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Hello chums. I was approached recently and asked if I'd be interested in hosting an occasional legal advice column. So since it could be useful to us all I said yes. This is the first one, so feedback would be most welcome. Also any questions you may have for future columns. So, here goes, LAW....ACTIVATE....

Operation Stack question

As you may have seen in the news Operation Stack has been in force this week in Kent, where truck drivers are forced to park up on the motorway to await their crossing across the channel. The problem is you end up moving forward bit by bit so never get a proper daily rest in. So for instance Wednesday I ended up working 21 hours as I spent 16 hours getting across the channel. So the question could be what is the right procedure for a driver in such circumstances, what can they do to help themselves avoid a prosecution and what would be the procedure if they were prosecuted.

The starting point is that Article 12 of the EU Drivers' Hours Regulations provides that: as long as road safety is not jeopardised, a driver may depart from the EU rules to enable the vehicle to reach a suitable stopping place to the extent necessary to ensure the safety of persons, of the vehicle or its load.

The European Court of Justice has held that this will only apply in cases where it unexpectedly becomes impossible to comply with the rules on drivers' hours during the course of a journey. So you cannot plan a breach of the rules.

Each case will depend on the particular circumstances. So, if you knew that Operation Stack was being operated on a particular day and you made no provision for it then it would be more difficult to rely on an Article 12 defence than if it happened without warning.

In the Department for Transport publication giving Guidance on the position it does refer to "interrupted ferry services" as an example of what might be considered an event allowing departure from the EU rules.

This concession only allows you to reach a suitable stopping place. There is no definition of "suitable stopping place" in the EU Regulations but common sense will have to be applied and the nature of the load (perishable / high value / livestock) will be taken into consideration.

If you do find yourself in a situation where you are forced to exceed the maximum hours then you must make a record of it and the reasons for it on the back of your tachograph record sheet.  If DVSA check the records (either at the roadside or at an operator's fleet check) and a written explanation on the back refers to Operation Stack then you would hope that they would exercise their discretion and not prosecute you or impose any fixed penalty.

Equally if you are driving in France or elsewhere in Europe you are relying on the European enforcement agencies to exercise their common sense when looking at your chart / data. That is why it is important to make a written note at the time so that you have a contemporaneous record of what happened.

It is unlikely that you would be prosecuted for exceeding the permitted hours if you were caught in Operation Stack, particularly if you had made a written note at the time. If you were prosecuted then you should seek legal advice as you might consider defending the prosecution under Article 12.

Author: David Chant
Transport solicitor @


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