DVSA Tachograph Detectors

4th August 2022 Driving Offences

The DVSA (‘the Agency’) can now, for the first time, use remote tachograph sensing equipment to review information held by a digital smart tachograph unit whilst a vehicle is driving past, or whilst travelling alongside a vehicle. This comes after the Agency announced that it has started trialling technology which will allow officers to access some of the information held in a vehicle’s digital smart tachograph whilst they are parked by the roadside. Not dissimilar, perhaps, to a manned speed camera used by the police, or the Weigh in Motion sensors used for enforcement against overloading.

One of the functions of this technology, according to the Agency, is to assess whether drivers are driving in accordance with the relevant drivers’ hours rules. Where officers, through the use of this technology, have reason to suspect that a driver is failing to adhere to the appropriate drivers’ hours rules - and this is evident from the data held by the digital smart tachograph - the DVSA will most likely use that data to initiate a stop of the vehicle to better analyse the tachograph data in more detail. This may result in the officers issuing a fixed penalty notice to the driver for breach of the appropriate drivers’ hours rules, and may also possibly trigger a visit from a Traffic Examiner to the operator’s site to assess both their systems and processes for managing drivers, and planning work in accordance with the required drivers’ hours regime. This new technology will also assist officers in identifying where a tachograph has been tampered with.

In addition to identifying potential drivers’ hours infringements and tachograph tampering, this new technology may also show the Agency where a vehicle is being driven on a road without a driver card being inserted.

The law

Commercial vehicle drivers will, generally speaking, drive under one of 3 types of drivers’ hours rules: (1) EU Drivers’ Hours Rules, (2) AETR Rules, or (3) GB Domestic Rules. Drivers most likely find themselves driving under either EU Rules or AETR Rules, which require the drivers to drive their vehicles with a tachograph fitted (unless the vehicle is exempted). Regulation (EC) 561/2006 (‘the Regulation’) is the piece of EU legislation (now brought into UK law) which lays down the EU Drivers’ Hours Rules.

The Transport Act 1968 lays down the GB Domestic Rules and also contains key provisions in enforcing and building upon the rules laid down in the Regulation. For example, section 99ZA gives the Agency certain powers to request information and documents in respect of drivers’ hours rules. However, it is important to note that the powers granted to the Agency under section 99ZA are restricted, and it is worth considering legal advice when such a request is received to ensure that the request complies with the legislation.

This piece of legislation also gives the prescribed period within which vehicle unit and driver card data needs to be downloaded. However, it should be noted that whilst these are periods noted down in law, the Agency may expect or hope to see operators taking a more proactive view in respect of downloading data (rather than simply running to the maximum period granted within the legislation).

Under the Transport Act 1968, it is an offence for a person to make, or cause or permit to make a false record. Both a driver (possibly as the maker) and/or an operator (possibly for causing or permitting) may be prosecuted under this legislation, and where a driver is found to have been driving without a driver card inserted a false record may be considered to have been made. In order to avoid a prosecution for ‘causing or permitting’, an operator may want to ensure that members of staff are aware of route planning measures and tachograph rules, along with the processes the operator (hopefully) has in place to ensure that drivers and their hours are managed effectively, so as to prevent a driver being able to drive a vehicle unlawfully without a driver card.

Impact

Clearly, the use of this technology will facilitate the Agency identifying infringing and offending drivers and may also influence the direction of their scrutiny in terms of operators. If the Agency have cause to believe that something is amiss in respect of drivers employed, working, or driving for a particular operator, then it may take a closer look at that licence holder.

Where a vehicle is in scope and, consequently, is required to run with a tachograph fitted, a smart tachograph unit has been mandatory for all newly registered vehicles since 15 June 2019.

Depending on the outcome of the Agency’s trial of this technology, operators and drivers may find that such equipment becomes a staple of drivers’ hours enforcement, and the frequency with which their drivers are stopped may increase. Repeated instances of drivers breaching drivers’ hours rules and/or driving without inserting their driver card will undoubtedly attract the attention of the Traffic Commissioner and may see a driver called into a driver conduct hearing and/or the operator called in to a public inquiry. The Office of the Traffic Commissioner and the Agency will be able to acquire a flavour for a licence holder’s culture in respect of drivers’ hours compliance through its own records and through that operator’s Operator Compliance Risk Score and enforcement history.

Agency advice following the commencement of this trial is:

“If you are a driver, make sure you:

  • understand your responsibilities as a driver
  • check your tachograph is working properly before you set off
  • take adequate rest
  • correctly record your driving time and rest on your tachograph

If you are a HGV, PSV or LGV operator who has to follow drivers’ hours rules, make sure you:

  • understand your responsibilities as an operator
  • maintain tachograph equipment
  • know how to adequately schedule driver’s activities
  • regularly check your driver's compliance
  • listen and respond to any drivers’ hours concerns raised by your drivers”

Source: https://content.govdelivery.com/accounts/UKDVSA/bulletins/3264e04/

If you have any concerns in respect of drivers’ hours, speak to the road transport solicitors at JMW today to find out more about how we can help you and your business. Simply call us on 0345 241 5305 or complete our online enquiry form and a member of the team will give you a call back at a convenient time.

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Patrick Boyers is a Solicitor located in Manchester in our Business Crime & Regulation department

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