No....it is not quite a simple as that! However, some drivers may avoid prosecution or fixed penalty offers as a result of postal delays.

Some of you may have read in the press over the last week about the recent case in which a driver had his speeding overturned because the police failed to serve him with his Notice of Prosecution (NIP)on time. This is the case of Gidden v Chief Constable of Humberside, (DC, 29 October 2009). The driver had been sent a NIP by first class post but due to postal strikes it did not arrive until 16 days after the offence.

The law requires that for certain offences (including speeding) a defendant must either have been warned of the posiibility of prosecution at the time or must have been served with a summons within 14 days or a notice of the possibility of prosecution must have been sent within 14 days (to the driver or the registered keeper). In most cases the latter option will apply, not least since speeding will be invariably detected by speed cameras and the driver will have no direct contact with the police at that stage.

The NIP should be sent out by the police so that it will reach the person to whom it is addressed (the registered keeper or the driver)within the 14 day limit, taking into account the ordinary(!)post. Therefore a notice sent out at the very end of the 14 day period (which starts the day after the alleged offence) may be unlikely to arrive within the time limit and the driver may argue non-receipt of the notice within time to invalidate any subsequent prosecution. There is established case-law in this area. Difficulties may arise for the police during periods of industrial action and when there are public holidays with large volumes of post e.g. Christmas.

In the Gidden case the High Court had to decide whether a notice of intended prosecution should be regarded as having been properly served where the notice was sent by first class ordinary post on a date that would normally lead to it being delivered within the 14-day time limit but where the court was satisfied that it was in fact delivered after the 14-day time limit. The problem had arisen in the context of a previous postal strike. The court held that, except for NIPs sent by registered post or recorded delivery, it is possible for a driver to rebut the presumption of delivery within time.

The law makes certain presumptions about the postal service so that if a letter is sent out it is assumed in law to have arrived unless the contrary is proved - to make the police prove in every single case that the NIP had arrived would be unworkable and unreasonable. A further assumption is that postal service by first or second class post will take a certain amount of time to arrive. It should be posted so that it would ordinarily reach the address within the 14 days.

What does this mean in the context of the current postal strike? It means that the police will have to ensure they send out any notices as promptly as possible after the alleged offence - if they do not do so and the notices are only dispatched late in the 14 day period arriving after the deadline then the driver can argue the NIP has not been properly served on time and hence any subsequent proceedings are not lawfully brought. It will still be for the driver to raise the issue of non-receipt of the NIP as a defence and write to the police about this ( when the notice arrives after the 14 deadline) to pre-empt a prosecution or raise it in court as the defence.

Tim Ridyard, Solicitor

Barker Gotelee

01473-611211

tim.ridyard@barkergotelee.co.uk

www.roadtransportlawyer.co.uk

1. Does each and every driver definitely have the correct driving entitlement for the vehicles they are driving? Only through a rigorous check can this be proved. Such checks need to take place regularly with original licences being scrutinised - we suggest at least every six months at most and operators should also insist that driver declare any fixed penalties or convictions as and when they arise. Now that the Driver CPC Scheme has started it will be necessary in due course to check drivers have maintained their existing rights and newly qualified drivers are properly documented. In a recent case a driver had been driving larger vehicles for many years without the correct entitlement, invalidating the insurance, but the lack of entitlement had gone unnoticed by several employers.

2. A lack of insurance creates particular problems for those who trade as partnerships or sole traders - this is because a lack of proper insurance cover leads not only to the potential offence of driving with no insurance on the part of the driver (see below) but the offence of permitting driving with no insurance. This attracts the same penalty as driving with no insurance. Therefore, a partner or sole trader who is the operator runs the risk of a minimum of 6 penalty points on their personal driving licence if their driver is uninsured. The penalty range for driving with no insurance is 6-8 penalty points or a discretionary disqualification. If the operator is a limited company then of course it holds no driving licence of its own and hence the problem does not arise as the directors will not be prosecuted personally.

