Drivers’ hours: ‘historical’ offence penalties from 5 March 2018

Revised rules mean that police and DVSA examiners will be able to issue up to five fixed penalty offers to commercial drivers for drivers’ hours breaches that will now include ‘historical offences’ i.e. they will cover not only offences committed or being committed on the occasion of the roadside stop, but also earlier offences i.e. those committed within the 28-day period prior to the day of the stop.

When graduated fixed penalties were first introduced in May 2009, they did not include this new and wider power.

As long ago as June 2014, a consultation process started to review this. If fixed penalties are a suitable means of disposing of drivers’ hours offences – see below – there seems to be no good reason why they should be restricted to offences committed only on the occasion of the vehicle stop.

What offences are covered in this change?

The Community Drivers’ Hours Offences (Enforcement) Regulations 2018 relates to offences committed by UK and non-UK drivers relating to EU drivers’ hours rules, record keeping and failure to comply with any prohibition imposed for a drivers’ hours breach.

What will this mean in practical terms for operators and commercial drivers?

• drivers will in future face a much greater possible maximum penalty of £1500 (a maximum of five offences with a maximum of £300 per offence)
• operators must be alert to their drivers receiving more penalties than is currently the case
• as fixed penalties must be reported to the Traffic Commissioner, there may the increased risk of possible action against the operator’s licence by the regulator
• a driver will need a clear record of their movements over the preceding 28 days to be able to answer any allegations of offences having been committed.

What should drivers and operators do?

• fixed penalty offers are issued to drivers not operators; nothing has to be paid at the roadside (unless there is a requirement to pay a deposit normally issued to non-UK drivers without a satisfactory UK address)
• drivers should only pay a fixed penalty after checking the offence has in fact been committed – software analysis and other sources such as paperwork and tracking data should be used
• it should never be assumed that police / DVSA analysis must be correct – software can fail to ‘see’ what is in fact legal and different software can produce different outcomes
• if the offence has not been committed or there are extenuating circumstances it should be challenged by asking DVSA to review it. Operators should help their drivers to investigate this. An administrative review / appeal by DVSA should be sought promptly – police are normally disinclined to review penalties and instead invite drivers to challenge any case by declining the fixed offer that will then lead to a Magistrates’ Court case
• if a driver wishes to contest a penalty in court the fixed penalty must formally be declined but the driver should only proceed on this basis having carefully thought through the merits of the case and the risks
• operators must report the issue of fixed penalties to the Office of the Traffic Commissioner within 28 days – it may be wise to provide detailed explanations for offences not least where they may be minor or there are clear mitigating circumstances
• operators should use this development as a prompt to revisit and review their drivers’ hours systems generally
• drivers should consider that they may end up being summoned to a driver conduct hearing before a Traffic Commissioner relating to their vocational licence for these offences. Once a penalty has been paid it is deemed to have been ‘accepted’ i.e. guilt is admitted. Therefore, they must check they have committed the alleged offences as licence suspensions are issued for them at these hearings.

Do fixed penalties work?

Do they deter? Do they punish? Are they effective? It is hard to say.

There is debate as to whether they are being correctly targeted, whether they are becoming too widely used and there is some criticism of them simply being means of raising large amounts of revenue.

Fixed penalties have certain advantages: they are certain in that the penalty amounts are fixed and they are the same for all. They are good for simple ‘strict liability’ offences, such as speeding. They are easy and cheap to issue. The driver pays no court costs or victim surcharge and loses no time off work to attend court, if attendance is necessary. The average court fine for drivers’ hours offences is about £119, but in many cases may be far more. The highest fixed penalty is £300, but even if a low fine is imposed the addition of court costs and the mandatory victim surcharge may balance this out. It is another way of operators reinforcing the need for drivers to comply.

The disadvantages and criticisms of the fixed penalty system are that they may not always fit easily with the level playing field required in a properly functioning criminal justice system. Relatively low penalties can incentivise drivers to take a fatalistic view, paying the penalties even where they may be entirely innocent or at the very least have a respectable and arguable defence. Draconian rules for the recovery of costs in criminal proceedings mean that, to all intents and purposes, no or almost defence costs can be recovered by a driver when acquitted – even where the case against him or her was wrong or should never ever have been prosecuted. Instead, a driver must decline a fixed penalty offer and then be prepared to fund representation at court or defend themselves, win or lose. Does this sit comfortably?

Are fixed penalties a suitable method of addressing drivers’ hours offences?

This is questionable, at least in some cases. From an operator’s point of view it might be said they are an additional tool to encourage their drivers to comply.

However, fixed penalties may not lend themselves to more complex regulations and drivers’ hours offences are indeed part of a complex regulatory framework. They are quite unlike offences such as speeding or carrying excess weight. Many activities are exempt. There is divergence as to interpretation of the rules. What appears to be an offence may in fact be entirely legal – increasingly tachographs are digital and only by software analysis can an offence be identified – but different software can throw up conflicting outcomes. The roadside is not the place for lengthy legal debate and the danger is that drivers are issued with penalties on a ‘take it or leave it’ basis where there is an entirely legitimate point at stake. Few drivers will have the means to properly contest cases in court, instead taking the penalty ‘on the chin’ – potentially paying for offences that were never committed in a small proportion of cases.

When graduated fixed penalties were introduced for drivers’ hours and other commercial offences such as excess weight the intention was that operators would not be prosecuted, save in suitable cases, when previously this had been the case. Instead they were to be referred to the Traffic Commissioner through having to self-report the fixed penalties. The reality would appear to somewhat different in that this has in many or most cases simply led to operators avoiding sanction for deficient systems; in other words there is action against the driver alone whereas before both the driver and operator were punished through court fines.

Only over time will the impact of the broader power to issue penalties for drivers’ hours offences become clearer.

In the meantime, operators might act on this change in the law by considering and implementing the points set out above.