Last reviewed 3 June 2015
Tim Ridyard, Partner of Woodfines Solicitors LLP, considers the topical issue of roadside enforcement, and takes a look at the DVSA’s plans to modify how it is carried out. If the DVSA were to shift attention away from enforcement and focus instead on compliance, they may have the potential to free up resources so they can concentrate on the non-compliant end of the operators’ scale and allow compliant operations to continue in an undisrupted fashion, thereby providing the transport industry with an economic incentive to run compliant operations.
Police or Driver & Vehicle Standards Agency (DVSA) enforcement action against operators and drivers has evolved considerably in recent years. The roadside is of course the coalface at which investigations may end or only just begin. It is where an operator, through its drivers, who may or may not be complying with their employer’s instructions and expectations, meets an enforcement agency.
Previously the armoury available to enforcement agencies was mainly via the issue of roadside prohibitions or the prosecution of operator and driver – for offences dealt with to conclusion in the Magistrates’ Court. Today, there is an emphasis on the issue of prohibitions but a large-scale issuing of penalty offers against drivers. Operators are often diverted into the Traffic Commissioner public inquiry arena without being prosecuted even though road transport offences are made out against them; prosecutions do continue in some cases. This is not dissimilar to other aspects of a criminal justice system that has undergone major changes and where there is a widespread diversion of offenders from the courts, not least through huge use of fixed penalties and other methods such as penalties for non-notification of off road vehicles.
Today there is also an admission, certainly on the part of DVSA, that traditional roadside approach may have been inefficient, unfair to what are ordinarily compliant businesses and have failed to adequately impact on the non-compliant. There has recently been a recognition of the need for a new approach, brought about in part by budgetary restraints — the intended future approach of DVSA is one very much focused on attacking significantly non-compliant businesses, while compliant ones are rewarded by being allowed them to operate without disruption fashion, providing them with an economic incentive to run compliant operations. It is also recognised that unnecessary interference with what are generally responsible operators is not good for public relations and hurts them economically. After all, any down-time for an operator due to roadside stops may equate to financial penalties if delivery times cannot be met and drivers may run out of duty time, causing further operational headaches
The purpose of roadside enforcement
Regardless of which enforcement agency is involved or, indeed, the regulatory regime in question (health and safety, waste, operator’s licensing etc) there are always two essential elements:
protection from harm, ie road safety
ensuring fair competition on a level playing field.
Roadside enforcement clearly has the primary purpose of ensuring road safety by the policing of the component parts of road safety legislation: construction and use regulations, driver’s hours rules, vehicle testing, etc. However, enforcement also entails ensuring that those who don’t comply are not allowed to participate in the transport sector or deterred from operating unsafely and unfairly through the various means below:
refusal of operator’s licences or revocation of licences / director disqualification by Traffic Commissioners, and if necessary
vehicle immobilisation / impounding.
Recent reminders of the need for enforcement
The recent Upper Tribunal case, Nicholas (2015) UKUT 0148, is a useful reminder of the unfair competition and road safety aims and objectives. In that case an operator's licence revocation was upheld on appeal to the Upper Tribunal where there had been falsification of drivers’ hours records, evidence of a tachograph interference device and a breach of an express undertaking on the licence, when granted, that the owner’s father should not participate in the transport operations. Upholding the Traffic Commissioner’s original revocation, though reducing the director disqualification from five to three years, HHJ Broderick made the following statements and observations about the aims of drivers’ hours rules:
”to promote road safety; to control social working conditions of drivers and to ensure fair competition between operators”
”a tired driver is a less attentive driver and so less safe driver”
”if one operator complies with the rules but others flout them then those prepared to drive excessively will gain a significant competitive advantage over the compliant. This will increase pressure on compliant employers and drivers to break the rules or go out of business in a very competitive high cost and low margin industry.”
Recently published guidelines issued by the Sentencing Council: Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines
Consultation has also emphasised the importance of deterring businesses from operating in an unsafe and unfair fashion. See https://consult.justice.gov.uk/sentencing-council/health-and-safety-offences-guidelines/supporting_documents/healthandsafetyoffencesconsultationguideline.pdf.
