On the road to trouble.
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Several areas of law come into play during a multi-agency roadside check. They need to be considered by an operator before his vehicles are used on the public highway to ensure compliance— and to avoid substantial penalties being imposed by the courts, followed by loss of repute and the loss of his Operator's Licence...
Multi-agency checks are now frequent. The police, Vehicle Inspectorate, Trading Standards, Department of Social Security (DSS), Customs & Excise and the Environment Agency can all be involved with these roadside checks. All of their officers have their own powers aimed at the detection and enforcement of offences committed by HGV operators and their drivers.
Modern technology, such as laptop com
Points to ponder
• Operators should ensure that when their vehicles are being used in connection with their business on the public highway they present no risk to the safety of other road users, company employees or the general public.
• Vehicles can be impounded by Customs & Excise officers.
• Unroadworthy vehicles can receive immediate prohibitions.
• Penalties can be severe, particularly in terms of confiscation of vehicles and the charges imposed by the Customs & Excise to release such vehicles • Health & Safety prosecutions are not restricted to any dangerous goods carried— they can extend to the dangerous condition of the vehicle or its load if these hazards could affect the health and safety of the employee or a member of the public. This could result in prosecutions under The Health & Safety at Work Act, which might lead to imprisonment and unlimited fines.
• Tachograph infringements found at the roadside could result in further investigation of the company's records at its premises. This in turn could lead to prosecutions and substantial penalties.
• Operators should implement systems and issue clear written instructions to their employees advising them of their obligations and the requirements necessary to comply with the law relating to the operation of HGVs, and in particular the issues raised in this Legal Bulletin.
puters, is available to the enforcement officers at the roadside to verify information received and the previous history of operators and drivers. These checks might reveal offences leading to prosecutions against the operator and the driver; with this in mind the various enforcement personnel are given wide-ranging powers: • A driver must stop his vehicle when requested to do so by a police officer; The driver can be directed by the police, The Trading Standards Authority or Vehicle Inspectorate to a weighbridge for his load to be checked; ▪ The vehicle can be inspected by the police or Vehicle Inspectorate vehicle examiners to assess its mechanical condition and the safety of its load (sheeting, roping and so on). • The vehicle can be entered by the police or Vehicle Inspectorate traffic examiners to check the tachograph installation and the chart in the tachograph head, and to obtain the charts that must be carried by the driver; The tachograph head can be checked to ensure that the tachograph has been through its obligatory two-yearly and sixyearly calibration checks; the police and VI personnel are also empowered to examine the plate inside the tachograph; ▪ The tachograph chart can be examined to ensure that its speed trace does not exceed the speed limit: this would be a clear indication that the speed limiter is not working, or has not been fitted, or has been tampered with. In some cases special equipment is fitted to the vehicle to check that the speed limiter is functioning correctly; ▪ The tachograph charts can also be examined For compliance with the tachograph and drivers' hours regulations;
▪ The police can interview the driver and check that he has a driving licence which is valid for the class of vehicle he is currently driving. They can also check that he has not been disqualified from driving. The police and Vehicle Inspectorate can checkthat a valid Operator's Licence disc is displayed for that vehicle, and that it is for the operator on whose instructions the driver is acting on the day of the check;
The police and Vehicle Inspectorate are also empowered to check that the vehicle is displaying a valid excise licence disc, and that the excise licence disc is for that particular vehicle; • If Customs & Excise officers suspect that the vehicle is carrying goods for which duty is chargeable and has not been paid, such as alcohol or tobacco, they can search the vehicle. If any such goods are discovered they can be seized by the officers • Customs & Excise officers can check the contents of the fuel tanks. They have powers of forfeiture if red diesel is discovered. Since 1 January 1998 if a vehicle returns to the United Kingdom from the Continent and its tanks contain red diesel, however small the quantity, tax must be paid on that diesel unless it is for an exempt purpose in connection with use of a fridge motor. Customs & Excise officers are empowered to seize the vehicle if it has a tank containing even a trace of red diesel; Customs & Excise officers might also have the power to seize the vehicle if it has an additional tank which can be used for the carriage of red diesel, even if the tank is empty. They can seize the vehicle even if it is a hired vehicle; The Department of Social Security has the power to check the driver's name and address and National Insurance number to find out if he is claiming benefit while working. If this check reveals that a driver is claiming benefits incorrectly, whether fraudulently or otherwise, then the driver and possibly the operator are liable to prosecution; The Environment Agency may soon join the team of enforcers to check compliance with the Waste Transportation Regulations. This would entail production of the Waste Carriers Licence and transfer documents relating to the load;
.7. Occasionally personnel from the Health & Safety Executive attends multi-agency checks. They are concerned with the transport of hazardous goods and will check that the driver is adequately trained, has the appropriate information for the carriage of his goods, has the right safety equipment, and is displaying the appropriate Hazchem signs for the emergency services.
Power after arrest
The police are empowered to search for and seize evidence when a suspect has been arrested or when they have a search warrant. However, these powers are not unlimited—and if the police act outside their authority they can become trespassers.
hen a suspect is arrested away from a police station the police can search the premises where he was arrested or those which he left immediately before arrest. However, the category of offences for which a suspect can he arrested is limited—notably to those which carry a maximum penalty of more than five years in prison.
