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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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Tougher penalties for motorists caught using mobile phones

Posted by Jonny on Sep 26, 2016 in Latest News

Motorists caught using a handheld phone are currently given three penalty points and a minimum fine of £100, but this is set to be increased to six points and £200 under new Government plans.

The new rules could also see more experienced drivers going to court if they offend twice, and facing possible fines of up to £1,000 and at least a six-month driving ban.

This move which will start in early 2017 will see the Government crack down harder on motorists than originally planned.

A consultation document published in January this year had proposed tougher penalties for HGV drivers than general motorists, with the latter receiving four penalty points compared with HGV drivers’ six penalty points.

However, concern at the rising use of mobile phones whilst driving, particularly among younger drivers and male drivers, and the rise in fatal driving accidents involving mobile phone use, has seen the Government opt for punitive sanctions across the board.

 

Department for Transport (DfT) figures show that a driver impaired or distracted by their phone was a contributory factor in 492 accidents in Britain in 2014, including 21 that were fatal and 84 classed as serious.

Announcing the tougher penalties, Transport Secretary Chris Grayling said that using mobile phones while driving must become as unacceptable in society as drink or drug driving.

 

crash_scene

 

The image above was released by Leicestershire Police this week to highlight the potential outcome of mobile phone usage whilst behind the wheel. The crash took place on 24th November 2014. It occurred after Christy George, 38, lost control of her car hitting an HGV, which in turn crossed the central reservation killing a motorist and severely injuring several others. The loss of control was due to mobile phone use whilst driving. She has since been sentenced to 5 years in prison.

For advice on transport law issues, contact Jared Dunbar on 01829 773 105.

 

Content believed to be correct at time of writing 26.09.16

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