Who is responsible for enforcing the law in relation to Commercial Vehicles? Is it the Police or VOSA?
Commercial vehicle law is enforced both by VOSA and by the Police. Both have different approaches. With financial cutbacks, most Police forces have drastically reduced the number of Officers assigned to the enforcement of road laws. You are more likely to be involved with the Police after some incident has happened, usually an accident involving one of your vehicles.
The Police remain second to none at their competence in the investigation and detection of mainstream offences, but they do not devote time to mastering the highly complex and frequently changing rules regarding commercial vehicles. This means they often get things wrong. The danger with this is that the Crown Prosecutors and the Magistrates know even less, and will simply assume the Police are correct, unless somebody sets them straight. If you have received a summons or a Fixed Penalty Notice from the Police, you should contact us for advice.
VOSA enforcement officers are the opposite. Their knowledge of vehicle construction and drivers’ hours is often excellent, but they have hardly any training in the procedural rules of what they forget is enforcement of the criminal law. The Police and Criminal Evidence Act 1984 creates very detailed Codes of Practice for interviewing under caution, for the identification of suspects and for the searching of premises.
Whilst the Codes themselves are primarily directed to the Police, Section 67(9) of the Police and Criminal Evidence Act states that "Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code.” If your drivers have been interviewed by VOSA or your premises have been searched, you should contact us for advice.
What should my drivers do if they are stopped by the Police or VOSA?
The one Golden Rule which you must drill into your drivers is not to give abuse to the enforcement officer. Your drivers should never admit to anything without taking proper advice, but they must always be polite and helpful to the boys in blue or yellow. The Police generally make a decision to book a driver within the first few minutes of contact. It is called the Attitude Test and if the driver fails it, what might have been a stern warning will become a ticket. And as sure as eggs are eggs, the officer will go through the vehicle and the tachograph records with a very fine toothcomb indeed.
Head of Department and former Commercial Vehicle Police Officer John Blott on holiday.
As a Director of a Commercial Vehicle company, can I be held responsible for the acts of my drivers?
An area where both Police and VOSA frequently get confused is operator liability for the acts of drivers. It cannot be emphasised too strongly that not only companies, but the directors and transport managers individually, can be held accountable when their drivers do something illegal. This is because they are in a position to control what their drivers do and, if they are properly monitoring tachograph data as they should do, they will know what their drivers get up to.
On 28thJune 2013 a father and son who ran the firm of AJ Haulage in Daventry were sentenced to a total of 11 years imprisonment when one of their drivers was killed in a road accident after driving for 13 hours. This is why it is so important to know exactly what your liabilities are as an operator and to know whether the police or VOSA have behaved properly in gathering evidence against you. Early intervention is the key and if you are going to be investigated, you should contact us for advice.
If your driver drives with a defective tyre and fails to report it to you, are you equally liable?
Yes, this is a "using” offence. But what if the Police summons you for "permitting” the use of a defective tyre? Then they must prove that somebody of responsibility in your company knew of the defect. So the choice of the wording on the summons is crucial.
If your driver drives whilst using a mobile telephone, are you equally responsible?
No, this is a "driving” offence. But if the driver causes an accident, could you produce a written policy as to how your drivers are instructed to communicate when on a journey?
If your driver drives for 13 hours in one day, are you equally liable?
Yes – unless you can show that you "took all reasonable steps to avoid the contravention.” To show that, you must show that you are organising the driver’s work properly, you are making no payments which would encourage excess driving, you can point to instructions given to the driver as to compliance with drivers’ hours rules, you have been checking his tachograph records regularly and you have taken disciplinary action if you have ever detected an infringement of the rules.
If your driver falsifies his tachograph record, are you liable?
If you permit it, yes. But you will be taken to have permitted it, if you should reasonably have been aware of the likelihood of the falsification and you took no steps to prevent it. In other words, you must show that you are regularly checking the tachograph data and that you are taking action against non-compliant drivers.
Operator/employer liability is a difficult area even for enforcement officers and they often fail to secure the necessary evidence for a prosecution. In the 2012 case of VOSA v FM Conway Ltd, the prosecution failed to show that somebody with real authority in the company permitted the use of a vehicle with a false Operating Licence. It is not enough to put forward evidence that a more junior employee knew of the use.
If your driver has been booked by the Police or by VOSA, or if you believe your company is going to be investigated, call John or Cath on 01253 293 106.