Last reviewed 31 May 2017

In England and Wales, we have seen a changing climate in the sentencing of road and work related criminal offending. This is having a significant impact on hauliers and their drivers and often is coming as an unwelcome surprise. Vikki Woodfine, a Partner at DWF LLP specialising in road transport law, looks at some of the key changes and the effect on hauliers.

The major changes in this area that are impacting upon hauliers are the changes to the sentencing of speeding offences, mobile phone usage and health and safety offences. The changes to sentences for speeding and mobile phone use have been very recent, whereas the changes to sentencing health and safety offences have been in place for over a year now. This article (written in May 2017) looks at where we are now, 15 months into the new regime.

Speeding offences

There has been no change to law itself in relation to speeding offences (Road Traffic Regulation Act 1984, s.89(1)), the change is to the sentencing of those offences. New sentencing guidelines for magistrates came into force on 24 April 2017 following their publication earlier in the year.

The sentence levels for speeding offences are changing for the most serious offences, with a new higher penalty being introduced for those offenders who drive at speeds excessively above legal limits. There is no change in the sentencing guidelines for lower level speeding offences.

This change has been brought about because it was felt that the previous sentencing guidelines did not properly take into account the increase in potential harm that can result as speed above the speed limit increases to higher levels.

Therefore, the Sentencing Guidelines Council has increased the penalty for the top band of seriousness to ensure that there is clear increase in fine level as the seriousness of offending increases.

This means that fines for these “most serious” offenders will have a starting point of 150% of weekly income rather than the level of 100% of weekly income that existed before 24 April. This would apply, for example, to those who go at 41mph or more where there is a 20mph limit, 51mph or more where there is a 30mph limit or over 101mph on a motorway.

The maximum fines allowed by law in these types of cases remain the same, so total fines cannot exceed these, whatever the income level. The maximum fine for speeding is £1000, unless it takes place on a motorway, in which case it is £2500.

Many speeding offences are dealt with by way of a fixed penalty notice and there is no change to that. If the offence is to be dealt with by means of a fixed penalty notice, there is still a fine of £100 and endorsement of the driver’s licence with three penalty points. Most relatively minor infringements will continue to be dealt with in this way as the intention of these recent changes is only to target the most serious offending.

It has always been the case that if the speed is significantly over the limit or there are other factors to the offence, a summons to attend a magistrates’ court is likely to be issued rather than the offence being disposed of by way of a fixed penalty notice. This will also be the case when a driver challenges the fixed penalty notice. Speeding cases are “summary only” offences and therefore only triable in the magistrates’ court.

The sentencing exercise

When a matter is being sentenced in the magistrates’ court, the magistrates will turn to their guidelines to assist them in setting a penalty. The important figures initially in determining a sentence are the speed limit in place and the recorded speed. This will lead to a “banding” category being given for the offence, as below.

Speed limit (mph)

Recorded speed (mph)

20

41 and above

31–40

21–30

30

51 and above

41–50

31–40

40

66 and above

56–65

41–55

50

76 and above

66–75

51–65

60

91 and above

81–90

61–80

70

101 and above

91–100

71–90

Sentencing range

Band C fine

Band B fine

Band A fine

Points/disqualification

Disqualify 7–56 days or 6 points

Disqualify 7–28 days or 4–6 points

3 points

The recent changes have been to the bands of penalty, introducing a new band. Previously the guidance recommended that the appropriate penalty band for the lowest level of infringement was Band A while for all greater levels of infringement Band B was suggested. The new guidance suggests that the level of penalty for the most serious offences should be Band C.

The bands for fines are expressed not in terms of an actual amount but as a percentage of the offender’s weekly income.

  • Band A runs from 25% to 75% of income.

  • Band B from 75% to 125%.

  • New Band C from 125% to 175%.

In each case the starting point for consideration is the middle of the range but, irrespective of band or income, in no case can the actual fine ever exceed £1000 or £2500, as appropriate.

Magistrates are not just dealing with financial penalties, but as can be seen from the above, they must endorse licences with penalty points (up to six) and may disqualify offenders. Note that it is points or a disqualification, not a combination of both. The issuing of penalty points could also result in a disqualification where a driver has “totted up” 12 points.

The guidelines also explicitly state that where an offender is driving grossly in excess of the speed limit, the court should consider a disqualification in excess of 56 days.

The above table is an indication to magistrates of starting points for offending and these apply to all offenders irrespective of their plea or previous convictions. However, the magistrates can then work up or down the bands depending on aggravating or mitigating feature to the offence. The guidelines do provide a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Magistrates are told to identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the sentence arrived at simply using the above table.

Factors increasing the seriousness of the offence

Statutory aggravating factors:

  • previous convictions, having regard to: a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction

  • offence committed while on bail.

