Road Side Stop - Solicitors 4 Transport

Roadside Encounters

Jonny Bell - Transport and Environmental  Department

Jonny Bell – Transport and Environmental Department

As a commercial driver, you might be asked to stop by the police or a Driver and Vehicle Standards Agency (DVSA) officer. They now have powers to stop heavy goods vehicles , buses and coaches.

The police and DVSA have the power to carry out spot checks on your vehicle for road worthiness and on you in respect of your drivers hours.  Road worthiness related prohibitions will be issued if a defect or issue with the use of the vehicle (i.e. an overload, insecure load) has been identified that is safety related. An immediate prohibition prevents you from driving until you get the defect rectified. A delayed prohibition enables you to continue operating the vehicle but you must ensure that the defect is rectified within the stated period. All defects must be rectified and then submitted to inspection by the DVSA for clearance – this will involve either an inspection,  partial test or full test.

Police and DVSA officers can also issue fixed penalties in relation to defects or for breaches of drivers hours offences. Examples of fixed penalties include the following:

Examples of fixed penalties

The penalties if your vehicle exceeds its maximum permitted axle weight are at the time of going to print:

Vehicle overweight by Penalty
5% to 10% £100
10% to 15% £200
15% to 30% £300
More than 30% Court summons

The penalties for drivers’ hours offences are:

Maximum daily driving time exceeded by

Penalty
Up to an hour £100
1 to 2 hours £200
2 or more hours £300

It is both the driver’s and operator’s responsibility  to make sure the vehicle is roadworthy and not overloaded and drivers hours rules have been observed. The driver must have done his  daily walk around checks and completed his drivers daily defect sheet and reported any defects to the Transport Manager. The Transport Manager must have ensured that any road safety related defects have been rectified before the vehicle was allowed on the road. The daily driver defect sheet must have been endorsed with the fact the defect had been rectified.

Roadworthiness prohibition (PG9)

A PG9 is given for mechanical problems or for the condition of a vehicle’s bodywork and equipment. It could have an immediate or delayed effect depending on how severe the defect is.

Variation Notices (PG9A)

Variation Notices are used to alter certain details of an existing prohibition. This will normally be necessary following a subsequent inspection of the vehicle that reveals additional defects or where some but not all of the defects listed on the prohibition have been rectified. In addition to altering the list of defects, Variation Notices can alter the time and date of an existing prohibition by making a delayed prohibition ‘Immediate’ or vice versa.

Exemptions (PG9B)

Exemption Notices are issued to permit prohibited vehicles to proceed to a place of repair under controlled conditions once the prohibition has come into force. The conditions of movement will be detailed on the Exemption Notice. Examiners will normally issue an Exemption Notice only if in their opinion the vehicle can be moved to such a place without risk to public safety. You could get this if an immediate problem with your vehicle has been temporarily or permanently fixed at the roadside but others remain. It means you can return to your operating centre or garage to permanently repair the initial problem and other faults.

‘S’ marked road worthiness prohibitions

A prohibition whether immediate or delayed can be denoted with an ‘S’ mark if the vehicle examiner believes a defect is due to significant breakdown in the vehicle’s maintenance procedures. This could include evidence that a driver has failed to carry out a pre-use inspection of the vehicle or where the defect suggests neglect by both the driver and the operator – tyres worn so badly that the cord is exposed or excessive actuator travel or loose wheel nuts where detachment is imminent.

You wouldn’t get this type of prohibition for defects you couldn’t have known about before the journey, e.g:

  • a problem that could have occurred during the journey (e.g. a puncture or a blown bulb)
  • a problem you couldn’t reasonably have been expected to have noticed (e.g. an underside defect)

But you could get an ‘S’ marked prohibition if the examiner believes there’s been a significant breakdown in the maintenance procedures agreed in the form of undertakings to the Traffic Commissioner as part of the operator’s licence application.

The prohibition may be  immediate and both the driver and the operator could be prosecuted. DVSA will usually follow up a ‘S’ mark encounter  with an assessment of the operator’s maintenance procedures which means a site inspection  – sometimes unannounced – leading to an adverse  report which could then trigger a public inquiry before the Traffic Commissioner. In our experience whilst PG13F & G maintenance inspection report and summary of findings may indicate ‘generally satisfactory’ the Vehicle Examiner will invariably record in his report that goes to the Office of the Traffic Commissioner in Leeds that the Operator is not complying with its undertakings given a prohibition was issued. The Vehicle inspector is also likely to inspect  other vehicle parked up in the yard or vehicles leaving or entering the yard. If vehicles have been parked up pending repair or planned inspection then  unless it appears that the vehicle has recently been used on the road in a it should not be inspected. As with vehicles undergoing repair, the fact that the vehicle was off the road and claimed to be withdrawn from service should be noted on a prohibition, if issued, by endorsing it “AWAITING DISPOSAL” or “AWAITING REPAIR” but we advise operators in such situations to put a notice on the vehicle or trailer making it quite clear the vehicle is not in use. We also advise that a PMI sheet is endorsed with the vehicle details such as odometer reading and stating the date the vehicle was last used. This is helpful evidence should the Vehicle Examiner insist on inspecting a vehicle that is genuinely not in service.

