Drivers’ hours: Sharp increase in roadside fines to come into force

Two changes relating to fixed penalty offers issued by DVSA and police for tachograph and drivers’ hours offences are soon to be made.

1. The maximum number of different offences for which fixed penalties can be offered on one occasion will rise from 3 to 5.
2. The offences for which penalties can be issued will include “historical” offences.

The commencement date for these changes has not been finalised.

Fixed penalty amounts

The intended increase from 3 to 5 fixed penalty offers issued at each roadside enforcement stop will mean a theoretical maximum of £1,500 payable by a driver (5 x £300 maximum penalty). This equates to the net income of a driver for a number of weeks. In that sense very considerably greater power will become available to the police and to DVSA.

‘Historical’ Offences

Currently drivers’ hours fixed penalty offers can only be issued following a roadside stop for offences committed “on that occasion”. In reality this means offences that have been committed that day, e.g. offences relating to breaks, excess driving or having insufficient rest.

In future it will be possible to issue fixed penalties not only for offences committed “on that occasion” but those occurring within the preceding 28 days. Currently such offences cannot be the subject of a fixed penalty so have to be ignored unless the decision is made to prosecute and/ or report matter to the Traffic Commissioner. In reality some police officers have been issuing fixed penalties for historical offences since the road transport fixed penalty scheme started – but in fact there is no power to do so.

The impact of the change will mean the potential for more and greater penalties against commercial drivers all of which will have to reported by their operator employers to the Traffic Commissioner, as now.

Does the fixed penalty system work?

The ever-increasing use of fixed penalty offers to private motorists and commercial drivers seems set to continue. The system is a simple way of dealing with large numbers of offenders without the need for prosecution, diverting them from the Court system and reducing large overheads and court time. Offenders do not need to pay prosecution costs and there is a fixed penalty sum set at a level invariably less than the fine that would be imposed in the Magistrates’ Court. It is not means tested.

The fixed penalty system is able to deal with large volumes of simple offences such as speeding but is it fit for purpose for more complex areas of law such as these of tachographs and drivers’ hours offences? There are countless exemptions from the requirement to use tachographs and often it is debatable whether an offence has or has not taken place. We know that there can be software errors or genuine mistakes in interpreting tachograph data.

Where a driver encounters the police or DVSA at the roadside there may be a fatalistic resignation that if he or she is told the offence has been committed then this must definitely be the case. However, it is vital for drivers and operators to check very carefully whether offences have in fact been carried out by conducting a thorough analysis after the issue of any fixed penalty offer. No offence should be assumed to have been committed unless the evidence of this is clear. Where there is a dispute as to whether tachographs are required or whether drivers’ hours offences have been committed drivers must ask DVSA to review this under their set procedure. Police forces are less likely to engage in this review process and drivers are normally left with a choice of paying the penalty or contesting the matter in court.

A major flaw in the fixed penalty system is that where a driver wishes to contest any case this can only be done in the Magistrates’ Court, unless DVSA withdraws the penalty offer having reviewed it. The risk there is a financial one: if the case is lost the fine will most likely be greater than the amount of the fixed penalty offer and the driver will have to pay prosecution costs. Even if the driver wins the case he or she will recoup none or almost none of their own defence costs because of criminal court costs rules. In this sense the fixed penalty system does not provide a cheap route to establishing innocence to those drivers who have a legitimate defence to argue. It is arguably not truly an even playing field.

When graduated fixed penalties were introduced for drivers’ hours and other offences some years ago the notion was that operators would not be prosecuted for the same offences and would instead be referred to the Traffic Commissioner for follow-up action. It is unclear to what extent this has in fact occurred but drivers incurring more and larger penalties under the new regime might conceivably increase the likelihood of follow-up action to some extent. So, both goods and passenger operators need to be alert to the forthcoming changes.

We will inform you of the commencement date of the changes set out above.

For further information or discussion about this or other related issues,  please contact Tim Ridyard in Ashtons Road Transport and Regulatory team.