Sentencing heavy goods vehicle drivers where roadside deposits have been taken
Blake Morgan's Driver Defence team is the leading team of specialist road traffic lawyers in the South of England. We have been recognised by legal directory Chambers and Partners: A Client's Guide to the Legal Profession 2017 as a Band 1 firm in this field. Our team of specialist lawyers travel all the country to help motorists facing a driving ban or having penalty points put on their licence. Our work has taken us to Magistrates and Crown Courts all over the country. Many of our cases have reached the Higher Courts.
O and P consulted Blake Morgan’s Driver Defence team as they were each facing prosecution by Kent Police for driving an articulated goods vehicle and failing to take a reduced daily rest period of at least nine consecutive hours and for using the vehicle whilst failing to use a driver card.
Although these offences were detected by the police in Kent the offences were actually committed a fortnight earlier on a journey in Germany. O and P were Bulgarian nationals and the vehicle that they were driving was a Bulgarian registered vehicle. At the time of the check the Kent Police officer decided that these were matters not suitable to be dealt with by way of fixed penalties and roadside deposits totalling £2,000 were taken by the officer (£500 for each offence, £1,000 for each driver). At the time of the offences O and P were both using the articulated goods vehicle together on a double manned journey.
The offences were dealt with on a guilty plea basis before Canterbury Magistrates' Court. The maximum sentence for the rest offences is a fine of £2,500 on each count and an unlimited fine on the driver card offences. The Magistrates' Court Sentencing Guidelines give very little guidance with regard to sentencing these types of offence. What little guidance that is given would appear to suggest that the starting point on each count should be a fine in keeping with the driver's means equivalent to one week’s net income after deduction of income tax and national insurance.
How our Driver Defence solicitors helped
Barry Culshaw, a consultant and specialist with regard to drivers' hours and records within the Driver Defence team represented the two drivers at the sentencing hearing and urged the three sentencing justices to deal with each driver in accordance with the Sentencing Guidelines. Barry submitted that it was irrelevant that the deposits had been paid by the operator. The operator was not before the court. The sentencing exercise involved the drivers alone whom it seemed had unblemished records, had cooperated at the roadside and had pleaded guilty at the earliest opportunity. Furthermore, despite analysis of a month’s records it appeared that the offences that came to light were of an isolated nature. Both drivers had completed statements of means forms which showed them to have very limited incomes when compared with UK HGV drivers. The Sentencing Guidelines were clear that fines should be based on the drivers’ incomes and not on the operator’s income as the operator was not before the court.
The court legal adviser addressed the three justices on sentencing along the following lines. In previous cases of this nature the court had tended to have regard to the amount of the roadside deposits taken. The legal adviser advised against imposing sentences in excess of the deposits taken as enforcement of the excess in practical terms would be very difficult. If the court wished to impose sentences in line with the deposits taken then this could be achieved in relation to each driver by imposing a fine on one count of £500, £50 victim surcharge, a fine of £365 on the second count and £85 contribution to prosecution costs – total £1,000 for each driver. However, the court legal adviser emphasised that Barry had advanced mitigation on behalf of each driver and the court in its discretion should give such consideration to that mitigation as was considered just and reasonable in all the circumstances.
The court decided to impose the following sentence. Each driver had to pay a fine of £50 on each count with £85 costs and £20 victim surcharge making a total of £205 for each driver. This meant that each driver was due a refund of the roadside deposit of £795.
A similar sentencing exercise arose shortly thereafter when Blake Morgan’s Driver Defence team were consulted by A who was also a Bulgarian national and at the material time on a double manned journey driving a Bulgarian registered articulated goods vehicle. When checked by an officer of Kent Police it came to light that the previous day in the Netherlands A had driven the goods vehicle on three occasions over less than half an hour travelling some three kilometres without using a driver’s card. The Kent Police officer again decided that the matter should be dealt with by way of court proceedings rather than a fixed penalty and took from the driver roadside deposits totalling £1,500 (£500 for each offence).
A’s case came for sentencing on this occasion before Margate Magistrates' Court. Again Barry represented the driver. The prosecutor acceded to Barry’s representations that A should face only one count of failing to use a driver’s card and not three separate counts. One substantive count was therefore placed before the court alleging use of the vehicle without a driver’s card and the three original counts were dismissed. A guilty plea was tendered to the one count. The court again comprised three justices who had to approach the same sentencing issues that their colleagues had done a short time earlier at Canterbury Magistrates' Court. Indeed, Barry drew the court’s attention to the manner in which Canterbury Magistrates' Court had dealt with the two other drivers in very similar circumstances.
The mitigation advanced by Barry on A’s behalf followed very similar lines to the mitigation that had been placed before the Canterbury justices. The Margate justices decided to follow the same approach in sentencing as that adopted by the Canterbury justices, namely, a fine of £220 was imposed, victim surcharge of £30 making a total of £250. Indeed, in exercising discretion the justices decided not to order A to make any contribution to prosecution costs meaning that A was due a refund of the roadside deposits totalling £1,250.
The reader of this article may be surprised at the fact that courts in the UK are dealing with sentencing issues relating to drivers' hours and records offences committed elsewhere in the European Union. UK courts have jurisdiction to deal with this type of case pursuant to section 103(7)(a) of the Transport Act 1988 which makes it clear that for the purpose of conferring jurisdiction such offences may be treated as having been committed at the place where a Defendant was driving when evidence of the offence first came to the attention of the police.
In both of the above mentioned cases the Kent Police officer obviously considered that the offences were sufficiently serious to warrant a court hearing otherwise a fixed penalty could have been imposed at the roadside. Where an officer deems that the matter should proceed to a court hearing and the driver is unable to provide a verifiable UK address then a roadside deposit is required immediately from the offender pending service of a summons or postal requisition initiating the court proceedings. The deposit is a set figure of £500 per offence up to a maximum of £1,500 per driver. If a driver cannot or refuses to pay the deposit the vehicle will then be prohibited for non-payment and will not be able to continue on its journey. The vehicle may also be immobilised until payment has been received or the case has been disposed of by the court.
What the above mentioned cases do demonstrate is that despite such deposits normally being paid by the operator when sentencing the drivers the court should have regard to the Magistrates Court Sentencing Guidelines and, in particular, to the means of the driver as a starting point. Effectively, the quantum of the roadside deposits should be irrelevant to the sentencing exercise.
Barry Culshaw also specialises in the field of legislation concerning commercial goods vehicles and passenger carrying vehicles. He has extensive experience in representing clients facing alleged contravention of drivers' hours and drivers' records legislation. Barry also represents operators and drivers facing proceedings before the Traffic Commissioner.
For more information visit our Driver Defence page.