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Heavy duty
Page 34
Page 35
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A proper defence to an overloading charge can slash fines. Tim Ridyard, transport lawyer for Ipswich-based Barker Gotelee, reports.
prosecution for an overloading offence can have far reaching consequences.Not only might operators and drivers lose hard-earned money through having to pay fines and court costs, but such offences also have to be declared to the relevant Traffic Commissioner tinder the 0 licensing rules.
This is because operators are required to have "satisfactory arranaementsin place to avoid overloading and mi ist i indertake to do so as one of the so called 'seven promises' when applying for their 0 licenee.s,
Common cat ises of overloading are: • Failure by the driver to follow operator instructions and procedures • Inaccurate consignment weight information • Loads estimated by volume rather than weight (as can happen with house removals)
• Miscalculating the one tonne rule (see below)
• Inaccurate i ■r wrongly used on-hoard weighing equipment
• The driver's 12iwira nee of maximum permitted wil ghis Prosecutions are n.rollally hrougfit under Section 41 B of the R,lail.Fraffic Act 1988.which covers vehicles from 1 5 tonnes upwards. The maximum penalty is f 5 i 1( Vi• both the operator and driver concerne, I are ni ■riiriAlly prosecuted. However, this partici ilai iffenee does not attract penalty points, Potential defences Irwin, le • That the vehicle was proceeding to the nearest available weighbridu from where it was loaded to bc weigfierlor that it was proceeding r .roin A ,A.,!Ighhin,w.i o the nearest reasonably pra, .1 it ,,hle point to reduce its load, having ho'ii h in Ii be overweight • That the limit wa,. not evee_eded by more than 51Y0 di iruw I he originaf loading of the vehicle Enforcement a ge PIC;e...■ %41tCh as all' police. Vosa and Trading Si a nda rr Is are empowered to
order a driver to proceed to a nearby weighbridge. It is vital for any driver to explain to any enforcement officer that he or she is proceeding to the nearest weighbridge (assuming this is the case). Failing to mention this at the earliest possible stage might cause later problems in court.
The driver will be spoken to under caution and it is vital that any important facts are explained by the driver at this stage. It is usual for the operator to be interviewed at a later stage; alternatively a letter could be sent to the operator requiring confirmation that the vehicle was being used by that operator, and that the driver was employed by that operator.
A prosecution will not normally follow if an overload is within the 'one-tonne rule' eg the gross weight does not exceed 5% more than the maximum permitted weight, or one tonne. The danger is that drivers/operators might try to use this tolerance to their advantage assuming that a prosecution will not follow a miscalculation here can and sometimes does cause this to backfire.
Make a good impression
When a summons is received, the temptation is often to deal with the matter with a guilty plea by post. This is understandable as the operator and driver will want to minimise their legal costs, and avoid the time and trouble of a court appearance. But it can prove to be disastrous. There are real benefits to appearing at court in person, properly dressed and appearing responsible impression is all-important in a magistrate's court.
Magistrates often fail to understand the issues involved in overloading or indeed in road transport generally which is where legal representation can dramatically reduce the fines that could be imposed.
By way of example, the magistrates in one Fast Anglian court regularly impose fines in excess of £4,000, apparently regardless of the scale of the overload or the size of vehicle.
Fines imposed for overloading offences vary dramatically between courts and even between magistrates in the same court. Before Christmas 2005, a national operator with a multi-million-pound turnover was fined 1450 for a 35% overload on a 44-tonner; only days previously, a one-vehicle owner-driver in the same court area had been fined £4,000 for being 65kg above the one-tonne rule.
This owner-driver appealed to the Crown Court, where he was represented by the writer of this article: the fine was slashed to just £175. This graphically shows the danger of underestimating such prosecutions.
Magistrates will need to be provided with the proper mitigation in such cases. The following should he referred to, in order to persuade them to reduce the fine to the minimum possible:
• Lack of dangereven if the gross permitted weight has been exceeded, it might be helpful to show that the design weight of the vehicle and its components is such that the vehicle was physically capable of carrying the load safely
• Wear and tear on the highway if the overload is small, it might be possible to suggest that it had little impact on the fabric of the public highway • No unfair competition as with all regulatory offences, the court will suspect the offending is linked to commercial gain. If possible, the magistrates should be shown how no commercial advantage has taken place.
Get all the paperwork together. Even if over loading has taken place, and making a guilty plea is inevitable, it is still important to demonstrate to the magistrates how this has happened, preferably using documents and photos.This at least shows there is a genuine explanation. All too often, high fines are imposed because operators/drivers do not back up what they say.
Magistrates are issued with sentencing guidelines that are used by all courts. But there is precious little guidance to them about overloading offences, or indeed other road transport mailers.
In theory the magistrates decide on the fine, then increase it by a percentage depending on the size of the overload. It is vital to attempt to reduce the fine by providing clear explanations, as well as explaining what methods were in place to avoid overloading and what steps are in place to avoid it in the future. s