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Frustrated Traffic Commissioners

Traffic Commissioners’ Frustration at Basic Compliance Issues

Annual Report Highlights Repeated Themes at Public Inquiries

An early Christmas present was given to the haulage industry by the Traffic Commissioners just before festivities began, with the publication of their annual report.

It’s always useful to discover what has been preying on the minds of the men and women tasked with ensuring haulage is a safe, fair and efficient industry and who remain steadfast in showing the cowboys an extreme close-up of the saloon doors.

Turns out that there is a barely concealed frustration among the TCs at the same old reasons operators are appearing before them at public inquiries.

And it’s not difficult to see why they are exasperated; sadly, we’re talking about the basics here.

The safety and licensing issues that “frequently” crop up time and time again are listed as a failure to:

  • Download driver cards and vehicle unit data and compare them
  • Use up to date safety inspection paperwork
  • Notify material changes
  • Demonstrate effective brake testing
  • Carry out regular driver licence checks

The former senior TC Beverley Bell probably snapped the lead in her pencil when she wrote: “Alarmingly, far too many operators still have little idea of what useful reports the sophisticated software systems they have purchased are able to deliver.”

The West Midlands TC Nick Denton was similar unimpressed, listing many of the same issues raised by Bell and tossing in “[using] the hardware and software to identify driver’s hours infringements but don’t feel it necessary to do anything about the infringements” for good measure.

It’s easy to see why all of this is annoying to them. Not only are these issues straightforward to address, but they are also taking the TCs’ time away from the “serially and seriously non-compliant” operators that they and the DVSA have been banging on about for the last few years.

Perhaps repeatedly failing to download driver card data makes you serially non-compliant, but it doesn’t necessarily make you seriously non-compliant and so you may not be the sort of rogue operator the DVSA wants to tackle.

It’s all a bit too similar to the people with a bad cold who turn up at A+E and then wonder why the underfunded NHS is struggling to cope.

Fairy Tale Ending

In fact, in her last foreword before her retirement, Bell explicitly referred to the issue of money, pointing out that quick, strong action against errant operators can only be taken if the TCs are properly funded.

Referring to the very low cost of licence fees, she said:

“The initial licence application and grant fees for a goods licence total £651 with a continuation fee of £401 every five years, meaning that the annual cost of a licence is less than £100.

“A cursory look at the fees of some other regulators will show just how low and disproportionate operator licence fees are – and they have been for far too long.

“There is good reason why operator licensing is known as the ‘Cinderella service’ of regulators.”

In our view though, most operators would be more than willing to pay more for their operator’s licence if it meant they got a better service.

Driving using mobile phone

Fewer Drivers Caught Using Their Phones

Are Tougher Penalties Working for Drivers using Mobile Phones?

There has been a 10% reduction in the number of motorists caught using their mobile phones at the wheel, but it might not be down to harsher penalties.

In March, new legislation was introduced to address the “epidemic” levels of people dangerously distracted from their phone calls by attempting to drive their vehicles at the same time.

The penalty was doubled to £200 and six penalty points, with new drivers facing an immediate ban if they are caught texting or phoning someone at the wheel. This is assuming the driver accepts a fixed penalty. If the matter is dealt with by a court, then penalty can be higher.

It has been illegal to use a mobile phone, held in the hand, while driving or while stopped with the engine on, since December 2003.

For the moment, it remains legal to use a hands-free phone while driving, but if the police suspect you are distracted then you can be stopped and are at risk of prosecution for failing to have proper control of a vehicle, or for careless or reckless driving.

According to the RAC, in the three months following the toughening up of the law, there were 1,700 fewer motorists caught offending.

The figures prompted the Daily Mail to take credit for making everyone safer after it launched a hastily cobbled together campaign on the issue.

But given that the newspaper does its level best to make readers feel like they are very unsafe, its apparent success must have come as a bit of a shock.

Reduction in Offences Detected

In total, 14,160 drivers were caught for the offence between March and May 2017, down from 15,861 between December and February.

It’s not a huge reduction when put into the context of the total numbers involved, and as the RAC says, it’s not even clear if stricter penalties are the reason for the change.

In fact, the motoring organisation points to the fact that the number of dedicated roads policing officers in the UK fell by more than a quarter between 2010 and 2015 as budgets were slashed, which suggests that these latest figures are just the tip of the iceberg.

