Since 6 June 2011, VOSA examiners have been rigorously exercising their power to charge the £80 release fee for vehicles that have been immobilised for breaches of road transport regulations.  This power extends to both UK and non-UK vehicles.

VOSA examiners have very broad powers to immobilise vehicles for any reason.  In practice, however, they will only immobilise a vehicle where they have detected serious breaches of the regulations which affect road safety.  These breaches include, but are not limited to, the following:-

-          breaches of drivers’ hours regulations (excluding 45 minute break prohibitions);

-          overloading

-          unroadworthy vehicles

-          uninsured vehicles; and

-          where fixed penalty deposits have not been paid.

The release fee is payable by the operator, or the driver on the operator’s behalf, and can be made to the examiner at the time of the immobilisation or upon removal of prohibitions.

There may be “special circumstances” where a VOSA examiner will decide not to immobilise a vehicle where a breach of the regulations has occurred; however, this tends to be limited to the situation where, for example, the vehicle is carrying perishable goods or where passengers would be inconvenienced if the vehicle was immobilised.

The most effective way to prevent VOSA immobilising your vehicle, and from paying the subsequent release fee, is to ensure that you have adequate maintenance procedures and drivers hours monitoring systems in place to ensure drivers and vehicles are compliant with all road transport rules and regulations.

If you wish to discuss the adequacy of your existing compliance systems, please contact Tim Culpin on 01244 405533 or by email to tim.culpin@aaronandpartners.com.

It is now over two years since the EU Directive was introduced compelling all LGV drivers to undertake 35 hours of periodic training within a five-year period in order to retain their vocational qualifications.  However, training figures indicate that very few drivers have taken steps to implement the new training requirements.

There is a real risk that drivers who leave their 35 hours of training until the last minute will suffer from high-cost, low-quality training or there will not be enough places available on training courses to support the flood of last-minute applications.

Businesses that plan ahead will benefit from being able to arrange for drivers to undertake their training during quieter periods and ensure that all drivers are fully operational during peak periods.  Having a training plan in place will help to minimise the impact that having drivers off the road will have on their business.  Ensuring that drivers are well versed and updated on road traffic laws will also help business by ensuring there are fewer breaches of the regulations and fewer road accidents.

Businesses still feeling the effects of the recession may be delaying sending drivers on Driver CPC because they do not consider training to be a high priority for the business.  Others may also be under the mistaken assumption that the September 2014 deadline may be extended or that the laws will change before the deadline is reached.

In any event this may a false economy. If drivers have been on relevant and up to date training there is less likelihood of drivers breaking the voluminous driving legislation.  This in turn would reduce the likelihood of business being called before the Traffic Commissioner for such breaches. The Traffic Commissioners are now regularly placing undertakings on operator’s licences at PI requiring the implementation of a program of Driver CPC training.  Annual refresher training on drivers’ hours and daily defect reporting is very much viewed as part of the standard undertakings so if training has to be given it might as well count for Driver CPC purposes.

It is advisable that companies start to implement the new training requirements sooner rather than later, as drivers who have not completed their 35 hours training by the September 2014 will lose their vocational driving entitlements and will be taken off the road.

For further information on the Driver CPC requirements, please contact Tim Culpin on 01244 405533 or by email to tim.culpin@aaronandpartners.com.

Since 20 June 2011, all vehicles registered in Great Britain, regardless of whether they are on public roads or not, must be taxed or, alternatively, declared to be the subject of a Statutory Off Road Notice (“SORN”).

The new provisions apply equally to PSVs and LGVs.

What is a SORN?

A SORN is an official declaration to the DVLA by the registered keeper of a vehicle that the vehicle is “off the road” and is therefore exempt from Vehicle Excise Duty.

You do not need to make a SORN for a registered vehicle that is kept off-road if:-

• you no longer have the vehicle and the DVLA have been informed;
• the insurance company has written off the vehicle;
• if the vehicle is untaxed for less than 14 days; or
• the vehicles was last taxed before 1998 and has not been taxed since.

What are the penalties for failing to make a SORN or making a false SORN?

Vehicle owners found or suspected to be in breach of the new regulations will firstly be issued with an Insurance Advisory Letter advising them that they must tax their vehicle or complete a SORN.

