Martin Arthur, Solicitor

Another Trap for Unwary Goods Vehicle Operators

The Police and Vehicle Inspectorate can now impound a vehicle that is being used in contravention of the operator licensing rules.  If there is no successful application made by the owner for its return the vehicle can be sold or destroyed.

When the Goods Vehicles (Enforcement Powers) Regulations 2001 came into force on 4 January 2002 the aim was to target unlicensed goods vehicle operators, but unwary lawful operators can be caught by the regulations too.

A vehicle can be detained if the authorised person has reason to believe that a vehicle is being, or has been, used in contravention of the operator licensing rules.  These rules say that a person “using” a goods vehicle for hire or reward or for or in connection with any trade or business carried on by him requires an operator’s licence.

Difficulties can arise because the person “using” a vehicle for operator licensing purposes is defined as “the driver of a vehicle, if it belongs to him … and in any other case the person whose servant or agent the driver is.”

Suppose that “A”, a legitimate licensed operator, for whatever reason, permits his vehicle to be driven by an employee of “B”, a person or company who does not have an operator’s licence.  “A” could have his vehicle detained under the new Regulations and be unable to satisfy the criteria that would enable him to recover it.

In order to recover a vehicle that has been detained under the regulations “A” has to apply to the Traffic Commissioner for the Area in which the vehicle is detained.  An application for its return has to be made within a limited time and will be successful if one of the following grounds can be proved:

1. that at the time the vehicle was detained the person using the vehicle held an operator’s licence;
2. that at the time the vehicle was detained it was not being, and had not been, used in contravention of the operator licensing rules;
3. that, although at the time the vehicle was being or had been used in breach of the operator licensing rules the owner “did not know that it was being, or had been, so used.”

In the situation mentioned above, on an application by “A”:

• ground (a) would fail because although “A” held an operator's licence he was not using the vehicle when it was detained.
• ground (b) would fail because its use by an unlicensed user would have been a contravention of the rules and
• ground (c) would also fail if “A” knew about the use at the time unless he could successfully argue that he did not know that its use was a breach of the operator licensing rules.  The wording of the Regulation suggests that an operator can argue either that he did not know that the vehicle was being used at the time or that he was ignorant of the law and did not know that the use was in breach of the operator licensing rules.  The onus will be on the operator to prove or persuade one or other fact to the satisfaction of the Traffic Commissioner.

Reminders for Vehicle Operators

1. Delay Relief

Make sure that your Drivers know that if they are ever delayed on a journey they must always put reasons on the back of their tachograph charts.  This can prove vital if your business is subjected to a tachograph check by the Vehicle Inspectorate or Police.

2. Roadside checks

Drivers should be instructed to make sure they get an Inspection Notice if their vehicle is checked in a roadside check and found to be fault free.  These forms should be retained with the vehicle records.  Drivers should be told to report the circumstances to you if a Vehicle Examiner refuses to issue one.  These may prove useful evidence if, for example, you face a DoT Public Inquiry on vehicle maintenance issues.

3. Employment documentation

Ensure that your Drivers’ employment documentation is complete and includes written terms of employment, a contract and ideally, a Drivers’ handbook.  Keep a copy of any Memos or Warnings to Drivers on matters such as Drivers Hours or Daily Checks.

4. Health and Safety

Every person or company employing more than 5 people must have a Health and Safety Policy in place.  The law relating to Health and Safety will be extended to include ‘on the road’ transport operations in the near future.  In 2003, the Courts will gain increased powers to imprison Employers and Managers for serious Health and Safety breaches.

5. Interviews by Investigating Officers

Don't leave it until after the interview to get help!  Advice from a specialist solicitor at an early stage and before the interview takes place can prove vital.  The solicitor may advise that you or your employees do not have to agree to be interviewed or may attend the interview with you.  Involving a Solicitor at an early stage may save you from prosecution or result in lesser charges.