For businesses involved in cross-border transport, preventing unauthorised access to vehicles is more than a security concern, it is a legal requirement.
The Carriers' Liability Regulations 2002 (the "Regulations"), made under the Immigration and Asylum Act 1999, were introduced to deter individuals from entering the UK unlawfully by concealing themselves in goods vehicles.
The regulations impose obligations on drivers, vehicle owners and hirers to take specified steps to secure vehicles against unauthorised access. Failure to comply can result in significant financial penalties.
These regulations were amended (The Carriers Liability (Amendment) Regulations 2023), to strengthen the existing regime, increasing the potential consequences of non-compliance and placing greater emphasis on effective vehicle security, checks and record-keeping.
What are The Carriers Liability (Amendment) Regulations 2023?
These regulations work as a deterrent by imposing cumulative penalties (fines) where a clandestine entrant is detected within or where the vehicle is not suitably secured against unauthorised access. The principal idea being that owners, operators, and drivers are obliged to complete various checks and inspections of their vehicles to ensure that there is no means of unauthorised access to the vehicle, no evidence of somebody making unauthorised access, and that nobody has made unauthorised access in order to avoid receiving a penalty.
This article explores the offence of failing to secure a goods vehicle.
What is the offence?
Under this Section 31A of the Act, a penalty can be on a ‘person’ (typically the driver but we’ll explain more below) responsible for a goods vehicle where the vehicle is not adequately secured against unauthorised access or where the person has not taken the actions specified in the regulations to secure the vehicle against unauthorised access.
The most important thing to note in respect of this offence is that a penalty can be imposed regardless of whether somebody has gained unauthorised access or not.
What is “adequately secured”?
The regulations say:
Where a goods vehicle has a load space which is enclosed by a fabric cover or outer shell, there must be no cuts, tears, or other damage exceeding 25cm in length that are not repaired to a standard sufficient to prevent unauthorised access, and the outer shell must show no other signs of unauthorised access.
All means of entry to the load space must be able to be secured by an optimal method (a lock, seal, or other security device or, for curtain sided vehicles, a TIR cable or strap passing through all eyelets which is taught and secured by a lock, seal, or other device to the vehicle) against unauthorised access. Where this is not possible, access should be secured by some other method.
All cargo that can be secured by means of an optimal method should be so, and if one of these methods cannot be used, the cargo should be otherwise secured against unauthorised access.
The regulations also require that the relevant person checks that no external storage compartments, the underside or roof of the vehicle, , or any other internal space, show signs of unauthorised access.
Under the regulations, the vehicle will not be considered secure against unauthorised access if it is carrying a person who has gained unauthorised access to it. Alongside other checks, these are referred to as “the standard checks.”
Who is responsible?
A number of different people can be held responsible for failing to adequately secure a goods vehicle and, more importantly, liability can be joint and several. Multiple parties can be held liable for the same penalty and if a person is responsible for the goods vehicle in more than one capacity, they may receive multiple separate penalties in respect of the same circumstances.
The regulations provide that the persons responsible for a goods vehicle are:
If the goods vehicle is a detached trailer, the owner, hirer, and operator of the trailer; and,
If it is not a detached trailer, the owner, hirer, and driver of the vehicle.
To illustrate how liability can arise, an owner-operator will face two separate penalties: one in their capacity as the owner of the vehicle and another in their capacity as its driver.
Similarly, where a driver is issued with a penalty, their employer may also be liable for that penalty, regardless of whether the employer has separately been penalised as the owner of the vehicle.
The penalties
The maximum penalty for failing to secure a goods vehicle under Section 31A is £6,000 per responsible person, per incident. The maximum aggregate penalty (i.e. the maximum total penalty payable by all responsible persons, per incident) is £12,000.
The starting point for determining the penalty is dependent upon the persons previous involvement in other incidents:
History | Starting Point |
|---|---|
No record of liability in the preceding five years | £1,500 |
One penalty in the preceding five years | £3,000 |
Two or more penalties in the preceding five years | £6,000 |
In the event payment of the penalty isn’t made within the prescribed period the vehicle may be detained and subsequently sold in satisfaction of the penalty. This can create further issues where the vehicle is on hire.
Reductions and defences
There is only one statutory defence to an offence under this section, and that is to show that the responsible person was acting under duress when permitting the vehicle to be unsecured.
Otherwise, the only other option is to seek a reduction in the penalty. This offence considers two factors for seeking a reduction (though the Secretary of State may consider any other factors at their discretion). Firstly, if the responsible person is a member of the Civil Penalty Accreditation Scheme they are entitled to a 50% discount to the starting point of the penalty.
A further 50% will be applied to the starting point if the responsible person is not the driver and was not present during the vehicle or detached trailers journey to the United Kingdom but they acted to ensure compliance with the regulations. For example, the owner who has provided the driver with all the training and tools to adequately check the vehicle, but the driver has failed to do so, might be entitled to the additional 50% reduction in penalty.
It is important to note here that the reductions are cumulative and not sequential, so if you qualify for both of these reductions you will be entitled to a 100% reduction in penalty.
For more information on carriers liability, contact our transport regulation solicitors.