Fines should... ”meet.....the aims of punishment and deterrence and removal of gain; and be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with legislation and achieve a safe environment for workers and members of the public.”
Historical roadside enforcement
Until relatively recently, roadside enforcement was carried out by the then Vehicle and Operator Services Agency, formerly the Vehicle Inspectorate, and/or the police, the latter having the sole authority to stop commercial vehicles for roadside checks. This changed when traffic examiners were given powers to carry out vehicle stops in marked cars. In addition local government would prosecute for matters such as excess weight or non-compliance with road weight restrictions.
Invariably, a driver would be prosecuted or both operator and driver would be prosecuted for transgressions such as drivers’ hours and construction and use offences including excess weight. Fixed penalty schemes did not exist or. when initially introduced. related primarily to offences such as speeding.
A policy decision had to be taken in each case as to whether to prosecute and, in relation to less serious offences, many never saw the courtroom as the cost and administrative burden of bringing a prosecution were deemed to too great. Significant paperwork had to be generated for single, often not particularly serious, offences. When fixed penalties were introduced on a large scale, one perceived benefit in due course was indeed the reduction in this costly administrative burden and ease of enforcement.
At this time it was also difficult to conduct meaningful enforcement action against foreign operators and drivers unless they were involved in serious incidents or accidents leading to a driver's arrest. There was no integrated or fixed penalty system whereby police or what was then VOSA could take meaningful action. Of itself this gave rise to resentment and a sense on the part of UK operators and drivers that they were being disadvantaged compared to their European counterparts operating in the UK; in short, domestic operators and drivers felt actually discriminated against in that there was no mechanism to bring non-UK drivers to book while action was being taken against UK drivers.
The advent of fixed penalties etc
Significant changes took place with effect from 1 April 2009 when graduated fixed penalties, deposits and immobilisation schemes came into being. This allowed (what were at the time) VOSA examiners to issue fixed penalty notices and such notices could be graduated for commercial vehicles according to degree of non-compliance for drivers’ hours and excess weight offences. Those without satisfactory UK addresses could be required to pay financial deposits against fixed penalty amounts due under fixed penalty offers. Not only GB but non-GB licence holders could be issued with fixed penalty offers for endorseable offences. Finally, vehicles could be immobilised to ensure a deposit was paid or to ensure that prohibition notices would be complied with meaning that UK or non-UK drivers could not depart the scene to escape justice.
There were a number of aims and consequences of this change. It meant that both GB and non-GB drivers could be the subject of enforcement; roadside fixed penalty offer notices could be issued with little administrative burden. Such notices could be copied to the Traffic Commissioner as a record of action and operators had to notify the Traffic Commissioner of their issue; foreign operators and drivers could be policed on a reasonably equal footing to domestic counterparts; action could be taken against operators and drivers when under the previous scheme it would have been to administratively cumbersome to prosecute; large numbers of cases could be diverted from the Courts and financial penalties were easily collectable. Indeed, non-GB drivers could not remove themselves from the scene of the vehicle without making payment in order to facilitate the removal of immobilisation devices on their vehicles.
There is no prospect that the trend towards this type of roadside check will diminish; on the contrary, it is well-established, notwithstanding the fact that while the system lends itself to high volume of easily administered penalties it is not kind to drivers who wish to contest penalties in the Magistrates court where they face the huge new criminal court charge penalties if they lose (for offences committed on or after 13 April 2015) and no reimbursement of defence costs even if successful at trial.
With this significant change came a shift of emphasis that appears to have continued to this day. Whereas prosecutions were previously brought, if at all, against operators and drivers, it is now entirely normal for action to be taken solely against a driver through the fixed penalty route, with no criminal court action against the operator unless offending appears to be occurring on a larger scale.
A good example of this relates to excess weight cases. It is entirely normal for fixed penalties to be issued without Court action against the operator when previously the operator would have been prosecuted. The position is similar with drivers’ hours offences unless there is a significant number of them or if the investigation of the driver leads to DVSA going to visit the operator.
