AG Reference (146/2006) judgment 14/2/07:

The Court of Appeal has left untouched the 2 1/2 year sentence for death by dangerous driving imposed on Yvan Vandermeulen, a Belgian driver, who fell asleep at his wheel on motorway, drifted onto a hard shoulder and killed a young mother, injuring her 4 year old son on the M2 on 7th September last year. The driver had driven 38 out of 47 duty hours in the previous 3 days and had had inadequate rest.

An Attorney General's reference was brought - this is where unduly lenient sentences can be reviewed in serious cases. Here the Court of Appeal declined to overturn the sentence but commented that a sentence of 3 years (discounted from a starting point of 5 years for pleading guilty) could originally have been applied. The Court will only alter the sentence if there is undue leniency.

When operators apply for an operator licence they sign up for what used to be called 'the 7 pomises' but which on the new re-vamped applications forms might be called the 10 Commandments! - in short undertakings are signed for including those to make "proper arrangements" so that vehicles and trailers, including hired ones, are kept in a fit and serviceable condition and that drivers report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects are recorded in writing; moreover, records have to be kept for 15 months of all driver reports which record defects, all safety inspections, routine maintenance and repairs to vehicles and that these are made available on request.

The reality is that there is no formal requirement that an operator must keep records of their nil defect reporting system and some operators choose only to record defects when they appear, consigning these to writing - they can adopt this 'slimline' version without necessarily breaching any undertaking but they remain horribly exposed in the event of any maintenance-related Magistrates' Court proceedings or in public inquiries.

In all the more successful Magistrates' Court cases I have dealt with drivers who have been using a nil defect reporting system have fared best - they can state in Court that they proactively carry out nil defect reporting and can prove this through production of their defect-free defect report. The prosecution can find it hard to gainsay the nil defect sheet. Whilst there is no statutory or other mandatory obligation to adopt a nil defect reporting system it is better and gives a veil of protection. Without such a system a prosecutor can always say to an operator/driver "you say you did the checks and there were no defects but you have no proof of this" .
A nil defect reporting system comes into its own in situations such as loose wheel nut or wheel loss cases: in a case I am currently dealing with an immediate prohibition was imposed by VOSA for a loose wheel nut where the driver had carried out a nil defect report at the start of his working day and religiously every day previously. The driver could not possibly have known that the wheel nut was slightly loose and there was no tell-tale sign of rust spray. Even if the prohibition is correctly imposed and matters are taken further by VOSA the bottom line is that it can be shown that a robust system was in place and the problem arose despite the system not because of it - but the argument is only really effective with the back-up paperwork.

Tim Ridyard is a partner and road transport lawyer at Barker Gotelee Solicitors 01473-611211

Failure to identify driver s172 Road Traffic Act 1988.

The Divisional Court has just dealt with yet another 'failure to identify driver' case of which there have been quite a number over the last year or so in Weightman .v. DPP [2007] Divisional Court 6 March 2007.

It is important for operators and drivers to be conscious that a failure to use "all due diligence" to ascertain the identity of a driver of a car may lead to conviction of a business, a sole trader or partners individually and their personal driving licences will be endorsed with penalty points. Directors and company staff cannot avoid personal liability by hiding behind the company veil as summonses can be issued against individuals within companies if there has been connivance in hiding the identity of a driver.

This decision highlights the failings in the Magistrates to think a case through rationally and/or provide a satisfactory explanation of their findings. What this and previous cases really indicate is that it is necessary to really think through the driver identification process and use all reasonable procedures to try to ascertain the driver's identity - in some businesses it is almost impossible not to know who the driver is (e.g. through tachograph records); in other businesses, however, for example where pool cars are shared, it is harder although even a small amount of investigation can usually narrow down the identity to a few drivers, none of whom of course may wish to own up, in the knowledge that they will potentially have points endorsed on their licence for whatever offence is alleged.

