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the Ahaulier's nightmare: police are waiting at the depot gates, have "reason to believe offences have been committed", and are demanding to see company records. Before long constables are walking out with bin hags of tacho charts. It's a scene that any haulier can experience, no matter how reputable and well-run the business is. Some have complained that rough justice has left them frustrated and hadly out of pocket (see opposite).
Most lawyers specialising in transport law agree that heavy-handed police investigations can be a problem. But even where hauliers can show business was lost and contracts cancelled as a result of a highprofile police investigation that fizzled out, they have little prospect of compensation. The investigation would have to be deemed vexatious or malicious a verdict the courts are reluctant to hand down. And the cost of such an action, likely to be resisted vigorously, would be prohibitive.
The police must be free to uphold the law; it is in the interest of reputable hauliers that the cowboys are driven out of business. But defence lawyers argue that fundamental flaws in the law enforcement system are frustrating justice. They point a finger not just at heavy-handed police investigation, but clumsy prosecution as well.
Image problem
The industry has an image problem, says transport lawyer Jonathan Lawton: "Haulage is undoubtedly perceived as being undesirable." Hauliers often feel they have been targeted without knowing why, he says. For example: "Police seem to believe all Irish hauliers are cowboys." The reasons can be more parochial. Lawton cites the case of a "beautiful little haulage business" which ended after the Yorkshire haulier refused to pay tax in protest at frequent checks by vehicles examiners. It transpired that his depot was just within range of local inspectors' mileage allowance.
Chris Over of the Exeter-based firm Over, Taylor, Higgs claims haulier prejudice is common among police: "You're an owneroperator, you must be guilty," is often the attitude, he says.
This attitude can harden when police are acting on a tip-off, sometimes 'for more serious crimes. "You often get massive prosecutions (for drivers' hours offences) as a result of a different investigation," says Stephen Kirkbright of Leeds law firm Ford and Warren. This may be done partly to justify the expenditure of police time. • All the lawyers argue hauliers should know their rights and—understandablyseek expert advice. This would counter some police heavy.handedness. Police officers can inspect and copy tachographs but are only entitled to take records away if they believe they have been falsified and are intended to deceive, says Lawton. Once they have possession, however, the law allows no real complaint. "They rely on their blue uniform and silver buttons," he says. "Police would find it extremely frustrating if knowledge of the law were generally available."
Absolute offences
Another misunderstanding concerns drivers hours offences which are "absolute"—with little defence—for the driver but not for the haulage company. "You'd be horrified how many people plead guilty because they think they're absolute offences," says Kirkbright. "That's why the police prosecute."
Chris Over advises that both manager and driver should exercise their right to silence, which may soon be removed by threatened legislation. "If that happens, it is going to substantially affect hauliers facing charges," he warns.
If adverse publicity is bad for the haulier, involving a haulier's customers in an investigation can be very dangerous for the police, says Lawton. They can only make gentle inquiries, and risk defamation of the haulage company by saying they are investigating tachograph or potentially serious charges against it. In one case an officer was substantially disciplined, says Lawton In another, Chris Over says a quick intervention by the solicitors stopped the police telling customers a haulier had been put out of business by a dawn raid on tachograph records.
Delays in bringing action are also criticised. Over says a haulier in the South
west has not been interviewed almost a year after a well-publicised dawn raid and tachograph seizure. Drivers were interviewed but no charges have so far been brought; minor offences are out of time after six months. "It's an abysmal state of affairs—this poor company is faced with all the adverse local reaction but without the opportunity to clear themselves or even find out," says Over.
Police spokesmen say aggrieved hauliers can seek redress via the police complaints procedure. "The law relating to drivers hours is complicated," a Cheshire Inspector concedes, but it is designed to promote road safety. "It's our job to ensure that it is enforced." He also stresses that the investigating officer's case is vetted by other officers before any prosecution, as well as by the Crown Prosecution Service.
But the biggest problem is in the process of prosecution, say the lawyers. The police and the Crown Prosecution Service come in for strong criticism. The transport field is seen as the poor relation of other branches of the criminal law, yet it is very complicated. According to these specialists, most officers do not understand the law. Police tend to prosecute haulage companies for drivers' hours offences, assuming they are absolute, says Kirkbright. "In a high proportion of cases the prosecution have no evidence at all but they drag companies before the courts."
Lawton maintains that the CPS, with some notable exceptions, lacks transport experts. Unsupervised, police officers investigate "and misdirect themselves". Also, CPS solicitors lack authority—the final decision rests with the police. "It's just sheer bloody incompetence", which results in prosecutions that are time-consuming and costly to the haulier. He adds that the system's failings also allow hauliers guilty of major tacho offences "including falsification and possible conspiracy", to get off.
The CPS rejects these criticisms. Where a defendant fights the charge, the CPS reviews the case to see if there is both a realistic prospect of conviction and it is in the public interest. "Quite often they are discontinued at this stage because they are police-initiated prosecutions," says a spokeswoman. And she dismisses Lawton's opinion that the CPS sometimes offloads unwanted prosecutions on agency solicitors. "That's stuff and rot." Prosecutors can draw on the expertise of inhouse specialists, she insists.
Industry knowledge
Blackburn-based lawyer John Backhouse also argues that the resources of police and CPS are being wasted. The Vehicle Inspectorate has the necessary expertise and industry knowledge, and should be left to do the job for which it was founded. Involving the police is duplication: triplication if you count council Trading Standards officers, he adds. Traffic Commissioners have the power to discipline hauliers outside the criminal justice system, so offences "would be dealt with much more quickly".
They also use discretion, Backhouse says. An experienced Traffic Commissioner knows that a tachograph offence rate of less than 5% indicates a well-run haulier, according to Kirkbright. "You'll always get drivers making mistakes or taking chances."
Though police sometimes bring in the ministry staff to use their powers to seize tacho records, they don't often hand over responsibility. The police argue that the inspectorate is under-staffed and underfunded. Even their lawyer critics would agree on that. With little prospect of beneficial reform in the legal system, hauliers' best hope of better enforcement is that the inspectorate is given the resources to do the job. The likely catch, however, is that hauliers would have to pay through their 0licences for a self-financing Vehicle Inspectorate.
CI by Eugene Silke