Fixed Penalties in the Goods and Passenger Sector; here we go (yet) again!

The Government wishes to amend the existing law to allow the police or DVSA to issue fixed penalty fee notices (or financial penalty deposits for drivers without satisfactory UK addresses) for drivers' hours offences (EU or domestic rules), that have not only taken place on the day of the vehicle stop but in the previous 28 days (a similar plan is intended where the new Road User Levy has not been paid, not just for the day of the vehicle stop but for road usage on preceding days).

Currently, fixed penalties can only be imposed when it is believed that an offence is being or has been "committed on that occasion" - by this it is meant that the offence is being committed at the time the stop-check is taking place (e.g. a break has not been taken that day or the driver has not had sufficient rest to be driving that day) - but not for offences which took place, say, some days earlier. However, some police forces ignore this and do in fact impose penalties for historic offences.

One target of this initiative is foreign drivers, who, like domestic drivers, cannot be pursued for 'historic' offences unless they are prosecuted. Although they may pay a financial deposit against any fine later imposed, this is seen as cumbersome and impractical. On the face of it, the rationale behind this might be entirely reasonable; after all, UK drivers driving in EU member state face penalties for historical offences so why should non-UK drivers not face the same here?

What may at first sight indeed be attractive is not necessarily good for the justice system in the wider sense. The reality is that UK drivers (and indirectly UK operators) will be affected by this change significantly. It has to be looked at in the context of ongoing major concerns about access to justice for operators and drivers which already exist. The increasing use of fixed penalty schemes (which arguably incentivise passive acceptance of guilt by drivers regardless of the merits of the case) is occurring at the same time as:

  • removal of rights of defendants to recoup defence costs if they win their case (the so-called 'tax on innocence') in force since October 2012
  • the shrinking availability of legal aid in criminal proceedings
  • planned increases in Magistrates Court's powers to fine.

The blunt reality is that if a driver has a legitimate reason to contest a fixed penalty the courtroom option is as a good as financially impossible. The pragmatic alternative is to pay the penalty for an offence of which the driver may be entirely innocent, but cannot afford to risk contesting, even if unrepresented. Even if a represented driver wins his or her case, the revised defence costs rules means that they can recover either nothing or almost no defence cost. So much for a level playing field and equal access to justice.

It is of course said that fixed penalties can be reviewed by DVSA (they can be and the appeal success rate is negligible) or police (who rarely show interest and simply direct drivers to opt to contest the penalty in court). It is right with little weight.

Another fear is that the increasing of fixed penalties is not good for the justice system in the long term as enforcement agencies become accustomed to any real challenge to their large-scale issue of penalties. A lack of drivers contesting penalties reinforces entrenched, but incorrect, interpretation of the law and arguably leads to sloppy enforcement, without real checks and balances.

In its Consultation, the Department for Transport states 'Enforcement currently necessitates prosecution related to offences in court – which is administratively costly and cumbersome...and for what is often a relatively minor offence.' It appears very clear that cost-cutting is a motive for the scheme but is it really the case that offences covered by the graduated fixed penalty scheme are all minor offences, as is suggested, such that they should be consigned to the fixed penalty system in this way? They are all mandatorily notifiable by operators to Traffic Commissioners; those operators may face public inquiry hearings. Drivers may face driver conduct hearings based on the fixed penalties. This is not trivial.

One overarching concern is the increasing use and application of fixed penalties for offences which are more complex and involve subjective assessment of evidence by police or DVSA examiners, e.g. the recent introduction of fixed penalties for careless driving offences for incidents witnessed by police officers. It is one thing to have fixed penalties where speed cameras are used – it is quite another thing to deploy fixed penalties where the law is more involved. EU and domestic driver's rules are complex. There are many exemptions or derogations. There can be frequent dispute as to interpretation of driver's hours' rules in individual cases – how should x or y be calculated etc? Are these really matters that should be dealt with by, in effect, roadside courtrooms, which seems to be the ever growing reality? Sure, there are great benefits brought by fixed penalties for the right type of offence (high conviction rate, easy fine collection, etc) but only for those suited to such a scheme.

The provisions envisaged by the Consultation will undoubtedly be brought into force in some form or other – that is the way of consultations.

But where will the onward march of fixed penalty schemes end therafter?

The consultation closes on 11th August 2014 and can be found at: https://www.gov.uk/government/consultations/drivers-hours-and-hgv-levy-historical-offences

Tim Ridyard is a Partner and Head of Crime & Regulatory Law at Woodfines Solicitors.

To discuss the above, or for advice, please get in touch on 01223 411421 or email tridyard@woodfines.co.uk

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