05th August 2015
Vehicle Seizure & Recovery
Freightlink Transport bv. v The Home Secretary - November 2014 and January 2015 (appeal).
A Dutch haulier delivering into the UK had their truck and trailer seized (value €125,000) when the driver was found to be smuggling a large amount of cocaine and heroin. HMRC and Borders Agency agreed that the haulier was completely innocent of any wrong doing but nevertheless refused to restore the vehicle. Simon Clarke acted for the haulier in Restoration and Condemnation proceedings and recovered the vehicle and the client’s legal costs. The Home Secretary appealed against that decision; the appeal court dismissed the Home Secretary’s appeal and ordered that she pay Freightlink’s legal costs. The appeal court ruled that to retain the vehicle beyond the period required for a full investigation (in this case, 6 months) was disproportionate and in breach of Freightlink’s right to the enjoyment of their property under the European Convention on Human Rights.
Crime: Dangerous Driving, Disqualification and Special Reasons.
R. v S.R.
A UK-based LGV driver knocked down and killed a man who had just disembarked from a bus and crossed directly in front of our client’s slow-moving 44-ton truck and trailer. Whilst the law required the judge to disqualify our client from driving for at least 12-months and order an extended re-test, Simon Clarke successfully argued that there were ‘Special reasons not to disqualify. This is an extremely rare, if not unheard of outcome in an LGV death case.
Crime: Drugs Importation
R. v. K
Foreign national working for a European haulage firm importing goods into the UK. He was arrested when Customs Officers discovered 40kgs of cocaine, worth over £10 million, hidden under the false floor of his vehicle trailer. Client was acquitted at trial, represented by Harry Bowyer and Martin Smith, both in-house at CK. Client found Not Guilty after a trial lasting nearly two-weeks.
R. v. P.
Client fraudulently renting out the margin on operators’ licences to the tune of some £3 million. Advertisements were carried in the industry’s leading magazines advertising the service. Harry Bowyer, as leading junior, acted for the defendant in a six week trial which involved the cross examination of Traffic Commissioners and other senior VOSA employees.
Traffic Commissioner’s Public Inquiry
Confidential – Midlands Haulage Operator
West-Midlands Area Operator (Standard National) with authorisation for 15 vehicles.
This firm suffered a complete breakdown in their compliance regime following the breaching of Undertakings given at a previous Public Inquiry. Forward-planning was non-existent; record-keeping was sparse and intermittent; and drivers were regularly pulling driver-cards. There was also a pressing Financial Repute issue to be resolved. It was clear from the outset that Revocation was a very real possibility, as indeed the TC said. The outcome was somewhat different: Formal Warning for the Operator and drivers; No action for the Transport Manager; further Undertakings accepted.
Confidential – South-Eastern Area Haulage Operator
A major player in the removal and disposal of earth, tunnelling spoil and associated waste, operating over 60 vehicles in and around London. Following four separate fatal accidents involving our client’s vehicles and cyclists in London, our client was called-in to a Public Inquiry for investigation into his inspection, maintenance and regulatory compliance regimes and his safety record. Several expert witnesses were instructed by CK to assist. Not only was the outcome of the Public Inquiry satisfactory to all concerned, but we also obtained an increase in the number of licensed vehicles by a further 18 trucks, thereby ensuring that expansion plans could proceed without hindrance.
Bolle Transport bv. v The Home Secretary, Court if Appeal
In October 2013 Bolle Transport BV, a Dutch haulier operating into the UK, collected a sealed load from Frankfurt Airport for delivery to a Royal Mail depot at Langley in Berkshire, UK. When the load arrived at Langley six illegals were found inside. The Home Secretary imposed a Civil Penalty of £7,200. On appeal to the County Court it was found that the illegal entrants had entered trailer from the supposedly secure ‘airside’ part of Frankfurt Airport an area to which drivers have no access. Bolle Transport also had a technology-based system of illegals prevention - door sensors, GPS real-time tracking and messaging systems – which was far better than the Home Office-recommended paper-based checks and recording system. The judge found that Bolle neither knew nor suspected that illegals were in the vehicle and agreed that their prevention system was better than the Home Office recommended system but refused the appeal, saying that the penalty system was mandatory – if illegals are found then, whether you knew it or not, you pay the penalty. The Court of Appeal has agreed to hear the case, saying that the appeal “….raised important questions of principle about the operation of the system of penalties imposed upon carriers...…” It is thought likely that the Court of Appeal will issue guidelines on how the imposition of penalties should be managed in the future. The Secretary of State is resisting the appeal. The appeal is being conducted by Simon Clarke, a barrister and Head of Road Transport Law at Cartwright King Solicitors, together with Richard Tinkler. Both are recognised as experts in national and International Road Transport Law and both represent UK and other European operators and their drivers.
