In-the-process-of-being-summoned-to-court-over-section-40a-of-the-road-traffic-act-1988-uk-for-overloaded-90

[Braveheart2009]

I'm in the process of being summoned to court over section 40A of the road traffic act 1988 UK for overloading and my vehicle in a condition likely to cause an injury.

The police fixed penalty scheme didn't cover 90% overloading so they have referred it to the magestriate court for prosecution.

It's my first serious driving offence in 17 years no previous offences, or points the odd parking ticket.

I was slightly overloaded by 180kg on axle 1 but on axle 2 it was 2.6 ton!

I wasn't aware of no bent chassis or smoke coming from tyres or bouncing chassis. I drove for 160 miles (3 hours) without any problems and was going a bit slow to be safe around 45-50 mph in the inside slow lane when caught.

What is the likely outcome? Can you go to jail for overloading. What's in my best interest to plead guilty?

 

[dx100uk]

F1[40AUsing vehicle in dangerous condition etc.

A person is guilty of an offence if he uses, or causes or permits another to use, a motor vehicle or trailer on a road when—

(a)the condition of the motor vehicle or trailer, or of its accessories or equipment, or

(b)the purpose for which it is used, or

(c)the number of passengers carried by it, or the manner in which they are carried, or

(d)the weight, position or distribution of its load, or the manner in which it is secured,

is such that the use of the motor vehicle or trailer involves a danger of injury to any person.]

 

The courts sentencing powers are to impose a mandatory 3 penalty points or discretionary disqualification and a fine of up to £2500 for a non-commercial vehicle. If you have committed a similar offence within the last 3 years you will face an obligatory disqualification.

Are there any exceptions to receiving penalty points or a disqualification?

When a person is convicted of an offence under S40 of the RTA 1988, the court must not order an endorsement of points or a disqualification if the driver proves, on the balance of probabilities, that he did not know, and had no reasonable cause to suspect, that the use of the vehicle involved a danger of injury to any person.

 

 

as far as i can see but no would never be prison.

 

 

[Manxman in exile]

Two axles and you were over on one of them by 2.6 tons?!

 

What were you driving and what's the maximum payload for that vehicle?

[Braveheart2009]

I understand there is a pathway depending on the serious nature of overloading it wasn't just 5-10% or 30% it was 90% and the vehicle was in total 2/3rds or 78% overloaded with also an intended 400 miles of driving from one end of the country to the other. They could refer it to the crown court for more severe penalties. 

 

The points given can be reduced through a exceptional hardship rule that exists if you need to drive for health and work reasons. If you are banned 12 points plus. 

 

The rule mentioned a ban or points shouldn't of been imposed on the balance of probabilities if the driver genuinely didnt know and felt there was no danger of injury, I'm a qualified HGV and Hiab driver with CPC certificate now expired, doing my own thing. 

 

The vehicle was a 3.5t luton box 2021 tail lift which has plates saying axle 1 - 1750kg and axle 2 - 2250 however the total is 1750 i believe rather than 3.5t you do not add the 2 together unless someone knows better. I've asked my old boss and arnold clark van adviser they told me the payload is usually 50% of the vehicle and you have to factor in the tail lift as its 500kg on its own. 

 

My defences are.

It was a rented vehicle, not my own, so didn't know a lot about the vehicle.

I have documentation to prove i was to collect approx 2 tons of items (I was unware of 1750kg payload capacity)

I genuinely thought a 3.5t taillift vehicle could hold approx 3.5t

I genuinely didnt understand payload nor was it highlighted to me in writing or verbally

I genuinely didnt know there was limits to each axle, nor was it highlighted to me in writing or verbally

I genuinely didnt know there was payload plates on the vehicle nor was it highlighted to me (do people know their car payload capacity without your car manual or do car salesman highlight it no)

I didn't load the vehicle it was a team of 10 non English speaking people

My instructions to stop loading till i check if the vehicle is safe by driving it around the loading bay was ignored as they said they are in command and are professionals.

I did check the vehicle was safe by driving in a circle in the loading bay, which drove as if it was empty slightly heavier as expected. 

My instructions to place certain loads and certain positions were ignored they were non English speaking.

I stopped at a nearby service station to do my checks my tyres psi and load was secured and suspension ok, i purchased ad blue and screen wash to ensure my vehicle was top performing and safe.

I drove in the 1st slow lane of a triple carriageway around 40-50 mph in a 60/70mph zone

I drove 160 miles (3hrs.05mins) without any issues

I engaged with the police in a progressive manner rather than being restrictive as I believed i was legal

I engaged and arranged excess load to be removed before reweighing my vehicle to the legal limit.