It could be argued that the reduction in offenders is as a result of there being no police officers around to detect the offences.

Maybe there should be a national newspaper campaign about that.

HGV & PSV Standard Operator’s Licences – Financial Standing in 2018

OTC Announces New Levels for Operators

Operating trucks larger than 3.5t? Then you, my friend, need to demonstrate you have enough money in the bank to ensure your vehicles are safe to use.

This month, the Office of the Traffic Commissioner (OTC) announced what “enough” is defined as in 2018.

For the moment at least, the UK adopts a financial standing rate set by the EU.

However, the drop in the value of our currency, due to everyone having no idea what a post-Brexit world will look like, means that one pound just about buys you one Euro. Plus a white chocolate mouse.

As a result, the new financial standing rates differ only slightly from 2017.

Standard national and international licence applicants will be required to demonstrate £7,950 (previously £7,850) for the first vehicle and £4,400 (previously £4,350) for each additional vehicle they request to be authorised.

Operators making variation applications will be required to demonstrate financial standing for their existing fleet and any additional authorisation against the new levels.

If you are due to appear before a TC at a PI after 1 January 2018 where additional evidence of financial standing is requested, then you must be able to satisfy these new levels.

Restricted Licence Holders

The OTC says there is no change to the rates of finance which must be available to support a restricted licence or application: £3,100 for the first vehicle and £1,700 for each additional authorised vehicle.

Looking ahead, there are calls for us to set our own rate of financial standing when we leave the EU.

The FTA points out that between 2012 and 2016, the figure required fluctuated by almost £2,000 for the first vehicle, simply because of the exchange rate for euros.

This call for control over setting the levels sounds fair enough, as does a review of why own-account operators enjoy significantly lower rates compared to third party hauliers.

The rates of finance to support these restricted licence holders, or for applications, have remained conspicuously static for some years now.

As the FTA’s head of licensing policy, James Firth, says: “What are the greater financial risks to the hire and reward sector that the government perceives justify continued rates so substantially elevated above those in the own account sector – which, of course, takes in almost every type of industry and sector across the UK economy?”

Depth of the Tyre Problem

Police to Focus on Tyre Treads

More than 10m cars are estimated to be running on the roads with illegal tyres and now the police are paying particular attention to the problem.

For the first time, tyres have been added to the list of recommended visual checks carried out by traffic officers at the roadside, in an effort to reduce the 1,100 casualties from defective tyre related accidents each year.

As well as tread depth, the police will also be paying attention to your tyres’ general condition and whether they are correctly inflated.

How Deep is Your Knowledge?

Do you know what the minimum legal tread depth is?* Do you know what the correct pressure is for your tyres?**

It’s worth finding out. For each defective tyre found being used on the roads, there is a potential £2,500 maximum fine and three-penalty points.

That sounds harsh, but charity TyreSafe says ‘bulging’ in a tyre’s sidewall, caused by internal damage due to being driven over a pothole or from hitting a kerb, can lead to catastrophic failure of the tyre while driving, with a high risk of causing a serious incident.

Gauging the Problem

TyreSafe also says it’s giving the police 2,000 digital tread depth gauges to use in order to help them find out who’s got less depth than the entire cast of I’m a Celebrity…Get Me Out of Here!

It seems strange that a charity is giving away kit to help out the police, but then pretty much everything seems strange these days so perhaps we should just be thankful the tread depth gauges don’t broadcast fake news before voicing controversial and unpalatable opinions about Kevin Spacey.

National Police Chiefs’ Council lead for road policing, Chief Constable Anthony Bangham says: “While the initiative’s main objective is to pass on that potentially life-saving education, drivers should be aware it is our duty to enforce the law and, where warranted, we will not hesitate to do so to maximise the safety of all road users.”

*1.6mm

** https://www.tyresafe.org/check-your-pressures/

Traffic Light

Trust is a Two-Way Street

Earned Recognition Needs You

Imagine if the DVSA promised you it would stop using its Operator Compliance Risk Score (OCRS) against your fleet of lorries.

Your vehicles wouldn’t be pulled over at the roadside and instead a DVSA officer would stand to attention and salute your drivers as they sailed merrily on past.

