This incident took place several years ago so no come backs for it, but following a conversation today the legality of what I had done was questioned.
I would be interested to hear what others think.
I picked up a stolen vehicle that had been found on Southampton docks. The vehicle was not in a good condition & we had to jump start it & on the advice of the fitter I had to drive it back without stopping the engine, so I entered this & other facts on the back of the chart & drove from Hayling to Norwich in one hit as I could not stop the vehicle to take a break.
Someone, correctly, pointed out today that there is no legal requirement to be free to leave the vehicle on a break from driving, but I pointed out if I am behind the wheel of a vehicle & the engine is running then the legal definition of that is driving so it would not be a break & with the passenger seat badly damaged & the bunk too dirty to use I no where else to sit & I was not going to stand out in the rain or leave the vehicle as it was unlockable & I also did not want the trade plates nicked…
I would interested in opinions.
Would not being able to switch the engine off or lock the vehicle make it legal to not take a break ?.
daxi:
Would not being able to switch the engine off or lock the vehicle make it legal to not take a break ?.
I doubt it 
I can imagine the judge saying something along the lines of the vehicle not being totally roadworthy and that it should have been towed/recovered (or at least ‘fixed’ before being driven).
Interesting one Daxi;
Article 12 of Council Regulation EEC 3820/85 states: Provided that road safety is not jeopardised and to enable him to reach a suitable stopping place, the driver may depart from the provisions of these regulations to the extent necessary to ensure the safety of persons, of the vehicle or of its load. The driver shall indicate the nature of and the reason for his departure from those provisions on the record sheet of the recording equipment or in his duty roster.
As you point out, sitting in the driving seat with the engine running is ‘driving.’ What you would have to convince a Court of is that the passenger seat was unavailable, as was the bunk and that it was not safe to leave the vehicle with the motor running. Whilst the latter may be easy to demonstrate, I think you might have a problem convincing a Court that because a bed was dirty it was not possible to sit on it. There is a further problem with Section 11A of the Transport Act 1968. This states that; Where in the case of a driver of a motor vehicle, there is in Great Britain a contravention of any requirement of the Community rules as to periods of driving or distance driven or periods on or off duty then the offender shall be liable upon summary conviction to a fine not exceeding level 4 (£ 2500) on the standard scale… There is a defence in Section 11 (d)(i) of the same act where the driver can prove to the Court that the contravention was due to unavoidable delay in the completion of a journey arising out of circumstances which he could not reasonably have forseen.
According to Autoroute that journey would have taken about five hours (OK, that’s a guesstimate), what you would have to convince the Court is that it was impossible to take the required break. Although the breach of drivers hours is not enormous it is significant and bearing in mind the wording in Scn 11A I think the break would have been a good idea.
I was transporting the vehicle on trade plates & it was a write off, being a few years old & needing a lot of work doing to it, also as I was working for the lease company we were not required to use a tacho anyhow, as the vehicle did not need an O licence, we always did use tacho’s & normally abide by the letter of the law on their use.
But I had never coincided, until yesterday that this was a possible breech of tacho law, the bunk was covered in oil & was unusable having no mattress & the night heater ripped out.
I did get stopped on route home after a Police motorcyclist passed the truck & noticed that the door had holes instead of locks, he had a good look round the vehicle & a fitter had passed it as fit for the road, I had lots of paper work so I could provide evidence if stopped, who the vehicle belonged to, copy’s of fax’s re crime No & it being recovered etc, plus a fitters report saying it was fit for the road, I just never coincided that I should have had a break & did myself out of 45 minutes pay as a result.
Thanks for the replies
Daxi.
Daxi said:
I was transporting the vehicle on trade plates & it was a write off, being a few years old & needing a lot of work doing to it, also as I was working for the lease company we were not required to use a tacho anyhow, as the vehicle did not need an O licence, we always did use tacho’s & normally abide by the letter of the law on their use.
Think I would disagree with you there Daxi. Firstly, just because the vehicle is not on an o-licence does not exempt it from tacho regulations. Basically any goods (or passenger carrying) vehicle over 3 500 kg permitted mass (or 8 passenger seats + driver, unless otherwise exempted), in free circulation, whether loaded or not falls into the clutches of EC 3820/85 and 3821/85. There are numerous exemption granted by Articles 4 and 13 of Council Regulation EEC 3820/85. Unfortunately, delivering a knackered tractor unit on trade plates is not one of them. Neither is working for the lease company that owns the vehicle. Moving a vehicle on trade plates only exempts you from the requirements to have a current MOT and tax disc. Article 4.11 gives an exemption from 3820 provided that it is a new or rebuilt vehicle which has not yet been put into service. I don’t think the vehicle you describe would be classified as new or rebuilt. If the condition of the vehicle meant that it breached C&U regulations (eg bald tyres) then driver/employer could still be prosecuted.
GV262
DRIVING
This is being at the driving controls of a vehicle for the purpose of controlling its movement, whether it is moving or stationary with the engine running.
Notice the phrase "at the driving controls…for the purpose of controlling its movement
So if you are sat there for other purposes, even with the engine running, in this case ‘taking a break’ then it does not count as driving.
There can be many reasons why the engine would be left running. Dodgy batteries, no heater, etc. Similarly there could be many reasons to remain in the driving seat, more comfortable, better lighting for reading, whatever.
I hope that helps.
I’m with Krankee on this one, nothing says you can’t take a break sitting in the drivers seat and the fact that tacho would be on rest would show you were not there ‘for the purpose of controlling its movement .’
So to answer your question Daxi in my opinion you were not legal as there was nothing preventing you from taking a break.
Imagine a scenario where VOSA visit a transport company to check discs and found a driver had driven for more that the 4.5 hours allowed. If the driver said the reason he had done it was because he couldn’t switch the engine of because it might not start again I’ve a pretty good idea what the response would be from VOSA.
I only know what both the VI (as was) & the local TC said geebee.
Whilst we were driving for the lease company, the vehicle was possibly out of service & the fact that the people we were working for did not require an O Licence was a key issue, as I understand it.
We were all self employed & we kept our own tachos, with VI agreement.
The situation was that neither the local TC nor the VI could tell us why we should use a tacho, or which rule exempted us, it was in their opinion a “grey area” & one they informed us they would be happy to test in court if anything went wrong & we had not abided by E.C. regs.
The recommendation was that we should use a tacho, but that is all it was, a recommendation & one based upon good (& safe) practise rather than any clear legal requirement to do so.