Letters

READERS’ LETTERS

Letter of the Month wins this fantastic Search-Impex model truck!

WAY out of line? Regarding your recent article about the new Iveco S-WAY, it’s a pity you couldn’t have found something positive to say about it. But of course, it’s not a Scania, is it?

I’m getting fed up with looking at and hearing about Scanias in this magazine. Adrian Davis By email

Thanks for your email, Adrian; though I think we’ve been quite fair with our coverage of the S-WAY. We’re proud to say we have no bias at Trucking, and we endeavour to judge each vehicle we test by its merits – regardless of make. At the S-WAY’s launch event ( Trucking, August 2019 issue), we were unfortunately given very little chance to get in and drive the new truck – and the driving we were allowed to do was limited to a short trip around a private test track, which didn’t give us much opportunity to see how the vehicle handles. We reported as much in the article – alongside some potential concerns over build quality, as one of the demo trucks was surprisingly already showing some signs of fatigue. However, before Christmas we were afforded a better chance to test drive the new models ( Trucking, January 2020 issue), and we actually came away very impressed with the truck. As for Scania, I think our coverage has also been quite fair. It’s true to say the Swedish marque’s vehicles generally perform well during our tests, and operators we have spoken to speak highly of them on the whole. But of course, this is not always the case; in fact, just last issue we carried a Truck on Trial in which Scania was taken to task for its heavy-haulage provision in the UK (see opposite). Our mission has always been to provide balanced, fair and unbiased editorial, and this is something we will continue to strive for as we head into 2020 –ed.

PRIZE SUPPLIED BY SEARCH- IMPEX

Tel: 01332 873555 Fax: 01332 875757 Web: www.search-impex.co.uk

LETTER OF THE MONTH Heavy going

Since I am very interested in heavy trucks, I read your recent Truck on Trial featuring a Scania R580 vs Volvo FH13-540 with interest. However, I cannot agree with the outcome, since I have the feeling that you are comparing apples and pears.

The differences between the trucks are:

1. The engine weight: V8 16-litre block (Scania) vs L6 13-litre block (Volvo) 2. Hub reduction (Scania) vs single reduction (Volvo) 3. STGO 3 (Scania) vs STGO 2 (Volvo), thus different braking/retarder system? 4. Extra frame at the front of the Scania for the front hitch in specs, the operator has been incredibly open and frank about his experiences with acquiring and running two different marques in what is a niche market. He has suffered ‘battles’ and ‘obstructions’ with one manufacturer compared with an openness from the other keen to win its business, with the latter winning on price, back-up and spec. There are many issues HC Wilson has had to endure which had led it to look beyond Scania and find an alternative from Volvo, which is now reaping dividends for it. He’s had quotes from two manufacturers for the firm’s next new (similar spec) vehicles, and here it has been quoted a price differential of over 25 per cent.

It’s my understanding that these will all have effects on the price and weight. Peter Mesman, Arnhem, Netherlands

Thanks for your email, Peter. Here’s Pip: “While I appreciate the trucks can be operated at different weight limits and have some differences

ABOVE Scania R580 went up against a Volvo FH13-540 in last month’s Trial

Get your views published!

Write to: The Editor, Trucking magazine, Kelsey Media, Cudham Tithe Barn, Berrys Hill, Cudham, Kent, TN16 3AG, or email trucking.ed@kelsey.co.uk. You must include your full name and postal address, which can be withheld upon request. Anonymous letters or those without addresses will not be published. Each month, the letter the editor judges to be Letter of the Month will win a fantastic model truck. We reserve the right to edit all published letters. No correspondence can be entered into.

VINTAGE ROADSCENE ARCHIVE

LORRIES IN THE NORTH SETTLE IN THE SIXTIES

Lorries passing through the North Yorkshire town in the mid-1960s Plus colour shots of transport in the area 20-40 years ago

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EOADSCEN R VINTAGE www.roadscene.com LORRIES IN THE NORTH A LOOK BACK AT THE VEHICLES WORKING ON THE ROADS IN THE NORTH OF ENGLAND DURING THE 1960S

This publication features a look back at commercial vehicles working on the roads of the North of England during the mid-1960s, using nearly 200 of an enthusiast’s photographs, showing them making their way through the town of Settle on the A65, then and now an important cross-country and alternative north-south route. In addition there are another 100 or so colour pictures of lorries from the 1970s to the 1990s, offering memories of many well-known operators and their vehicles. Please note: ‘Vintage Roadscene Archive’ is a continuation of the previous ‘Road Haulage Archive’ series and this is the 27th title published so far. You can buy individual copies at WH Smith and other high street retailers, order singles copies, including back issues, from the publisher, or take o ut a subscription and save 25% on the shop price.

