Warning over roadside fines for hours offences

A leading transport solicitor has warned that proposals to allow fixed penalty notices to be issued at the roadside for drivers’ hours offences committed in the preceding 28 days may lead to innocent drivers being unfairly punished, and their employers’ repute being tarnished.

The Department for Transport (DfT) proposals, which are out to consultation until 11 August, apply to alleged offences committed under both EU and domestic regulations. They also cover infringements of the HGV Road User Levy, introduced in April to allow foreign hauliers to be charged for the use of UK roads.

The DfT said that the proposed measures would be particularly useful in targeting non-compliant foreign hauliers, because truckers without a valid UK home address cannot be issued with a court summons.

But Tim Ridyard, partner and head of crime and regulatory law at Woodfines Solicitors, warned that UK drivers, and indirectly operators, would be affected significantly by the proposed changes.

“What may at first sight indeed be attractive is not necessarily good for the justice system in the wider sense… It has to be looked at in the context of ongoing major concerns about access to justice for operators and drivers which already exist,” he said.

“The increasing use of fixed penalty schemes (which arguably incentivise passive acceptance of guilt by drivers regardless of the merits of the case) is occurring at the same time as the removal of rights of defendants to recoup defence costs if they win their case… the shrinking availability of legal aid in criminal proceedings, and planned increases in magistrates’ courts’ powers to fine.

“The blunt reality is that if a driver has a legitimate reason to contest a fixed penalty, the courtroom option is as a good as financially impossible. The pragmatic alternative is to pay the penalty for an offence of which the driver may be entirely innocent, but cannot afford to risk contesting, even if unrepresented.

“Even if a represented driver wins his or her case, the revised defence costs rules mean that they can recover either nothing or almost no defence cost. So much for a level playing field and equal access to justice.”

While fixed penalties could be reviewed by DVSA, Ridyard said, the appeal success rate was negligible. Meanwhile, the police tended to direct drivers to contest the penalty in court.

Ridyard also warned that a lack of penalties being contested could reinforce “entrenched, but incorrect, interpretation of the law” and lead to “sloppy enforcement, without real checks and balances.”

He continued: “It is one thing to have fixed penalties where speed cameras are used – it is quite another thing to deploy fixed penalties where the law is more involved. EU and domestic drivers’ rules are complex. There are many exemptions or derogations. There can be frequent dispute as to interpretation of driver’s hours’ rules in individual cases – how should x or y be calculated etc?

“Are these really matters that should be dealt with by, in effect, roadside courtrooms, which seems to be the ever growing reality? Sure, there are great benefits brought by fixed penalties for the right type of offence such as high conviction rates and easy fine collection, but only for those suited to such a scheme.”

But the Freight Transport Association said the proposal was a “welcome step” which would help to ensure that foreign truck drivers would be held accountable for infringements. It promised to look closely at the detail of the plans and discuss them with its members prior to developing a formal response.

Karen Dee, FTA’s director of policy, said: “Rules and regulations are only effective if they can be enforced properly and we are pleased that the government is consulting on some new ways of achieving this. 

“At the moment, any drivers’ hours offences that become apparent through scrutiny of the records, but that are not actually being committed at the time of the stop, cannot be dealt with by way of a fixed penalty. As a result it is difficult to enforce for those drivers and operators that are not resident in the UK.”

She added: “On-the spot fines are a well-established and effective way of ensuring that visiting operators and their drivers are held to account for any infringements, so it makes sense that the government is looking to use this mechanism.”

The Road Haulage Association also said it would be seeking the views of its members prior to responding to the consultation.

DfT added that the changes would bring the UK in line with other EU member states that already issue spot penalties for historical drivers’ hours breaches.

Roads minister Stephen Hammond said: “Tired drivers are more prone to accidents which is why there are limits on the number of hours hauliers can drive. Sadly a selfish minority ignore this, putting others’ road safety at risk.

“The option to issue a fine for this offence would provide an effective weapon in the fight against irresponsible driving by both foreign and UK drivers.”

Currently, fixed penalties can only be imposed when it is alleged that an offence is being or has been committed ‘on that occasion’: for instance, if a driver has had insufficient recorded rest or breaks on the day that he is stopped.

Fixed penalties cannot currently be imposed if examination of the driver’s tachograph record reveals offences recorded on previous days’ tachograph records: although Transport Operator understands that it is not unheard of for some police forces to at least try to do this. Drivers must instead be summonsed for prosecution in court.

The initiative has been piggy-backed onto a similar proposed change in the enforcement of the recently-introduced HGV Road User Levy, which would enable the authorities to impose a penalty on a driver who had not paid the levy for every day that his vehicle had been in the country, rather than just for the day of the stop without recourse to a court.

“With respect to historical EU drivers’ hours’ offences, these proposed changes would bring the UK in line with some other member states, which already issue on-the-spot penalties for historical EU drivers’ hours offences,” the consultation says.

“Therefore, UK drivers driving through the European Union can currently face penalties for historical offences in other member states, whilst their European counterparts, driving in the UK, do not. We want to level the playing field whilst improving enforcement and compliance.”

It goes on to note the House of Commons transport select committee’s stated support for FPNs being issued for historical hours offences, and to point out that the majority of road accidents are caused by driver error, with fatigue playing a part in these mistakes.

Like other member states, the UK is obliged to take action against drivers who are found to have breached the EU hours laws irrespective of whether or not the offences were committed ‘in country’, the consultation points out.

“The DVSA and the police have no easy means of taking effective enforcement action in respect of drivers’ hours offences committed during the 28 day period preceding a compliance check.

“Enforcement currently necessitates prosecution of alleged offences in court – which is administratively costly and cumbersome, particularly when dealing with offenders who are unable to provide a satisfactory UK address for enforcement, and for what is often a relatively minor offence,” it states.

While offending drivers who can show a driving licence with a UK address will be issued with a fixed penalty notice (FPN), drivers from abroad can be required to make an equivalent payment to the FPN of a financial penalty deposit (FDP), or higher as a surety against an appearance in court if the alleged offence is a very serious one.

“FPDs have enabled enforcement against drivers (including drivers of commercial goods vehicles) who do not have satisfactory addresses in the UK and who would be difficult to pursue effectively at a later date, more cost effectively, in greater volumes and with a greater probability of penalties being imposed and fines collected,” the consultation says.

Respondents to the consultation are asked to consider whether they agree with the principle of the changes for both EU and domestic drivers’ hours offences, and about the effectiveness of the current legislative framework. Feedback is also requested on the enforcement through similar methods of HGV Road User Levy offences committed within the last 28 days.

Those wishing to contribute to the consultation process can do so until 11 August, here.