In the case of Weightman, which turns on its peculiar facts, the Divisional Court allowed an appeal by the driver who alleged it was unreasonable for the Magistrates' Court to have found that he had not used all diligence to try to ascertain the driver of the car. In the case Mr W was the registered keeper of the car which was seen allegedly being driven carelessly. He was served with a driver identification notice in the ususal fashion. On the day of the alleged careless driving Mr W had been in France and could prove this through travel documents which in fact he submitted in his response to the police. He stated that he could not know who the driver was and, further, he could not have ascertained who the driver was.

Mr W was prosecuted, unsurprisingly given that most constabularies appear simply to prosecute and let the courts decide. The Magistrates agreed as a matter of fact that he had been in France at the time, that there was only a small pool of drivers who could have used the car and at the time in question Mr W's son had delegated responsibility for the car.

The Magistrates' convicted him on the basis that he had not used all due diligence to try to find out the identity of the driver of the car. The Divisional Court said the Magistrates had failed to explain satisfactorily why they had rejected Mr W's defence.

Tim Ridyard is a partner and road transport lawyer at Barker Gotelee solicitors www.barkergotelee.co.uk/transport.php

Vehicle Drivers (Certificates of Professional Competence) Regulations 2007

On 27th March 2007 these regulations implement the European Directive requiring drivers to take an initial practical/ theoretical driving test (valid for 5 years) and 35 hours of periodic training every 5 years. Those affected are professional coach, bus and lorry drivers, the only exemptions being those who drive emergency vehicles, police/armed forces, and vehicles used for training/testing.

No new driver may drive a bus on or after 10th September 2008 or a lorry on or after 10th September 2009 on a public road unless the driver has taken the initial CPC test (theory and practical driving test). Drivers who already hold bus or lorry entitlements prior to those dates are exempt and, in effect, have 'acquired' or 'grandfather's' rights. The initial CPC test costs £30.00 for the theory part and £41.00 for the practical. Those who wish to provide periodic training courses will be authorised to do so on payment a fee of £1,500.00 and there is a separate fee of £250.00 for approval of every course which is provided.

Once a driver has passed the initial CPC test or completed 35 hours of periodic training he/she must be issued with a driver qualification card (cost £25.00).

Drivers who have not needed to pass the initial CPC test because they have 'acquired rights' must have completed 35 hours of pre-periodic training by 10th September 2013 (bus drivers) and 10th September 2014 (lorry drivers). It is an offence to drive without a CPC - maximum fine £1,000.00 (level 3 current level).

Drivers who are required to have a CPC must be able to produce driving entitlement to the Police or VOSA (failure to do so is also an offence - maximum fine £1,000.00). Further offences are created for failure to surrender cards or documents which have errors( max £1000 fine); forging or making false statements is also an offence (maximum punishment 2 years imprisonment).

The Motor Vehicles (Driving Licences) Regulations are amended substituting new minimum age requirements for bus and lorry drivers who have passed the initial CPC test - 21, not 18, for bus drivers and lorry drivers with some variation for bus drivers depending on distance of routes driven.

These regulations were laid before Parliament on 2nd March 2007. This is not definitive account of the regulations which should be studied closely for further details.
Tim Ridyard, Solicitor (www.barkergotelee.co.uk)

ROADSIDE GRADUATED FIXED PENALTIES AND DEPOSITS

by Tim Ridyard, partner and road transport solicitor at Ipswich-based Barker Gotelee Solicitors.

The Department for Transport is consulting on implementation of roadside deposits and fixed penalties. The consultation started on 7 June and closes on 30 August 2007. There is a clear intent in the consultation documentation that these proposals should be implemented soon and if implemented would lead to:

- VOSA issuing fixed penalties (currently only the police can do this)

- VOSA being given the power to endorse driving licences

- Fixed penalties being graduated or banded as to seriousness of offence.

- Drivers without satisfactory UK addresses being made to pay roadside deposits greater set a level higher than the highest fixed penalty.

