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January 31 2018
By Mike Jewell

Mike Jewell is the industry’s leading legal journalist, covering all key cases brought before Public Inquries, Tribunals, Magistrates and Crown Courts

Carrying mobile phone does not mean
exemption from Driver CPC

The finding by Deputy Traffic Commissioner (DTC) Miles Dorrington that the Directors of Wigan-based minibus operators Wish Travel & Transportation Solutions were not exempt from the requirement to have a Driver CPC has been upheld by the Upper Tribunal.

The Tribunal dismissed the appeal by the operator against the DTC’s decision to cut its licence from eight vehicles to five for 14 days.

When Mr Riley was checked while driving a minibus, he was asked to produce his Driver CPC card. Mr Riley stated that he was exempt from the requirement to hold one. He said that he was employed as a company director and as such his duties went way beyond those of a driver, and that the Driver CPC only applied to employed drivers. He fell within an exemption because he was carrying his phone, which was the equipment that he used for his work as a director. The driving of the vehicle was far from his principal activity. 

In July, Miss Mallinson also claimed that she was exempt when she was checked while driving a minibus.

Mr Riley was convicted of driving without a valid Driver CPC and for failure to use a tachograph record sheet or driver’s card and was fined £1,032. Miss Mallinson was also convicted of driving without a valid Driver CPC and was fined £386. Both appealed to the Crown Court where their convictions were upheld.

In his decision, the DTC said that he did not consider that a mobile phone fell within the exemption of carrying material or equipment to be used by a person in the course of their work. To find otherwise would create a wholly perverse outcome. He went on to find that neither director had deliberately breached the Regulations and that they held a strong view that the rules had been unfairly interpreted against them.

Dismissing the appeal, the Tribunal said that it was incorrect to suggest that the Regulations only applied to employed drivers. All exemptions concerned vehicles that were not being operated to carry goods or passengers for hire or reward.

The carriage of passengers for hire or reward was the very purpose of the firm’s business.  There was an exemption relating to a vehicle which was carrying material or equipment. The exemption related to the vehicle, not the driver. The purpose of the exemption was to enable a person to transport their materials and equipment in a vehicle that are necessary for them to undertake their work, such as an electrician or a plumber whose vehicles contain their tools and materials.

It was not possible to interpret that exemption to include a vehicle carrying passengers for hire or reward being driven by an occasional driver carrying a mobile phone. 

The argument that the possession of a mobile phone, with or without access to an electronic diary among other things, permitted a company director to claim that exemption, despite the fact that they were driving a vehicle carrying passengers for hire or reward however infrequently, was manifestly absurd.

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