Tuesday, March 15, 2016

Road Freight Haulage Firms Launch Landmark Case Appeals Against Home Office Fines

Guidelines Followed 'To The Letter' Yet New Government Consultation Seeks Fairness - Too Late for Some
Shipping News Feature
UK – With the launch of a new government consultation stakeholders have the chance to express opinions on the current regulations regarding penalties for those with migrants found aboard their vehicles. This in a week in which at least one landmark case is being brought before the Court of Appeal, the outcome of which will be of extreme interest to all in the freight community, and indeed the public at large. The case (290142045) brought by a Dutch company, Bolle Transport BV, will review the situation for road haulage operators which have been fined by the UK government for allowing freight trucks to be used to carry illegal migrants, something which it says is wholly the responsibility of the driver and his or her employer. 

The thrust of the government argument is that the companies involved could not show ‘an effective security regime’ was in place and therefore negligence caused the offence. In at least one of the cases the illegal immigrants had cut through the roof of a tilt trailer and dropped down in amongst the cargo utilising a motorway bridge when the vehicle was stationary. This of course would render the normal and accepted security measures for any soft sided trailer impotent as there would be no need to remove seals or sever the tilt cord, leaving no obvious sign of entry.

Without access to a vantage point above the roof of the trailer to inspect it periodically, a height of course of around 4 metres, it is hardly credible to expect regular inspections of this type unless every vehicle carries a 5 metre ladder secured externally to the trailer, a somewhat illogical solution especially in the case of a hire trailer. The tactic of entering via the roof and then re-stitching it closed from inside is one which has been used frequently in the past.

The Romanian company in this particular case, ICS CAR SRL, was fined £900 and the driver £600, contributing to the penalties the company has paid out so far which top £3,000, a small slice of the £6.6 million collected from the 3,300 prosecutions to date. The haulier is being represented by Rupinder Matharu from solicitors MTG who has confirmed to press that the driver in question had a copy of the Home Office guidelines, translated into his native language, and had followed them precisely. She also stated that despite foreign hauliers being held liable for well over 90% of the fines imposed so far, most simply don’t appeal as the costs are prohibitive.

The other case, in which a verdict is expected this week involves a Dutch vehicle, loaded in Germany and destined to transit directly to the Royal Mail in the UK. Not only was this vehicle sealed when the driver collected from Frankfurt airport but it carries a tracking device which records any time the doors of the trailer are opened. On arrival at its destination in Berkshire, and whilst in a secured Royal Mail compound, the driver became suspicious and called the police. Upon arrival they discovered the six migrants who had presumably stowed away when the vehicle was originally loaded.

The company is being represented by Tinklers Solicitors, Ipswich who have asked for no formal statements until the case is resolved but Mr Cees Bolle confirmed that the driver in the case followed the Home Office code of practice to the letter. Tinklers have confirmed to the Handy Shipping Guide that the Home Secretary is opposing this appeal and has done so consistently since the case started life in the Cambridge County Court in the first half of 2014.

Drivers found guilty of having migrants concealed in their vehicles are currently subject to civil penalties of up to £2,000 per offence under regulations which have not changed since their inception in 2004. Now the Home Office is running a consultation, open until 5pm 18 April, to review the situation, and hauliers are encouraged to respond. Should anyone believe this may lower the standards which hauliers have to meet they are liable to be persuaded by the tone of the consultation paper which says ‘The current minimum standard no longer provides an adequate level of security and the binary approach does not recognise or reward those that have taken additional steps to secure their vehicle’.

The avowed intention is to reinforce the current system and expand it to include rail freight wagons and freight shuttle wagons i.e. channel tunnel traffic. The question however will always remain are those currently judging the conditions under which an offence is alleged to have occurred fully competent to do so? The practicalities of examining the potential entry points to a vehicle by a knowledgeable and equipped intruder, or of detecting a stowaway inside an already sealed box vehicle may not be fully understood by someone who spends the day in an air conditioned office environment.