Drivers Hours, Breaks, Rest Periods, Tachographs, European Regulations and the WTD
R. v. AG; R. v. v I; Court of Appeal
Appeal against Disqualification from Driving in Europe. (2 cases)
November 2014; February 2015.
We are presently instructed in two separate but identical cases, both of which concern a European national. In each case our client is a truck driver working for a European Haulage business and driving a truck into the UK. Each was convicted of Dangerous Driving by a UK court and disqualified from driving in the UK for a determinate period and until he had passed a mandatory UK driving test. In each case the driving disqualification has ended but neither client can recover his UK driving qualification. UK driving tests are only available to UK residents and neither driver is a UK resident. They are however permitted to drive in Europe. In due course a new European Convention on Driving Disqualifications will take effect and when it does these disqualifications will retrospectively apply to our clients so that they then lose their European licences. The requirement that they pass a UK drivers test breaches Articles 7 and 8 of the European Convention on Human Rights and Article 45 of Treaty on the Functioning of the European Union (Free Movement of Labour). Both cases are presently before the Court of Appeal, seeking a Declaration of Incompatibility under the Human Rights Act 1998.
Driver Conduct Hearing – The Senior Traffic Commissioner.
Our client was the driver of a LGV which, in 2013 ran over and killed a 13-year old child on her bicycle. The death of the child was found by the police investigation not to be our client’s fault. However, the investigation revealed that, prior to this tragic accident; the driver had been sending, receiving and reading multiple text messages whilst driving. He subsequently pleaded guilty to Dangerous Driving for that conduct and was imprisoned for 4 months and disqualified from driving. Once released and at the conclusion of his disqualification he received his Driver’s Licence back and returned to driving work. Six months later he was called up to a Driver’s Conduct Hearing to determine whether or not he should retain his LGV licence. Issues of legitimate expectation, proportionality and fairness were addressed, for in the usual course of events the driver should never have received his LGV licence back until after the Traffic Commissioner had seen him whereas here he had received his LGV licence some 6 months before that date and had recommenced work.
Platje v VOSA,  R.T.R. 28; High Court
Derogations; Drivers; Drivers' hours; EU law; Rest periods; Road safety. Where a driver extended his daily rest period into a weekly rest period as permitted under Regulation 561/2006 art.8(3), the art.9(1) derogation which permitted limited interruptions to daily rest periods did not apply to all or part of the weekly rest period.
Brants v DPP, (2011) 175 J.P. 246; Official Transcript
Road Transport; Road Traffic offences; Abuse of process; Delay; Disclosure.
The CPS could not explain the reasons for the delay arising out of no less than 13 adjournments in responding to the simple and reasonable request to provide the digital information, and the events had been wholly unacceptable. Whilst the CPS might be short-staffed and hard-pressed, to procrastinate and pass simple administrative tasks from one employee to another and to then engage in correspondence attempting to justify the delay consumed far more resources than completing the task at once. Such conduct should not have occurred and merited censure.
Platje v Vehicle and Operator Service Agency,  R.T.R. 28
Road Transport; EU Regulations; Derogations; Drivers; Drivers' hours; EU law; Rest periods; Road safety; Ferry Rule.
Where a driver extended his daily rest period into a weekly rest period as permitted under Regulation 561/2006 art.8(3), the Art.9(1) derogation which permitted limited interruptions to daily rest periods to permit the boarding or disembarkation form a ferry did not apply to all or part of the weekly rest period.
Harding v Vehicle and Operator Services Agency
Drivers' hours; EU law; Exemptions; Rest periods; Road safety. Regulation 561/2006 Art.8 and the exemption under Art.12 (which permitted derogation for safety reasons). The requirement that a record be kept of the reason for departure from the relevant articles, in particular Art.8, was clear and mandatory.
R. (Doughty) v Ely Magistrates' Court (2008) 172 J.P. 259; (2008) 172 J.P.N. 492.
Archbold; Blackstones; Wilkinsons.
Admissibility of Expert evidence; Expert witnesses; Police officers; Speeding; Speed measuring equipment.
Expert had not been permitted to attend US laser manufacturer’s training course as it was only available to law-enforcement agencies but not defence experts. High Court found that to be unreasonable; accordingly it was equally unreasonable of the magistrates to exclude the expert’s opinion as being of no value in resolving the issues at trial. The proper test was whether or not the witness was in fact an expert; not whether his evidence was of any value, that being a decision for the fact-finding tribunal alone.
House of Cars v Derby Car and Van Contracts Ltd,  C.T.L.C. 62.
Pre-registered vehicles; Misleading omissions; Registered keepers; Third parties; Vehicle registration.
The practice whereby car dealers sold pre-registered cars whilst retaining the V5C ‘Log book’ in order to obtain manufacturer’s discounts and which the industry as a whole had hitherto regarded as legitimate a legitimate practice, was unlawful.
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