3. A driver whose employer deliberately or inadvertently does not ensure there is insurance cover for the vehicle they are driving may have a statutory defence in law. If a driver is driving in the course of their employment and fulfils other criteria then the court cannot convict them of any offence of no insurance. This is intended to protect genuine employees whose employers have failed to provide proper insurance cover. Onee difficulty here is that fixed penalties now also cover the offence of driving with no insurance so an employee driver may accept (i.e. pay) a fixed penalty offer in the sum of £200 and have 6 penalty points endorsed on their driving licence unnecessarily when they may have a perfectly good defence for the reasons explained. Drivers issued with fixed penalties for offences of driving without insurance when they are driving as employees should contest such cases in court, to avoid a large number of penalty points, increased insurance premiums and of course the risk that the 6 points may be added to other points on their licence and create a totting up situation.

4. Problems arise in some instances where vehicles are put on and off cover and there are changes in the vehicle fleet leading to inadvertent lack of insurance cover (and hence the driver driving uninsured). All operators should be absolutely meticulous in their paperwork and at all times keep the most careful notes of conversations with brokers and insurance companies to ensure there are no difficulties of this kind.

Tim Ridyard is a Partner, Road Transport Solicitor based at Barker Gotelee Solicitors. tim.ridyard@barkergotelee.co.uk and www.barkergotelee.co.uk

The regulations which introduce new fixed penalties, financial penalty deposits and immobilisation, removal and disposal of vehicles have now been published and come into force on 31st March 2009.

VOSA does not appear to be implementing commencement of this scheme until May (probably May 28th) various police constabularies have indicated to us they anticipate they will commence enforcement under the schemes with effect from 1st April 2009 onwards. Therefore drivers should be aware of this and plan accordingly.

These newly published regulations list new fixed penalties not previously covered by earlier fixed penalty schemes dealing with domestic and EU drivers' hours rules and tachograph use, prohibitions of foreign vehicles, fail to hold O licence, community authorisations and cabotage etc.

Separate regulations list the amount of £200, £120 and £60 to be imposed for each specific new fixed penalty offence - drivers' hours offences and overloading offences are graduated in penalty according to seriousness.

There are separate regulations for financial roadside deposits. These regulations list all the offences (including ones previously dealt with under fixed penalties by the police) which are to be the subject of this scheme and sums of £200, £120, £60 may be required from drivers without a satisfactory UK address; there are also £30 penalties under this scheme. Where such a driver is to be prosecuted, they will have to pay a deposit of £300 for a maximum 3 offences i.e. £900 as a surety aginst any future fine.

Separate regulations deal with immobilisation, removal and disposal of vehicles. In short, where a vehicle has been prohibited from being driven under the Drivers' Hours Rules, vehicles are unfit or overloaded or where no financial deposit has been paid the immobilisation of the vehicle can take place. There are fees for release of vehicle and removal and/or disposal.

If you require further information about this then please contact Tim Ridyard on tim.ridyard@barkergotelee.co.uk.

Self-employed You will recall that when 'working time' was introduced into the road transport sector self-employed mobile workers were excluded until 23 March 2009.  The European Commission has now concluded that the imposition of working time on all self-employed mobile workers is in fact unenforceable.  At the same time, it wishes to deal with 'false' or 'sham' self-employment - mobile workers in the road transport sector are not self-employed simply because they give themselves that label.  ( All business should always be alert to this issue in any event, not least for employment law and tax and national insurance purposes.)

The proposal is therefore to re-define what a 'mobile worker' is.  The idea is to make it easy to categorise whether a mobile worker is or is not self-employed.  A self-employed driver will mean anyone whose main occupation is to transport passengers or goods by road for hire or reward and who is entitled to work for himself and is not tied to an employer by a contract of employment or by any other type of working hierarchical relationship, who is free to organise their working activities, whose income depends directly on profits and who has the freedom to have commercial relations with several customers. 

The UK Government does not believe that truly self-employed workers should be brought under the umbrella of working time, as it is difficult to enforce the rules against them.  Interestingly, the Government notes that genuinely drivers will still remain subject to the EU Drivers' Hours Rules, the purpose of which is to prevent tiredness and guaranteed breaks and rest periods - it will be recalled that a major criticism of Working Time has always been that it serves little purpose as EU Drivers' Hours Rules already exist to guarantee that shift times cannot exceed safe hours of work - hence, one might might well query the purpose of Working Time for mobile workers in the road transport sector!

