qualifications and Fees) Regulations 1984 provides an exemption from operator's licensing for recovery vehicles it was not available to you at the time.
For this exemption a recovery vehicle has the same meaning as in Schedule 3 of the Vehicles (Excise) Act 1971. Your vehicle appears to meet the construction requirements for a recovery vehicle and to have been used for a purpose mentioned in Schedule 3. The exemption does not state that the vehicle has to be currently taxed as a recovery vehicle.
But paragraph 8(4) of Schedule 3 says that a vehicle will not be a recovery vehicle if at any time the number of vehicles it is used to recover exceeds a specified number. That number has been specified as two.
Consequently, yours was not legally a recovery vehicle at the time.
You should put to the court whatever mitigation you can for the 0-licence and tax offences.