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We are a one stop site for tachograph chart analysis and digital tachograph analysis, drivers hours legislation, tachograph charts and supplies, and tachograph legislation. 

Causing or Permitting Driver's Hours Offences

 

In order for a Haulier to be prosecuted for Drivers Hours Offences it must be proved that the Haulier caused or permitted those offences. Below are extracts from the Transport Act 1968 and Regulation 561/2006 which may provide a defence to such charges.

 

To prevent prosecution for permitting offences, Hauliers should follow our simple advice.

  1. Download data from analogue charts, driver cards and vehicle units and have it properly analysed using our software for the analysis of analogue and digital data.

  2. Utilise our Complete Tachograph Data Management Service to ensure that your digital data has been checked by people who have the relevant knowledge, edited and assigned where necessary.

  3. Regularly print driver reports and working time directive reports.

  4. Assign a member of staff to go through these reports with the drivers and have the drivers sign the reports.

  5. Give proper training to drivers who regularly commit breaches of the legislation.

  6. Have in place a discipline policy for habitual offenders.

  7. Abandon paper records such as worksheets and use the full capabilities of our software.

  8. If you insist on using outdated paper records, make sure that these are checked against data downloaded from driver cards and vehicle units and that the driver is recording all of the time that he is on duty on his card. The same applies to clock cards.

If you fail to follow these instructions you will leave yourself open to prosecution.  You should view the fines that can be imposed for breaches of Section 96 11(A) in this document.

 

Guidance to CPS on Traffic Offences.

 

Link

http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences/index.html#P48_1556

 

Tachograph Cases and Public Interest Criteria

You should consider the following factors, whether you are prosecuting drivers' hours, breaches or falsifications:

  • assessment of the role played by each person in the company/operator in the case of large scale prosecutions;

  • whether there has been systematic flouting of the law resulting in widespread falsification of records endorsed by management. In serious cases a conspiracy charge should be considered;

  • consider using as witnesses persons who might be guilty of the offence or offences such as office staff and drivers where they have been threatened with the sack unless they continue to act illegally. It should, however, be remembered that the driver is the "person at the wheel;

  • falsification of records usually takes place to enable more journeys to be undertaken than would be possible during lawful working hours, thereby jeopardising road safety.

     

    The Transport Act 1968

Offences in Contravention of the Regulations - Section 96: Charging Practice

Section 96(11) TA creates offences for breach of the domestic drivers' hours code, while section 96(11)(A) TA creates offences for breaches of the European Community Regulations. In the great majority of cases the offence will fall within the second of these provisions.

  • Liability for these offences falls upon the "Driver" (for the Domestic Rules) or the "Offender" (for the European Community Rules).

  • Under section 96(11)(b) TA liability also falls upon "any other person (being that driver's offender's employer or a person to whose order the driver/offender was subject) who caused or permitted the contravention".

In Skills Motor Coaches Ltd, Farmer, Burley and Denman (Case C-297/99), the European Court of Justice

The Court held that driving time spent performing a transport service also constituted a period when the driver was actually engaged in activities liable to have a bearing on driving, during which he did not freely dispose of his time. A transcript of the judgement is available. Sections 96 and 97(1) create absolute offences for the driver/offender. This is not the case so far as the employers or persons in authority are concerned. There must be evidence upon which a Court can properly infer that an employer gave a positive mandate or some other sufficient act to 'cause' the offence to occur. Mere passive acquiescence is not enough - see Redhead Freight Ltd v Shulman [1989] RTR 1. Other recent cases on drivers' hours include Vehicle Inspectorate v Southern Coaches and Others [2000] RTR 165 and Vehicle Inspectorate v Nuttall [1999] Crim LR 674.

 

In the latter case the House of Lords held that the Community rules placed a responsibility on employers to use tachograph records to prevent contraventions and to promote road safety. Although the offence was not one of strict liability, 'permitting' in section 96(11A) was to be given a wide meaning of failing to take reasonable steps to prevent contraventions, to be governed by the objective standards of a responsible employer. Nothing less than wilfulness or recklessness would suffice. See also Yorkshire Traction Co Ltd v Vehicle Inspectorate [2001] RTR 518.

 

In Vehicle Inspectorate v Blakes Chilled Distribution Ltd [2002] 166 JP Jo.118, the Administrative Court held that the intent necessary to prove vicarious liability was established where it could be proved that an employer had failed to take reasonable steps to prevent contraventions by drivers, provided that such failure was not due to honest mistake or accident. Knowledge that an operating system was defective, and that that deficiency could lead to the commission of offences, was the only knowledge required of an employer as a basis for vicarious liability.


Under Section 99ZE 3(f) of the Transport Act 1968

 

A person commits an offence :-


3 (f) if he fails without reasonable excuse to record any data on recording equipment or on a driver card, or causes or permits such a failure.

  1. For the purposes of this section, a person shall be taken to permit an act or omission if he is, or ought reasonably to be, aware of the act or omission, or of it being a likelihood, and takes no steps to prevent it.

Under section 96 it states:


(11A) Where, in the case of a driver of a motor vehicle, there is a contravention of any requirement of the applicable Community rules as to periods of driving or distance driven, or periods on or off duty, then the offender and the offender’s employer, and any other person to whose orders the offender was subject shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

 

(11B) But a person shall not be liable to be convicted under subsection (11A) if :-

(a) he proves the matters specified in paragraph (i) of subsection (11); or

(b) being charged as the offender’s employer or a person to whose orders the offender was subject, he proves the matter specified in paragraph (ii) of that subsection;

or

(c) being charged as mentioned in paragraph (b), he proves—

(i) that at the time of the contravention he was complying with Article 10(1) (distance-related payments etc) and Article 10(2) (organisation of drivers’ work etc) of the Community Drivers’ Hours Regulation; and

REGULATION (EC) No 561/2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/8


 

CHAPTER III of the above regulation states


 

LIABILITY OF TRANSPORT UNDERTAKINGS


Article 10

1. A transport undertaking shall not give drivers it employs or who are put at its disposal any payment, even in the form of a bonus or wage supplement, related to distances travelled and/or the amount of goods carried if that payment is of such a kind as to endanger road safety and/or encourages infringement of this Regulation.


 

2. A transport undertaking shall organise the work of drivers referred to in paragraph 1 in such a way that the drivers are able to comply with Regulation (EEC) No 3821/85 and Chapter II of this Regulation. The transport undertaking shall properly instruct the driver and shall make regular checks to ensure that Regulation (EEC) No 3821/85 and Chapter II of this Regulation are complied with.


 

3. A transport undertaking shall be liable for infringements committed by drivers of the undertaking, even if the infringement was committed on the territory of another Member State or a third country. Without prejudice to the right of Member States to hold transport undertakings fully liable, Member States may make this liability conditional on the undertaking's infringement of paragraphs 1 and 2. Member States may consider any evidence that the transport undertaking cannot reasonably be held responsible for the infringement committed.

 

Copyright © 1999 [The Farnsworth Consultancy Ltd]. All rights reserved. Revised: April 24, 2012