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YOU & THE LAW

Got a legal query you need clearing up? Our resident legal expert is on hand to offer free professional help and advice

By David Glover PHOTOGRAPHY VARIOUS

Drivers’ hours MOVING ON

I work for business that uses goods vehicles. What happens if a driver is ordered to interrupt a break or daily or weekly rest in order to move a vehicle forward at a terminal, at parking places or at border areas?

Generally, during a daily or weekly rest a driver should be able to dispose freely of their time and should therefore not be obliged to stay in reach of their vehicle. In most circumstances, interrupting a break, daily or weekly rest is an infringement, unless the “ferry rule” applies – ie, Article 9: a regular daily rest period of at least 11 hours taken on a ferry or a train (if a driver has access to a bunk or a couchette) may be interrupted twice as a maximum, by other activities (such as embarking or disembarking from the ferry boat or train). The total time of these two interruptions may not exceed one hour. This time must not, in any case, result in any reduction of a regular daily rest period. These two interruptions can take place any time during the regular daily rest period, also where this daily rest period exceeds the minimum period of 11 hours and continues beyond 24 hours from the end of the previous rest period. However, at least 11 hours of this daily rest must be taken within 24 hours since the end of the previous rest period. Otherwise it should be regarded an infringement of the provision on regular daily rest).

However, at a terminal or a parking place, there may occur a sudden abnormal situation or an emergency where a vehicle needs to be moved. The European Commission has issued guidance on this subject which states that at a terminal, there is usually a driver (terminal employee) who moves vehicles, if necessary. If that is not the case and the movement of the vehicle becomes inevitable due to extraordinary circumstances, the driver may interrupt their rest only upon the demand of a competent authority or terminal official who is authorised to order vehicle’s movements.

In other places (eg, at parking places, at border crossings and in cases of emergency), if there are objective emergency reasons for which the vehicle must be moved or if the police or another authority (eg, fire official, road administration authorities, customs officer, etc) give an order to move a vehicle, the driver must interrupt their break or rest for a few minutes and in that case should not be prosecuted.

If such a necessity arises, Member State enforcers must grant some tolerance following an individual situation assessment.

Such an interruption of a driver’s rest or break must be recorded manually by the driver and should, if possible, be authenticated by the competent authority who ordered the driver to move the vehicle.

Tachograph regulations DRIVING WITHOUT A DRIVER CARD

Are there exceptional situations when driving without a driver card is allowed?

This is a very interesting question. DVSA states the following: Where it is impossible to use a driver card (eg, where it has been lost, stolen or damaged or is malfunctioning), a driver may drive without the card for a maximum of 15 calendar days (or longer if this is necessary for the vehicle to be returned to its premises) provided they produce two printouts – one at the start of the day and another at the end, so long as there is no change of vehicle.

Where there is a change of vehicle, then a printout will need to be taken at the start and end of the use of vehicle one, and then a printout at the start and end of vehicle two, and so on. All printouts must be marked with:

• The driver’s name or driver card or licence number, so the driver can be identified • Any manual entries needed to show periods of other work, availability, and rest or break • The driver’s signature

The driver must report the problem to DVLA and apply for a new card within seven calendar days.

In addition, there is a Guidance Note on this which states: Article 29 of Regulation (EU) 165/2014 provides that if the driver card is damaged, malfunctions or is lost or stolen, the driver shall, within seven calendar days, apply for its replacement to the competent authorities of the Member State of his normal residence. Those authorities shall supply a replacement card within eight working days after the receipt of a detailed request to that effect.

In such circumstances, the driver may continue to drive without a driver card for a maximum period of 15 calendar days or for a longer period if this is necessary for the vehicle to return to the premises where it is based, provided

the driver can prove the impossibility of producing or using the card during that period. The proof might consist of a police report on the stolen or lost card, formal declaration to competent authorities or confirmation of submitting the request for a card replacement.

Even though the period of 15 calendar days might be exceeded if an application for the replacement of a driver card takes place at the end of the period of seven calendar days and is followed by a supply of the replacement card by the competent authorities at the end of the period of eight working days, this does not change the period of 15 calendar days foreseen in Article 29(5) of Regulation (EU) No 165/2014 when a driver is allowed to continue driving without a driver card or a longer period if this is necessary for the vehicle to return to the premises.