The purpose of this power is to allow a police officer to search for evidence relating to an offence for which the suspect has been arrested, but there must be reasonable grounds for believing that such evidence is on the premises. The more common way for the police to search and seize is under the authority of a search warrant. The Police and Criminal Evidence Act (PACE) creates the power to obtain a warrant where there are reasonable grounds for suspecting that the occupier of premises has been guilty of a serious amstable offence. This category of offence includes serious offences which have lead to a substantial financial gain.
The power to apply for a warrant is also contained in the Forgery Act, but in this case it is limited to the object which is forged and any instrument used to create the forgery. For example, if the police suspect falsification of tachograph charts, this right would be limited to the charts themselves and anything used to interfere with the tachograph.
There arc a number of guidelines which the police must follow when applying for and executing a warrant and they must set out the grounds for obtaining that warrant in writing.
If the police want to search your premises, consider the following points:
• If they do not have a warrant, ask them under what power the search is being made. If they have not made an arrest they are limited to the powers created under the Transport Act, and this restricts such a search to specified documents.
• If the police have a warrant, check the contents carefully to see exactly what it entitles them to do.
• Co-operating with the police by producing the required documents, or directing them to where they are kept, will limit the amount of time they can lawfully spend on your premises and the area in which they are entitled to search.
• Think carefully before offering your cooperation. 'The police will not be deemed to be trespassing if they have permission from the occupier of the premises. It may be difficult to prove later that this permission was only given because the occupier believed he had no choice.
• Because of the risk that unlawfully obtained evidence can still be used, the Pio
most important issue to establish is that the police have authority—and to make sure that they act within the limits of that authority.
The police must check the accuracy of the information they rely on: when it is an anonymous complaint they should obtain evidence to hack it up.
+ The application should identify the documents which the police want. Before execution of the warrant the police should, if practical, take steps to find out where on the premises these documents are kept.
+ Once the warrant is obtained it must be The following advice should be considered if the police ask to carry out a search...
• If the police do not have a warrant, ask them under what power the search is being made. If they have not made an arrest they are limited to powers created under the Transport Act which define the documents they can search for.
• If the police have a warrant, check the contents carefully to see exactly what the limits of that warrant are.
• Co-operating with the police by producing the documents or directing them to where they are kept will limit the amount of time they can lawfully spend on the premises and the area which in which they can search, • Think carefully before offering cooperation. The police will not be deemed to be trespassing if they have permission from the occupier of the premises. It may be difficult to prove later that this permission was only given because the occupier believed he had no choice.
• Because of the risk that unlawfully obtained evidence can still be used, the most important issue to establish is that the police have authority—and to make sure that they act within the limits of that authority. executed within a month, and at a reasonable hour.
4 When the premises are occupied the police officer must identify himself and give the person in charge of the premises a copy of the warrant.
The officers must keep a record of their search and must include a record of any items which are seized, whether or not they are stipulated on the warrant.
+ Once the police are lawfully on premises they have power to seize other documents which they reasonably believe may be evidence of an offence. However, this power is limited to documents—and they cannot search for items they think may be useful. Once the police have seized the documents which they were searching for, or conclude that they are not there, they must stop their search and leave the premises. If they do not leave, they become trespassers.
If the police act outside the scope of their warrant they may commit a criminal offence as well as being liable to pay damages for trespass.
If a document is unlawfully obtained it can still be used as evidence in court proceedings, provided its use does not affect the fairness of the trial. In practice, unlawfully obtained evidence is only rarely excluded.
The following are illustrations of how the law works in practice...
1. While visiting the premises of a haulage company a police officer becomes suspicion that the haulier has been involved in the production of false tachograph charts. He suspects that there may be documents on the premises which would help him prove the case by establishing that a vehicle was at a different location than is suggested on the face of the chart. Can he search the premises there and then?
+ The answer is no. because the suspected offence is not an arrestable offence so the police cannot use the general power of search after arrest.
+ By contrast, if the police are investigating possible manslaughter after a fatal accident the offence would be sufficiently serious to justify search after arrest.
2. If the police receive an anonymous note from a driver implicating a haulier in tachograph fraud, can the police obtain a search warrant?
4 The answer is no, because an anonymous complaint should be corroborated from another source. However, if the police obtain a number of false charts from the company's drivers, that might be sufficient corroboration.
3. Where the police have grounds to believe that a company has been involved in the production of false tachograph charts, can they obtain a broadly worded warrant to search for documents which might prove where a vehicle was at a particular time?
+ Again, the answer is no because there is no power under the Police and Criminal Evidence Act and the power under the Forgery Act is limited to false records and devices used to produce such records.
4. What happens if a police officer is lawfully on premises searching for tachograph charts, which he is entitled to do under powers set out in the Transport Act, and comes across a document which appears to show that the vehicle was moving when, according to the chart, it was on rest? Can he seize it?
+ The answer is yes, provided that he was legitimately searching for charts. By contrast. if he has finished the search for charts but decides to look elsewhere for evidence, he is trespassing and should not seize anything else.
5. If the officer is trespassing but obtains evidence of an offence, can he seize this and use it in a criminal trial?
+ In this case the court has discretion and will have to decide whether inclusion of the evidence would adversely affect the fairness of the hearing. In many cases it would be allowed.