Night Work Limits Currently HGV mobile workers who work between midnight and 04:00 or PSV mobile workers who work between 01:00 and 05:00 are 'night workers' limiting their working time to 10 hours in any 24 hour period, whenever this occurs (though it can be amended by agreement).

The proposal is that mobile workers would not be regarded as night workers unless they worked a minimum of 2 hours during their core 'night' period i.e. shorter periods would be disregarded.  This would also align road transport night working with mainstream working time arrangements.  The Government concedes that businesses might find record-keeping and compliance with this more cumbersome but it would alleviate the problem of workers simply because they 'dipped into' night work.

Enforcement The European Commission wishes UK and other EU Member States to introduce appropriate working time enforcement systems.  The consultation states that VOSA already adopts "a robust enforcement regime towards Working Time".  In practice this certainly does not appear to have materialised in terms of prosecutions or disciplinary public inquiries held by Traffic Commissioners.  It appears that in reality both VOSA and operators remain primarily concerned with ensuring the EU Driver's Hours Rules are complied with and that still appears to be the real focus of VOSA when looking at drivers' hours compliance at fleet/ operator inspections.

The full proposals and consultation documentation is to be found at www.dft.gov.uk/consultations/open/mobile/consult.

For further queries please contact Tim Ridyard on tim.ridyard@barkergotelee.co.uk or on 01473 617309. www.barkergotelee.co.uk

READ MORE...

Tim Ridyard
© Barker Gotelee

• New power to graduate fixed penalty amounts according to type, degree of offence (i.e. varying amounts of £60, £120 or £200 to be introduced in Spring 2009).
• Power to vary number of penalty points endorsed on driving licences according to type, location, severity of offence and location of offence.
• New power for vehicle examiners (i.e. VOSA) to issue fixed penalty notices.
• Requirement for goods and passenger operators to notify the Traffic Commissioner of certain fixed penalty notices ( in essence the ones under the new GFP scheme).
• New system of driving licence endorsement - power to issue endorseable fixed penalties to non-GB driving licence holders through checks of their 'driving record'.
• Police and VOSA power to require financial deposit payment by drivers without satisfactory UK address (intended to enforce against foreign drivers who otherwise have been able to avoid fixed penalty/ prosecution in the UK).
• Power for Police/VOSA to immobilise vehicles subject to a prohibition (again, primarily directed at foreign drivers).

Our current understanding of the scheduled commencement date for the introduction of graduated fixed penalties and financial roadside deposits is that it will now start on 1^st May 2009.

If you require further information about this then please contact Tim Ridyard on tim.ridyard@barkergotelee.co.uk or at www.barkergotelee.co.uk.

1.        Should excessive speeders (i.e. those exceeding speed limits by 20+mph) receive 6-point fixed penalties?

2.        Should excessive speeders on low speed limit roads ( 20/30mph) generally be given less tolerance e.g. 6 points for 35mph in a 20 mph zone?

3.        Should marginal speeding offenders specifically not be offered 2 point, rather than 3 point, fixed penalties for low-level offences? ( The Government's original intention in the Road Safety Act 2006).

Drink-drive
      1.  Should targeted checkpoint testing for drink drivers be introduced?
      2.  Should the right to give a blood or urine sample be withdrawn in cases where the breath sample given at the police station is at or below 50ug/ml?
      3 . Should the alcohol limit for driving be changed (reduced)? What evidence can be offered to change the limit?

Drugs

1.        Would a new offence of 'driving with an illegal drug in the body' be more effective? If so, what about legally prescribed and new drugs?

Careless driving

1.        Should this be a fixed penalty offence?

      2.    If so, should it be a £60 penalty and 3 penalty points?

For a more detailed article with regard to the proposals for speeding please go to www.barkergotelee.co.uk/index.php?option=com_content&task=view&id=97&Itemid=1

Tim Ridyard, Solicitor, Barker Gotelee (Tel 01473 611211)