A driver returning to the premises of the transport undertaking following a trip during which his/her driver card is damaged, malfunctions, or is lost or stolen, should be allowed to continue driving without a driver card during possible other trips, within 15 calendar days or for a longer period if this is necessary for the vehicle to return to the premises, as foreseen by Article 29 of Regulation (EU)165/2014, only if that driver applies for the issuing of a new card to the competent authority within the legitimate period of seven calendar days, in order to be able to prove thereafter he is expecting for a replacement card to be issued.

Such a conclusion derives from the above-mentioned provisions, and also from the idea the continuity of operations of the transport undertaking must not be disproportionately affected, provided all the other safeguards (such as printouts and manual records) specific to the driving without a driver card, apply as well.

Tachograph regulations HOLIDAY FORM

I’ve heard there is a form of attestation which can be given for drivers of tachograph vehicles who have been on holiday, etc. Can you give me some details, please?

This relates to situations where a driver will be returning to driving vehicles which are in scope of tachograph laws after a period of holidays or sickness etc. There is an attestation which can be completed and the European Commissions has issued guidance on this.

The form of attestation shall not be required for activities that can be recorded by the tachograph. The primary source of information at the roadside checks is the recordings made by the tachograph, and the lack of records should only be justified with an attestation if tachograph records, including manual entries, were not possible for objective reasons. In all circumstances, the complete set of tachograph records, complemented by the form, when necessary, shall be accepted as sufficient evidence to prove compliance with Regulation (EC) No 561/2006 or the AETR, unless there is a justified suspicion. The attestation covers certain activities during the period mentioned in article 15 (7) (a) of Regulation (EEC) No 3821/85, namely the current day and the previous 28 days.

The attestation may be used when a driver:

• Has been on sick leave • Has been on leave, which forms part of the annual leave according to the legislation of the Member State where the undertaking is established • Has been on leave or rest • Has driven another vehicle exempted from the scope of Regulation (EC) No 561/2006 or AETR • Has performed other work than driving • Has been available and where it has been impossible to record these activities by the recording equipment

The box “leave or rest” may be used in a situation when the driver has not been involved in any driving, in other work or has not been available, has not been on sick leave or annual leave, including for instance also cases of partial unemployment, strikes or lock-outs. Member States are not obliged to require the use of the form in the cases of lack of records, but if a form is required, this standardised form must be recognised valid. However, no form of any type shall be requested concerning ordinary daily or weekly rest periods.

The electronic and printable form as well as information regarding the Member States that accept solely this form is available at: http://bit.ly/Attestation-Form The form is accepted all over the EU in any official EU language. Its standard format facilitates understanding as it contains numbered pre-determined fields to be filled in. In AETR transport, it is recommended to use the form produced by the United Nations Economic Commission for Europe (www.unece.org/trans/main/ sc1/sc1.html).

All the fields in the form must be filled in by typing. In order to be valid, the form must be signed both by the company representative and by the driver before the journey. For self-employed drivers, the driver signs once as the company representative and once as the driver. Only the signed original is valid. The text of the form may not be modified. The form may not be pre-signed, nor may it be altered by handwritten statements. If it is legally possible according to the national legislation, a telecopy (fax) or a digitalised copy of the form may be accepted. The form may be printed on paper containing the company logo and contact details, but the fields containing the company information must also be filled in. ■

Marshall Glover

YOUR LEGAL QUESTIONS ANSWERED – FREE!

Trucking’s law experts at FMGS Law Ltd can help with your legal queries. Each letter gets a personal reply and confidentiality is guaranteed. Write to: You & the Law, Trucking, Kelsey Publishing Ltd, The Granary, Downs Court, Yalding Hill, Yalding, Kent, ME18 6AL or email trucking.ed@kelsey.co.uk. Alternatively, contact FMGS Law Ltd direct on: 0844 8011422 or visit www.fmgs.co.uk

Please provide your name and address with all correspondence. Disclaimer: No information in this column shall be construed as actionable legal advice and information is offered for general information purposes only, based on the current law when the article was first written. You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry.

COURT & INQUIRY

News straight from the courtrooms of the haulage industry’s latest legal cases

By Michael Jewell

PHOTOGRAPHY VARIOUS

MFC Transport Ltd DISQUALIFICATION FOLLOWS FALSIFICATION OF BRAKE TEST RECORDS Wolverhampton-based MFC Transport Ltd and its sole director Hardeep Singh were disqualified from holding or obtaining an O-licence for five years after the company’s licence for three vehicles and three trailers was revoked by traffic commissioner Nick Denton for falsifying brake test records.