On that point it is certainly the case that adverse roadside encounters, where DVSA unearth a serious maintenance issue, will ordinarily lead to an operator maintenance investigation that may involve a vehicle examiner visit to the operator or, alternatively, investigation through ”remote enforcement”. The latter is a relatively recent DVSA initiative that involves a request being made by DVSA's remote enforcement office to an operator requiring them to provide, say, digital maintenance or drivers’ hours information that has to be sent to DVSA for scrutiny, rather than being handed over in person at an operator's premises. This is intended to be a more efficient way of obtaining information for DVSA maintenance and driver’s hours investigations; it is less disruptive to a business and avoids unnecessary travel and other work by vehicle and traffic examiners given that DVSA’s resources are strictly limited.
Historical drivers’ hours offences
As stated, part of the change in enforcement approach was facilitated through the introduction of fixed and graduated fixed penalties where the police and DVSA have been able to issue fixed penalty offers to drivers for road transport and traffic offences. In the context of drivers’ hours offences (and indeed others) a maximum of three penalties could be offered, the amounts depending on the degree of offending.
However, while this permitted the issue of graduated fixed penalties for drivers’ hours offences it restricted them to offences said to have been committed “on that occasion". This then begged the question as to what was meant by this wording under the amended road traffic legislation. It was not expressly defined in legislation.
So far, as DVSA was concerned, it meant that the issue of fixed penalty offers was restricted to those offences which were committed that day. In essence this meant that break, daily driving or rest offences might be caught.
By way of example a penalty could be issued for a daily or weekly rest offence if the driver should not have been driving. However earlier or ”historical” offences could not be the subject of a fixed penalty, for example, a break offence committed some days earlier or excessive daily driving the day before.
This interpretation was followed by some police forces but completely ignored by others so that, arguably, fixed penalties issued by police forces have in fact been issued without any local authority to do so. When police officers were challenged on this point the response was often that the driver could decline the penalty and have the matter dealt with in Court as an alternative that was clearly unattractive to the driver given that it would lead to a Court conviction, a potentially higher fine and prosecution costs. Nevertheless, there was in fact no power to offer penalties for historical offences.
However, in June 2014 the DfT commenced a consultation to revise the legislation and permit fixed penalties to be issued for offences discovered at the roadside occurring on the day of the vehicle stop and the preceding 28 days. This consultation is now closed and DVSA’s current plan is for the next phase of this process to be implemented from around October 2015. It will require legislation to implement it and mean that historical drivers’ hours offences that appear on the whole 29 day driver record can potentially be the subject of fixed penalty offers. Of course this will be the subject to the maximum power available to the police or DVSA namely no more than a total of three penalties for three separate offences.
The fact that the DfT has consulted in this and intends to introduce revised legislation indicates that the approach adopted by DVSA was correct in law and some constabularies were not interpreting the power available to them correctly.
When the ability to issue fixed penalties for historic drivers’ hours offences comes into force it will further cement the use of such roadside powers as an alternative to prosecution although the Courts will continue to be used for cases where there has been a significant degree of drivers’ hours non-compliance.
Court and/or public inquiry?
Part of the fixed penalty initiative for commercial vehicles was the notion that incurring fixed penalties that had to be reported to the Traffic Commissioners would bring matters to their attention and, if necessary, trigger scrutiny of the operator's licence, including a Public Inquiry if necessary. In reality the extent to which this theory has been realised is open to debate. Given the limited resources of the Office of the Traffic Commissioner, long delays before matters come to hearings and limited resources it is arguable that the actual financial penalty related to an incident is borne by the driver rather than the business until such time as the business accumulates sufficient prohibitions and fixed penalties to be called to a Traffic Commissioner hearing. Of course, one of the perceived benefits was intended to be, and indeed is, the placing of an emphasis on drivers to behave in a compliant fashion the reward for which was avoiding costly penalties to be paid out of the drivers’s pocket. However, many operators routinely fail in the basic requirement to notify the Traffic Commissioner of any fixed penalties being issued within 28 days and this often goes undetected or is not followed up.