I caused no harm or injury to anyone.

I have genuine remorse for what happen and will not do it again.

I'm a carer who is dependent on a person on 16 hours of oxygen and an autistic individual who have regular doctors/hospital appointments this would cause severe hardship if I were to receive a ban or prison.

 

Edited February 3, 2023 by dx100uk
unnecessary previous post quote removed

[dx100uk]

ping @Man in the middle our expert.

 

dx

 

[BazzaS]

I wouldn’t tell the magistrates “I told them to stop but they ignored me”, as that could lead to the reply “well, then, you knew you shouldn’t have driven it but chose to anyway!”, so what you think is mitigation actually turns out to be an exacerbating factor …..

[Michael Browne]

14 hours ago, Braveheart2009 said:

I genuinely thought.....

 

14 hours ago, Braveheart2009 said:

I genuinely didnt understand....

 

14 hours ago, Braveheart2009 said:

I genuinely didnt know...

Unfortunately ignorance of the law is no defence.

[Man in the middle]

This OP has been given good (and consistent) advice from other places. In a nutshell:

 

Nothing he says provides anything in the way of a defence so his best option is to plead guilty. As the driver he is responsible for ensuring the vehicle was not overloaded to a dangerous degree. His ignorance of the vehicle's payload capability, etc. is no defence. The notion that he was unaware of the overloading is a bit fanciful. He contends that he should not be guilty because no danger or injury to anybody else resulted and that the vehicle was not dangerous because he detected "...no bent chassis or smoke coming from tyres or bouncing chassis.". This, of course, misses a very important point. The braking system of a vehicle is designed for a maximum payload. To carry almost twice that payload will obviously present a danger in the event of an emergency.

 

The offence carries an unlimited fine though, as with all fines, it will be income related. The penalty will probably be quite hefty in his case because of the degree of overload. 

 

It also carries three points or a disqualification, with a second conviction for a similar offence within three years seeing a mandatory ban.

 

He cannot go to prison for it under any circumstances. He is extremely unlikely to see a ban imposed for this single offence. It cannot be dealt with anywhere other than in the Magistrates' Court. It cannot be referred to the Crown Court.

 

This is now the fourth forum I have seen this question posed and I get the impression he feels that if he asks the question a sufficient number of times he may get the reassurance he seeks!  

 

[Braveheart2009]

Theres no law or rules where you cannot post on multiple forums asking the same question.

 

You say im seeking reassurances your wrong. I'm seeking someone who has been charged for the same or similar offence so thats why I am asking on different forum as people who have not been charged or been in the same or similar situations usually do not know what they are talking about.

 

This is based on a previous conviction I received last time I was in court what the lawyers and opinions of people are incorrect its what happens on the day according to the trend of people there if there all going to jail you will to if its a good or bad judge usually your very very lucky if its a good judge. The entire system of the courts is a game to play to win not fairness and justice its money extraction as much as they can get, they want drivers off the road and using public trasport to fill there pockets. 

 

So, you think all my reasons are made up to get away with it? The judge must know people are not perfect. The vehicle could take the load thats why it drove for 160 miles with no issues.

 

Its not ignorance i simply was not aware.

 

Are you aware on the payloads for rented vehicles in your local area?

do they tell you?

do they give you documentation?

They hammer you with paperwork/verbally on excess charges for damage? How was I supposed to know the braking capability. The braking was fine. 

 

The fines are capped in a magistrates court per offence, per axle limit exceeded. 

 

Read a survey recently that over 50% of van drivers overload and unaware dont know what a weighbridge is or one located nearby. 

[BazzaS]

“ I'm seeking someone who has been charged for the same or similar offence so thats why I am asking on different forum as people who have not been charged or been in the same or simialr situations usually do not know what they are talking about.”

Sorry, didn’t know you only wanted advice from those charged with the same or similar.

please feel free to ignore my previous response, as clearly I’m not eligible (by your requirements) to offer advice.

 

It may narrow your pool of respondents though. Good luck.

[Man in the middle]

Quote

You say im seeking reassurances your wrong. I'm seeking someone who has been charged for the same or similar offence so thats why I am asking on different forum as people who have not been charged or been in the same or simialr situations usually do not know what they are talking about.

You have been advised on here, and elsewhere, by people who do know what they are talking about. Although I must accept that I have not been charged with the same or a similar offence, this includes me.

 

Somebody who has been charged with a similar offence may not necessarily know what they are talking about and in any case the outcome of their case will depend on all of its circumstances, which will almost certainly be different to yours.