Vehicles claimed to be withdrawn from use should  generally not be examined or prohibited. Where there is doubt about an operator’s claim, vehicle examiners should seek firm evidence of non-use, for example evidence of de-licensing or the evidential material we have advised above. However, such evidence does not preclude an examination if it appears that the vehicle has been recently used, or it is likely to be used on the road in a seriously defective condition. In these circumstances a prohibition, if issued, should be endorsed with a comment to indicate that the vehicle was claimed to have been withdrawn from service but if you have clearly documented the vehicle being withdrawn from service the vehicle examiner really ought to ignore the vehicle concerned and not inspect it.

Tip – if a vehicle is over the inspection pit or in the work shop do not ever claim the vehicle has been inspected prior to being put back into service. The simple reason for this advice is that if the Vehicle Examiner inspects the vehicle  and finds road safety related defects you could be inviting an ‘S’ marked prohibition because there could be no other explanation for the failure to spot the defect the inspector genuinely found other than serious shortcomings in the maintenance and inspection processes.

How to recognise a DVSA officer

DVSA officers wear yellow visibility jackets with either the VOSA or DVSA logo, and they’ll always carry a DVSA warrant card.

Their vehicles are marked with a black and yellow print on the side and either a VOSA or DVSA logo on the bonnet.

What happens when you’re stopped?

The checks are carried out either at the roadside or at dedicated testing sites. The checks are used to keep unsafe vehicles off the road.

The officer checks that the vehicle isn’t breaking any rules and regulations. This includes:

  • checking authorised load weights and type of load permitted
  • checking vehicles for roadworthiness and mechanical faults
  • looking at your tachograph records
  • making sure you have a valid occupational driving licence

Your vehicle could be impounded if you commit a series of serious offences.

Foreign-registered vehicles are subject to the same rules as vehicles registered in the UK.

If you’re carrying a high-value load you can keep your engine running, doors locked and windows closed until you’re sure you’ve been stopped by a genuine police or DVSA officer.

If you don’t stop

Not stopping when asked to by a uniformed officer is an offence. The incident will be officially recorded and you’ll be interviewed later on.

You may then face court action or be reported to the Traffic Commissioner, who may remove or suspend your operator’s licence.

What if a prohibition is issued?

As explained earlier a  prohibition issued at the road side will either be delayed or immediate.  It may even be ‘S’ marked signifying a significant maintenance failure. The imposition of a prohibition cannot be appealed but you are entitled to lodge a complaint and have the imposition reviewed. For example a vehicle is issued with a prohibition for an allegedly defective tyre or the brakes are assessed to be out of adjustment. Your driver, in-house or external mechanic may beg to disagree. It is always worth complaining if you disagree with the assessment of the DVSA vehicle examiner. These examiners are not infallible. They can make mistakes or exercise their judgement poorly. Vehicle Examiners are supposed to follow guidance contained within the “categorisation of defects” handbook. If they haven’t followed the guidance or the prohibition was issued in error your complaint is likely to be upheld and the prohibition expunged from your vehicle encounter history. Given these prohibitions are grounds upon which a Traffic Commissioner can take enforcement action against an operator’s licence it makes sense to challenge prohibitions whenever a challenge is merited. This is especially so in the case of ‘S’ marked prohibitions. Challenges need to be brought immediately otherwise DVSA will claim the vehicle has been interfered with and the defect rectified.

Before a prohibited vehicle can be used again on a public road the Prohibition Notice must be removed by the issue of a ‘Removal of Prohibition’ Notice (PG10). An examiner is allowed to remove a road worthiness prohibition when satisfied that the vehicle is “fit for service”. Accordingly, where a further more extensive inspection is required and the available inspection facilities are inadequate for that purpose, an examiner may direct the vehicle to a testing station for an inspection prior to removing the prohibition.  Examiners are advised that “fit for service” must be taken as meaning that, if tested, the vehicle would comply with all the relevant annual test standards. The discovery of defects that would result in an annual test failure could be given as a reason for refusing to remove a prohibition.

Vehicles subject to the MOT test will normally be considered “fit for service” when they have passed the test and have been issued with a pass certificate (VT20/VT20W) dated after the date of the prohibition notice issue.  In the case of heavy goods vehicles and public service vehicles, the law imposes the responsibility on the examiner considering removing a roadworthiness prohibition, of satisfying himself that the vehicle is “fit for service”. In law, examiners have absolute discretion over the scope of examination, which in their opinion is necessary for them to be satisfied that the vehicle is “fit for service”. This is clearly something that is open to challenge and there is an appeal process for cases where there is a dispute over the refusal of a vehicle examiner to clear a prohibition.

If you have concerns about the issue of a prohibition or its clearance  call us immediately for some free initial advice as to what your options are.

 

This article will be of interest! 

DVSA release 2015 figures for roadside encounters

New figures released by the Office of the Traffic Commissioner (“OTC”) show that almost a third of all DVSA roadside encounters with HGV’s and trailers last year were issued with a prohibition for a mechanical defect.

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This article will be of interest! 

DVSA release 2015 figures for roadside encounters

New figures released by the Office of the Traffic Commissioner (“OTC”) show that almost a third of all DVSA roadside encounters with HGV’s and trailers last year were issued with a prohibition for a mechanical defect.

 

Nick Woodhead - Transport Co-ordinator

Nick Woodhead – Transport Co-ordinator

Jonny Bell - Transport and Environmental  Department

Jonny Bell – Transport and Environmental Department

 

If you need any help or assistance please don’t hesitate to call us for a free and informal chat. Please call on our direct lines to Nick Woodhead (01829 773108) or Jonny Bell (01829773112 ).

This firm has been recognised as a Legal 500 Firm (2016) for Environmental Law and Transport Law

Solicitors 4 Transport