Statutory
Instruments
2008
No. 198
road traffic
The
Passenger and Goods Vehicles (Recording Equipment)
(Downloading and Retention of Data) Regulations 2008
Made 29th
January 2008 Coming
into force in accordance with regulation 1(1)
The Secretary of State for
Transport makes the following Regulations in
exercise of the powers conferred by sections 95(1)
and (1A) and 101(2) of the Transport Act 1968()
(“the 1968 Act”) and section 2(2) of the European
Communities Act 1972()
(“the 1972 Act”);
The Secretary of State for
Transport is a Minister designated()
for the purposes of section 2(2) of the 1972 Act in
relation to regulation of the type, description,
construction or equipment of vehicles and the
regulation and supervision of the working conditions
of persons engaged in road transport.
In accordance with section
95(1) of the 1968 Act she considers it necessary or
expedient that these Regulations should be made to
take account of the operation of Regulation (EC)
No 561/2006 of the European Parliament and Council
of 15 March 2006(),
on the harmonisation of certain social legislation
relating to road transport and amending Council
Regulations (EEC)
No 3281/85 and (EC) No 2135/98 and repealing Council
Regulation (EEC) No 3280/85;
In
accordance with section 101(6) of the 1968 Act she
has consulted with such representative organisations
as she thinks fit;
In accordance with section
101(3A)()
of the 1968 Act and paragraph 2(2) of Schedule 2 to
the 1972 Act a draft of these Regulations was laid
before, and approved by a resolution of, each House
of Parliament:
Citation
commencement and interpretation
1.—(1) These
Regulations may be cited as the Passenger and Goods Vehicles
(Recording Equipment) (Downloading and Retention of Data)
Regulations 2008 and come into force 7 days after the day on
which they are made.
(2) In these
Regulations, “the 1968 Act” means the Transport Act 1968.
Amendment of the
1968 Act: protection of electronic data and other records
2. After
section 97B()
of the 1968 Act insert—
“Delivery
of record sheets and other documents
97C.—(1) This
section applies to the following documents—
(a)
record sheets;
(b)
manual records and
printouts made in accordance with the Community Recording
Equipment Regulation.
(2) If such a
document relates to a person in his capacity as the driver
of a vehicle to which section 97 applies, he must before the
end of the delivery period deliver the document to the
transport undertaking to whose orders he was subject in
driving the vehicle.
(3) The delivery
period is the period of 42 days starting on the day after
the latest date to which the document relates.
(4) A person who
without reasonable excuse fails to comply with subsection
(2) is liable on summary conviction to a fine not exceeding
level 4 on the standard scale.
(5) If a
transport undertaking fails without reasonable excuse to
secure that each driver subject to its orders complies with
subsection (2), in respect of documents relating to him in
his capacity as such a driver, it is liable on summary
conviction to a fine not exceeding level 4 on the standard
scale.
(6) If a person
is subject to the orders of two or more transport
undertakings in driving a vehicle during a period to which a
document relates-
(a)
subsection (2) has
effect as if it were a requirement to deliver that document
to the undertaking to whose orders he was first subject in
driving the vehicle during that period;
(b)
subsection (5), in
relation to that document, applies only to the undertaking
to whose orders he was first subject in driving the vehicle
during that period.
Vehicle units:
downloading data
97D.—(1) This
section applies where a transport undertaking is required by
article 10 of the Community Drivers’ Hours Regulation to
ensure that data is downloaded from a vehicle unit in a
vehicle.
(2) The
undertaking must ensure that relevant data is downloaded
from the unit not later than the end of the download period
if—
(a)
it controls the
use of the vehicle throughout that period, and
(b)
it uses the
vehicle at some point during that period.