In April 2016, the company’s application for an increase from four vehicles and four trailers to seven vehicles and seven trailers was refused, and the licence was curtailed to three vehicles and three trailers for the period of two months, following very high prohibition rates and use of an unauthorised operating centre. In February 2019, the licence was suspended for 28 days and cut from four vehicles to three after a DVSA report had revealed continued very high MoT failure and prohibition rates.

Brakes were a particular problem, with the vehicles not being given any kind of metered brake test.

At the conclusion of the inquiry, the company agreed undertakings to have a compliance audit by June 30, 2019 and to have vehicles roller brake tested at every six-week inspection. Transport manager Karyn Sanghera retained her repute, but was warned if the company continued to ignore her advice or failed to implement the necessary compliance measures, she should resign – which she did on September 1, 2019.

At the latest public inquiry in Birmingham, the commissioner said that in July 2019 he received a copy of the audit report, which had not been carried out by the June 30 deadline. The report noted no roller brake tests were being carried out, contrary to the specific undertaking given at the February public inquiry.

Among the maintenance documentation presented by Hardeep Singh at the public inquiry were 12 roller brake test print-outs from Midlands Trucks Wolverhampton. He was slightly surprised to see them in view of the auditor’s comments there was no evidence of such tests having been carried out. On closer inspection, he noticed virtually all of the print-outs had exactly the same test percentage results and the same imbalances. Three different vehicles were involved, over a period between April and September 2019, all with exactly the same presentation weights and brake percentages. That stretched credulity well beyond breaking point.

Other suspicious features of the print-outs included a spelling mistake in the word “imbalance”, which was always written as “imbalence”; a spelling mistake at the bottom left of each sheet where the word “RESULT” was spelt as “RFSULT”; the fact that the figures were all out of alignment; and the fact the entering the registration number. The third vehicle had never been given a brake test by Midlands Truck & Van.

The clear implication of that report was all 12 of the brake test documents provided by Hardeep Singh were false, since none of the tests in question was dated October 3 or 8. A total of only two roller brake tests, not 12, had in fact been carried out on the three vehicles over the eight months since the public inquiry in February 2019. He further noted the brake test print-outs supplied by Mr Woodbine differed in format from the ones provided by Hardeep Singh at the inquiry, and did not contain the spelling and other mistakes that were in the company’s documents.

Hardeep Singh said he understood the print-outs were in

Three different vehicles were involved, all with exactly the same presentation weights and brake percentages. That stretched credulity well beyond breaking point.

Midlands Trucks postcode at the bottom left of each sheet was in mixed lower and upper case.

As a result, he made enquiries of Midlands Truck & Van Wolverhampton. David Woodbine, their service manager, told him one vehicle had been given one roller brake test. There were no records of a second vehicle having been tested. However, there was a record of MFC Transport bringing that vehicle in for one brake test on October 8, 2019. That might possibly have been an error in

the wrong format, but continued to maintain all the tests had in fact been carried out. He said he had paid cash to the person who carried out the test, which he now realised was wrong.

Karyn Sanghera said she had many times pressed Hardeep Singh to show her the roller brake test print-outs. Sometimes he had replied he was getting them done; on other occasions he maintained the annual brake test at MoT would suffice. She had never seen any brake test results until the public inquiry, when Hardeep Singh had handed the print-outs to him.

The commissioner said he was not persuaded by the explanation of Hardeep Singh that the roller brake tests were carried out on a private cash-paid basis with one of the Midlands Truck & Van staff. That did not explain why nine of the tests achieved identical results or why the print-outs were such clearly amateur forgeries. He concluded Hardeep Singh’s explanation was another falsehood. He considered Hardeep Singh either produced the forgeries himself or conspired to produce them.

It was difficult to exaggerate the seriousness of Hardeep Singh’s conduct. When called to the latest public inquiry, he had two vehicles tested at Midlands Truck & Van and used those genuine results to create

12 documents purporting to show all three vehicles had been regularly roller brake tested. Given Hardeep Singh’s preference for forging brake testing documents rather than having essential brake testing carried out, and because when afforded a chance to come clean at the inquiry he preferred to maintain a bare-faced lie, there was no alternative but to find the company was not of good repute.

As this has been the company’s third public inquiry in three years, and because its response to the second was to cheat rather than to comply, there was compelling evidence to suggest it was highly unlikely to comply in the future. That in turn suggested it deserved to go out of business.

GS Couriers (Nottingham) Ltd DISQUALIFICATION FOLLOWS LICENCE REVOCATION & REFUSAL

GS Couriers (Nottingham) Ltd and its directors, Richard and Louise GethingsSmith, were disqualified from holding or obtaining an O-licence for a period of six months after the company’s North Western licence for three vehicles was revoked by traffic commissioner Simon Evans.