Other aggravating factors:

  • offence committed on licence or post sentence supervision

  • poor road or weather conditions

  • driving LGV, HGV, PSV commercial vehicles

  • towing caravan/trailer

  • carrying passengers or heavy load

  • driving for hire or reward

  • evidence of unacceptable standard of driving over and above speed

  • location, eg near school

  • high level of traffic or pedestrians in the vicinity.

Factors reducing seriousness or reflecting personal mitigation

  • no previous convictions or no relevant/recent convictions

  • good character and/or exemplary conduct

  • genuine emergency established.

As can be seen from the above, before you even take into account the circumstances of the offence and the offender more generally, a driver of an HGV, LGV or PSV could very easily accrue four aggravating features simply by the very nature of their job (driving an LGV/HGV/PSV, towing a trailer, carrying passengers or heavy load, and driving for hire and reward).

In court, in the absence of other aggravating feature, these can be weighed against mitigation arguments such as the previous good character of a professional driver can be seen as more relevant than the previous good character of a domestic driver as a professional driver is driving (often) many tens/hundreds of thousands of miles per annum and therefore their lack of previous speeding convictions cannot be viewed simply as “good luck” but rather as a testament to their usually impeccable driving given the amount of driving that they do.

Commercial drivers with 12 penalty points

A very dim view is taken of professional drivers who commit serious speeding offences, or those who “tot up” 12 penalty points. In those situations, where a driver is facing potential disqualification, consideration can be given at the magistrates’ discretion to an exceptional hardship argument to try and avoid a disqualification. That is to say, where a driver may lose their livelihood as a consequence of a disqualification and this may cause exceptional hardship to that driver’s family, the court may consider not imposing the disqualification period. It is advisable to take legal advice in this situation.

Traffic Commissioners and the licence entitlement

The issue for professional drivers is that even where a driver can successfully persuade the magistrates not to impose a disqualification, the Traffic Commissioner may still do so in respect of the vocational licence entitlement. In this way the driver of an HGV or PSV may end up with a fine, penalty points and a disqualification meaning that they cannot work.

Traffic Commissioners must be notified of a conviction of a professional driver as per operator licensing requirements under the Goods Vehicle (Licensing of Operators) Act 1995. Criminal convictions relevant to the operating licence must be notified to the Traffic Commissioner within 28 days of the conviction. This allows the Traffic Commissioner to update the licence records and also decide if they wish to call the operator or the driver in to discuss the matter further at a public inquiry or at a driver conduct hearing.

Therefore there is no way of escaping their focus following a speeding conviction, whether this was incurred while working and driving an HGV or while driving domestically. However, operators are encouraged to send a detailed mitigation letter to the Traffic Commissioner explaining the circumstances of the offence and the mitigation for the offence to try and seek to dissuade the Traffic Commissioner from calling a driver conduct hearing. This would avoid the risk of further action being taken against the driver in addition to that imposed at the magistrates’ court.

Driving while using a handheld mobile phone

Since 1 December 2003, under an amendment to the Road Traffic Act 1998, it has been illegal to drive in the UK while using a handheld mobile phone. However, since 1 March 2017 the consequences of being found breaking this law have toughened up.

Previously, a driver found to be using a handheld device would be fined £100 and given three penalty points. Now this has doubled to £200 and six penalty points, and given that new drivers are limited to accruing a maximum of six penalty points in the first two years of holding their licence, a conviction for this offence would result in the loss of the licence in its entirety.

It is important to note that the law against using a handheld device also applies even if you are stopped at traffic lights, queuing in traffic or supervising a learner driver.

As with speeding offences, these cases can be dealt with by way of a fixed penalty or at the magistrates’ court, where driving bans can be imposed and fines of up to £1000 can be imposed. It is important to note that penalty levels for HGV and PSV drivers are higher for this offence and fines of up to £2500 are possible.

The changes in sentencing for this offence, doubling the fine and points on a fixed penalty notice, have come about due to a real shift in public opinion on using a handheld device while driving. The safety risks of using such a device while driving are now well known. This risk is clearly magnified when driving a larger vehicle, such as an HGV. Drivers are four times more likely to crash in such cases.

Reaction times

Reaction times for drivers using a phone are vastly affected. An undistracted driver normally has a reaction time of one second, yet the following distractions have some very startling effects on reaction response times which increase as follows.

  • Exceeding the drink drive limit — 13%.

  • High on cannabis — 21%.

  • Using a hands-free mobile phone — 27%.

  • Texting — 37%.

  • Speaking on a handheld mobile phone — 46%.

Even careful drivers can be distracted by a call or text — and a split-second lapse in concentration could result in a crash. Unfortunately, we have seen a number of very high profile cases involving multiple fatalities in recent years where an HGV’s in-cab camera has recorded the driver using a device immediately prior to a collision. It has undoubtedly been cases like those and a general shift in public acceptance of mobile phones and driving that has led to the toughening up of sentencing in this area.