(3) The download
period begins and ends as set out in the following table—
|
Case |
Download period begins |
Download period ends |
|
1. The undertaking has not previously
downloaded data from the unit under this
section |
On the first day after the commencement
of this section on which the
undertaking—
(a) controls the use of the vehicle, and
(b) is required by article 10 to ensure
that data is downloaded from the unit |
On the earlier of—
(a) the expiry of the period of 56 days
starting on the first day of the
download period;
(b) any downloading of the data before
the expiry of that period |
|
2. The undertaking uses the vehicle
during the period of 56 days starting on
the day after the last downloading under
this section |
On the day after the last downloading
under this section |
|
3. The undertaking does not use the
vehicle during the period of 56 days
starting on the day after the last
downloading under this section |
On the first day of the undertaking’s
use of the vehicle after the last
downloading under this section |
(4) The
undertaking must ensure that all relevant data is downloaded
from the unit—
(a)
immediately before
transferring control of the use of the vehicle to another
person;
(b)
without delay upon
permanently removing the unit from service in the vehicle;
(c)
without delay upon
becoming aware that the unit is malfunctioning;
(d)
without delay in
any circumstances such that the imminent erasure of the data
by the unit, in the normal course of its operations, is
reasonably foreseeable.
(5) But
subsection (4)(c) does not apply if because of the
malfunctioning of the unit it is impossible to download the
data.
(6) For the
purposes of this section “relevant data” means any data
recorded by the vehicle unit in a vehicle, other than
detailed speed data.
(7) For the
purposes of this section and section 97E an undertaking
controls the use of a vehicle during any period in which it
may determine when, by whom and for what purpose the vehicle
may be driven.
(8) In this
section and sections 97E to 97G, “downloaded” is to be
construed in accordance with the definition of “downloading”
in Annex 1B to the Community Recording Equipment Regulation.
Driver cards:
downloading data
97E.—(1) This
section applies where a transport undertaking is required by
article 10 of the Community Drivers’ Hours Regulation to
ensure that data is downloaded from a driver card issued to
a driver.
(2) The
undertaking must ensure that all data is downloaded from the
card not later than the end of the download period.
(3) The download
period begins and ends as set out in the following table—
|
Case |
Download period begins |
Download period ends |
|
1. The undertaking has not previously
downloaded data from the card under this
section |
On the first day after the commencement
of this section on which—
(a) the driver drives for the
undertaking, and
(b) the undertaking is required by
article 10 to ensure that data is
downloaded from the card |
On the earlier of—
(a) the expiry of the period of 28 days
starting on the first day of the
download period;
(b) any downloading of the data before
the expiry of that period |
|
2. The undertaking has previously
downloaded data from the card under this
section |
On the first day on which the driver
drives for the undertaking after the
last downloading under this section |
(4) The
undertaking must ensure that the data is downloaded from the
card—
(a)
immediately before
the driver ceases to be employed by the undertaking as a
driver, or otherwise to carry out work for the undertaking
as a driver;
(b)
without delay upon
becoming aware that the card has been damaged or is
malfunctioning;
(c)
without delay in
any circumstances such that the imminent erasure of the
data, in the normal course of use of the card, is reasonably
foreseeable;
(d)
if it is not
possible to do so other than by means of a vehicle unit
installed in a vehicle, immediately before ceasing to
control the use of that vehicle.
(5) But
subsection (4)(b) does not apply if because of the damage to
the card or its malfunctioning it is impossible to download
the data.
Downloading
data: requirement imposed by an officer
97F.—(1) This
section applies where—
(a)
an officer has
reason to believe that an offence under this Part of this
Act or under the Traffic Acts has been committed in respect
of the use of a vehicle, and
(b)
article 10(5) of
the Community Drivers’ Hours Regulation applies to a
transport undertaking in respect of the vehicle unit in the
vehicle or a driver card issued to a person who has driven
the vehicle.
(2) The officer
may, on production if so required of his authority, require
the undertaking without delay—
(a)
to download data
from the vehicle unit or driver card;
(b)
to permit him to
inspect or copy the downloaded data.
(3) In this
section—
(a)
“download” is to
be construed in accordance with the definition of
“downloading” in Annex 1B to the Community Recording
Equipment Regulation;
(b)
“the Traffic Acts” has the meaning
given in section 192(1) of the Road Traffic Act 1988().
Downloading and
retaining data: offences
97G.—(1) A
transport undertaking commits an offence if, without
reasonable excuse, it fails to comply with section 97D or
97E, or with a requirement imposed under section 97F.
(2) A transport
undertaking commits an offence if, without reasonable
excuse, it fails to comply with any requirement imposed by
article 10 of the Community Drivers’ Hours Regulation in
respect of the retention of data downloaded in accordance
with section 97D to 97F.
(3) An offence
under this section is punishable on summary conviction with
a fine not exceeding level 5 on the standard scale.
