Outdated legislation & lacking police powers to tackle unroadworthy vehicles

Summary

The police do not have all the powers they need to tackle drivers of vehicles that do not comply with construction & use regulations. Furthermore, construction & use regulations are largely outdated and insufficient and should be revised. Legislators should:

• Give police the same powers to issue prohibitions that DVSA vehicle examiners have
• This means authorised constables should be allowed to issue Delayed prohibitions for less serious (D) breaches of construction & use regulations, such as failing to display a front registration plate.
• Revise the various construction and use regulations and the penalties to, in any case, remove the following anomalies:
• Sounding the horn on a restricted road at night is prohibited while using a horn for no good reason at daytime isn't specifically prohibited
• No mirrors fitted on your motorcycle? No problem!
• Members of the public can, in some cases, legally fit blue lights to their vehicles
• Failing to have seat belts fitted carries a lesser fixed penalty than not wearing a seat belt
• Direction indicators must be fitted and failing to have them can result in an Immediate prohibition, but there is no specific requirement to use them
• Petty fixed penalties
• Insert anomaly here...

This is all explained in greater detail in the rest of this post.

https://www.lep.co.uk/news/crime/ferrari-seized-and-towed-away-by-lancashire-police-in-clampdown-on-supercars-with-no-front-number-plate-1-9731545

Introduction

It's been a while since my last blog post about the outdated drink/drug driving system in the UK, which was published back in March! There have been many interesting developments since then, with the mobile phone use high court judgement, automatic red X enforcement legislation and roads policing review announcement all having taken place since then. Something that is often overlooked within roads policing is the way in which police can deal with vehicles that do not comply with construction & use regulations. Indeed, it appears The Road Vehicles (Construction and Use) Regulations 1986 is looked at so infrequently that the legislation.gov.uk team have not even bothered to make a version available that takes into account all the various amendments affecting it. Having studied these regulations as well as various other pieces of legislation related to the condition and maintenance of motor vehicles, there is a shocking number of anomalies that have yet to be addressed by legislators - to the extent that an ordinary member of the public can mount a blue light to their vehicle without breaking the law.

In this blog post, these anomalies will be addressed and the extent to which police are, in some cases, powerless to properly enforce the regulations that do exist will be laid bare. One of the consequences of this is that rich supercar owners who do not wish to display a front number plate (as legally required) cannot be forced to display one other than by imposing the occasional measly £100 fine - or, in the rare case of it going to court, a fine of up to just £1,000.

Prohibition of unroadworthy vehicles being driven on public roads

Under section 69 of the Road Traffic Act 1988, DVSA vehicle examiners, authorised inspectors and authorised constables have the power to prohibite unfit vehicles. After some extensive research, it appears to me that the authorised inspectors group have the power but the legislation governing this group is yet to be brought into force, so this group will be disregarded for the purpose of this post. A prohibition notice issued under section 69 is commonly referred to as a PG9. A prohibition is lifted after the police or DVSA receive evidence that the defect has been rectified and that the vehicle is in a roadworthy condition - a PG10 notice will then be issued, which effectively removes the PG9 on the vehicle. Only then can the vehicle be driven again on the road. An 'authorised constable' is a constable authorised to issue prohibitions by their chief constable - in practical terms, this means that the constable must have passed a training course teaching them how to issue prohibitions. This is typically restricted to roads policing officers and there are usually not many officers on shift that are trained to issue such prohibitions.

Prohibition powers disparities between DVSA vehicle examiners and the police

The powers to prohibit unfit vehicles apply to a different extent to each of these three groups of people. This creates unnecessarily missed enforcement opportunities in many cases, especially for non-commercial vehicles which are typically enforced by the police rather than vehicle examiners. Indeed, very strangely, the legislation actually gives DVSA vehicle examiners more powers to prohibit vehicles than authorised constables. DVSA vehicle examiners may prohibit vehicles in cases where "owing to any defects in the vehicle it is, or is likely to become, unfit for service". In practical terms, this means that they may prohibit any vehicle that does not comply with just about any construction & use regulation. On the other hand, the police (authorised constables) may only prohibit vehicles in cases where "owing to any defects in the vehicle, driving it [...] would involve a danger of injury to any person". This is far more restrictive than the provision set out for DVSA vehicle examiners, which is demonstrated below.