However, as with speeding convictions, the story would not end there for an HGV driver, as this type of offence must also be notified to the Traffic Commissioner under the Goods Vehicles (Licensing of Operators) Act 1995.

The sanctions from Traffic Commissioners for mobile phone offences are much more rigid than those for speeding offences. Guidance issued by the Senior Traffic Commissioner states that the starting point for the offence of an HGV (or PSV) driver using a mobile phone while driving is the suspension of the driver’s vocational driving entitlement for a period of 21 days, to commence with immediate effect. For subsequent offences, the suspension will be multiplied accordingly, ie for the second offence 2 × 21 days, for the third offence 3 × 21 days, etc. A professional driver could conceivably lose their job if they are not able to drive for a significant amount of time.

Therefore, this gives another example of the high standards set for professional drivers and the potential “double punishment” which they face if they fail to comply with road traffic laws in the UK.

Health and safety offences

From 1 February 2016, the entire sentencing landscape for health and safety offences changed resulting in a cataclysmic shift upwards in fine levels. These changes came in through the Health and Safety and Corporate Manslaughter Sentencing Guidelines which represented the biggest shake up to the regulatory landscape in recent years, with fines up to 10 times higher (or more in some cases), than their previous levels.

Not only are companies now being targeted by increased fines but individuals are being prosecuted more and we are seeing cases of imprisonment of directors and managers in cases where that would have been unheard of previously.

In such cases, when considering fine levels, the company’s turnover is the relevant figure for the court to look at. The guidelines classify corporate entities by reference to turnover: micro up to £2 million; small £2–10 million, medium, £10–50 million and large more than £50 million. Very large (where judges are given discretion to move beyond these parameters) does not have its own bracket, but the guidelines suggest this would include a company with a turnover of over £900 million. This is a worrying prospect for many hauliers, given that transport is often a high turnover business, albeit with a relatively modest profit margin.

Once the company size has been determined from its turnover, the guidelines then calculate a fine level (with a range of potential sentences and an indicated starting point) based on a calculation taking into account turnover, risk of harm and culpability.

Importantly the guidelines do not require actual harm to have occurred (although it will be an aggravating feature), only the risk of harm. Therefore previously innocuous risks could now lead to prosecutions where a risk of serious injury or even death is proven. This is the area that often causes surprise to dutyholders now and there have been a number of cases, including cases attracting fines in excess of £1 million, where there has been no harm at all, only a risk of harm. For example, the case of ConocoPhillips where there was a risk from a gas leak, but no harm caused. This case saw a fine of £3 million imposed, (which would have been £5 million without a guilty plea). That fine, under this new regime, is higher than the fines for Network Rail, Hatfield and Ladbroke Grove disasters — all of which caused mass fatalities and where there were purportedly clear warnings ignored.

Pre- and post-guidelines benchmarks

Pre-guidelines

Post-guidelines

Health and Safety Offences (fatalities)

A health and safety offence which resulted in death recommended a starting point for a fine at £100,000.

A medium-sized organisation (turnover between £20–50 million) could see the starting point as high as £4 million depending on the level of culpability.

For large companies (£50 million+) the guidelines indicate a top level fine of £10 million.

Corporate Manslaughter

Fine starting point of £500,000; highest fine to date £700,000.

Medium-size organisation would see a starting point of £3 million with a possibility of fines up to £7.5 million.

A large organisation faces potential fines of up to £20 million.

Health and Safety Offences (non-fatal)

For companies small and large alike, fines in the tens of thousands.

Potential fines in the hundreds of thousands even for smaller companies and above. £500,000 for larger corporates.

The reality under the new guidelines

Since the new sentencing guidelines were imposed in February 2016, we have seen 25 fines exceeding £1 million.

Company

Size

Fatal?

Fine (million)

Merlin Attractions

Very large

No

5

Network Rail

Very large

Yes

4

ConocoPhillips

Very large

No

3

Balfour Beatty

Very large

Yes

2.6

Cristal Pigment (2 breaches)

Large

No

2.4

Decco

Large

Yes

2.2

Wilko

Very large

No

2.2

Tata Steel

Very large

No

2

Travis Perkins

Very large

Yes

2

Warburtons

Very large

No

2

Bakkavor Foods Limited

Very large

Yes

2

G4S

Very large

No

1.8

C.RO Ports London

Medium

No

1.8

Scottish Power

Very large

No

1.75

Foodles Production UK

Large

No

1.6

Maria Mallaband Care Group

Large

Yes

1.6

Embrace All

Medium

Yes

1.5

Kier MG

Very large

No

1.5

Tarmac

Very large

Yes

1.3

Parker Hannifin

Large

Yes

1

National Grid Gas

Very large

No

1

Balfour Beatty CE

Large (group — very)

Yes

1

UK Power Networks

Very large

Yes

1

Watling Tyres

Medium

Yes

1

Nottinghamshire CC

Unknown

No

1

To put the above penalties into context, there were only 28 fines of over £1 million before the guidelines were introduced in early 2016 (1974 to 2016). Also, the recent decision against a county council (April 2017) demonstrates that £1 million fines are no longer reserved for the private companies.