Access to
downloaded data
97H.—(1) An
officer may, on production if so required of his authority,
require a person to make readily accessible to him, either
on or from premises occupied or controlled by the person in
question, that person’s retained data.
(2) Any person
who without reasonable excuse fails to comply with a
requirement under subsection (1) is liable on summary
conviction to a fine not exceeding level 5 on the standard
scale.
(3) For
the purposes of subsection (1), data is a person’s “retained
data” if he is required by article 10 of the Community
Drivers’ Hours Regulation to retain it for at least 12
months following its recording.”
Amendment of the
1968 Act: enforcement
3. After
section 102A of the 1968 Act()
insert—
“Partnerships
and other unincorporated associations
102B.—(1) Proceedings
for an offence under this Part of this Act alleged to have
been committed by a partnership must be brought in the name
of the partnership (and not in that of any of the partners).
(2) Proceedings
for an offence under this Part of this Act alleged to have
been committed by an unincorporated association (other than
a partnership) must be brought in the name of the
association (and not in that of any of its members).
(3) Rules of
court relating to the service of documents have effect as if
the partnership or association were a body corporate.
(4) In
proceedings for an offence under this Part of this Act
brought against a partnership or an unincorporated
association, the following provisions apply as they do in
relation to a body corporate—
(a)
section 33 of the Criminal Justice Act
1925()
and Schedule 3 to the Magistrates’ Courts Act 1980();
(b)
section 70 of the Criminal Procedure
(Scotland) Act 1995()
(5) A fine
imposed on a partnership on its conviction for an offence
under this Part of this Act must be paid out of the
partnership assets.
(6) A fine
imposed on an unincorporated association on its conviction
for an offence under this Part of this Act must be paid out
of the funds of the association.
(7) Subsections
(1) and (2) do not affect any liability of a partner,
officer or member under section 102C.
Offences
by bodies corporate
etc
102C.—(1) If an
offence under this Part of this Act committed by a body
corporate is proved—
(a)
to have been
committed with the consent or connivance of an officer of
the body, or
(b)
to be attributable
to any neglect on the part of an officer of the body,
he, as well as
the body corporate, is guilty of the offence.
(2) In
subsection (1) a reference to an officer of a body includes
a reference to—
(a)
a director,
manager or secretary;
(b)
a person
purporting to act as an officer of the body.
(3) If the
affairs of a body corporate are managed by its members,
subsection (1) applies in relation to the acts and defaults
of a member in connection with his functions of management
as if he were a director of the body.
(4) If an
offence under this Part of this Act committed by a
partnership is proved—
(a)
to have been
committed with the consent or connivance of a partner, or
(b)
to be attributable
to any neglect on the part of a partner,
he, as well as
the partnership, is guilty of the offence.
(5) In
subsection (4) a reference to a partner includes a reference
to a person purporting to act as a partner.
(6) If an
offence under this Part of this Act committed by an
unincorporated association (other than a partnership) is
proved—
(a)
to have been
committed with the consent or connivance of an officer of
the association, or
(b)
to be attributable
to any neglect on the part of an officer of the association,
he, as well as
the association, is guilty of the offence.
(7) In
subsection (6) a reference to an officer of an association
includes a reference to—
(a)
a member of its
governing body;
(b)
a person
purporting to act in the capacity of an officer of the
association.”
Amendment of the
1968 Act: miscellaneous
4. In the 1968
Act—
(a)
in section 96(),
after subsection (11C), insert—
“(11D) If
a driver who is subject to the orders of more than one
transport undertaking fails, without reasonable excuse, to
provide each of them with sufficient information to enable
them to avoid a contravention of Chapter 2 of the Community
Drivers’ Hours Regulation, he shall be liable on summary
conviction to a fine not exceeding level 4 on the standard
scale.”;
(b)
in section 97(6)
(installation and use of recording equipment), for “sections
97A and 97B” substitute “sections 97B to 97G”;
(c)
omit section 97A();
(d)
In section 103(1)(),
after the definition of “relevant Community provision”,
insert—
““transport
undertaking” has the meaning given in the Community Drivers’
Hours Regulation;”.
Signed
by authority of the Secretary of State for Transport
Jim
Fitzpatrick
Parliamentary Under Secretary of State,
Department for Transport
29th
January 2008
T