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Topic of the Month
May 2009

Taking the penalty

Provisions contained in the Road Safety Act 2006 came into force at the end of March 09, meaning that there are new powers for the Police and VOSA to impose fixed and graduated fixed penalties for a variety of construction and use and drivers’ hours offences. Many police forces are already using their new powers, although VOSA have indicated that they will not roll out the scheme until 28 May 09.

Many drivers will be delighted at the new proposals as it means that there is no longer the need for a court appearance, including payment of the fine determined by the bench, prosecution costs and the victim compensation surcharge.   However, for some  construction and use offence  involving endorsement of the licence, the option may not be quite as straight forward.   For example, using a vehicle in a defective condition would mean automatic endorsement whereas magistrates are not permitted to endorse the licence if, having heard evidence from the driver, they believe that he did not know or had no reasonable cause to suspect that the vehicle was defective or that use of the vehicle would involve danger of injury to any person.   There may also be situations where the court determine, after having heard mitigation on behalf of the driver, that although he is technically guilty of the offence, the circumstances are such that it would be unjust to impose punishment and instead order an absolute or conditional discharge.

The position is important for both drivers and operators.  The advantage for drivers is that they are dealt with equally; they receive the same penalty for the same offence, whereas previously it was dependent upon the bench that was sitting on that day.  However, for offences such as using a vehicle in a dangerous condition, they may be raking up endorsements, where they may be cause not to endorse the licence.  This could bring them nearer to losing their licence under the totting up provisions. 

Operators have an obligation to inform their Traffic Commissioner of the driver's fixed penalty  which could then be raised as an issue in calling the operator to a public inquiry.  As the fixed penalty is issued against the driver, it is his decision whether or not to accept the penalty.  There may be situations where an operator believes that the penalty has been wrongly imposed but nevertheless the driver accepts the penalty.  It is good practice to investigate all the circumstances where drivers receive fixed penalties, but particularly in those case where there are issues surrounding the penalty, to keep a written record of the circumstances, as this may be of assistance, should there be a subsequent public inquiry.