Owners who do not comply with this letter risk being issued with a £100 fixed penalty notice or, if the offence continues and prosecution becomes necessary, the owner could face a fine up to £1,000.

Where an owner has completed a SORN but continues to use or store the vehicle on public roads, the owner could face a fine up to £5,000 and imprisonment.

The new policy will run alongside existing offences and enforcement measures currently in place for untaxed vehicles.

How do I make a SORN?

A SORN must be completed by the registered keeper of the untaxed vehicle which is being stored off-road.

The registered keeper must return the vehicle’s tax disc to the DVLA and complete a SORN using a V14 application form, which is available from the Post Office or from www.direct.gov.uk/vehicletaxrefund.

How long does the SORN last?

The SORN lasts for up to 12 month.  Where an owner wishes to keep the vehicle off the road and untaxed beyond the 12 month period, he or she must renew the SORN before the 5^th day of the month before the 12 month expiry date of the SORN.

For further information, please contact Tim Culpin on 01244 405533 or by email at tim.culpin@aaronandpartners.com.

Sadly, the old 10 O’Clock News before Match of the Day mantra of “If you don’t want to know the results look away now” may not be a possibility.

Fact 1: On 26 May 2012 we all have to comply with the new cookie regulations.

Fact 2: The new cookie regulations require opt-in, rather than opt-out, and no cookies should be put onto the user’s PC without their consent.

Fact 3: Most sites don’t work without cookies and, in-fact, download cookies before the user has had a chance to do anything, let alone opt in.

Fact 4: Hang on, doesn’t Fact 3 make a bit of a nonsense of Fact 2?

So we all have a problem.  And by all, I mean anyone who has a website which is more than a one page brochure site.

In order to comply fully with the law the first thing a user should see on a site is a big flashing box that says “Warning: this site is about to download cookies onto your PC.  Click YES to accept them”.  If they do that’s fine, BUT:

Fact 5: Recent research showed that only 23% of those surveyed said they would be happy to opt-in to cookies on a website.

So you may lose 77% of your web-traffic.  You’ll also lose all your analytics.  And a website without analytics is not much use.

So, as a corporate lawyer, I have to tell you that you must, as of 26 May, have a big flashing box that may well lose you your analytics and 77% of your traffic.  Your marketing department will not like me.

They may well point out that no-one else is doing that.  The more eagle eyed may well point to a recent advice from the Government Digital Service to all government users that “Provided clear information is given about [cookies’] activities we are unlikely to prioritise first-party cookies used only for analytical purposes in any consideration of regulatory action”.

So the government is sort of hinting to its own users that they need not be too worried.  Will this be a Cookie Kinder Scout?  Does the ICO have the resources or the inclination to prosecute every website owner in the country?  Will they go for a few big profile scalps?  Or will they, more sensibly, go after that small number of people sending malicious cookies?

We don’t know!

So what do we suggest?  This blog is not legal advice and I suspect that, if you asked a lawyer for legal advice, he or she hypothetically might tell you to go for the big flashing lose your traffic option.

On a more practical level, firstly you should beef up your Privacy Policy and Cookie Policy to make sure that it’s clear what cookies you are using and what they do.  Give users clear guidance how to disable them if they want to.  Have a link to your Cookie Policy on every page.  You may wish to go for a discreet box in May and June on your home page saying that you use cookies with a link to your Cookie Policy.

You may wish to speak to your IT people to make sure you can go for the opt-in option if on 27 May swarms of government inspectors start swooping on unwary website owners and imposing fines (which as a corporate lawyer I must point out to you are up to £500,000).  The fact that the GDS has hinted that a few analytical cookies might be OK will probably not be a good defence.

I regularly check the sites of big companies and government departs to see what they are doing.  So far no real change.

So watch this space and be prepared.  If you need a fixed price set of website Ts&Cs we can provide that for you.  Check out our website at http://www.aaronandpartners.com/business/business-services/commercial/website-terms-and-conditions/.

Mark Briegal is a corporate partner at Aaron & Partners LLP based in Chester.  He can be contacted on 01244 405563 or at mark.briegal@aaronandpartners.com.

The cases below show how momentary lapses in concentration can have tragic consequences.  In both cases someone has been tragically killed.

