Attending court for anything can be very daunting. However, nothing feels quite so serious as attending a criminal court as a defendant.
Some tachograph offences may be dealt with in the Magistrates Court but more serious tachograph falsification cases, where drivers and operators are at risk of going to prison, will be sent on to the Crown Court.
VOSA (or the Crown Prosecution Service – “CPS”) then serve copies of all the evidence. In cases like this it can be many thousands of pages of evidence, which can be very daunting.
Court cases can last several months with several visits to court and several adjournments before a trial date is fixed. Often a report by an independent tachograph analyst is needed, or other types of experts, to independently check on behalf of the defence that the prosecution evidence is correct. It can take defence experts a long time to properly analyse all the documentary evidence in a case and the earlier that transport companies start this process the better. Ideally, transport companies should have been speaking to experts as soon as they knew they were under investigation. Once a court prosecution starts then the clock is running and there is limited time to prepare a case.
In a recent case we dealt with, VOSA argued throughout several months of interviews under caution and right up to the trial date in court, that charts were false because the tracker evidence allegedly showed vehicles to be moving when the chart suggested it was stationary and the driver resting. There were over a hundred allegations of this nature and it was very difficult for drivers to explain the anomalies when first interviewed under caution about it.
However, by the time of the trial we’d had the charts analysed independently and asked an electronic engineering consultant to look at the tracker evidence in detail and we were able to prove that in nearly half of the cases the prosecution tracker evidence was wrong and those cases were dismissed. The defence experts were working round the clock seven days a weeks to finish their preparation of the case but in the end the drivers avoided prison and the case was dismissed in its entirety against the directors, transport managers and office staff of the company.
If the case goes to trial then all those accused will have to think about giving evidence and answering questions on oath from defence and prosecution solicitors or barristers in front of Magistrates or a Judge and jury. This is often the thing that people fear the most.
If drivers are convicted then the court will go on to consider punishment. The leading sentencing guideline case is called “VOSA v Saunders & others”. This says that where drivers have more than about six false charts then prison sentences should be considered. The more false charts there are, the greater the chance of a prison sentence and the longer that prison sentence is likely to be. For falsification of tachograph records there is a maximum prison sentence of two years per offence (or per chart). Before announcing the punishment the Judge will listen to mitigation from the defence lawyer, who will try and persuade the judge not to impose an immediate prison sentence.
When the criminal case is over, drivers and operators are obliged to inform the Traffic Commissioner of any relevant convictions. VOSA will usually do this anyway but this does not relieve operators and drivers of the responsibility. For minor offences it’s possible to persuade the Traffic Commissioner in a carefully worded letter that a public inquiry or driver conduct hearing is not necessary.
However, for more serious offences the Traffic Commissioner will consider whether to call drivers to a driver conduct hearing and operators to a Public Inquiry where evidence is heard and consideration given to regulatory action. This can include vocational driving entitlement being suspended or revoked, and Operator Licences having conditions attached, being suspended, curtailed or revoked, and operators being disqualified from managing a transport company in future. Again, in these regulatory proceedings drivers and operators are entitled to legal representation. It’s at this stage that transport companies may be grateful that they took action immediately, put things right and are able to demonstrate a track record of compliance over a long period since the time they first became aware of the fact they were under investigation.
By Sean Joyce
Sean Joyce is a partner at Stephensons Solicitors LLP and leads a team of regulatory lawyers specialising in road transport law. Sean has been defending operators and drivers against criminal investigations and prosecutions and at Public Inquiry before Traffic Commissioners for over 10 years.