Roadside Graduated Fixed Penalties and Deposits

ROADSIDE GRADUATED FIXED PENALTIES AND DEPOSITS

by Tim Ridyard, partner and road transport solicitor at Ipswich-based Barker Gotelee Solicitors.

The Department for Transport is consulting on implementation of roadside deposits and fixed penalties. The consultation started on 7 June and closes on 30 August 2007. There is a clear intent in the consultation documentation that these proposals should be implemented soon and if implemented would lead to:

- VOSA issuing fixed penalties (currently only the police can do this)

- VOSA being given the power to endorse driving licences

- Fixed penalties being graduated or banded as to seriousness of offence.

- Drivers without satisfactory UK addresses being made to pay roadside deposits greater set a level higher than the highest fixed penalty.

Drivers, and indeed operators would still face court proceedings according to the discretion of the police and VOSA. VOSA would not be able to endorse licences or impose penalties for certain offences e.g. speeding - their remit would be confined to overloading, drivers hours/tachograph records, roadworthiness, driver licensing, community authorisations and vehicle excise duty.

Importantly, fixed penalties are not criminal offences even though the offences they cover could be regarded as criminal offences if prosecuted in the Magistrates/Crown Court. This may seem attractive to would-be offenders but although they do not constitute criminal convictions they will be disclosable to the Traffic Commissioner for notifiable offences under new provisions enacted in December 2006 in the Road Safety Act 2006.

Fixed penalties would be banded:

0 - a warning,
Band 1 - £30 fixed penalty
Band 2 - £60 fixed penalty
Band 3 - £120 fixed penalty
Band 4 - £200 fixed penalty.

The suggested minimum roadside deposit is £300 with a maximum £900 for three or more offences.

It is proposed that vehicles be prohibited from moving if no deposit can be paid for those drivers without a satisfactory UK address. Drivers being issued with fixed penalties i.e. UK based drivers, would normally have been able to prove their identity e.g. through their driver's licence etc.

It is also intended that certain offences e.g. drivers hours offences will be banded as to the appropriate fixed penalty with reference to the amount by which the law is contravened e.g. 4 ½ hour rule (45 minutes break) - the greater the lack of proper break, the higher the fixed penalty band.

There are some clear issues which arise out of this although one positive for drivers who have clearly committed an offence is that they may well receive a penalty less than any fine imposed in the court and not have to pay court costs either - penalties on the Magistrates Court for road transport offences are inconsistent and erratic and these proposals might be helpful in that regard.

Further guidance notes will be posted in due course.

by Tim Ridyard of Barker Gotelee Solicitors

VOSA wish to inspect my vehicles and maintenance records. How should I prepare for this?

Current legislation permits an Inspector from VOSA to visit your premises at anytime and demand sight of vehicles and maintenance records. On occasions your local Vehicle Examiner may give you advance notice of the intended visit, which will allow you time to prepare.

Usually you will be asked to provide a sample of your vehicles for inspections as well as 15 months service and daily defect records.

How should I prepare ?

1. Have a full preventative inspection carried out on the vehicles to avoid any defects being detected which may result in a prohibition at the inspection. The VOSA Inspector may comment on the fact that the vehicles have clearly been "prepared for inspection" as opposed to being presented in their true state, but it is far better to avoid the possibility of prohibitions being attracted
2. Where possible offer your newest vehicles for inspection unless the Inspector specifically asks for your older ones
3. Clean and wash down the vehicles.
4. Scrutinise your maintenance records to ensure they are all in order. Many Operators instruct an outside third party with an expertise in Operator Licensing to carry this out
5. Ensure you have a 15 month run of service sheets, presented well in individual files for each vehicle. Where service sheets are missing see if your garage retained copies and insert copies or at the very least insert an invoice from the garage to show the service was done. Missing sheets can lead to VOSA assuming that the vehicle has not been serviced
6. Ensure you have a forward planning chart in place setting out at least the next service dates as well as mot and calibration dates (ie: other key maintenance dates)
7. Ensure you have a 15 month run of daily defect sheets (one for each day of operation), presented well in individual files for each vehicle
8. Ensure that your defect sheets have a section for " rectification of defects" which should always be signed off following repair. If not order new books.
9. Remember that omissions on service sheets and defects sheets such as no signature, tyre treads or brake tests not recorded are not items which you can go back and fill in at this stage. These are contemporaneous documents and you should always check these immediately after the event (ie after the service) and deal with any omissions at that time.
10. Ensure that all the records are readily available at the time of the Inspection and can be easily found in the Transport Office by the VOSA Inspector
11. Ensure that your transport manager or the individual who deals with the maintenance systems is present at the VOSA inspection
12. Be cooperative

The Inspection will be marked "UNSATISFACTORY" if defects are found on the vehicles or gaps in the service and defect reporting history are reported. These will be viewed as a potential breach of the Operator Licence to keep the vehicles fit and serviceable, to maintain them at specified intervals and to ensure there is s system for daily detection of defects. This finding will be reported to the Traffic Commissioner for disciplinary action quite often at a Public Inquiry.

Practical advice on managing your Operator Licence is provided by Elizabeth Caple, Transport Law Solicitor. elizabeth.caple@blueyonder.co.uk
0117 9075699 0781 441 4374