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Road Transport – Operator Licensing and entities

Posted by Jonny on Oct 30, 2016 in Latest News
John Dyne

John Dyne,  Director

If you are operating HGVs then you need an operator licence and to get a licence you have to fill in an application form called a GV79. For many established operators this is an application that was probably made many years ago. But what needs to be remembered is that the application contains a number of undertakings and a declaration that the statements made in the application are true. These undertakings are promises and are the same for both restricted and standard operators. These are promises the operator makes to the Traffic Commissioner and if they are broken then it undermines trust and confidence in the operator and can lead to sanctions such as suspension or curtailment of the licence or even revocation.

The operator licence is a valuable asset without which the haulage business cannot exist and profits cannot be made whether you are using vehicles to deliver your own goods or goods on behalf of others. It must never be a case of “obtain the licence then file and forget”. It pays to periodically  review the licence to ensure all the details are up to date and to consider taking legal advice if in any doubt.

One of the promises made in the application is that the traffic commissioner will be notified within 28 days of any changes to the business including changes to a Limited Company status or partnership such as changes in the named directors or partners.

A common issue is that of change in entity. That is when the legal person or entity that originally applied for the licence alters at some point in the future. To explain:  if a licence is granted to Mr Smith who is a sole trade it is Mr Smith who holds the licence and has authority to operate the heavy goods vehicles. If Mr Smith takes on a partner and becomes Smith & Co then the business operating the vehicles is no longer Mr Smith’s sole trade but the new Partnership. Equally if Mr Smith incorporates the business and trades as a company then the business operating the vehicles is no longer Mr Smith but the company. In each case after the change the licence is held by the wrong entity. The original licence holder (i.e. Mr Smith as a sole trader)  is no longer operating the vehicles but is in essence lending his licence to another entity (i.e. the partnership or company) which is illegal. This means, in my given examples that neither the partnership nor the company are authorised to operate the vehicles and a criminal offence is committed each and every time the vehicles are used on the road. Of course these are clear cut examples – sometimes the overall picture is a little fuzzy and in such cases you should seek advice as to whether or not you need to take action.

The solution to this problem (when it genuinely arises) is actually very simple. The partnership or the company must apply for a new licence in their own right. The counsel of perfection would be for this application to be made well in advance of the proposed changes but in most cases the entity issue I have described only comes to light well after the entity change has taken place. Some operators may feel inclined to let sleeping dogs lie or not to rock the boat but that is the wrong call. The right thing to do is to put in an application in the name of the new entity and in most cases the Office of the Traffic Commissioner will simply process the application under what is termed the Schedule 4 procedure. Although pending issue of the new licence the new entity may be trading without the authority of a licence the Traffic Commissioners are not likely to take any action because they will recognise this was an oversight and steps have been taken to rectify the situation. This entity issue is more common than you might think but it is something you should check or be aware of should the way in which the business is structured change in any way.

Other changes that need to be reported include where you change your maintenance arrangements or your operating centre. In the case of maintenance arrangements, it is just a case of updating the Office of the Traffic Commissioner and for example providing details of the new maintenance contractor and a copy of the new maintenance agreement. In the case of a change in Operating Centre or addition of a new Operating Centre to your licence this will require an application on form GV81.

If you are affected by any of the issues raised in this publication then please do not hesitate to contact us in complete confidence.

 
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Interviews under caution – Police and Criminal Evidence Act

Posted by Jonny on Oct 29, 2016 in Latest News, Latest News
John Dyne

John Dyne, Director

 

Interviews under Caution

We have encountered numerous occasions where people have attended interviews under caution without their Solicitor. For the most part they assumed they could handle the interview because they were innocent and had nothing to fear or perhaps being accompanied by a Solicitor implied they had need of legal representation because they had something to hide. Either that or they did not understand the significance of the interview or the potential consequences. After all the letter of request can seem rather innocuous and almost friendly – an invitation to a voluntary interview “to give your side of the story”.

But what exactly is the regulator hoping to achieve though the interview? The interview should not be used as a fishing expedition. This is not the purpose of an interview under caution and suspects have the right not to self-incriminate themselves. Ensuring the suspects’ rights are protected is the primary reason a suspect should always be legally represented at interviews under caution.

Remember when the regulators – that is the Police, Health & Safety Executive, Tradings Standards, Environment Agency, Natural Resources Wales or DVSA request an interview it is because they are thinking of bringing criminal proceedings against you or your company. Sentences for many road transport and most  environmental and Health & Safety Offences offences carry unlimited fines and environmental offences a custodial sentence of up to 5 years. A single conviction can potentially lead to revocation of your operator licence or environmental permit. As an  operator of HGVs or PCVs you have to report health & safety, road transport or environmental convictions to the Office of the Traffic Commissioner. In all cases the message is simply this – see an experienced regulatory Solicitor and if you decide to attend the interview take that Solicitor to the interview with you.

