Article 12

ASK THE EXPERTS SAFETY, LAW AND WORKING TIME DIRECTIVE FORUM (INTE
1

Hi just a quick question

if you are on a road and you know your dew to take a break within the next 15 minutes, and see that the services are say 3 miles away, but you see in front of you a sign saying possible delays ahead at peak times, and you drove down there and got stuck in slow moving traffic and it takes you 1 hour to get to the services

in that 3 miles of road you passed 3 lay-bys that were not full and got to the services, and vosa were there and stopped you could you use Article 12 as the reason

I would say that you have to stop at the first available safe stopping place in this case the first lay-by if you time was up at that point

would i be right in this

the reason I ask is, I was asked if your in the traffic jam finding the safe stopping place would be after you left the jam not while in it even if you passed some stopping places

this will be my last post for a while so a quick answer is required as i need to have a break for the net and am pull the plug on the broadband, as money is now hard to come by at the mo

so thanks for reading my posts and good luck to all

will try to get to the library from time to time

2

delboytwo:
Hi just a quick question

if you are on a road and you know your dew to take a break within the next 15 minutes, and see that the services are say 3 miles away, but you see in front of you a sign saying possible delays ahead at peak times, and you drove down there and got stuck in slow moving traffic and it takes you 1 hour to get to the services

in that 3 miles of road you passed 3 lay-bys that were not full and got to the services, and vosa were there and stopped you could you use Article 12 as the reason

I would say that you have to stop at the first available safe stopping place in this case the first lay-by if you time was up at that point

would i be right in this

You would be correct, use first available stopping place after going over your hours. Ignoring stopping places just because you want to stop at a particular place would be an offence.

3

delboytwo:
… this will be my last post for a while …

I’m sorry to hear that Del. :frowning:

I hope things turn out better for you sooner rather than later mate. :smiley:

4

I’ll say that I have a simple rule of thumb that I shouldn’t pass a place that it would be legal to stop in for 45 minutes (or 11/9 hours) either once I’ve gone over my time, or slightly before I’ve gone over.

But simply to play Devil’s Advocate - and to be nit picky :wink: . . . . . . . . . .

I think there are a couple of discussion points surrounding Article 12, and the interpretation of the actual words and phrases within.

Provided that road safety is not thereby jeopardised and to
enable the vehicle to reach a suitable stopping place, the driver
may depart from Articles 6 to 9 to the extent necessary to
ensure the safety of persons, of the vehicle or its load. The
driver shall indicate the reason for such departure manually on
the record sheet of the recording equipment or on a printout
from the recording equipment or in the duty roster, at the
latest on arrival at the suitable stopping place.

The first words to discuss is “suitable” This is of course qualified by “to ensure the safety of persons, of the vehicle or its load”

Of course, we also have to acknowledge “to the extent necessary” so clearly, there are limits to how far and how long.

‘suitable’ is not the same as ‘legally acceptable’ and is as open to interpretation as the word ‘reasonable’

There’s no mention of ‘unforeseen events’ in the actual legislation. For that we have to refer to the Guidance Notes as published. Guidance Note 1 deals with Article 12.

Para 3; to the Enforcers includes -

(b) the deviation from driving time limits must not be a regular occurrence and must be caused by
exceptional circumstances such as: major traffic accidents, extreme weather conditions, road
diversions, no place at the parking area, etc. (This list of possible exceptional circumstances is
only indicative. The principle for assessment is that the motive of possible deviation from driving
limits must not be known or even possible to foresee beforehand)

Para 1; to the Transport Undertaking includes —

it must organize work in such a way that drivers are able to comply with the Regulation and should take into account the
requirements of shippers and insurance companies concerning safe parking are satisfied

A couple of points to bear in mind, with regard to my points of view. Vosa do not make or write the rules. They simply enforce them. The fact that Vosa may seek to bring a prosecution does not always guarantee the prosecution will be successful. All too often a driver will agree with an enforcement officers ‘opinion’ that an offence has been committed, thereby giving or at least alluding to a confession. Think about the Lincolnshire (■■) haulier’s drivers ‘successfully prosecuted’ for speeding within a few miles of their yard because it was all single carriageway.

The saddest fact is that most Drivers’ Hours offences do not fall under the banner of ‘criminal activity’ Therefore Vosa and the Traffic Commissioners activities have no reference to the Criminal Prosecution Service. Were the CPS involved, I firmly believe many of the prosecutions would not be brought.

5

dambuster:
I’ll say that I have a simple rule of thumb that I shouldn’t pass a place that it would be legal to stop in for 45 minutes (or 11/9 hours) either once I’ve gone over my time, or slightly before I’ve gone over.

I’d say you need to plan better.

But simply to play Devil’s Advocate - and to be nit picky :wink: . . . . . . . . . .

dambuster:
I think there are a couple of discussion points surrounding Article 12, and the interpretation of the actual words and phrases within.

Provided that road safety is not thereby jeopardised and to
enable the vehicle to reach a suitable stopping place, the driver
may depart from Articles 6 to 9 to the extent necessary to
ensure the safety of persons, of the vehicle or its load. The
driver shall indicate the reason for such departure manually on
the record sheet of the recording equipment or on a printout
from the recording equipment or in the duty roster, at the
latest on arrival at the suitable stopping place.

The first words to discuss is “suitable” This is of course qualified by “to ensure the safety of persons, of the vehicle or its load”

Of course, we also have to acknowledge “to the extent necessary” so clearly, there are limits to how far and how long.

‘suitable’ is not the same as ‘legally acceptable’ and is as open to interpretation as the word ‘reasonable’

There’s no mention of ‘unforeseen events’ in the actual legislation. For that we have to refer to the Guidance Notes as published. Guidance Note 1 deals with Article 12.