Well, that offer is actually on the table, if you forget about the saluting bit.

There’s just one catch: you have to provide the agency regularly with data about your vehicles and drivers that demonstrates you are meeting target key performance indicators (KPIs).

This supposed Faustian pact is called Earned Recognition and the DVSA has been having a little bit of trouble selling the concept to the haulage industry.

It’s currently in the middle of a pilot phase, but a pilot needs willing participants and willing participants have been as thin on the ground as evidence of a coherent Brexit strategy.

Earned Recognition Targets the Non-Compliant

The idea behind Earned Recognition seems sound.

Why focus stretched resources at operators that always do their job professionally and within the law when there are companies out there that’ll do practically anything to make a buck or three?

Earned Recognition is meant to give compliant operators a chance to demonstrate they are not the droids the Empire is looking for and gives the DVSA the evidence not to dig in the wrong place, if you’ll excuse the shoddy and badly thought through splicing of scenes from two different films.

But the KPIs that hauliers taking part in the trial must meet are quite tough.

Some demand 100% compliance, such as the completion of a full set of safety inspection records; inspection records completed correctly and signed off as being roadworthy; and road safety defects appropriately dealt with where drivers have reported issues.

The FTA has said the pilot is meant to put the strict KPIs to the test and also stretch operators, but operators would probably argue they are already being stretched thank you very much, and are on the verge of breaking point as it is.

And can they trust the DVSA when it says it won’t use the information it gathers to bring prosecutions, just to flag up when there appears to be a problem?

Trust is Earned

It would be a shame if a scheme designed to remove from the roads companies that give the industry a bad name failed to take off because of cynicism and mistrust.

But there are hauliers that would say that’s simply the result of an agency failing a long-standing earned recognition scheme with operators that it hadn’t ever appreciated it was taking part in.

For advice in relation to DVSA matters, please call 0330 1330 081 or fill in our contact form

Driver with alcohol

Drink Driving Limit Comes Under Scrutiny

Drink Driving – 50th Anniversary

While the tabloid press enjoys playing ‘Spot Wayne Rooney Working off his Community Service’ for his Drink Driving conviction, the RAC is playing a different boozy ball game.

This month sees the 50th anniversary of the introduction of drink driving laws in this country and roadside breath testing.

England and Wales are currently holding tight to the 80mg of alcohol per 100ml of blood drink driving limit that has been in place since the legal maximum was introduced.

However, this is higher than other European countries and, potentially confusingly for many motorists, also higher than our Scottish neighbours.

Scotland Tightens Up

In 2014, Scotland decided to tighten up its laws and cut the limit to 50mg.

Northern Ireland wants to do the same. But the province also wants to go further and set up a two-tier system, with new and professional drivers subject to a temperance-tastic limit of 20mg.

To put this into context, this limit is so low that if you even think about a pint of foaming nut brown ale you’ll probably get yourself banned.

RAC Demands Overhaul

Knowing that times are changing and that there isn’t much justification for keeping our limit at 80mg, the RAC smells blood.

It is one of a number of organisations demanding that the limit is reviewed, claiming that motorists are overwhelmingly in favour of toughening up the law.

It recently polled 1,700 drivers and found 59% supported a reduction of the drink driving limit in both England and Wales.

Not sure that’s overwhelmingly in favour, but there’s certainly an appetite out there.

A conviction for drink driving, or attempting to drive with excess alcohol in your body, will result in a driving ban.

The minimum period is 12 months for a first offence. The court does have discretion to allow defendants to complete a drink driving rehabilitation course which has the effect of reducing the length of the ban by 25%.

Penalties will depend on the level of intoxication. The maximum financial penalty for drink driving is an unlimited fine.

And of course, punishment could include a period of imprisonment, depending on the circumstances.

However, there may also be a defence to your offence or alternatively special reasons. Both of these could allow you to avoid a ban for drink driving.

For more information or advice on a drink driving charge, call 0330 1330 081, or fill in our contact form.

New Fines for Flouting Drivers’ Hours Rest Rules

DVSA Introduces New Fines for Drivers’ Hours Rest Rules

Driver fatigue is thought to be a contributory factor in up to 20% of road accidents, so it’s unsurprising that the DVSA has announced new rules targeting HGV drivers who spend too long on the roads. Commercial HGV drivers are required to use tachographs to record the hours they spend driving, resting and working.