You may be familiar with the words of a caution from crime based television drama but what exactly do those words mean?

“You do not have to say anything.” The person under investigation has the right to remain silent and is entitled to give no comment answers to questions put in interview. However, an adverse inference may be drawn from the refusal to attend an interview or to offer no comment to the questions put at interview because it will be said in reality you had no answer that would stand scrutiny so you stayed away/ relied on your right to silence.

“But it may harm your defence if you do not mention when questioned something which you later rely on in court.” If you rely on anything later at trial that you might reasonably have mentioned earlier at interview an adverse inference could be drawn – that is, you are now making the whole thing up and your defence is fabricated.

“Anything you do say may be given in evidence.” Anything said during an interview can be used in evidence at any subsequent trial.

Alternatively, you can provide a prepared written statement. This statement can be drafted with the help of your Solicitor and can be useful and convenient means of managing and controlling the evidence given at interview and perhaps avoid answering any direct questions without any adverse inferences being drawn.

There is a potential risk of arrest if an individual declines to accept the invitation to attend a voluntary interview. Didn’t it somewhere mention the interview was voluntary?! All offences are potentially arrestable but the lawfulness of an arrest by a police constable for an offence is dependent on the constable having reasonable grounds for believing it is necessary to arrest the person. This may arise when it is thought that unless the suspect is arrested they will not attend the voluntary interview. In my experience of regulatory work in Transport, Health & Safety and Environmental cases the use of the power of arrest or threat of arrest is still comparatively rare and then arrest has only arisen after a threat (of arrest) was first made. Arrest or attempts to arrest have occurred even when a prepared statement had already been provided and even after giving written explanations and an open offer to cooperate with the investigation. It is highly important for any organisation relying on a permit or licence for their business to consider how a refusal to answer questions may look to their regulator (e.g. the Traffic Commissioner or any reviewing panel).

So how should you handle the interview? Give no comment answers? Answer all the questions put to you? Provide a prepared statement – with or without further comment to questions? Go it alone? Instruct a Solicitor?

My advice is never go it alone but instruct a Solicitor with knowledge of all the legal issues at large. The approach to then take at the interview simply depends on the circumstances. All cases are very fact specific. There are no hard and fast rules. A well managed interview needs careful planning, preparation and an early request for pre-interview disclosure. An experienced regulatory solicitor can help you prepare for the interview and if you are a company help decide who best to attend the interview. Remember anything you say can be used against you so a company faced with a choice should always consider who best to represent it. The potential outcomes of a criminal investigation can be catastrophic. Time spent in preparation for interview with an experienced regulatory solicitor is never wasted.  Time spent in preparation may enable you to provide an explanation sufficient to dissuade the regulator from prosecuting you or your company – with the regulator taking no further action. From a commercial perspective this would obviously be an attractive outcome as defending prosecutions can be costly, stressful and very time consuming and nowadays there is limited ability to recover costs even if you win your case.

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Trade Licenses for Trade Plates – “red on white stop on sight”

Posted by Jonny on Oct 29, 2016 in Latest News
John Dyne, Transport Lawyer. Secretary to HTA and BSA

John Dyne, Transport Lawyer. Secretary to HTA and BSA

I can’t now recall who is attributed to the saying “red on white stop on sight” but I think it was a Judge sitting on a trade plate case many, many years ago. I rather think the saying has more to do with picking up delivery drivers holding up trade plates on the roadside than a team leader’s mantra delivered fora pre-roadside enforcement pep talk.

I have had some enquiries about trade plates so I thought I would do a short piece on the law concerning trade licenses for trade plates.Trade licence plates can save you time and money if you’re in the motor industry – you won’t have to register and tax every vehicle temporarily in your possession. You need to apply to DVLA for a trade licence to be able to use trade plates.

If you possess a trade licence for a trade plate then that is an important and valuable asset. There is no automatic right to the issue of a trade licence and there are reserved only for those meeting very strict criteria.

To be eligible for a trade licence you must either be a motor trader or a vehicle tester. A motor trader is entitled to use the trade licence on mechanically propelled vehicles only if they are temporarily in their possession in the course of their business. A motor trader who is a manufacturer may also use the licence on a vehicle kept only for research and development purposes, or on vehicles that are submitted to them for testing by other manufacturers. A vehicle tester may use the trade licence only on vehicles submitted to them for testing (including the vehicle’s trailer, its accessories or equipment).