In practice, companies are now faced with the most impossible of dilemmas when it comes to deciding whether to defend a Health and Service Executive (HSE) prosecution. There has always been a fine reduction when pleading guilty in such matters and this remains the case. However, given the new fine levels, there has been an increase in the number of defended cases as companies simply cannot just accept their fate anymore given that the sentencing guidelines expose them to potentially business ending fines. This is even the case in non-fatal incidents, where in many of these cases in the pre-guidelines era, companies would have pleaded guilty and been dealt with in the magistrates’ court with a modest fine. A commercial decision would have been made by the managing director safe in the knowledge that the financial penalty was affordable, lessons had been learned and the blot on the record was just penance. Indeed, the HSE enjoyed a 98% success rate as a result of this type of thinking.

The guidelines have introduced a very real fear for small and medium-sized organisations that even if they did plead guilty and obtain the requisite credit for the guilty plea they may still have to pay a fine where the starting point is £250,000 or more, which is often a prospect that could put them out of business.

The sentencing guidelines do include “step back” provisions that enable the judge to look at the financial position of the organisation — profitability, director’s remuneration, etc — but when the bottom of the range in many cases are still six figures it is still a far cry from the average fine in the pre-guideline era.

Consequently, the advice to dutyholders is changing, with many companies now seeking to test the prosecution evidence before a jury. While the defendant company runs the risk of being found guilty and losing “credit” to reduce their penalty, after a trial it is more than likely that their mitigation will have come out during the trial and some damage would have been inflicted on the prosecution evidence. Consequently the judge may place the offence into a lower bracket in the guidelines than they would have previously thereby reducing the overall penalty.

These guidelines were supposed to introduce more certainty to the sentencing exercise for health and safety cases. However, there still remains a real uncertainty in the sentencing exercise as what we are often seeing is the HSE start the vast majority of cases as saying that they are High Culpability, Category 1 Harm. The defence then seeks to say Low Culpability, Category 3 Harm and the hope then is that the judge will decide Medium Culpability, Category 2 Harm. But the issue remains that there is no certainty in this approach, and with the HSE stating cases at their highest point, companies cannot take the risk and are contesting cases as previously stated. If the HSE wishes to see a reduction in contested trials (which take up significant manpower for them and a cost risk) a fairer approach from the HSE has to be adopted whereby it takes a more realistic view of culpability and harm at the outset.

As the sentencing guidelines for health and safety offences have now bedded in and high fines are increasingly the norm, the next phase that will be interesting to watch from the courts is how they deal with group companies. It is unlikely to be long before we see a case where an attempt is made by the courts to sentence an organisation based on the turnover/financials of a “linked organisation” ie, the Group or Parent Company.

In the meantime, given the above regime and the significant penalties really beginning to bite in health and safety cases, it has never been more important for hauliers to look back over their health and safety management systems. Directors and transport managers should be keeping workplace transport safety at the top of their agenda. Risk assessments should be regularly reviewed, and given the nature of the job, with employees often being away from base, drivers should be actively encouraged to report any concerns or near misses to allow the company to act on these to ensure driver safety across the employee population.

Conclusion

This is not all doom and gloom. While the sentencing of crime has toughened up in a number of areas relevant to haulage operators and their drivers, it remains the fact that good, safe and compliant operations will not ever have to feel the effect of these changes.

For those companies and individuals who operate and drive safely and comply with all the relevant laws, there need be no cause for worry. The new sentencing guidelines for speeding and for safety offences are in place to punish the worst offenders and to impose the most severe of penalties on those with high levels of culpability.

In terms of safety offences, for individuals such as transport managers, custodial sentences and fines can be avoided through active supervision of health and safety, ensuring that drivers are given reasonable rotas/itineraries and that they keep to their drivers’ hours limits and ensuring safe systems of work are adhered to.

When it comes to the changes to sentencing speeding and mobile phone offences, the message is clear. Drivers simply must not break these rules and operators should not be seen in any way as encouraging the contravention of these rules. Robust driving policies can evidence a string culture of compliance within operations. Operators should never expect drivers to take calls while driving and clear disciplinary structures must be in place to deal with those that ignore this. Equally, operators must remember that it is an undertaking under their operator’s licence that their vehicles will not speed. This goes beyond telling drivers not to speed in driver policies, but operators must be able to show that they make regular checks on their drivers to ensure that speeding is not taking place.