LEGAL COMMENTARY: TACHOGRAPH EVIDENCE
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Operators react at new attack on 0-licences
• THE TACHOGRAPH'S ability to record speed is causing increasing problems.
Readers may have seen a report about a case in which I was involved recently when a company was called up by a Licensing Authority because a check of certain drivers' tachographs had demonstrated that they were consistently exceeding the speed limit.
I recall the headlines that greeted the introduction of the tachograph. "The Spy in the Cab" caused enormous discussion; indeed, there were threats of industrial action if these dreaded recorders were to appear in the cabs. All the furore is now history with the exception of one critical point: it was agreed that a tachograph record would never be used as evidence to support a prosecution for speeding.
Whatever view one might have about the logic of that decision, it created an impossible position so far as the employer was concerned because no disciplinary action could be taken against a "speeding' driver as the use of the tachograph evidence would be a contradiction of the "agreement" that had been reached.
Action could be taken on the grounds of fuel economy, for instance, but not for "speed" itself.
There the matter rested. The chart was used as evidence for the defence if speed was material, but never as evidence for the prosecution, even if the chart clearly demonstrated that the driver drove like a maniac.
Recently some LAs have demonstrated a determination to take direct, and substantial, steps to penalise those drivers whose records indicate indifference to speed limits Drivers have had their licences removed and companies have been "called up" and have had action taken against their operator's licence.
Operators have, quite properly, reacted to this new attack. Tachograph records are now checked not only for drivers' hours offences, but also for excessive speeds. Increasingly, we see the introduction of road-speed limiters. All well and good. The trouble is that the "cut off' speed is 60mph which is, in practical terms, you may think, the only reasonable criteria that can be applied.
Disciplinary action can be taken against the real threat to the company's operator's licence, which avoids the need to rely upon the reality of the speeding offence for which, of course, tachograph evidence will not be used All very artificial but, clearly, increasingly effective.
In the case in which I was concerned the company was, by the time that we came to the inquiry, having the charts professionally analysed and asking for "speed" to be actioned as well as the more normal problems of excessive driving periods and inadequate rest.
The inevitable delay in processing the charts meant that, with the best will in the world, some weeks would elapse before the company saw the analysis. (This, I imagine, will be the experience of all those who use external consultants for chart analysis. On the other. hand, the use of professional consultants in this ■ way is an accepted part of good management). This delay was, of course, reflected in the time that elapsed before a driver was shown his report and asked to sign for it.
Disciplinary action was taken if the various offences that were disclosed were repeated, and, of course, speeding attracted disciplinary action The LA however, was of the view that that was not enough. He said that exceeding the 60mph limit was not necessarily as serious as exceeding a 30 or 40mph limit and that he expected the company to analyse journeys on a detailed route basis so that a check could be made to see if the driver had, for instance, exceeded a 30mph limit. He suggested that this be done by "random sampling'', It seems to me that it is impossible to criticise the LA's view if, for a moment, we put aside the other material factors. I doubt that anyone would deny that it is more dangerous to do, say, 45mph in a 30mph zone rather than 75mph on a motorway before you all write in, that assumes that traffic condition do not make the speed dangerous in itself.
TACHOGRAPH EVIDENCE Avoids the 'agreement'
On the other hand, the LA appears to be using the evidence of the tachograph as evidence of speed in action that is arguably more severe than that which would be taken in the average magistrates' court. Certainly, this approach totally avoids the "agreement" that evidence of speed would not be obtained and used in this way.
Before I consider the whole situation, let me tell you another story.
It appears that there is a policy, affecting part of the M6 near Wigan, to prosecute for "reckless driving those heavy goods vehicle drivers who "tailgate". The penalties for reckless driving include imprisonment, disqualification, and a maximum fine of £2,000. it is the second most serious offence that a motonst can commit.
I accept that tailgating can be both frightening and extremely dangerous; I could be persuaded that, depending on the facts, a prosecution for reckless driving would be appropriate. A policy of this sort is, however, more frightening than the offence. Not only does the adoption of a policy preclude careful consideration but, inevitably, it diminishes the nature of the offence.
My client was alleged to have closed "gently", and I use the reporting officer's words, to between 2 ft and 3 ft from the back of a mini car. The position was not maintained; the driver, my client, immediately allowed the mini to pull away. There was no suggestion that he had flashed his headlights or sounded his horn.
On the evidence, traffic in the nearside lane was doing 40 to 45mph, the mini, and other traffic in the centre lane, was doing 50 to 55mph, my client was doing 60, and the police officer, in the outside land, was doing 65 to 70mph. It was fine and, as they say, the visibility was good.
The mini driver, a young girl, was going north, possibly on her first long trip on a motorway. She had, she said, seen my client's vehicle when it was a "speck in the distance"; it then "closed up so rapidly," she said, that the next time she saw it she could see only the number plate and the headlights (which were not on), She had not seen the police Range Rover, which had come up the outside lane. She was driving, she said, 6 ft to 7 ft from the car in front and knew that her braking distance was 175ft.
You may think that she should have seen the police car; that, as the evidence of speed in relation to all the vehicles was accepted, my client could hardly have "closed up rapidly," You may think that against that lack of observation to drive 6 ft to 7 ft from the car in front at 55mph was not a lot less than alarming, even if such a small gap could be justified.
My client said that he had "rolled up" behind the mini and had allowed the incline to open the gap. There was no suggestion from either the officer or the mini driver that he had braked and you may think that his account was reasonably accurate. It is fair to say that my client denied that he had ever been as close as two to three feet.
He was prosecuted for reckless driving, with due care as an alternative. Nothing was said to the mini driver about her driving at all not one word.
The court convicted for driving without due care and attention. My client was fined £200 with five penalty points.
I could accept that in some ways if anything had been said to the mini driver. Against the decision to say nothing to her the decision to prosecute the heavy goods vehicle driver can only be explained against the discriminatory application of a policy. All of which brings me back to the Licensing Authority„ .
'GUILTY WITHOUT TRIAL' Ill-considered pressure The Editorial Comment in Commercial Motor for the 9-15 February is headed "Guilty without Trial" and considers the proposed changes in the legislation We are, once again, seeing increasing, blind, and ill-considered pressure against those who use and drive heavy goods vehicles. A lorry that exceeds a speed limit may be dangerous, it may be more dangerous than a motor car, but, and it is an enormous but, it may not.
Is a lorry driven by an experienced HGV driver at 40mph in a 30-mile zone necessarily more dangerous than an 18-year-old doing the same speed on the same road? You must remember that we all speed, don't we? Why should an HGV driver be liable to lose his licence at the behest of an LA when our 18-year-old, doing, say, 68 in a 40-mile limit, will not? How can it be that my client can face a charge of reckless driving and nothing be said to a driver who, arguably on the facts, was more reckless but did not drive an HGV?
To sing an old old song as loudly as I may, we must press for recognition of the fact that not all lorry drivers are dangerous, irresponsible people, and not all faults, whether of loading or of maintenance, are within the control of the haulier or his driver.
by Jonathan Lawton