Another difference between prohibitions issued by vehicle examiners and authorised constables is the time at which they take effect. Prohibitions issued by the police take effect immediately, whereas prohibitions issued by DVSA vehicle examiners only come into effect immediately if the defects would involve a danger of injury to any person (similarly to the additional condition that applies for police to issue these prohibitions). In all other cases, DVSA vehicle examiners may choose a date on which the prohibition starts to take effect, as long as it is within 10 days of the time at which the prohibition is issued.

Having read this, you may wonder what constitutes a defect to "involve a danger of injury to any person". The DVSA have published a very useful guide that categorizes various types of defects and their severities into one of three categories: Immediate, Delayed or Inspection Notice. I briefly outline the meanings of these categories:

• Immediate (I): The defect and its severity warrant the imposition of an immediate prohibition. In other words, the defect and its severity would involve a danger of injury to any person. Both the DVSA vehicle examiners and police are authorised to issue prohibitions in such a case, which comes into effect immediately.
• Delayed (D): The defect and its severity are contrary to construction and use regulations. However, it is not deemed serious enough to involve a danger of injury to any person. This means that only DVSA vehicle examiners can issue prohibitions in such a case, which comes into effect within 10 days of it being issued.
• Inspection Notice (IN): The defect and its severity may be contrary to construction and use regulations, but it is also possible that it is not (for example, for a tyre that appears worn but still has a legal tyre tread). It is not deemed serious enough to warrant a prohibition and therefore an advisory Inspection Notice is issued. The driver may still be prosecuted for construction & use offences should the defect constitute one.

I would heartily recommend having a quick look at the DVSA categorization of defects guide to gain a better understanding of how defects are categorized. I will reference this guide in some parts of the rest of this blog post. What is clear is that there are many defects categorized as Delayed, meaning that in many cases, DVSA vehicle examiners can issue prohibitions where authorised constables cannot. The Department for Transport must amend section 69 so authorised constables can also issue delayed prohibitions; this is trivial and easily done by removing any subsections specific to authorised constables and adding "or an authorised constable" after any reference to a vehicle examiner. It is also far more effective than the 'Vehicle Defect Rectification Scheme' (VDRS) that a select few police forces still use. Rather than receiving a Traffic Offence Report, this gives drivers 14 days to rectify any defects and provide the police with evidence of this, in which case no prosecution is brought. While in some cases this may be appropriate, the option for the Delayed prohibition is far more rigorous and foolproof and works well against drivers who are defiant of construction & use regulations.

Back to the supercar missing front number plate example

If we go back to the rich supercar driver example, for whom the occasional non-endorsable (no penalty points) petty fixed penalty notice is nowhere near an incentive to get a front plate, we regularly see on Twitter that police lack the ability to enforce compliance, often to their frustration. However, we also see this if both the number plates (front and rear) are missing. In trivial cases, all the police can do is issue two £100 fines or a summons to court. They cannot, however, prohibit the vehicle from being driven. This is bizarre; a vehicle without plates cannot be identified by members of the public, ANPR cameras, speed cameras, red-light cameras or other traffic cameras. This allows drivers of such vehicles to behave lawlessly with a far lower chance of getting caught - it would require an actual police officer to catch such a vehicle so they can confirm the driver's identity, and with significantly reduced police numbers, the chances of this happening are far slimmer than before. In this way, drivers can potentially avoid many fines and penalty points if they are willing to take the risk of occasionally receiving a £100 fine (up to £1,000 at court). 

Yes, technically the driver of such a vehicle could face prosecution for perverting the course of justice if the police can prove the driver specifically removed the number plate to avoid detection for traffic offences, but this requires a lot of additional investigative work and it is rare to see such prosecutions taking place at all. Would it not be far more effective, cheaper and less labour-intensive to tackle the root of the problem, namely drivers refusing to affix the prescribed number plates to their vehicles? Of course it would be.

