In recent years the enforcement landscape — whether we are talking in terms of prosecutions through the criminal court system or regulatory action by the Traffic Commissioners — has seen regular change and it now appears set for further revision as digitisation and new technologies take hold. Andrew Woolfall of Backhouse Jones solicitors looks proposed changes to the enforcement strategy across the commercial transport industry.

DVSA

FPNs

Less than 15 years ago, the pattern of enforcement action was often that there would be a roadside stop which led to both the driver and operator being prosecuted. If it was felt that further action was still required, the case would be referred to the Traffic Commissioner.

This model changed with the implementation of Fixed Penalty Notices (FPNs) for drivers. These were issued at the roadside, the intention being that the operator would be referred to the Traffic Commissioner for consideration as to whether regulatory action was required. Only in the most serious of cases was the driver or operator prosecuted before the criminal courts. If a driver receives a FPN, very few operators then find themselves before the Traffic Commissioner if it is for an inquiry over a “single issue”. Single issue inquiries usually take place only when there has been a wheel loss incident, a serious accident or a potentially serious insecure load.

Criticism has also been levelled at DVSA as to where they site themselves for enforcement. Random visits to operators have long gone and DVSA enforcement sites are now positioned along the strategic road network, away from town or city centres and rural localities.

Gone are the days when the DVSA (or rather its predecessors VOSA and the VI) used to go to courts on a weekly basis. Now some courts can only see a DVSA officer once every three or four months despite the fact that sentencing for the more serious offences in the Magistrates’ Court now carries unlimited fines.

However, balanced against this, offences are still being detected. The last published figures from DVSA shows that in 2018 almost 33,000 FPNs were issued to commercial drivers raising some £7 million in fines. Almost 63,000 vehicle safety defects were detected and almost 42,000 drivers’ hours offences were found. However, DVSA still feels there is a lot more to be done to tackle the seriously and serially non-compliant.

New enforcement strategy

DVSA has now confirmed they are in the process of preparing a new enforcement strategy. This is expected to be fact based enforcement relying upon the ever increasing amount of digitally available information and its smart analysis. This includes the following:

  • Roadside examiners are being issued with smart phones and a new enforcement app which brings together all key enforcement information including Operator’s Licence details, MOT pass rates, OCRS and intelligence. This is updated in real time.

  • DVSA is reaching an agreement with the police and security services for access to over 10,000 ANPR cameras across both the strategic road network and also in towns, cities and rural areas. This will allow data to be collected on commercial vehicles and then, using artificial intelligence, compared to other known information, including that gleaned from tachograph downloads and roadside stops. We shall soon see data analysts and programmers supporting vehicle and traffic examiners.

  • The introduction on 15 June 2019 of the latest generation digital tachograph will bring more enforcement tools. These devices will incorporate dedicated short range communication interfaces which will effectively broadcast details of device tampering and more serious drivers’ hours offences. While the police and DVSA will not initially have the equipment necessary to receive this information, it is only likely to be a matter of time before it is deployed and allows further targeting of vehicles and operators.

Earned Recognition and Roadside Stops

It is also clear that DVSA is looking to ramp up the use their Earned Recognition (ER) scheme as an important part of the enforcement strategy. Operators who have achieved ER status will not be stopped for roadside inspections. This should free up more time for vehicle and traffic examiners to pay more attention to non ER operators — including those with “green” OCRS ratings.

Previously, once a vehicle had been stopped, if an operator was “green” the vehicle would either be allowed to go on its way unchecked or subject to a very perfunctory “sift”. Later this summer, this procedure will change and there will no longer be a simple “topside” sift but instead there will be initial and detailed inspections — even for those with “green” OCRS ratings.

The initial inspection will go into much more depth than the traditional “sift” while the detailed inspection will come as close as to a full MOT test as the onsite facilities will allow. Once these changes have come into force, green operators will see their vehicles spending significantly more time at check sites and coming under closer examination by having, at the very least, an initial inspection.

DVSA is shifting favour away from “green” operators because, among other reasons, they conducted some trials in 2018 which showed the prohibition rate for green operators as being the same as for those in the red and amber OCRS categories.

The one positive to take from this will be that, unlike “sifts”, initial inspections will count as encounters for OCRS purposes and therefore if no faults are found, there will be a beneficial reduction in the OCRS score.

As DVSA try to encourage those who issue contracts to operators to make it a mandatory requirement that such operators have ER (in a similar way to other schemes such as FORS or CLOCS), DVSA is looking to free up as much time as possible to focus on non-ER operators looking in more detail at their vehicles during roadside checks and analysing data from numerous sources. It may well be that we even see a return to prosecuting those operators where offences are detected and not just simply referring them to the commissioner for regulatory action to be considered.

Traffic Commissioners

Just as DVSA is looking to change its enforcement strategy, the Traffic Commissioners have also publicly stated that they are looking to refine their approach to regulation. This includes refreshing their own strategic objectives.

We have already seen changes in recent months to the approach being adopted by the commissioners. They have been quite public about the fact they are looking to reduce the time taken to bring those they feel are non-compliant operators to public inquiry. There is now a 12-week target for the hearing of an inquiry once the decision has been made to call the operator in. The commissioners are also looking to take steps to strike out applications where operators do not answer questions or seek to “drag things out”.

Digitisation

The digitisation of the operator’s licence processes through the Vehicle Operator’s Licence (VOL) system on gov.uk has also allowed the Traffic Commissioners to hold more data on operators. This includes information on applications which are never completed — experience shows that while an operator might have started an application and then had a change of heart, that information is still retained by the commissioner’s office and can provide the commissioner with a useful source of intelligence relating to what an operator might have been considering doing at a particular point in time.

The VOL system and its background of artificial intelligence has also allowed the commissioners to cross-refer their own information against other government databases. This has led to the commissioners revoking a number of licences where companies have previously entered into liquidation. Other operators have been contacted where there is a conflict between information held by the commissioner and Companies House, for example with regards to director’s details.

Consultation

In spring 2019, the Traffic Commissioners also announced their own consultation with a view to formalising public inquiry and tribunal rules.

The consultation comprises two parts.

The first seeks opinion on changing the rules so that PSV operators can commence vehicle operations as soon as possible.

The second part looks to introduce formal tribunal rules relevant to PSV and HGV operators called to public inquiry.

In what has previously been a traditionally “relaxed” jurisdiction with very few rules for the purpose of allowing maximum flexibility, the commissioners are now looking to introduce more prescriptive procedures including setting deadlines for the submission of information, restricting the ability of operators to have extended periods where they do not meet financial standing or have a transport manager or, perhaps more contentiously, allowing the commissioners to recover costs from operators appearing at public inquiry hearings.

Operators who want to take part in the consultation can find further details here.

The consultation closes on the 25 June 2019 though there is likely to be further engagement when it comes to deciding what the actual rules should be.

Conclusions

As more information becomes available to regulators and enforcement authorities, it appears that non-compliant operators will face even closer scrutiny, increased chances of appearing before the commissioners and, once at public inquiry, a less flexible regime in which to present their case. All this has to be combined with the prospect of tighter regulation for small goods vehicles.

The EU is currently contemplating plans to require certain vehicles below 3500kg gvw to be regulated through operator’s licensing and require compliance with the EU drivers’ hours rules. While initially this will only reply to international journeys, it is again foreseeable that domestic journeys will follow, at some stage in the not too distant future.

The ever-changing world of the enforcement and regulatory landscape continues on. It is clear that the incentive is to be a compliant operator (and ideally from the DVSA perspective, one with ER). Those falling short will face increased scrutiny.

Last reviewed 28 May 2019