However, the agency has also thrown a curveball, with £300 fines to be levied on truckers found snoozing in their cabs too.

Currently, the DVSA can only fine drivers for drivers’ hours offences that have been committed that day, or for “ongoing offences”, such as stroking a tachograph with a powerful magnet.

But the agency is being given new powers to issue on-the-spot fines for drivers’ hours offences committed in the last 28 days.

And it won’t just be for one offence. A DVSA officer gets five bites of the cherry, meaning you could be staring at a £1,500 bill if you’re the Kim Jong-Un of drivers’ hours rule breaking.

And your country of origin will have no bearing on the outcome either. Non-GB drivers will have to pay the fine immediately, or they will have their vehicle immobilised until they pay.

Weekly Rest – Drivers’ Hours Rules

This brings us on to drivers that the DVSA considers are not properly resting.

An argument currently raging in the haulage industry is where a driver should be taking their 45-hour weekly rest.

The European Court of Justice recently found that the break should not be taken in a cab.

Some countries are vigorously enforcing this finding, but the UK has remained relatively unconcerned, until now.

As of 1 November, the DVSA will start issuing £300 fines if a driver is found to be taking their weekly rest in their vehicle, but only “in places where it causes a problem”.

This could be in a layby, or on a slip road, or anywhere that reminds the public that all of our possessions were once pawed by – the horror! – a lorry driver.

The move suggests the government is taking a middle ground approach.

It’s not completely outlawing the practice (operators and sleeper cab manufacturers would be miffed) but neither is it sending out a signal that the UK is one large, penalty-free bed for all drivers to snuggle up in.

However, the trouble with this strategy is that it is ill-defined. It could prompt different interpretations and legal disputes over what constitutes appropriate parking and what is considered a problem.

For more information or advice on the new fines for drivers hours, call 0330 1330 081, or fill in our contact form.

defective speed limit sign

Drivers not guilty of speeding on Woodside Road in Nottingham due to defective sign

Nottingham Magistrates’ Court today dismissed two speeding allegations on Woodside Road because of a missing lighting unit.

Pragma Law has today successfully defended an allegation of speeding after raising issues with a defective speed sign.   Nottingham Magistrates’ Court subsequently dismissed the speeding case of a second driver whose case relied on similar facts.  Lucy Whitaker and Maria Moore of Moore Motoring Law, a sister firm of Pragma Law, represented the motorists.

The drivers were driving their vehicles in the dark along Woodside Road in the direction of the A52 Derby Road back in January 2016. Both drivers had entered Woodside Road from the roundabout with University Boulevard. The mandatory ‘terminal’ speed signs warn drivers of a change in speed limit. These are sited on both sides of the road, shortly after the exit to the roundabout. However, one of the speed signs was unlit which made it far less noticeable in the dark.

As a result of the missing light, drivers travelling at night may not be aware of the limit changing from 40mph on University Boulevard to 30mph on Woodside Road. Both drivers had inadvertently exceeded the 30mph limit. It is a mandatory requirement for terminal speed limit signs to be lit throughout the hours of darkness.

The prosecution agreed that it was not in the public interest to proceed on this basis. The court dismissed both cases after the prosecution offered no evidence. Both drivers avoided penalty points and a fine. The court also ordered that the drivers should be able to recover some of their legal fees following the hearing.

At the time of writing, the lighting unit is still missing from the speed sign yet. However, the police appear to be continuing to enforce the limit at night. Many drivers may have lost their driving licence as a result.

If you think you may be affected by the above, please contact us as soon as possible.

 

 

New Definitive Guideline on the Reduction in Sentence for a Guilty Plea

Changes to the discount in sentence given for an early guilty plea for motoring offences – Effective June 2017

From 1 June 2017, those facing criminal allegations such as motoring offences will see changes to the sentencing guidelines.

Currently, defendants who plead guilty at the earliest opportunity usually receive a reduction in their sentence of one third. This applies to the financial penalties imposed on motorists convicted of driving offences. The discount does not usually apply to penalty points which are often set at a legal minimum for certain offences.