Somewhat ironically, DVSA vehicle examiners (who primarily enforce against commercial drivers) are better empowered than the primary enforcement body, i.e. the police, in this instance. Let's take a look at what the DVSA categorization of defects guide says on this matter:

DVSA Categorization of Defects Guide, Page 147

Because the defect and its severity are categorized as D (Delayed), DVSA vehicle examiners can issue prohibitions to supercar drivers without a front registration plate. This prohibition comes into effect within 10 days of it being issued. If the driver does not rectify the defect and produce evidence of this within the given time period, driving the vehicle becomes an offence contrary to Section 71 of the Road Traffic Act 1988. This can result in a non-endorsable Fixed Penalty Notice of £300 and if the case goes to court, the fine becomes unlimited. Additionally, the vehicle can be immobilised with an immobilisation device until such time that the prohibition has been lifted, with an £80 release fee. In some cases, the vehicle may also be recovered with the driver liable for any recovery costs. In other words - if the driver doesn't comply with the prohibition and the front plate requirement, the vehicle can be physically prevented from being driven and more hefty penalties apply. Should the driver comply with the prohibition, rectify the defect and produce evidence of this, they can avoid all this from happening although they are still liable to pay the £100 fine for failing to display the front plate. This sounds like a common-sense plan of action.

This discrepancy is virtually exactly the same for any other Delayed (D) defect, except that the Fixed Penalty for most construction & use offences is just £50 rather than £100. It is clear how effective Delayed prohibitions are. The fact that only DVSA vehicle examiners can issue them is a major anomaly and missed enforcement opportunity as it is almost always impossible to ensure a DVSA vehicle examiner can be present whenever an authorised constable stops a vehicle with a D defect.

Construction and use anomalies

In no particular order, I will list some anomalies I have found in construction & use legislation.

Sounding the horn on a restricted road at night is prohibited while using a horn for no good reason at daytime isn't specifically prohibited

Regulation 99 of the Construction & Use Regulations 1986 state that is is illegal to use any horn or other audible warning instrument on a vehicle that is in motion on a restricted road, between 23.30 hours and 07.00 hours in the following morning. A restricted road is a road with street lighting where the speed limit is typically 30 MPH. This still applies even if there is a good reason to do so, such as a vehicle making a dangerous manoeuvre whose driver you must warn of your presence. However, using your horn for no reason at all while your vehicle is in motion during the day (or at night on a non-restricted road) is not specifically prohibited by this regulation. That said, this situation may still be covered by Regulation 97 (avoidance of excessive noise) or be classed as driving without due care and attention or without reasonable consideration for other road users. It is beyond me, however, why legislators did not simply provide in regulation 99 that using the horn on a vehicle, whether in motion or not, is prohibited other than at times of danger due to another moving vehicle on or near the road. That would have been far simpler. Rule 112 of the Highway Code appears to reflect this more common-sense approach, but it appears to be factually incorrect: it says "you must not use your horn when driving in a built-up area between the hours of 11.30 pm and 7.00 am, except when another road user poses a danger." As per Regulation 99, this is not correct, as the danger defence only applies to using a horn when stationary (and this is not the only thing the Highway Code incorrectly paraphrases from actual legislation). Is it likely, however, to be prosecuted for using your horn on a restricted road at night if another road user posed a danger? No, as it is likely not to be in the public interest to do so. But it is still technically illegal, and legislators need to fix this ridiculous regulation which makes very little sense in the real world as is reflected by the factually incorrect highway code rule.

No mirrors fitted on your motorcycle? No problem!

Unbelievably, it is not required for motorcycles (and by inclusion, mopeds) to be fitted with mirrors. Given common sense and motorcyclists' vulnerability and position, you would expect mirrors to be a basic legal requirement for motorcycles. Not having them gives you a significantly reduced field of vision to the back and side of your vehicle and causes you to have to look backwards to check for any traffic - which is not made easier by the helmet and the fact you have to balance yourself on two wheels. Nevertheless, legislators decided that for "A two-wheeled motor cycle with or without a sidecar attached" there is "No requirement" for any mirrors to be fitted. This can be found in Regulation 33 of the 1986 regulations. Motorcyclists who choose to ride without mirrors may therefore not be liable to prosecution but may need a good dose of common sense injected into them. This anomaly should also be fixed by legislators.