Both drivers had clean driving licences and strong mitigation but were imprisoned for periods of 10 and 4 months.  Both were disqualified from driving for 12 months however for vocational drivers it is almost a certainty that they will also be called before the Traffic Commissioner for driver conduct hearings.

Whilst the Statutory Guidance and Directions do not explicitly deal with the offence of causing death by careless driving it is highly likely that both drivers will have their vocational licences revoked and disqualified for a lengthy if not indefinite period of time.

R v Gardiner [2012] EWCA Crim 771

The appellant pleaded guilty to an offence of causing death by careless driving. He was sentenced to 10 months’ imprisonment and disqualified from driving for a period of 12 months. The appellant had collided with a cyclist whilst driving a heavy goods vehicle.
The deceased was riding his pedal cycle along a dual-carriageway road in a semi-rural setting. At the scene of the accident, the dual-carriageway acquires a third lane which becomes a slip road to enable people to exit from the dual-carriageway.

The deceased was cycling in what would be the nearside lane of the dual-carriageway, close to the white line separating that lane from the slip road and was wearing a high visibility jacket. The appellant’s goods vehicle was travelling in the same direction, and close to the slipway access his lorry collided with the rear of the pedal cycle, the driver having failed to see the cyclist until the last moment.

The 40 year old appellant was cooperative with the police, he made significant admissions at the time of interview and pleaded guilty before the court at the earliest opportunity, he had shown what the judge accepted was genuine and complete remorse, he was someone the judge felt able to describe as a perfectly respectable man with one spent conviction for an unrelated matter and a clean driving licence. He was a single parent and the sole carer, with the assistance of his elderly mother, for two children aged 8 and 11.

There was further mitigation available to this appellant in the sense that he was in full-time employment and although his employers were aware that he faced a mandatory driving disqualification, they had been prepared to offer him alternative employment in the event that he retained his liberty. In addition, the pre-sentence report was one which assessed this appellant as being at a low risk of causing harm to others in the future.

In the court’s judgment the assessment of this case as one which falls into the intermediate category was correct. This was not a case of momentary inattention. The appellant must have failed until far too late to observe the cyclist who should have been readily visible to him. This was on any view in our judgment a significant failure to keep a proper lookout.
In the courts view the sentence imposed properly took account of available mitigation, including the early guilty plea. It was a sentence which fell in the middle of the intermediate range within the guideline and in their judgment properly so. Accordingly the appeal was dismissed.

R v Gordon [2012] EWCA Crim 772

The appellant pleaded guilty to causing death by careless driving. He was sentenced to six months’ imprisonment and disqualified from driving for 12 months and ordered thereafter to take an extended retest.

The appellant was the driver of a flatbed truck which had to cross the northbound carriageway of the A24 and go through the central reservation in order to be able to reach the southbound carriageway.

The appellant moved across the northbound carriageway and entered the central reservation. He waited there so that traffic which was proceeding southwards on the southbound carriageway would clear so as to enable him to drive south himself. Whilst he was waiting his vehicle was positioned in the central reservation so that the rear end of his trailer protruded for a distance of about 1.8 metres into the outside lane of the northbound carriageway.
A number of motorists saw the hazard created by the manoeuvring of this appellant’s vehicle and avoided an accident. Unfortunately, the driver of a Nissan Micra, did not see the hazard and he collided with the rear of the trailer.

The 49 year old appellant had no relevant previous convictions and an unblemished motoring record. He had lost his employment and would have difficulty in the future in finding employment given the nature of his conviction. He had been driving for some 29 years without difficulty or blemish.

This case is somewhat unusual in that unlike most other cases the vehicle was not in motion at the time of the accident. The falling below an appropriate standard arises from the turning manoeuvre which left the back end of the trailer protruding into the carriageway for an appreciable period of time. There are no aggravating features of this case in the sense that they are referred to in the relevant guideline. There was an early guilty plea which is to be recognised as part of the sentencing exercise and the appellant has considerable personal mitigation.

In this instance, the judge indicated that the view which he took of this case in relation to the relevant guideline was to place it in the upper end of the intermediate level of sentencing. The appellant’s manoeuvre was transformed into one which created risk by his decision to cross the carriageway and enter the central reservation without being in a position to be satisfied that the whole of his vehicle would be safely clear of the northbound carriageway.