Drivers, and indeed operators would still face court proceedings according to the discretion of the police and VOSA. VOSA would not be able to endorse licences or impose penalties for certain offences e.g. speeding - their remit would be confined to overloading, drivers hours/tachograph records, roadworthiness, driver licensing, community authorisations and vehicle excise duty.

Importantly, fixed penalties are not criminal offences even though the offences they cover could be regarded as criminal offences if prosecuted in the Magistrates/Crown Court. This may seem attractive to would-be offenders but although they do not constitute criminal convictions they will be disclosable to the Traffic Commissioner for notifiable offences under new provisions enacted in December 2006 in the Road Safety Act 2006.

Fixed penalties would be banded:

0 - a warning,
Band 1 - £30 fixed penalty
Band 2 - £60 fixed penalty
Band 3 - £120 fixed penalty
Band 4 - £200 fixed penalty.

The suggested minimum roadside deposit is £300 with a maximum £900 for three or more offences.

It is proposed that vehicles be prohibited from moving if no deposit can be paid for those drivers without a satisfactory UK address. Drivers being issued with fixed penalties i.e. UK based drivers, would normally have been able to prove their identity e.g. through their driver's licence etc.

It is also intended that certain offences e.g. drivers hours offences will be banded as to the appropriate fixed penalty with reference to the amount by which the law is contravened e.g. 4 ½ hour rule (45 minutes break) - the greater the lack of proper break, the higher the fixed penalty band.

There are some clear issues which arise out of this although one positive for drivers who have clearly committed an offence is that they may well receive a penalty less than any fine imposed in the court and not have to pay court costs either - penalties on the Magistrates Court for road transport offences are inconsistent and erratic and these proposals might be helpful in that regard.

Further guidance notes will be posted in due course [and see this news story - Ed].

by Tim Ridyard of Barker Gotelee Solicitors

Failure to supply sufficient records at the roadside is likely to be a Band C penalty of £120 under the intended graduated penalty scheme to be introduced later this year/ early next year. In the meantime it is sensible to use these guideline fixed penalties in court to persuade magistrates not to impose higher penalties.

Tim Ridyard

Failure to supply sufficient records at the roadside is likely to be a Band C penalty of £120 under the intended graduated penalty scheme to be introduced later this year/ early next year. In the meantime it is sensible to use these guideline fixed penalties in court to persuade magistrates not to impose higher penalties.

Tim Ridyard

On 2nd July 2007 the regulations to facilitate the new Community Drivers' Hours Regulation EC 561/2006 came into effect after some delay.

These regulations
- list the various vehicle exemptions to the EU drivers' hours regs,and
- define the UK defence available to transport undertakings who otherwise will be automatically liable for the offences committed by their drivers ( and hence liable to prosecution themselves).

The regulation is 2007/1819. The full title is: Community Drivers' Hours and Recording Equipment Regulations 2007

Tim Ridyard is a partner, road transport lawyer & Higher Courts advocate, at Ipswich-based Barker Gotelee Solicitors. www.barkergotelee.co.uk

Road Safety Act 2006 -New penalties

The next batch of changes brought about by the Road Safety Act 2006 will commence on 24 September 2007. For drivers and operators these mainly relate to offences and their penalties. The most important changes are as follows:

Dangerous Vehicle Condition – mandatory minimum 6 month disqualification for second dangerous condition offence within 3 years. This is very important as sole traders/partnership operators' own driving licences may be endorsed where their drivers use a vehicle in a dangerous condition - and hence they are at risk of disqualification. This emphasises the advantage of operating as a limited company which does not have a driving licence and hence gives protection to the 'owner's' personal licence. Arguably far too many operators run as sole traders or partnerships when they may be better protected as a limited company.