Members of the public can, in some cases, legally fit blue lights to their vehicles

https://twitter.com/PCElliottNRT/status/1106272489393610752?s=20

Here's one that comes with quite a significant risk. Not only do most drivers get out of the way at the first sight of blue lights, they can also be used to mislead others into believing that the vehicle is a police vehicle, whether intended or not. It is for good reason that most developed countries reserve any and all blue lights to the emergency services. But not British legislators, who decided to only ban 'blue warning beacons and special warning lamp' on non-emergency vehicles as per Regulation 16 of The Road Vehicles Lighting Regulations 1989. Quick terminology guide: a warning beacon is "a lamp that is capable of emitting a flashing or rotating beam of light throughout 360° in the horizontal plane": in other words, the retro-style rotating police lights you hardly ever see used any more. A special warning lamp is "a lamp, fitted to the front or rear of a vehicle, capable of emitting a blue flashing light and not any other kind of light". 

Spotted the anomaly yet? A lamp that is capable of emitting only a static blue light is not a 'special warning lamp'. A lamp that is capable of emitting a blue flashing light, as well as a red flashing light, is also not a 'special warning lamp'. A lamp that is fitted to the side of a vehicle that is only capable of emitting a blue flashing light is also not a special warning lamp by its definition, which states such a lamp is only a special warning lamp if it is fitted to the front or rear of a vehicle. These are just three examples of lamps that are capable of emitting blue light to the exterior of the vehicle but which are not classed as special warning lamps and I'm sure you can think of more. These lamps are therefore not prohibited from being fitted to vehicles by Regulation 16. The only caveat is that Regulation 16 also prohibits lamps that "resemble" a special warning lamp, but what exactly this means is not clear. I would imagine a lamp that flashes blue light for 99 times, and then flashes red light once only to repeat from the beginning, would be classed as a lamp resembling a special warning lamp. An alternating red/blue flashing light may not be deemed to resemble a special warning lamp, however, as this clearly is not a special warning lamp by its definition. Ultimately, though, this is up to a court to decide. What is clear is that this leads to a major gap in which lamps emitting blue light, whether static or flashing, can be fitted to non-emergency vehicles, as long as they do not fall within the definition of a special warning lamp or 'resemble' one. 

Using such lamps, however, is a different matter. Regulation 11 provides that no light other than red light may be shown to the rear, with a few exceptions that do specifically cover emergency vehicles for the blue lights. That's just for the rear of the vehicle, though - what's to stop blue lamps that are not special warning lamps from being used at the front or side of a vehicle? Regulation 13 provides that lamps may only show a steady (i.e. non-flashing) light, prohibiting any flashing blue lights that may be legally fitted from being used. That just leaves the blue lights that emit a static/steady light. As long as all the normally required lamps are fitted in the correct way and the steady blue light is not shown to the rear, there is no specific regulation prohibiting such a lamp from being used. The only caveat is that you must ensure that you fit it in a manner such that the lamp is not classed as a headlamp or a front position light. You must ensure it is classed as a "running lamp", which is defined as "a lamp (not being a front position lamp, an end-outline marker lamp, headlamp or front fog lamp) used to make the presence of a moving motor vehicle readily visible from the front". The reason for this is that there are no specific requirements given by Schedule 3 as to the colour of (optional) running lamps, whereas there are for front position lamps and headlamps. 

In summary, using a steady blue lamp fitted to the front of your vehicle in a way that it is classed as a running lamp is perfectly legal. And yes, this does happen in the real world.

Clearly, legislators must ban ANY blue light from being fitted to a non-emergency vehicle that is capable of emitting exterior lighting. In addition, they must amend the lighting regulations so that they precisely describe what lights must be fitted to a vehicle but also what lights may be fitted to a vehicle. In other words, lorries that look like Christmas trees with the ridiculous number of 'running lamps' they add to the front of their vehicles should be banned - they are annoying, are likely to cause undue dazzle and cause confusion to other motorists at night.

Failing to have seat belts fitted carries a lesser fixed penalty than not wearing a seat belt

If you're one of those daredevils that never wear their seat belt, it is usually cheaper for you to not have them fitted rather than not wearing it if it is fitted. Regulation 47 of the 1986 regulations provide that most vehicles must have a seat belt fitted. The fixed penalty for not having a seat belt fitted is £50. The fixed penalty for not wearing a seat belt is £100, however, it is not illegal not to wear a seat belt if there is no seat belt fitted. This means that, if you don't have a seat belt fitted and are stopped by police, the fixed penalty is lower than if you were not wearing a seat belt that was fitted. What kind of message does that send? To make matters more complicated, though, if the case goes to court, the maximum penalty for not having a seat belt fitted is a £1,000 fine. The maximum penalty for failing to wear a seat belt, though, is £500. So if your case goes to court, you would then be better off having not worn the seat belt rather than not having it fitted. Very, very strange indeed. With the government considering making failing to wear a seat belt an endorsable offence with 3 penalty points, perhaps they should revisit this bit of legislation and do the same for failing to have a seat belt fitted. The current penalty system for seat belts makes no sense. Perhaps even more intriguing is that failing to have a seat belt fitted is a defect categorized as Delayed (D) by the DVSA guide, meaning only DVSA vehicle examiners can issue prohibitions to vehicles without seat belts fitted. Is it not clear that failing to wear a seat belt where required is likely to cause injury to a person, thereby satisfying the condition to make it an Immediate (I) prohibition? The mind truly boggles.