The commissioner also refused the company’s application for a 15-vehicle licence in the North Eastern Traffic Area.

Mr Gethings-Smith told the commissioner at a Golborne public inquiry the business had initially been able to operate with 3.5-tonne vehicles. A new franchise acquired in November 2017 had necessitated the deployment of a larger vehicle, which was in scope of O-licensing. His knowledge of O-licensing at that time was “non-existent”. He therefore placed an advert for a transport manager (TM). Jamie Bogg offered his services and a substantial fee was agreed with him to oversee the licensing process.

Mr Bogg was “very credible”. Upon Mr Bogg’s appointment, he had obtained a “glowing” telephone reference from a former employer, the Mark Group Ltd, where it was said he had held a similar role. He accepted with the benefit of hindsight that everything he had been told by Mr Bogg was “a complete lie”. He agreed he did not supervise Mr Bogg and he “took everything at his word”.

He said he had requested Mr Bogg to make a further licence application in May 2018 to increase the number of vehicles that could be operated, as business demand had grown. In late May 2018 he had been assured by Mr Bogg the necessary authorities to enable the business to operate up to 15 vehicles had been obtained, and a maximum of nine vehicles had been used thereafter. He acknowledged he had no appreciation of the requirement for vehicles to display O-licence identity discs in their cabs. He had been told his general manager, Andy Akers, had himself signed a second TM1 application form. He had only subsequently become aware that application was the one which had subsequently led to the purported appointment of Mark Scholey as TM.

A decision had been made in July/August 2018 to withdraw from a business franchise arrangement, which had led to a move to smaller premises. He had tasked Jamie Bogg to make all the arrangements and to change correspondence addresses and update records. He had never appreciated the new operating centre was in the North Eastern Traffic Area, and therefore required a new licence. The use of the unlawful operating centre had ceased once it had been discovered no change of application had been made. It was only when he was contacted by the Central Licensing Office in March 2019 that he had come to appreciate the nominated TM on the licence was in fact Mark Scholey, and not Jamie Bogg. While he had thereafter demanded to see and to speak with Mark Scholey, he had never done so, until meeting him at the public inquiry, having been told Mr Scholey’s wife was ill with a heart condition. When Mr Scholey had not attended two planned meetings in April 2019, Jamie Bogg had said his own circumstances had changed and he was once again available to hold the TM position himself. The commissioner said a TM1 form was filed on May 10, 2019, wherein Jamie Bogg was himself nominated as the TM and a CPC certificate apparently in his name was produced. What were then termed “discrepancies” were noted by staff, both in the fonts used and the layout of the CPC certificate. It was also recognised the certificate number, which always incorporates the date of birth of its holder, did not do so in respect of the certificate produced for Mr Bogg. There were serious concerns it was not a legitimate CPC certificate.

Mr Gethings-Smith said a hard copy of an O-licence for 15 vehicles in the North Eastern Traffic Area had been produced to him by Jamie Bogg. He now accepted it was a forgery. There was a showdown with Jamie Bogg. He had denied any wrongdoing, but his contract was terminated.

Mark Scholey said he did not recognise his signature on the TM1 form, which had been submitted for the GS Couriers licence. He had never carried out the TM’s role, or received any money for it, or previously met anyone from the company.

The commissioner said the North Western licence was granted on a false premise. It was believed professional competence for the licence was being met by the appointment of Mark Scholey, when that was not the case. It was admitted the company unlawfully operated more than three, but not more than nine, large goods vehicles outside the terms of the North Western licence from May 2018 until June 2019.

Mr Gethings-Smith had so little knowledge of O-licensing that he was manifestly ill-equipped to meet the undertakings he had signed up to. He exercised no supervision of Mr Bogg and never sought any positive affirmation about the grant of the licence. His personal failure to exercise even the most basic checks of the application form, and to allow his manager to take the same approach amounted to wholly reckless failures, entirely unbecoming of a licence holder and entirely reprehensible. His subsequent conduct and the failure to make proper enquiries were such as to allow himself to be duped by Jamie Bogg and to be “fobbed-off” for long periods, such that the holding of an Olicence obtained by a deception continued for much longer than ought to have been allowed to be the case.

While he considered Mr Gethings-Smith would probably have been unaware, at least initially, that he had taken on someone who would carry out such deceitful acts, his inadequate business practices and subsequent repeated failures to get to the truth were such he did not recover the position when he could have done.

Finally, the commissioner said since Jamie Bogg did not hold a TM CPC, he had no power to make any a formal direction in respect of him. He was however directing that a copy of his decision was forwarded to his email address. ■