Careless Driving – The penalty for careless driving increases from £2,500 to £5,000 (the penalty points in the range 3-9 or discretionary disqualification does not change). New definition of carelessness: guilty if a driver drives in a way which falls below what would be expected of a competent and careful driver. In deciding this the Court must have regard not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused. To be convicted of the separate offence of inconsiderate driving a conviction can only follow if third parties are actually inconvenienced.

Driver Identity Information – the penalty for failing to provide information about the identity of a driver rises from 3 to 6 penalty points – it is intended to remove the incentive to fail to notify driver information - the penalty is severe and increases the danger of a totting disqualification. Here there is less protection for those within limited companies because those within companies can be summoned personally where they connive to fail to provide driver details. This is a very robust penalty for failing to give driver information against individuals and businesses.

There are then miscellaneous other new provisions relating to furious driving, failure to give permission for blood samples to be taken and numerous other misc. matters.

Tim Ridyard is a partner, Higher Rights advocate and road transport solicitor at Ipswich based Barker Gotelee Solicitors: 01473 611211 and tim.ridyard@barkergotelee.co.uk

The Crown Prosecution Service announced today 6th Sept 2007 that it will publish its revised policy on road traffic offences later this autumn which will include more detailed guidance on when drivers should face manslaughter charges ( instead of lesser offences ). One important policy change is in relations to widespread public concern and relates to driving whilst using a mobile phone: where there is clear evidence of danger being caused the offence of dangerous driving will be charged as a starting point. NB Unlawful use of a mobile phone attracts 3 penalty points or discretionary disqualification and is non-imprisonable - however, dangerous driving carries a mandatory minimum 12 month driving disqualification ( with double normal duration compulsory re-test) and is an imprisonable offence.

Tim Ridyard is a solicitor, higher courts advocate and partner at Ipswich-based Barker Gotelee Solicitors 01473-611211 - tim.ridyard@barkergotelee.co.uk - www.barkergotelee.co.uk

Road Safety Act 2006 -New penalties

The next batch of changes brought about by the Road Safety Act 2006 will commence on 24 September 2007. For drivers and operators these mainly relate to offences and their penalties. The most important changes are as follows:

Driver Identity Information – the penalty for failing to provide information about the identity of a driver rises from 3 to 6 penalty points – it is intended to remove the incentive to fail to notify driver information - the penalty is severe and increases the danger of a totting disqualification. Here there is less protection for those within limited companies because those within companies can be summoned personally where they connive to fail to provide driver details. This is a very robust penalty for failing to give driver information against individuals and businesses.

Dangerous Vehicle Condition – mandatory minimum 6 month disqualification for second dangerous condition offence within 3 years. This is very important as sole traders/partnership operators' own driving licences may be endorsed where their drivers use a vehicle in a dangerous condition - and hence they are at risk of disqualification. This emphasises the advantage of operating as a limited company which does not have a driving licence and hence gives protection to the 'owner's' personal licence. Arguably far too many operators run as sole traders or partnerships when they may be better protected as a limited company.

Careless Driving – The penalty for careless driving increases from £2,500 to £5,000 (the penalty points in the range 3-9 or discretionary disqualification does not change). New definition of carelessness: guilty if a driver drives in a way which falls below what would be expected of a competent and careful driver. In deciding this the Court must have regard not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused. To be convicted of the separate offence of inconsiderate driving a conviction can only follow if third parties are actually inconvenienced.

There are then miscellaneous other new provisions relating to furious driving, failure to give permission for blood samples to be taken and numerous other misc. matters.

