Motoring Defence Barrister | Call: 07866 441575 | firstname.lastname@example.org
The law in relation to vehicle condition offences is set out in the Construction and Use Regulations under the Road Traffic Act 1988.
This vast area of the law sets out the standards that must be met in relation to the construction, maintenance and use of all motor vehicles. The rules and regulations that apply to Construction & Use offences are often extremely complex and technical.
The type of motoring offences which fall within this legislation are generally concerned either with the condition a vehicle is kept in or something that has been done to a vehicle which makes it unsafe, such as the loading and securing of goods on vehicles, it also includes the use of trailers and modifications to vehicles.
Typical examples of the most commonly prosecuted Construction and Use offences are, driving a vehicle with:
Carrying an unsafe or insecure load;
Carrying too many passengers for a particular vehicle, or;
Construction and Use offences impose an 'absolute' or 'strict' liability, which means liability can arise without fault as the action or offence committed may not have been intentional. Ignorance of a regulation or a defect is not a defence. Therefore, these offences can arise even where the driver was unaware of the defect. For example, if a driver is charged with using a vehicle with defective lights it is not a defence that he did not know that the lights were not working.
A prosecution for a Construction & Use offence can result in a Fine of up to £5,000, depending on the type of vehicle, penalty points or even a discretionary disqualification.
An examiner will always consider the full circumstances of the situation and of the offence when reaching a decision on how to deal with an offence. Examiners will consider any mitigating or exacerbating factors which may be present and will make an informed decision before taking any action.
Construction & Use offences can be dealt with in a number of ways such as:
By taking no further action and giving a verbal warning;
The issue an Offence Rectification Notice (ORN);
The issue of a Prohibition Notice (relevant to mechanical, weight, drivers’ hours and dangerous goods);
The issue of a Fixed Penalty Notice or;
Report for a court summons.
The vast majority of the Construction & Use offences are dealt with by way of issuing a Fixed Penalty Notice (VOSA examiners also have the power to issue Fixed Penalty Notices).
If you are issued with a Fixed Penalty Notice for a Construction & Use offence, you have 28 days to pay the amount shown on the Notice, alternatively, if you don’t accept the offence, you have the option to ask for the matter to be dealt with by way of a court hearing so that you can contest the offence.
A Fixed Penalty Notice is just one of a number of options open to the Police or VOSA, when determining the appropriate course of action. If the infringement is minor, such as where there is no danger, or no other party is involved, then you may be given a verbal warning, with no further action being taken, alternatively, you may be given the opportunity to participate in a vehicle rectification scheme (ORN), as an alternative to prosecution.
This is a voluntary scheme, where you will be given a form setting out the defects on your motor vehicle, requiring you to put those defects right, have the vehicle inspected by an approved garage, who will then confirm that the defect has been rectified by stamping and giving you back the form. You will then have to return to the police within 14 days of the offence together with the stamped form.
If you are not given the opportunity to participate in a vehicle rectification scheme, or a fixed penalty is not offered, or you refused it, court proceedings must commence within 6 months from the date of the offence.
If you receive a summons for a road traffic offence, it will generally contain the allegation that the accused either used, caused, permitted or aided and abetted the use of a vehicle in an illegal way.
There is no requirement for a Notice of Intended Prosecution (NIP) to be given for Construction and Use offences.
Most prosecutions proceed on the basis of the police giving evidence about the alleged defect or other contravention, such as driving with an insecure load or too many passengers. In the majority of cases the evidence will be relatively straightforward and the defect or danger will be obvious. However, you shouldn’t always assume that the police have the necessary expertise to give evidence about technical defects, nor should you assume that the evidence of the police cannot be challenged. A factual defence of denial is always open to a driver who disputes the allegation that his vehicle doesn’t meet the required standard.
If a driver is convicted or accepts that he is guilty of a Construction & Use offence he may avoid penalty points or disqualification if he can show that he did not know, nor had he reasonable cause to suspect, that the offence in question was being committed.
Section 48 of the Road Traffic Offenders Act 1988 provides that, where a person
is convicted of an offence under the Road Vehicles (Construction and Use) Regulations 1986, being an offence for which endorsement or disqualification is obligatory, the court cannot order endorsement or disqualification or a driving test if he establishes that he did not know and had no reason to suspect that the facts were such that an offence had been committed.
The onus is on the defence to establish this requirement on the balance of probabilities, but essentially it precludes the court from imposing any penalty points or disqualification, if the relevant facts are established.
Not only will it assist the innocent employee or partner, but also the employee who is
without fault, the private car owner who has relied on his garage, even the member
of the family who uses the family car reasonably believing it to be free of any
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