A Motor Trader is defined as:

• a manufacturer or repairer of, or dealer in, mechanically propelled vehicles, or
• a dealer in vehicles, if they carry on a business consisting wholly or mainly of collecting or delivering mechanically propelled vehicles and not including any other activities except those of a manufacturer or repairer of or dealer in such vehicles.

Vehicle Testers are defined as:

• a person other than a motor trader who regularly in the course of their business engages in the testing on roads of mechanically propelled vehicles belonging to
other people.

The majority of operators of HGVs, PCVs, Plant and Mobile Cranes should in theory be entitled to apply for and receive Trade Licences under the ‘repairer of ‘ pre-qualification as most if not all will have a workshop and will carry out repairs but they will be constrained by the ‘temporarily in their possession’ qualification. Most of the vehicles worked on in the workshop may well be in the regular fleet. It might  pay to have the haulage side of the business separate from the repair and maintenance side so the repairers are only in temporary possession of the vehicle when it comes to them for repair.  The regulations specifically cater for the movement of semi-trailers (which are obviously not mechanically propelled vehicles) where the vehicle and the semi-trailer are taken to constitute a single vehicle. However it does not appear that any  provision is made for a draw bar trailer configuration where a substantial part of the weight of the trailer will not be borne by the mechanically propelled vehicle.

The pre-qualification that the business must consist wholly or mainly of collecting or delivering mechanically propelled vehicles applies to a dealer in vehicles with the exception that they can also be a manufacturer or a repairer. According to Government Guidance ‘dealer in vehicles’ includes hire and leasing companies and also finance/HP companies which presumably comes as an extra statutory concession because such businesses clearly do not consist of wholly or mainly collecting or delivering vehicles for manufacture or repair..

There are a limited set of purposes for which a motor trader may use a vehicle on a public road by virtue of a trade licence which are

(a) business purposes (i.e. used for purposes connected with the motor trader’s business);
(b) paragraph 12 purposes; and
(c) purposes that do not include the conveyance of goods or burden of any description except specified loads (e.g. for testing purposes /vehicle for the return journey).
Paragraph 12 purposes include any of the following purposes—

(a) for its test or trial or the test or trial of its accessories or equipment, in either case in the ordinary course of construction, modification or repair or after completion;
(b) for proceeding to or from a public weighbridge for ascertaining its weight or to or from any place for its registration or inspection by a person acting on behalf of the Secretary of State;
(c) for its test or trial for the benefit of a prospective purchaser, for proceeding at the instance of a prospective purchaser to any place for the purpose of such test or trial, or for returning after such test or trial;
(d) for its test or trial for the benefit of a person interested in promoting publicity in regard to it, for proceeding at the instance of such a person to any place for the purpose of such test or trial, or for returning after such test or trial;
(e) for delivering it to the place where the purchaser intends to keep it;
(f) for demonstrating its operation or the operation of its accessories or equipment when it is being handed over to the purchaser;
(g) for delivering it from one part of the licence holder’s premises to another part of his premises, or for delivering it from his premises to premises of, or between parts of premises of, another manufacturer or repairer of or dealer in vehicles or removing it from the premises of another manufacturer or repairer of or dealer in vehicles direct to his own premises;
(h) for proceeding to or returning from a workshop in which a body or a special type of equipment or accessory is to be or has been fitted to it or in which it is to be or has been painted, valeted or repaired;
(i) for proceeding from the premises of a manufacturer or repairer of or dealer in vehicles to a place from which it is to be transported by train, ship or aircraft or for proceeding to the premises of such a manufacturer, repairer or dealer from a place to which it has been so transported;
(j) for proceeding to or returning from any garage, auction room or other place at which vehicles are usually stored or usually or periodically offered for sale and at which it is to be or has been stored or is to be or has been offered for sale as the case may be;
(k) for proceeding to or returning from a place where it is to be or has been inspected or tested; or
(l) for proceeding to a place where it is to be broken up or otherwise dismantled.

Business purposes are defined in a limited manner which could potentially catch a Motor Trader out if they have business activities that are wider than simply being a manufacturer or repairer of, or dealer in mechanically propelled vehicles and they use a vehicle on trade plates for those wider activities.

A vehicle is used for “business purposes” if it is used for purposes connected with the motor trader’s business—
(a) as a manufacturer or repairer of or dealer in vehicles,
(b) as a manufacturer or repairer of or dealer in trailers carried on in conjunction with his business as a motor trader,
(c) of modifying vehicles (whether by the fitting of accessories or otherwise); or
(d) of valeting vehicles.

The use of trade plates cannot extend to wider uses not covered by the business purposes criteria.

If you are affected by any of the issues raised in this publication please do not hesitate to contact us.

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