If the defendant driver enters a not guilty plea initially, but later changes his or her plea to one of guilty, the court usually reduces the discount applied to the sentence. If the defendant driver waits until the day of trial, the reduction can be as little as 10%. No discount applies if the court convicts the defendant after a trial.

For example, a speeding motorist caught travelling at 38mph in a 30mph limit who declines the offer of a fixed penalty may ordinarily be facing three points and a fine of up to £1000. The fine depends partly on the level of his or her income. If the motorist is on a modest income and is convicted after a trial, the fine to be imposed after a trial may be £600. However if the same motorist pleads guilty at the first opportunity, it would usually be reduced to £400.

Currently, it’s a little unclear what happens if the driver pleads guilty in between the initial hearing and the trial. He or she has not pleaded guilty at the earliest opportunity, but the prosecution is unlikely to have been put to much additional work between the first hearing and the second. It’s rare that it has caused any inconvenience has been caused to witnesses. However some court time will have been ‘wasted’ with a second hearing.

The new guidelines attempts to set a sliding scale for the discount the court should apply during this time. However, the court will still retain discretion. The new guidelines state the following:

  • Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should still usually be made.
  • Where the plea is indicated after the first stage of proceedings a reduction of a maximum one quarter should be made. There is then a sliding scale of reduction thereafter.
  • The reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial.
  • The reduction should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial.

The above are only guidelines, not ‘hard and fast’ rules. Other factors can be taken into account. The new guidelines state that in certain circumstances, the full one-third discount may be given even if not entered at the earliest opportunity. For example, if the court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done. This may apply where the defendant needed to seek legal advice to understand the appropriate plea. This may need to be argued before the court to ensure the discount is given.

Changes to sentence following unsuccessful special reasons or Newton hearings.

In circumstances where an defendant driver’s version of events is rejected at a Newton (fact finding) hearing or special reasons hearing, the reduction would normally be halved. Where witnesses are called during such a hearing, it may be appropriate to decrease the reduction even further. Prior to these guidelines coming into effect, the defendant would often retain full credit for an early guilty plea.

Why the changes?

The guidelines state that their purpose is to encourage those who are going to plead guilty to do so as early in the court process as possible.

The benefits of an early guilty plea is that it:

a) normally reduces the impact of the crime upon victims;
b) saves victims and witnesses from having to testify; and
c) is in the public interest in that it saves public time and money on investigations and trials.

The guidelines state that “nothing in the guideline should be used to put pressure on a defendant to plead guilty”. In reality though, many defendants plead guilty to offences because they can’t ‘risk’ a larger penalty if found guilty. After all, courts don’t always get it right. That’s why we have the ability to appeal.

The new guidelines can be read here.

An Unusual Defence to Drink Driving

An Unusual Defence to Drink Driving – Drunk on Carbohydrates!

An American court has accepted a novel defence of “auto brewery syndrome” from a lady charged with drink driving. As such the drink driving charge against her was dismissed thus avoiding a driving ban or penalty of any kind.

The female driver relied on expert evidence from a doctor who determined that high carbohydrate food would ferment in her body turning to alcohol. This meant that she would show a relatively high reading of alcohol in her body even when she had not had anything to drink. It was enough to put her over the limit but on this occasion she admitted to having consumed three drinks over the course of an afternoon.

The New York case is also unusual because the driver did not feel any effects from the alcohol. I assume that if her body behaved like that on a daily basis, it is no wonder she didn’t feel drunk as she may believe the feeling to be normal. Perhaps her body had built up a certain tolerance to alcohol so that it would take more than usual for her to feel ‘tipsy’. The condition was previously undiagnosed so she had no warning that she was effectively driving over the limit.

Apparently she’s now on a low carbohydrate diet to prevent the rise of alcohol in her blood. If she was caught again, it is doubtful that she’d be allowed to use the same defence again. Drivers who are aware that they have medical conditions that are likely to hinder their ability to drive are expected not to drive whilst their symptoms persist.

Since the change in the way that court hearings are conducted, defendants are no longer allowed to ‘ambush’ the prosecution. This means that defences put forward at the last minute are either not allowed or will result in an adjournment. The technology used by the police is more accurate but human error still occurs. As a result, there are fewer successful challenges to drink drive allegations nowadays. This defence is a novel one and I wonder how long it will be before this defence will be used in a drink driving case on this side of the Atlantic.