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Stand your ground

7th february 2013
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Page 19, 7th february 2013 — Stand your ground
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Its possible to challenge fixed penalty notices imposed for vehicle defects or having no insurance, says a top lawyer Words: Tim Ridyard It is highlyfrustrating for operators or drivers to be penalised at the roadside or in court for offences they might have admitted to — even though they were innocent.

Over the past year or so Woodfines Solicitors has encountered several of these incidents, often relating to vehicle defects or employee driver insurance cover.

However, there are ways that operators and drivers can avoid them or reduce their effect.

A driver can be prosecuted for an offence relating to the condition of the truck. At the same time, their employer can be prosecuted as a user of the vehicle under Sections 40-42 Road Traffic Act 1988.

Offences brought under Section 40A, which covers use of a vehicle in a dangerous condition, as well as section 41A, which relates to brakes, steering and tyre offences, are endorseable and carry three penalty points.

An operator that is a limited company has no driving licence, so there is nothing to endorse. If the operator is a sole trader or partner, however, then a conviction will lead to the endorsement of the employer's driving licence.

Even if the vehicle was defective, endorsement points on the licence can be avoided through a special provision in Section 48 Road Traffic Offenders Act 1988.

To do this, the defendant driver or operator should challenge the normal course of action (penalty points or possible disqualification) under Section 40A, by proving that they did not know and had no reasonable cause to suspect use of the vehicle involved danger of injury to any person.

They can similarly challenge a section 41A offence based on the facts of the incident in question.

In either case, the court is not permitted to endorse or disqualify if the challenge is successful.

Extra protection This valuable piece of legislation can protect drivers who use vehicles expecting them to be roadworthy, and protect employers who maintain roadworthy vehicles but have drivers who fail to take action when defects appear.

A driver and business can feel very aggrieved at a prosecution being brought, where one or both might run the risk of their driving licence being affected by an adverse event outside of their knowledge.

In such cases, it is also normal for a court to impose what is called an "absolute discharge", meaning that, while an offence has technically been committed, no penalty is imposed.

Unfortunately, if a fixed penalty is issued against a driver for an endorsable construction and use offence and the driver agrees to make payment, handing in his or her driving licence for endorsement, then that driver is locked out of deploying the procedure above because this can only be dealt with in court. There will be many drivers or employers who have unnecessary points on their licence.

If an incident occurs and leads to the issue of a fixed penalty for a construction and use offence, or a prosecution arises, then thought has to be given to this procedure. • • Tim Ridyard is road transport partner and head of crime and regulatory law at Woodfines Solicitors based in Cambridge. He can be contacted on 01223 411421 or tridyard@woodfines.co.uk In r.n - For sometime now, fixed penalties have been issued to drivers for offences of having no insurance — this is a £200 fine, plus a hefty six penalty points on the driving licence (as well as significantly increased insurance premiums).

Employed drivers have a defence to any summons or fixed penalty for having no insurance, which reflects the fact that it must be wrong for them to be at the mercy of operators who have failed to obtain correct insurance cover.

It would be impractical for drivers to insist on being provided with proof of insurance cover before driving any vehicle in the course of their employment.

The Road Traffic Act 1988 protects employed drivers from conviction if they can demonstrate, on the balance of probabilities, that: • they were using the vehicle in the course of their employment; • the vehicle does not belong to them and is not in their possession under a hire or loan contract; • they neither knew nor had reason to believe that an insurance policy was not in force.

If they can prove these three things drivers will be innocent of any offence of driving with no insurance, even though the employer can still be prosecuted for permitting an offence of driving without insurance.

The lesson to be learned from this is that no employed driver should automatically agree to either pay a no insurance' fixed penalty, or plead guilty in court to the offence where they have been driving in the course of their employment because they might have an absolute defence.

Drivers should deploy this statutory defence and hauliers — who will not want to have to report to the TO a fixed penalty or conviction for an offence of which their employed driver is entirely innocent — should be alert to these provisions.

Unless the driver obtains the withdrawal of the fixed penalty, this has to be contested in court. However, once a prosecution has started it is invariably possible to have the summons withdrawn by proving the driver was driving in the course of their employment.


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