Vehicle Defects (Sections 40A to 42 Road Traffic Act 1988)

Using a motor vehicle that is defective in some way can amount to an offence under the Construction & Use Regulations. This area of the law sets the standards that must be met in relation to the construction, maintenance and use of all motor vehicles.

The regulations are concerned with the condition of the vehicle, the way in which it is used and any modifications which make it unsafe or potentially unsafe.

Construction & Use Offences

There are hundreds of offences created by the Construction & Use Regulations. Typical examples include driving a vehicle with:

• Defective tyres Defective brakes or steering
• Defective exhaust system
• Insecure or unsafe loads
• Too many passengers

Penalties

Penalties for construction and use offences vary and include:

• Fines of up to £5000 depending on the type of vehicle, plus
• 3 Penalty Points or
• Discretionary Disqualification

Most of these offences are dealt with by way of Fixed Penalty. If a fixed penalty is not offered by the police, or refused by the driver, court proceedings must commence within 6 months from the date of the offence. It is not uncommon for drivers to be charged with multiple offences under these regulations.

Tyre Regulations

The regulations on tyres vary depending on the type of vehicle being used and the purpose to which it is being put. In general, the regulations require that tyres have a minimum of 1.6mm of tread depth over the centre three quarters of the tyre that would normally have contact with the road. Some vehicles only require 1mm of tread depth.

The regulations also cover suitable inflation requirements for tyres and mixing different tyre types on the same vehicle. The general condition of tyres with reference to lumps, bumps and tears, together with other features are also detailed in the regulations. Some motor vehicles are exempt.

Vehicle Defect Rectification Scheme

If a driver is stopped by the police for a minor vehicle defect, such as a faulty light, they can be offered an opportunity to rectify the problem under the Vehicle Defect Rectification Scheme. Under the scheme the driver is given the chance to rectify the defect and avoid prosecution. The scheme is voluntary and usually allows a driver 14 days within which to fix the problem. If the problem is not fixed the driver will face prosecution and the possibility of 3 penalty points and a fine.

Defences

Most prosecutions proceed on the basis of police giving evidence about the alleged defect or other contravention, such as driving with an insecure load or too many passengers. In a large number of cases the evidence will be relatively straightforward, and the defect or danger will be obvious. In other cases, however, the police evidence will be highly subjective and open to question. It should not be assumed that the police have the necessary expertise to give evidence about technical defects and the inherent dangers. Nor should it be assumed that the evidence of the police cannot be challenged. A factual defence of denial is always open to a driver who disputes the allegation that his vehicle does not meet the required standard.

It is important to note that ignorance of a regulation or a defect is not a defence. These offences can arise even where the driver was unaware of the defect. If a driver is charged with using a vehicle with defective lights it is not a defence that he did not know that the lights were not working. A driver is expected to check all is in order with a vehicle before setting off.

Avoiding Points & Disqualification

If a driver is convicted or accepts that they are guilty of a Construction & Use offence, they might avoid penalty points and disqualification if they can show that they did not know, nor had reasonable cause to suspect, that the offence in question was being committed. The onus is on the defence to establish this requirement on the balance of probabilities.

If you have been charged in relation to any vehicle defect within the Highlands and Islands, contact our office for advice on your options in defending this charge.