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by Les Oldridge, AMIRTE, MIMI
Defences to offences
WHEN studying traffic law I have occasionally come across stated cases or statutory defences which may be useful to the professional driver or the commercial vehicle owner faced with a prosecution. If a good lawyer is briefed for the defence he will, of course, be familiar with the law concerning the particular case and use it to the best advantage to ensure his client's acquittal. But I feel there are occasions where professional advice is not sought and a guilty plea is made whereas the prosecution's case could be successfully challenged if these defences were more widely known.
A good example of the sort of case I have in mind is provided in Harding v Price (1948) 1 All E.R. 283. This case relates to Section 25 of the Road Traffic Act 1972 which requires that in any case where owing to the presence of a motor vehicle on a road an accident occurs whereby personal injury is caused to a person or damage is caused to another vehicle or animal the driver must stop and exchange names and addresses with the other person involved. In the case under review the trailer of an artic collided with a stationary vehicle and owing to the noise and vibration from the trailer the driver was unaware of the collision and, being unaware, did not stop. He was convicted in the magistrates' court of this offence.
He appealed and it was then held that in these cases the onus is on the prosecution to establish a prima facia case that an accident occurred and that the driver did not stop. If the driver then satisfies the court — and the onus is on him — that he was unaware an accident had occurred, then he is entitled to be acquitted.
Recently a driver employed by a haulier friend of mine was prosecuted for failing to stop after an accident in much the same circumstances as in the case outlined above. After drawing the bench's attention to this particular ease he was found not guilty. The evidence must, of course, support the driver's contention that he did not know that an accident had occurred; the case where the tail end of an attic comes into contact with a pedal cyclist would be the sort of accident where this defence might succeed. If a light delivery van collided with a rigid eight-wheeler and was extensively damaged it would be extremely unlikely that the driver of the van would be unaware of the accident and it would be futile for him to put this defence forward.
Overloading defence In some instances a statutory defence is written into an Act — Section 40(6) of the Road Traffic Act 1972 provides an example for it gives a defence to the charge of overloading. Many operators would favour a statutory tolerance over the permitted weight so that a vehicle which exceeded the permitted weight by only a small amount would not result in a prosecution.
The defences provided by Section 40 do not go as far as this but may be useful in certain circumstances. The Section provides that it shall be a defence to prove in overloading cases (a) that at the time of the alleged offence the vehicle was travelling to the nearest available weighbridge from the place it was loaded or was proceeding from a weighbridge where it had been weighed to the nearest point at which it was reasonably practical to reduce the weight to the relevant limit without causing a road obstruction; or (b) where the maximum was not exceeded by more than 5 per cent, that the limit was not exceeded when the vehicle was loaded and that no person had made any addition to the load.
It should be noted that it is for the defence to prove the facts of these defences and this would entail calling witnesses to prove in (a) that the weighbridge was the nearest to the loading point, or in (b) that the permitted weight was not exceeded at the time of loading. In the latter case it would be necessary to call the person who actually weighed the vehicle and who could produce the weight tickets.
Two different types of offences under the Construction and Use Regulations have very useful statutory defences. Regulation '77 requires that speedometers be maintained in good working order and Regulation 81 stipulates that lamps and reflectors fitted to motor vehicles be maintained in such a condition by day that the vehicle can legally be used at night. In both cases it is a defence to prove either (a) the defect complained of occurred in the course of the journey during which contravention was detected or (b) that at the time the vehicle was checked by the police steps had already been taken to have the defect remedied with reasonable expedition.
One can visualize all sorts of circumstandes where these defences would be useful. Suppose, for example, that a tipper badly damaged a tail light while working on road repairs or a flying stone smashed a sidelamp. In these circumstances the former defence could be put forward. Where the parts necessary to repair a faulty speedometer are unobtainable I suggest that the vehicle could continue in service provided steps have been taken "to remedy the defect with reasonable expedition". This would mean a determined effort to obtain the faulty part by means of telephone or telex calls and being able .to prove to the court that such an effort had been made.