Direction indicators must be fitted and failing to have them can result in an Immediate prohibition, but there is no specific requirement to use them

Back to the Lighting Regulations. One of the top 10 pet hates of drivers is that other drivers do not indicate their intention before turning or manoeuvring sideways. There is no formal requirement to use your direction indicators. The lighting regulations do however specify in Schedule 7 that all vehicles must be fitted with direction indicators. In fact, the DVSA guide provides that failing to have them fitted or in proper working order such that the indicator cannot be used to clearly show the driver’s intention, this is an Immediate (I) defect, therefore involving danger of injury to a person. My simple question is - why? There is no formal legislation or regulation providing that indicators must be used and in which manner. The only thing that governs their use is the advisory Rule 103 of the Highway Code, which states "you should always use them [signals] to advise other road users before changing course or direction, stopping or moving off" amongst other things. Why oh why has it not been precisely described in the Lighting Regulations when they should be used, so that police can easily enforce any indicator offences created and it is clear to all drivers what is expected from them in terms of using their indicators?

https://www.mycarforum.com/forums/topic/2711152-why-dont-bmw-drivers-use-indicators/

It is often asserted that simply failing to indicate where expected or advised is not an offence. I don't agree. Where there are other road users around the vehicle who could benefit from you signalling to indicate your intentions to change course or direction, stop or move off, I believe that failing to do so constitutes an offence of driving without due care and attention or driving without reasonable consideration for other road users. Firstly, there is a rule of the Highway Code setting out what is expected in terms of using direction indicators from a careful, competent driver. While breaking this rule does not in itself constitute an offence, it can serve as evidence for an offence of due care to show that the driving was below the standard expected of a careful, competent driver, similarly to due care offences resulting from middle lane hogging. Secondly, if failing to indicate could never constitute driving without due care and attention, how could failing to have them fitted ever be classed as an Immediate (I) defect in the DVSA guide, meaning it is likely to cause injury to any person? Clearly, it must be an offence of some sort and in my view, police should take a more proactive approach to reporting drivers who persistently fail to indicate where advised. As far as I am aware, hardly anybody is reported for offences resulting from a failure to indicate.

Ideally, though, legislators should make it clear in the Lighting Regulations when a direction indicator must be used. That would remove any ambiguity created by the Highway Code advisory rules and the nature of Section 3 RTA (due care/reasonable consideration) offences. Given that drivers failing to indicate is a pet peeve of many law-abiding drivers, this is something that is well overdue and should carry a fixed penalty of £100 and 3 points, rising to a level 3 fine at court.

Petty fixed penalties

With construction & use offences typically carrying a non-endorsable fixed penalty of just £50, it is clear that breaching them does not carry much of a deterrent. This is especially true given that road policing officers have been significantly reduced since 2010. The fixed penalties should be raised to at least £100 and higher fixed penalties should apply to more serious breaches of construction and use regulations. Furthermore, I strongly believe all construction & use offences should become endorsable and carry at least one penalty point to avoid a rich-poor disproportionality effect when it comes to deterrence.

Insert anomaly here...

I'm sure there are many that I've forgotten about or missed. Let me know if there are any I should add to the list!

Comments, thoughts, praise and criticism are all very welcome and I will happily engage in polite discussion if any interesting points are raised. See you in the next post!

-Albo1125

Disclaimer: All the information provided in this blog post is for informative purposes only. Always use your common sense and abide by all relevant legislation when driving. I am not legally qualified and while I have done my best to ensure all information provided is accurate, I cannot be held liable for any inaccuracies in this blog post, whether legal or not. Please report any factual inaccuracies to me.