Recent problems at Calais, where there has been a significant escalation in attempts to enter the UK clandestinely, primarily on lorries, have brought into sharp focus the real and potentially very financially damaging difficulties facing operators, vehicle owners and drivers. Road transport lawyer Tim Ridyard provides insights.
We regularly assist our clients in this area and if you are affected by this you should not hesitate to speak to us. Often we help out our clients by appealing against penalties that are imposed but we can also help by advising what systems and documentation you should have in place to prevent penalties being imposed.
The civil penalty scheme
Today most stowaway cases are dealt with under the civil penalty scheme, although criminal offences do remain in force for use in more serious cases. Typically one or more stowaways or ‘clandestine entrants’ will be found concealed on a UK-bound vehicle. The driver, operator and owner of the vehicle in question are all liable for the imposition of a civil financial penalty in respect of each person discovered within the vehicle who does not have the right to enter the UK.
How easy is it to prevent penalties being imposed?
This is to all intents and purposes a scheme hard to defend against. There has to be not only a lack of knowledge of concealment in the vehicle but also in place an effective system for preventing the carrying of clandestine entrants that was operating correctly. If there are even the smallest shortcomings, civil penalties are imposed. Criticism of the system is that in essence road transport operators and indeed private individuals are scapegoats for the State’s failings in border enforcement policy and security arrangements.
Where stowaways are found to have been concealed in a vehicle, civil penalties are issued normally by post. These will have been fixed having regard to the initial investigation of the circumstances of the event and will be served on the driver/owner/operator. These can be very significant indeed, not least if a number of stowaways have been found – the basic fine will be multiplied by the number discovered. The maximum penalty per person is £2,000.
We have an excellent track record in appealing (and reducing) fines
There is an appeal process to seek to reduce the size of these penalties and our experience is that we have been able to have these reduced in almost every case on which we have advised. Important information is often never given to the investigating officers when the incident is first investigated and sufficient financial information relating to the driver is almost never provided. This is very important because a driver’s means must be taken into account following the case of Turton & Loane Transport some years ago.
Any administrative appeal against the original penalties must be lodged within the time limit provided. Payment of the penalties is then suspended until the outcome. If the driver, operator or owner is still dissatisfied with the level of penalty, it is possible to lodge an appeal in the County Court. However, at this stage there is risk because you may have to pay the other side’s costs if the appeal fails. It may nevertheless be possible to negotiate a reduction of the original penalties imposed if this appeal is withdrawn.
Ensure your anti-stowaway measures are robust
It is very important indeed that both goods and passenger operators and drivers have extremely robust checking procedures in place for international operations to avoid getting into difficulties. The amount of civil penalties imposed is based on the robustness of the anti-stowaway measures. Part of this is the need for clear documentary evidence of these systems. Even first-time ‘offenders’ face significant penalties, regardless of how fair or unfair the system may be felt to be.