John Heaton of Backhouse Jones Solicitors looks at the startling changes in the guidelines from DVSA that seem to have been introduced ‘under the radar’.
As before, the Guide says “that it is for general guidance only … the guidance reflects DVSA’s current enforcement policy”. At this point, the Guide used to concede that “it should not be regarded as a complete or authoritative statement of the law”. The Guide no longer states this – why not, I wonder?
Overview – driving ‘out of scope’ of EC Rules
The Guide says: “It is not necessary for a vehicle to be laden for it to be in scope of the EC/AETR rules. Vehicle operations that take place off the public road or vehicles that are never used to carry goods on a public road are out of scope."
“Additionally, drivers who are employed to drive vehicles which would normally be in scope of EU/AETR rules but who never carry goods or passengers in the course of that employment, are not considered to be in scope of the regulations. For example, this covers operations such as:
1. Driving of hire vehicles for the purpose of delivery or collection;
2. Empty vehicles being driven to or from annual test or a place of repair;
3. Driving a vehicle for the purpose of moving it between depots;
4. Driving a new/demonstrator vehicle for the purpose of collection or delivery;
5. Vehicles being driven to be scrapped."
A ‘driver’ is anyone who drives a vehicle or is carried on the vehicle in order to be available for driving.
By way of comment it has to be borne in mind that EC legislation has to be interpreted in a purposive way. The regulations acknowledge that there have been difficulties in interpreting, applying, enforcing and monitoring certain aspects of the previous Regulation and it sought to clarify and simplify the rules.
The new Guide reflects the UK attempt to interpret the rules and does so by setting out a list of circumstances when operations would be regarded as out of scope. These operations are then defined by reference to:
1. The purpose of the journey;
2. The journey being driven by employed drivers who never carry goods or passengers in the course of that employment.
This interpretation is in no way supported by either the letter or the spirit of the Regulations. Firstly, the DVSA interpretation seems to apply to employed drivers and not self-employed drivers. Secondly, the definitions of ‘carriage by road’ and of ‘vehicle’ and of ‘driver’ seem to make in scope, in summary, the driving even for a short period of a vehicle which is normally used for carrying goods, whether the vehicle is laden or not. Thirdly, the DVSA interpretation anticipates that goods and passenger operators have available to them a cohort of drivers who never drive operationally, i.e. carrying goods or passengers, but on hand to drive just for the limited purposes in the ‘out of scope’ lists stated. This is not realistic so the DVSA interpretation may prove to be of limited use to operators.
Multi-manning and daily rest
The Guide correctly states that as long as the multi-manning preconditions are complied with, each driver must have a daily rest of at least nine consecutive hours. However, they may do so within a 30-hour period that starts at the end of the last daily or weekly rest period, rather than the normal 24-hour period. So far so good; however, the Guide continues by stating that the 9-hour rest period “cannot be counted as a regular daily rest as it is of less than 11 hours duration. These rest periods therefore count towards the limit of three reduced rest periods between any two consecutive weekly rest periods". This is a new interpretation. What is unattractive is the fact that the interpretation has come in under the radar, apparently without full consultation and certainly without adequate publicity. It is hardly the approach to be taken in respect of a road safety provision.
Perhaps what needs to be emphasised is the Guide’s observation that “this concession only allows for drivers to reach a suitable stopping place, not necessarily to complete their planned journey”. As soon as a suitable stopping place is reached the driver must stop and belatedly take the break or rest which he was due to take. This applies even if the taking of the rest of break means that the planned delivery cannot be made.
Analysis of Digital Tachographs
The Guide says “make regular checks of charts and digital data to ensure compliance”. However, this advice is not really advice at all – it simply repeats the language of the legislation. The advice sets no standards for these regular checks. It gives no explanation as to what checks DVSA expect to be done. Particularly, it gives no guidance on the vital missing mileage check/unknown driver reports. In a recent high profile Public Inquiry, the DVSA, the operator and the Traffic Commissioner agreed that reliance on driver card data alone without comparing it with the data from the Vehicle Unit was endemic within the industry.
What is reasonable and sufficient for legal compliance is likely to be infinitely variable depending on the type of operation and the risk of offences in that operation. This risk needs to be assessed by particular reference to the past infringement levels (if any) of the operation generally, and in particular the infringement levels for particular drivers following previous analysis. It is puzzling as to why the DVSA are not prepared to set standards or parameters for what might amount to ‘regular checks’. Presumably, they are of the view that it is better to give no guidance at all than to try and give prescriptive guidance on a one-size-fits-all basis.
There would seem no reason why the DVSA cannot set out factors and criteria which might effect a tachograph analysis regime and how the incidents and type of checking might vary
from operation to operation. The Guide however fails to give any such prescriptive guidance. As long as it does so it will be hard for DVSA to claim, either in the criminal courts or before the Traffic Commissioner, that the operator is failing to achieve set standards because DVSA fights shy of setting what the standards should be.
John Heaton is a solicitor at Backhouse Jones who qualified in 1981. John specialises in road transport law (both prosecuting and defending), Magistrates Court and Crown Court advocacy and regulatory work before the Traffic Commissioners. John writes articles and publications in legal journals and textbooks on road transport and criminal law, he also gives lectures and seminars in these areas. His particular interest is in jurisdiction issues and developments in the law on strict liability.