Just had this email. Don't accept roadside fixed penalties

ASK THE EXPERTS SAFETY, LAW AND WORKING TIME DIRECTIVE FORUM (INTE
1

Just had this sent via email. Please do not shoot the messenger.

Hi Phil ,
I hope you are keeping well and have plenty of work on at the moment.

One of the things that really gets a good debate going during our
driver cpc training is the topic of roadside fines. Most drivers have
a story to tell about spot checks and either being fined or having a
lucky escape.

I just wanted to let you know that it is possible to challenge a
fixed penalty notice for vehicle defects and win. One of the most
common stories we hear is of a driver who has carried out defect
checks on the vehicle at the start of the shift, then during the
shift they have been pulled over for a roadside check where defects
were found. Now depending on the defect found, what normally happens
is the driver is given a fixed penalty and just accepts it. Unless
you feel you are in the wrong DON’T accept it, because unfortunately
if a fixed penalty is issued against a driver for an endorsable
construction and use offence and the driver hands over their licence
for endorsement then it is too late to fight it.

So how can you fight a fixed penalty?

First of all you need to understand a little bit about the
“Road Traffic Act 1988”. A driver can be prosecuted for an offence
relating to the condition of the vehicle. At the same time, the
employer can be prosecuted as a user of the vehicle under sections
40-42 of the Road Traffic Act.

NOTE: This means that if the operator is a partner or a sole trader
then a conviction will lead to the endorsement of the employers
drivers licence. An employer that has formed a limited company can
avoid this as the limited company is the operator and does not have
a driving licence to endorse.

So offences under 40A (Vehicle use in a dangerous condition) and
offences under 41A (Brakes, Steering and Tyre offences) are known as
endorsable offences and come with 3 penalty points.
Now even if the vehicle was defective endorsement points can be
avoided through a special provision found in section 48 of the “Road
Traffic Offenders Act 1988”

To do this the driver or the operator will need to challenge the
normal course of action by proving that they did not know and had no
cause to suspect that the use of the vehicle involved danger of
injury to any person. This is where a paper trail of drivers defect
reports will come in handy. As long as you can provide sufficient
evidence than the court is not permitted to endorse or disqualify.
In cases like this the court will normally impose an absolute
discharge which means that while an offence was technically committed
no penalty is imposed.

There are thousands of drivers and operators out there that have
unnecessary points on their licences. So if you feel you are in the
right then “STAND YOUR GROUND”.

2

I understand what you are saying but would a completed defect report count as evidence?
There is no real proof of a driver actually carrying out the checks apart from a completed piece of paper, in my experience the courts usually fall on the side of authority, if someone saw you doing the walkaround and checks then that would be a different matter.

3

brados:
I understand what you are saying but would a completed defect report count as evidence?
There is no real proof of a driver actually carrying out the checks apart from a completed piece of paper, in my experience the courts usually fall on the side of authority, if someone saw you doing the walkaround and checks then that would be a different matter.

A signed and dated daily walk round check sheet is a legal document and must be accepted as evidence unless there is evidence to prove that the check sheet was completed after the event. It would be up to the roadside official to ask to see this check sheet before trying to issue the penalty.

4

I agree it is but I reckon that the threat of a much harsher penalty if you lose in court would put a lot of drivers off.

5

brados:
I agree it is but I reckon that the threat of a much harsher penalty if you lose in court would put a lot of drivers off.

But if you are 100% legitimate in your case why would you not contest it? I certainly would.

6

As my living is dependent on a driving licence I don’t know if I would, at best the courts are hit and miss but when the VOSA mechanic stands there and says that the fault should have been picked up on a daily check despite whether it was there when you checked you are screwed.

7

I agree that you should feel free to contest a fixed penalty by use of your daily check sheet and can see that it is a legal document, however, many years ago my mates brakes failed in his truck. He avoided a head on collision by inches instead just clipped the back corner of a trailer and ditched his truck. He wasn’t hurt much, told the attending copper about the brake failure which then means that unless they can prove there was no brake failure, the driver is in the clear. Next up, he’s invited to court, no mention of mechanical defect, load of lies and crap from copper who’s then reminded by every witness that at the time he knew it was mechanical defect. Copper then remembers, apologises to the court for wasting their time. Judge retires for a while, comes out and still fines my mate and gives him 6 points. Even the copper was dumbfounded and had already said there was no case to answer as he had failed to get the truck checked over.
So although, as you say, it should work, never under-estimate the stupidity of the UK legal (and I use that word with a certain irony) system.