The way that speeding drivers are detected is now changing. Traditionally, speeding drivers were detected by Gardaí using hand-held devices. This involved the Garda detecting a driver, stopping them, taking their details at the roadside and issuing a notice. Given the large increase in traffic and the dwindling number of Garda resources for traffic enforcement, the focus has now changed to automated speed detection. Since 2004, private operators have been used to detect speeding drivers. The Government contracted with Go Safe to maintain the fleet of high visibility vans to detect speeding motorists. There has been a large number of controversies about the way that these detections are prosecuted. There have been regular complaints about the accuracy of the technology used. There is also concern about how effective the fixed charge penalty notice system works.
There is one particular problem that arises when dealing with fleets of vans or trucks. Where a transport company operates a fleet, the vehicles are registered to the company. Each driver is employed by the company. The driver’s name however, is not disclosed as the vehicle is registered to the company.
If a driver is detected speeding, a fixed charge notice issues to the registered owner of the company. This means it is the company that gets the notice and it is the company that must respond to the notice. If transport companies have large fleets, it can be difficult to establish who was driving a particular vehicle at a particular time and at a particular place. While drivers may be rostered to drive particular vehicles, circumstances can change with holidays, sick days and so forth. It is therefore up tot eh owner or transport manager to try to establish who the driver was so that the notice can be properly directed to the driver.
There is only a limited period of 28 days from the date of the notice within which the nomination must be made. If the 28 days is not adhered to, then there can be no nomination of a driver after that. This in turn leads to the company being prosecuted and having to appear in Court and ultimately be convicted and fined.
The one loop-hole that arises however, is that if no driver is nominated, then no driver’s licence can be subject to the imposition of penalty points. It is however, the employer company that has the conviction recorded against it and ultimately it is the company that has to pay the fine and presumably a Solicitor to represent them in Court. If that happens, either deliberately or accidently, the driver does not have any penalty points, keeping points off drivers’ licences has become extremely important. This is a flaw in the system as it operates. It effectively means that if there is no nomination, there can be no points. This may sound simple and prove to be the solution to a lot of drivers’ problems but it is not fool proof.
There is a second issue. Many transport companies are now operating fleets which are leased. If the fleets are leased, then some fleet contracts require the operators to provide a list of those drivers that will be driving specific commercial vehicles on specific days. The onus then is on the operator to update the list for the fleet company. Situations have arisen where a detection takes place and the notice issues to the registered owner, that being the lease company. If the lease company then in turn goes to its list of drivers, it will automatically nominate the driver who it believes was driving the vehicle. If it transpires that the driver was not in fact driving the vehicle at that time but was on holidays or sick, then there is no ability for the driver to nominate the actual person who was driving. The enforcement of the Law therefore, in this regard, is very unfair as it does not take into account real life and how designated drivers change from day to day.
The Courts do acknowledge when these circumstances arise that there are shortcomings in the Law. While it does not happen across the board, certain Courts do take the view that if the person driving the commercial vehicle is not the one who has been summonsed and cases have been struck out. In order for this to take place however, a very arguable case has to be made and all of the documents proving that the driver summonsed was not the driver actually driving must be produced. At the same time, it is the case that the drivers who are designated but who are not driving have been convicted in the wrong and the mandatory five penalty points have been attached to their licence.
With this in mind therefore, fleet owners and transport managers must be extra vigilant in how they maintain their list of drivers and how adaptable those lists can be. The situation is extremely complicated when it gets to having the lists of drivers being maintained by lease companies. All owners and transport managers should therefore make sure that there are open lines between them and the lease companies and that the terms of the lease, upon which the commercial vehicles are taken out, is clear. If in doubt it is always important to consult with your Legal Advisor so as to make sure that you have the best company policy available for adherence to the Law.