 

You keep on asking questions to which there is a definitive answer which you have already been given. For example, you keep on asking whether prison is a possibility. You have been told that it is not and anybody who has faced a similar charge will tell you likewise because it is not legally possible. You can check any advice you have received online by looking at the relevant legislation. The Road Traffic Act Section 40a, under which you have been charged) is here:

 

Road Traffic Act 1988

WWW.LEGISLATION.GOV.UK

---

An Act to consolidate certain enactments relating to road traffic with amendments to give effect to recommendations of the Law Commission and the Scottish Law Commission.

 

The Road Traffic Offenders’ Act (which gives, at Schedule 2, details of the penalties that can be imposed for the offence) can be found here:

 

Road Traffic Offenders Act 1988

WWW.LEGISLATION.GOV.UK

---

An Act to consolidate certain enactments relating to the prosecution and punishment (including the punishment without conviction) of road traffic offences with amendments to give effect to recommendations of the Law...

 

Quote

So, you think all my reasons are made up to get away with it?

 

I have not said that. I don't doubt they're true. I said they do not form the basis of a defence that is likely to succeed.

 

Quote

Its not ignorance i simply was not aware. 

 

It amounts to the same thing and does not provide you with a defence or even mitigation. Drivers are expected to know the law in relation to the vehicles they are driving. If they don't they can expect to be prosecuted. 

 

Quote

Are you aware on the payloads for rented vehicles in your local area? 

 

No I’m not because I don’t rent vans. If I did, particularly if I did so professionally, I would make it my business to find out the maximum payload etc. But it isn’t what I know or don’t know that matters.

 

Quote

The fines are capped in a magistrates court per offence, per axle limit exceded.

 

You have not been charged with exceeding an axle load or payload. You have been charged with “Using vehicle in dangerous condition.” Specifically when “…the weight, position or distribution of its load, or the manner in which it is secured, is such that the use of the motor vehicle or trailer involves a danger of injury to any person.

 

And the fine for that offence is unlimited (though based on income)

 

The police obviously believed the weight of your load posed a danger of injury to another person.

 

I wish you luck if you decide to defend the charge on the basis you've mentioned. I’m out now.

Edited February 4, 2023 by Man in the middle

[Michael Browne]

A pound to a penny, if you try to defend your case as you have suggested in post #4, you will lose and be given a far higher fine than if you just plead guilty.

[Manxman in exile]

5 hours ago, Man in the middle said:

 

... No I’m not because I don’t rent vans. If I did, particularly if I did so professionally, I would make it my business to find out the maximum payload etc. But it isn’t what I know or don’t know that matters...

 

To me this is the clincher.

 

I've seen the OP's same thread on two other forums and I'm surprised that a professional driver (HGV qualified) should apparently have such a massive hole in what I would have thought should be basic knowledge for them.  (And still remain blind to it...)

 

A couple of days ago before I first read any of these threads I knew absolutely nothing about vans, but I suspect I now know more about gross vehicle weight, kerb weight and maximum payload weight than the OP does even now.  Plus that having a fitted tail lift significantly reduces your effective payload.

Edited February 4, 2023 by Manxman in exile

[Braveheart2009]

On 04/02/2023 at 14:01, BazzaS said:

“ I'm seeking someone who has been charged for the same or similar offence so thats why I am asking on different forum as people who have not been charged or been in the same or simialr situations usually do not know what they are talking about.”

Sorry, didn’t know you only wanted advice from those charged with the same or similar.

please feel free to ignore my previous response, as clearly I’m not eligible (by your requirements) to offer advice.

 

It may narrow your pool of respondents though. Good luck.

 

Your free to post your opinion, but i take it as a pinch of salt, even the lawyers i have spoken to dont have consistancy in the fines, and points through a first offence. 

 

 

On 04/02/2023 at 15:24, Man in the middle said:

You have been advised on here, and elsewhere, by people who do know what they are talking about. Although I must accept that I have not been charged with the same or a similar offence, this includes me.

 

Somebody who has been charged with a similar offence may not necessarily know what they are talking about and in any case the outcome of their case will depend on all of its circumstances, which will almost certainly be different to yours.

 

You keep on asking questions to which there is a definitive answer which you have already been given. For example, you keep on asking whether prison is a possibility. You have been told that it is not and anybody who has faced a similar charge will tell you likewise because it is not legally possible. You can check any advice you have received online by looking at the relevant legislation. The Road Traffic Act Section 40a, under which you have been charged) is here:

 

Road Traffic Act 1988

WWW.LEGISLATION.GOV.UK

---

An Act to consolidate certain enactments relating to road traffic with amendments to give effect to recommendations of the Law Commission and the Scottish Law Commission.