The road ahead
The current position in terms of targeting vehicles to be the subject of roadside enforcement by the DVSA is that all operators are potentially or theoretically subject to vehicle stops regardless of their client’s history, although of course, the Operator Compliance Risk Score (OCRS) scheme places emphasis on stopping vehicles with poor compliance histories in terms of poor road worthiness or traffic scores. An operator is much more likely to have its vehicle “pulled over” for inspection and/or scrutiny of driver’s hours records if there are adverse scores.
The OCRS system has its drawbacks, however, as it is not necessarily a definitive barometer of the true compliance regime of an operator and a high score can be achieved without the true underlying systems of the operator coming under scrutiny. Many operators are never the subject of vehicle stops and hence their scores may be misleading. Ordinarily compliant operators, quite often with small fleets, may have had a couple of unfortunate and unrepresentative incidents that depict them as non-compliant by reference to the OCRS system whereas in fact they have a good compliance regime in place.
There is then the issue of resourcing. In a roadside enforcement Utopian world enforcement resources would be unlimited; noncompliant operators and operators would be driven off the road in a purge, leaving the remainder to be safe and competing fairly with each other. That is not an economic reality and both the police and DVSA can only operate within budgetary restraints in a time of limited resources.
With all this in mind, DVSA has been developing a revised approach to focus not on enforcement but on compliance. It has taken the view that traditional enforcement comes at a high cost, is intrusive and creates poor public relations issues. This is very much a work in progress so its final incarnation is not yet known.
DVSA has recognised in assessing its own resource commitments and needs that six categories of operator can be identified, ranked from the most compliant to the worst.
Compliant (with support) operators
Seriously/serially non-compliant operators
produced with permission of the Driver & Vehicle Standards Agency (DVSA)
Today all these categories of operators may be the subject of roadside enforcement. Generally speaking, all of the last four categories are the subject of visits and investigations.
Under future enforcement that has been given the title “Earned Recognition”, exemplary operators would be rewarded with an absence of enforcement activities; compliant operators or operators who are compliant but require support as well as potential rule breakers could be dealt with by the remote enforcement office. Roadside enforcement could then be concentrated on potential rule-breakers and non-compliant operators and visits — investigations and assessments would centre on potential-rule breakers, the non-compliant and the seriously/serially non-compliant.
Under the model above, therefore, resources would be concentrated in the right areas and operators would experience fewer interventions as it became more compliant. This approach would be commercially advantageous, and intended to be so, by rewarding compliance. By way of example, it is estimated that a single vehicle stop of an articulated combination bound for a supermarket takes three quarters of an hour, even if defect-free, However, because of delivery slots, consequential delays in getting goods to the store and other overheads the actual cost of the stop may amount to thousands of pounds. The operator of the vehicle may be an ordinarily totally compliant business but is commercially penalised, drivers’ hours compliance also potentially being compromised because of the vehicle stop.
By concentrating on compliance, DVSA therefore sees the potential for freeing up resources to concentrate on the non-compliant end of the scale of operators by delivering better value to compliant operators by reducing their enforcement burden.
produced with permission of the Driver & Vehicle Standards Agency (DVSA)
Technology can also now play a huge role in assisting DVSA. Instead of vehicles and traffic examiners sitting at the roadside in the hope that a target operator’s vehicle might happen to come by, it is possible through ANPR to find evidence of the operating behaviour of target operators at various locations at their peak operating times. In turn this enables them to be targeted at those times in a much more focused way. The specific concentrating targeting of very non-compliant operators can and is already used to be deliberately disruptive to them and make it commercially non-viable for them to operate. One further aspect of the use of telematics and IT systems being considered is possibly for operators to agree to provide operating information to DVSA, for example, disclose vehicle and driver records to enable those operators to achieve ”earned recognition” status and benefit economically from it.
The objective of next-generation enforcement for DVSA is in effect to ensure that non-compliance is not a cost-effective option for a business and that compliance equates to good business value for an operator.