Tim Ridyard is a partner, Higher Rights advocate and road transport solicitor at Ipswich based Barker Gotelee Solicitors: 01473 611211 and tim.ridyard@barkergotelee.co.uk

NEW OFFENCE OF CAUSING DEATH BY CARELESS OR INCONSIDERATE DRIVING- SENTENCING GUIDELINES - by Tim Ridyard, Solicitor

Published today are the Sentencing Guidelines Council draft guidelines on sentencing fatal accident offences. The Road Safety Act 2006 introduced a new offence of causing death by careless or inconsiderate driving. It has not yet become law but will be in force in the near future. It fills a gap in that hitherto only the offence of careless driving could be charged in fatal accident cases (unless drink/drugs are involved or there was more serious driver conduct constituting dangerous driving). Importantly the existing offence of careless driving is not imprisonable. The new fatal driving offence will attract a maximum 5 year prison sentence. It has arisen from road safety pressure groups' lobbying. Some groups have already expressed outrage that it is conceivable that the starting point for consideration of sentencing in a fatal accident case could possibly be less than that of immediate custody. However, it is pointed out in the papers published today that “sometimes death results from a relatively minor error of judgment, to which every, however experienced, motorist is liable from time to time. Cases like these present sentencing judges with very difficult decisions, because the gravest consequences have to be balanced against varying levels of culpability”.

The proposals published do not suggest that prison sentences will not normally be imposed. This is currently being misrepresented and misreported. What is suggested is that cases of causing death by careless driving fall into three categories:

(a) the ones which are particularly serious and are not far from dangerous driving;

(b) 'middle band' seriousness cases and;

(c) cases of careless or inconsiderate driving which arise from momentary inattention.

It is being recommended that the last of these categories ( i.e. momentary lapse cases) should be sentenced by way of community penalties e.g. tagging, community service etc whereas the first categories should have starting points of custody periods ranging from 26 weeks to 2 years imprisonment when sentencing is being considered.

The new provisions and others dealing with fatal accident cases involving uninsured, unlicensed or disqualified drivers ( max. 2 years' imprisonment) will be in force soon

Tim Ridyard is a partner, solicitor advocate and road transport lawyer at Ipswich-based Barker Gotelee Solicitors: tim.ridyard@barkergotelee.co.uk

Passenger & Goods Vehicles (Recording Equipment) (Downloading etc) Regulations 2008
by Tim Ridyard, Barker Gotelee Solicitors

These new Regulations were made on 29 January 2008 and come into force 7 days thereafter. They are therefore in force now.

The Transport Act 1968 has been amended so that drivers are now required to return their paper tachograph records for whom they have been working within 42 days of the records having been created (it will be recalled that previously the rule was 21 days but the requirement in force since 1.1.08 to be able to produce records for the previous 28 calendar days was in conflict with this).

Digital download: transport undertakings must ensure downloading of vehicle unit and driver card data so that none is lost but in any event must do so for vehicle unit data within 56 days and for driver card data within 28 days. Transport undertakings can be obliged to download data where enforcement officers have reason to believe that road traffic legislation has been contravened. Also, the regulations list the circumstances in which businesses must secure data from vehicle units and driver cards before the elapse of 56/ 28 days e.g. on disposal of vehicles.

A failure to download/retain data or provide this to officers is an offence.

Where a driver works for two or more businesses he or she must provide each of them with sufficient information to enable them to discharge their drivers hours obligations.

The Department for Transport will shortly publish no fewer than eight draft regulations covering the Graduated Fixed Penalty and Deposit Schemes likely to come into force in April 2009. These are the detailed provisions which will detail how police/ VOSA will carry out the new procedures for both UK and foreign drivers operating within the UK. VOSA will for the fist time have powers to issue fixed penalties and endorse driving licences. Drivers without satisfactory UK addresses will be required to pay roadside deposits failing which their vehicles may be immobilised pending payment. The draft regulations will be accompanied by a new consultation period for the road transport sector which is likely to continue until around mid-October 2008. Tim Ridyard, Solicitor, Barker Gotelee Solicitors, Martlesham Heath Ipswich tim.ridyard@barkergotelee.co.uk

As anticipated the DfT has today published the next consultation document on graduated fixed penalty, financial deposit and immobilisation schemes, together with 8 draft statutory instruments to introduce the schemes. The consultation will run until 17 October 2008. More details and comment to follow in due course. Please see previous blog entries for further comment.

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