In the instant case the court considered the appropriate sentence was one of 16 weeks’ custody rather than the sentence of six months which had been imposed.

If you have any queries raised by this article, please contact Tim Culpin on 01244 405533 or by email to tim.culpin@aaronandpartners.com. (24 hour emergency number: 01244 405577)

ACAS recognises that while some employees will want to take time off during the Games to be a spectator or a volunteer and some will hope to watch the Games’ coverage at work; others will have no interest and may be angry about all the fuss and any favouritism shown to those with sporting interests.

ACAS suggests that employers consider the following:

-       Managing employees’ attendance – employers should review contracts to ensure that they have reserved the right to refuse holiday requests where there is a business need for e.g. a minimum number of employees to remain at work.  Requests for holidays should also be handled fairly and in a non discriminatory manner.  Employers may wish to consider dealing with requests on a first come first served basis.

-       Flexible working – whether or not employers currently have flexible working in their business, it may be something to consider, even as a short-term measure.  This could include altering employees’ working hours and location and/or working from home.  Offering flexible working may enhance staff morale and productivity.

-       Performance issues – rather than being faced with staff watching lengthy coverage of the Games on their computers, it may be useful to plan for popular events to be shown on a TV in a communal area.

-       Volunteers – volunteering would offer individuals first hand involvement in the Games and can be beneficial to employers as it helps to develop employees’ skills.  There is no legal right to take time off (whether paid or unpaid) for volunteering in addition to the statutory right to take holiday.  Employers can therefore decide whether to offer paid or unpaid time off or whether to require an employee to take annual leave if they wish to volunteer to work at the Games.

If you are worried about how the Games may affect your business or need any further advice on how to manage your business during the Games, please do not hesitate to contact Helen Watson in the Employment team at helen.watson@aaronandpartners.com or on 01244 405555.

This follows reports of employers in the United States of America (US) asking job applicants for their social media details.  The US attorney general has been asked to investigate whether such requests violate federal law in the US.

The ICO has said that this sort of action in the United Kingdom would put employers in breach of the Data Protection Act 1998 since such a request would constitute “excessive” information about an individual.

Facebook also warned that such a request would breach its terms of service.

From an employment law perspective, employees or job applicants may have potential discrimination claims if, for example, by logging on to an individual’s social media account, an employer discovers that the individual has a protected characteristic (as listed in section 5 – 12 of the Equality Act 2010) and treats the individual less favourably than others because of the protected characteristic.

Having a social media policy in place would minimise the risks which social media sites pose not only with discrimination but also with confidentiality, proprietary information and reputation.

Please contact Helen Kidd in the Employment team at helen.kidd@aaronandpartners.com or on 01244 405555 if you need a social media policy or have any concerns about the effect social media could have on your business.

Chester and Manchester-based Aaron & Partners sponsored the ‘Best Venture Backed Tech Startup’ category at the second annual Northern Tech Awards in Manchester.
The accolade went to Camiloo, which provides services to online retailers including Amazon and also develops mobile and desktop applications for third parties.
Camiloo last year received investment from the European Regional Development Fund-backed North West Fund 4 Digital & Creative.
Adam Kerr, head of intellectual property & technology at Aaron & Partners, said: “Camiloo’s success story should be a source of inspiration for all would-be entrepreneurs.
“It began trading in 2009 from a spare room in an apartment. Starting with a single client retainer, the company has grown to more than 320 clients worldwide and has a bright future ahead of it.
“We were very proud to present the award to such an inspirational company.”
Aaron & Partners, Cheshire’s largest commercial law firm, has established strong links with the region’s technology and IT businesses, and its intellectual property practice is growing rapidly.
Techcelerate CEO Manoj Ranaweera, who founded the Northern Tech Awards last year, said: “We are delighted that in only our second year the awards are firmly established as an essential event for the technology sector. “The quality of applications this year was exceptional.”

Changes to the OCRS system are to be introduced which could have significant implications for all.

The Changes

Predictive scoring is to be removed.

• Predictive scoring is to be replaced by introducing a new ‘grey’ band for all operators who have had no encounters in the last three years.  It is important for operators to understand where this new ”grey” band sits in terms of VOSA’s targeting of vehicles:

Traffic – between red and amber.

