The Vehicle Operator Services Agency (“VOSA”) investigates and prosecutes offences of tachograph falsification. The road transport law department at Stephensons Solicitors LLP has noticed that, these days, VOSA tend to target their resources on transport companies who they think are allowing or encouraging widespread tachograph falsification by the drivers, rather than trying to catch the odd driver for the odd offence.
Where they find evidence of tachograph or drivers hours offences or falsification of tachograph records they will also seek revocation of the operators licence or drivers vocational driving entitlement by reporting these cases to the Traffic Commissioner.
This is the first of two blogs detailing the legal processes involved for transport companies and drivers accused of tachograph offences and some tips on how to deal with it.
The first will deal with the investigation stage, which itself can be lengthy, traumatic and extremely disruptive for any business. The second blog will go on to look at what to expect if a court prosecution follows.
Falsification of tachograph records by drivers carries up to two years imprisonment per offence (or per chart). Investigations can be lengthy, even before any prosecution in court begins. Two year long investigations are not uncommon.
If VOSA can prove that the owners and/or management of a transport company have been aware of falsification of tachograph by drivers, then they and the drivers can be prosecuted for the more serious offence of conspiracy to falsify tachograph records which results in the owners, transport managers, office staff and drivers who are involved, all being in the dock together and facing lengthy prison sentences if convicted.
The process often starts with VOSA acting upon intelligence to identify who they believe to be rogue transport companies. They will then secretly go to court to ask for a search warrant to search premises. Traffic Examiners will then arrive at the operating centre, unannounced and usually with police officers in tow who have a power of arrest. They will seize possession of all tachograph records, wage records, time sheets, work diaries, fuel receipts, delivery notes, gate receipts, tracker records and any other documentation and computer records that they believe may help them prove where a vehicle was on a particular day and the number of hours that drivers have worked. Sometimes home addresses are also searched.
VOSA then begins the long process of cross-referencing all those documents with the tachograph records for a specific time period, usually 3 or 6 months in length, which can take a long time. There is a common misconception in the industry that offences over 12 or 15 months old cannot be prosecuted. This is not true.
For drivers hours offences there is a 6 month time limit but for tachograph falsification or conspiracy there is no specific time limit and VOSA can go further back than this to look for evidence of offences.
Too many transport companies sit back during this stage and carry on before and hope that everything will be all right. The amount of work involved to fully prepare a case for either court or public inquiry means that transport companies should involve experts from the outset to help them get their house in order. It may be many months of years before the operator ends up sat in a Public Inquiry face to face with a Traffic Commissioner with the threat of the operator licence being revoked. The earlier that the transport company can show it accepted any problems and reacted by putting things right, the more impressed the Traffic Commissioner is going to be.
Even very bad cases can be won by using this tactic. Whilst most competent transport companies know what they should be doing they are usually busy running their own businesses and don’t have the time do it themselves. Take professional advice from tachograph analysts, transport consultants and/or transport lawyers immediately and let them take care of it for you whilst you continue to focus on running your business.
After records have been looked at drivers and management are then invited to attend “voluntary” interviews under caution, sometimes at a police station, under the Police and Criminal Evidence Act (“PACE”).
It’s common for drivers and managers to be told that if they fail to attend voluntarily they will be arrested. However, everyone has the right to independent legal advice and to have a solicitor present during the interview. Unfortunately, legal aid is only available when the interview is conducted by police officers; if the interview is conducted by VOSA then legal aid is not available.
By the time the interviews are arranged it can be many months or even years after the alleged offences occurred. It can also take many months for VOSA to interview all involved. In one recent case that we dealt with, VOSA seized the records 6-9 months after the alleged offences, took another 15 months before they were ready to start interviewing people under caution and then took 10 months to interview everyone at the company. VOSA then interviewed over 25 drivers, transport managers, office staff and company directors. By the time the last person involved was interviewed the offences were nearly 3 years old. And that’s all before a court prosecution even starts, which itself can take up to a further 12 months.
In the interview, unrepresented drivers are not given disclosure of all the alleged offences and evidence against them, yet they are questioned about their movements on specific dates, sometimes 1 to 3 years ago, whilst under pressure, without an opportunity to think about it beforehand and being able to recall events in the cool light of day or consult their own records. They are suddenly presented with tachograph records and other documentary evidence and asked to provide an explanation immediately. A specialist road transport solicitor can be invaluable in these situations, particularly one who has dealt with similar types of criminal investigations in the past. A solicitor may, for example, be more successful in getting pre-interview disclosure before the interview so that drivers and operators at least know what the interview is about, what they are being accused of, and why. A transport solicitor will give advice about whether questions should be answered, or not.
VOSA, like all investigating authorities, hope that suspects will answer all questions and, in doing so, provide them with further evidence to help them prosecute individuals. The primary purpose of an interview under caution is to gather evidence against the person being interviewed that can then be used to prosecute them with. The problem is that drivers often do not believe that what they have done amounts to a falsification of a record until VOSA try to argue that it does. Examples of this include:
- drivers who move their vehicle a short distance to a better parking space after removing the tachograph or drivers card for the day
- failing to record a positioning journey where a vehicle is collected or handed over to another driver at a place other than the operating centre such as a motorway service station (under the rule in the case of ‘VOSA v Skills Motor coaches’)
- only putting the chart or card in the tachograph machine when driving starts, rather than at the start of the working day
- service bus drivers who may do one private hire journey but then fail to record their whole weeks driving.
When these types of allegations and difficult questions are put in the pressurised situation of an interview under caution suspects find it difficult to deal with and, in my experience, frequently make things worse for themselves and others involved in the case. For these reasons anyone asked to attend an interview under caution should always take legal advice beforehand and should not answer questions until they have done so. At Stephensons our team of specialist road transport lawyers will offer free initial advice to operators, transport managers and drivers who have been asked to attend an interview under caution with either the police or VOSA, a service which has made the difference to winning and losing a case for many of our road transport clients.
After all the interviews are finished, VOSA’s legal department in Bristol then review all the evidence and decide whether to prosecute. In doing so they must apply the Code for Crown Prosecutors and decide whether there is a reasonable prospect of conviction and whether it is in the public interest to prosecute.
Often, intervention by a defence solicitor at this stage can help avoid a prosecution. However, if they do prosecute then court summonses are issued and sent out in the post giving notice of a court date.
At the end of the investigation stage drivers and operators breathe a sigh of relief thinking that the worst is over. In truth, it’s often only the start and the next blog will look at what happens in court during a criminal court prosecution.
By road transport solicitor and Partner, Sean Joyce