Para 3; to the Enforcers includes -

(b) the deviation from driving time limits must not be a regular occurrence and must be caused by
exceptional circumstances such as: major traffic accidents, extreme weather conditions, road
diversions, no place at the parking area, etc. (This list of possible exceptional circumstances is
only indicative. The principle for assessment is that the motive of possible deviation from driving
limits must not be known or even possible to foresee beforehand)

Para 1; to the Transport Undertaking includes —

it must organize work in such a way that drivers are able to comply with the Regulation and should take into account the
requirements of shippers and insurance companies concerning safe parking are satisfied

A couple of points to bear in mind, with regard to my points of view. Vosa do not make or write the rules. They simply enforce them. The fact that Vosa may seek to bring a prosecution does not always guarantee the prosecution will be successful. All too often a driver will agree with an enforcement officers ‘opinion’ that an offence has been committed, thereby giving or at least alluding to a confession. Think about the Lincolnshire (■■) haulier’s drivers ‘successfully prosecuted’ for speeding within a few miles of their yard because it was all single carriageway.

The word ‘planning’ seems to have totally escaped you. Its all very well operators, agents etc…giving undertakings…planning work …etc…but you yourself as a driver will know roughly whe and where you are going to be and should be able to adapt accordingly. I do agree with your take on drivers giving their own confessions but thats a different subject to planing for stops i think.

dambuster:
The saddest fact is that most Drivers’ Hours offences do not fall under the banner of ‘criminal activity’ Therefore Vosa and the Traffic Commissioners activities have no reference to the Criminal Prosecution Service. Were the CPS involved, I firmly believe many of the prosecutions would not be brought.

Well it took VOSA and the CPS over two years of arguing in court (since the offences where detected)to fathom out that the offences where ‘mereley’ drivers hours offences rather than the ‘fraud’ offences that VOSA and CPS where trying to bring against a few drivers from our place. So i wouldn’t hold to much store on what would happen when CPS are involved.
I also personally know someone who was succesfully prosecuted for driving 20 mins over his time, due to a documented accident and he was carrying Hazardous goods. With hindsight he ‘may’ have got off with it with a good brief or the determination to do so, but nevertheless he was charged and brought before the court for it.

6

WTF ■■? :open_mouth:

I can’t see the origin of your statement that planning seems to have escaped me ? Sorry - ‘totally’ escaped me :unamused:

The whole topic of ‘Article 12’ revolves around there being an unforeseen event. I even mention that fact with reference to Guidance Note 1

How in the name of all that is holy can one ‘plan’ for unforeseen events ? Other, of course, than the buffoon believing any truth in the ridiculous philosophy that one should “expect the unexpected” :unamused:

Further, your reference to Vosa/CPS does little more than to support my stance, in that Fraud is a criminal offence, Drivers’ Hours offences are not.

With hindsight he ‘may’ have got off with it with a good brief or the determination to do so, but nevertheless he was charged and brought before the court for it.

Again, you almost support my opinion. Vosa (and/or CPS) “seeking to bring” is not the same as “successful”

7

dambuster:
WTF ■■? :open_mouth:

I can’t see the origin of your statement that planning seems to have escaped me ? Sorry - ‘totally’ escaped me :unamused:

The whole topic of ‘Article 12’ revolves around there being an unforeseen event. I even mention that fact with reference to Guidance Note 1

How in the name of all that is holy can one ‘plan’ for unforeseen events ? Other, of course, than the buffoon believing any truth in the ridiculous philosophy that one should “expect the unexpected” :unamused:

Further, your reference to Vosa/CPS does little more than to support my stance, in that Fraud is a criminal offence, Drivers’ Hours offences are not.

With hindsight he ‘may’ have got off with it with a good brief or the determination to do so, but nevertheless he was charged and brought before the court for it.

Again, you almost support my opinion. Vosa (and/or CPS) “seeking to bring” is not the same as “successful”

The whole topic of Article 12 does revolve around an unforseen event. Your rule of thumb as far as i can see (above) will always lead you to potentially go over your time, or not potentially, probably. That doesn’t seem unforseen to me.
You intimated that where the CPS involved that many prosecutions would not be brought. I’m pointing out that apart from the obvious fact that it is indeed the CPS who do decide to prosecute and not VOSA , that it is indeed the CPS who think they have a chance at criminal prosecutions rather than drivers hours offences. VOSA can only report you to the CPS, the CPS decides what charges are.

8

Mike-C:

dambuster:
WTF ■■? :open_mouth:

I can’t see the origin of your statement that planning seems to have escaped me ? Sorry - ‘totally’ escaped me :unamused:

The whole topic of Article 12 does revolve around an unforseen event. Your rule of thumb as far as i can see (above) will always lead you to potentially go over your time, or not potentially, probably. That doesn’t seem unforseen to me.

Ah - Perhaps I wasn’t very clear. That ‘rule of thumb’ doesn’t come into play until a genuine possibility of claiming an Article 12 Departure exists. But I think we’re in danger of trying to split hairs.

As to the Vosa/CPS and the difference between ‘criminal offences’ and failing to comply with a European Regulation (and/or Directive for that matter) I think we’ll have to agree to disagree.

9

dambuster:
As to the Vosa/CPS and the difference between ‘criminal offences’ and failing to comply with a European Regulation (and/or Directive for that matter) I think we’ll have to agree to disagree.

Hi dambuster, as we’re all ordinary citizens, we don’t have to worry about complying with a European Directive, because a EU Directive only affects the governments of the EU member states.

This from Wikipedia:

A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives normally leave member states with a certain amount of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of legislative procedures depending on their subject matter.

The source is HERE

Breaching an EU Regulation is a different matter though. :grimacing:
561/2006 is a Regulation, so a lack of compliance might get us into trouble.