Roadworthiness – between amber and green.

Banding will be based on the actual baseline figure and no longer on a league table basis.  The baseline figure will be calculated each Friday (available on the following Sunday) by dividing the total points by the total number of encounters over a three year period.  While the period is being extended from 2 to 3 years points will be weighted by age:

-            Less than 12 months old – full weighting.

-            12-24 months old – 0.75 weighting

-            24-36 months old – 0.5 weighting.

Prohibitions and test failures are now all standardised.

• This means you will be issued with a set amount of points depending on the type of infringement which has occurred.  The range of points can be found here: www.aaronandpartners.com/OCRS

Points for fixed penalties will now also be included in the OCRS calculation.

• This means a fixed penalty of £120 will add 100 points the Operator’s OCRS. The banding VOSA has currently issued means that if such an event was a first encounter for that licence, the Operator’s OCRS would immediately go to red for which ever category (Roadworthiness or Traffic) the fixed penalty related. Full details can be seen here: www.aaronandpartners.com/OCRS
• For that Operator to remedy the situation it would need a further 3 clear encounters of some description to get their baseline score below 25 or 30 points and back into amber and a further 9 or 19 clear encounters to get into green!.
• If an encounter results in both a fixed penalty and a prohibition then only the prohibition attracts the points.
• Points attach to a fixed penalty on its acceptance not on its issue.

Straight to red (“STR”) events.

• Certain events will trigger STR for a period of either 6 or 12 months.
• If an operator is convicted for any offence or a Most Serious Infringement (MSI) is detected, irrespective of the operators baseline score its OCRS will automatically be red for 12 months for a conviction or 6 months for an MSI.  More details can be seen here: www.aaronandpartners.com/OCRS
• The conviction of a driver does not trigger STR but does attract points.
• STR will place vehicles immediately into the red high risk category and will be much more prone to roadside inspections.
• At the end of that period the OCRS will be determined by the operator’s then current baseline points.
• With 600 points for a single conviction those operators would need 23 clear encounters to move their roadworthiness baseline score out of the red band or 19 clear encounters to move their traffic baseline score out of the red band
• Prior clear encounters will reduce the baseline and being in red may well mean that it does not take long to have 19 or more further encounters but it is critically important that these encounters are all clear.

The new rules regarding fixed penalties and convictions create a tension that may not be that easy to resolve:

• If a driver refuses a fixed penalty and successfully defends in Court points will be avoided.  This is clearly in the operator’s best interests.
• The driver may prefer to accept the fixed penalty and avoid the risk of a higher fine in Court, prosecution costs, victim surcharge and the costs of running a defence.
• Band 3 & 4 fixed penalties (£120 & £200) attract 100 or 200 points, but a driver’s conviction only attracts 50 points.  Note however that some Band 4 fixed penalties will be MSIs – e.g. using someone else’s driver card.
• Refusing a fixed penalty may also result in VOSA deciding to prosecute the operator with the risk of STR.

For more on this particular issue go to; www.aaronandpartners.com/OCRS

Operators must therefore ensure that they have systems in place such that their drivers keep them fully advised as to all encounters particularly those where prohibitions or fixed penalties are issued.

VOSA have set the bar very low with a baseline of over 25 putting a licence into the red band for Roadworthiness and over 30 for the Traffic Enforcement red band.  While the number of clear encounters is obviously critical, in real terms the following events could put an operator into red:

• An MoT failure for a minor defect.
• A delayed prohibition for a minor defect.
• A £60 fixed penalty for a drivers’ hours offence.

Will these changes move more operators into red?  VOSA say that the modelling they have carried out indicates that while there will be some winners and some looser they do no anticipate any significant changes in the number of operators in each band.  If these changes do result in an increase of operators in the red band surely this will devalue the scheme with respect to targeting the seriously non compliant.

A high standard of compliance is now a must, the penalties for getting it wrong could now have long term consequences for fleets with increased stops from VOSA leading to costly delays.

Please note that the information and opinions expressed in this article are not necessarily comprehensive and do not purport to give professional advice.  Specific advice concerning individual situations should be obtained from Tim Culpin on 01244 405533 or by email to tim.culpin@aaronandpartners.com