 

The Road Traffic Offenders’ Act (which gives, at Schedule 2, details of the penalties that can be imposed for the offence) can be found here:

 

Road Traffic Offenders Act 1988

WWW.LEGISLATION.GOV.UK

---

An Act to consolidate certain enactments relating to the prosecution and punishment (including the punishment without conviction) of road traffic offences with amendments to give effect to recommendations of the Law...

 

 

I have not said that. I don't doubt they're true. I said they do not form the basis of a defence that is likely to succeed.

 

 

It amounts to the same thing and does not provide you with a defence or even mitigation. Drivers are expected to know the law in relation to the vehicles they are driving. If they don't they can expect to be prosecuted. 

 

 

No I’m not because I don’t rent vans. If I did, particularly if I did so professionally, I would make it my business to find out the maximum payload etc. But it isn’t what I know or don’t know that matters.

 

 

You have not been charged with exceeding an axle load or payload. You have been charged with “Using vehicle in dangerous condition.” Specifically when “…the weight, position or distribution of its load, or the manner in which it is secured, is such that the use of the motor vehicle or trailer involves a danger of injury to any person.

 

And the fine for that offence is unlimited (though based on income)

 

The police obviously believed the weight of your load posed a danger of injury to another person.

 

I wish you luck if you decide to defend the charge on the basis you've mentioned. I’m out now.

 

There always a pathway to prison in the courts how they see fit. They are not accountable to anyone and know they can get away with miscarriges of justice because of their titles. When you challenge them your labeled a rebel and told just do what your told. 

 

So what does form the basis for a defence? 

 

So, drivers are expected to be 100% traffic law experts 100% of the time? What about vunrable/elderly drivers? People new to this country, have overseas driving licenses? 

 

What if you hired a van out for the odd occassion and mostly a car driver? You would reasonable expect a 1st time van driver to know not much about vans just like a newbie first day on the job? 

 

There was nothing wrong with the load it was safe and secure 50-60% of the loading area was empty drove for miles with no issues its all what if that actually never happen. An empty vehicle is as dangerous as a loaded vehicle be it 1 or 90%. You cannot make up that the 90% vehicle will crush more of a car or person! 

 

unlimited fines sound like robbery 

 

well it wasnt a danger for 160 miles and 3 hours with hundreds if not thousands of cars and vehicles passing by. The trucks and vehicles around me posed a danger regardless of being overloaded or not they were driving to fast. 

 

Pleading not guilty fed up with people trying to screw you up trying to do a good cause thinking your robot perfect. 

 

On 04/02/2023 at 15:58, Michael Browne said:

A pound to a penny, if you try to defend your case as you have suggested in post #4, you will lose and be given a far higher fine than if you just plead guilty.

 

its just a 33% discount supposed to entice the society to plead guilty rather than genuine reasons. 

 

On 04/02/2023 at 20:24, Manxman in exile said:

 

To me this is the clincher.

 

I've seen the OP's same thread on two other forums and I'm surprised that a professional driver (HGV qualified) should apparently have such a massive hole in what I would have thought should be basic knowledge for them.  (And still remain blind to it...)

 

A couple of days ago before I first read any of these threads I knew absolutely nothing about vans, but I suspect I now know more about gross vehicle weight, kerb weight and maximum payload weight than the OP does even now.  Plus that having a fitted tail lift significantly reduces your effective payload.

Not all HGV drivers drive all the time you know they have lapses in concentration and forget like every human being. 

 

 

[dx100uk]

[Manxman in exile]

11 hours ago, Braveheart2009 said:

 

...There always a pathway to prison in the courts how they see fit. They are not accountable to anyone and know they can get away with miscarriges of justice because of their titles... 

 

 

What a load of rubbish.  Did you get sent to prison for your previous conviction?

 

It's been explained to you here and on other forums that you can't go to prison for an offence under s40A of the RTA 1988.  People have even given you references to the Act so you can check it yourself.  You don't need to be a lawyer to understand that.  And you can only be disqualified if you committed a previous offence under s40A within the last 3 years.

 

11 hours ago, Braveheart2009 said:

 

...So what does form the basis for a defence?...

 

 

Nothing you have said.

 

11 hours ago, Braveheart2009 said:

 

... So, drivers are expected to be 100% traffic law experts 100% of the time? What about vunrable/elderly drivers? People new to this country, have overseas driving licenses? 

 

What if you hired a van out for the odd occassion and mostly a car driver? You would reasonable expect a 1st time van driver to know not much about vans just like a newbie first day on the job?...

 

 

Well, er, yes.  Does that come as a surprise to you?  Have you never heard of one of the most basic priciples of criminal law:  "Ignorance of the law is no defence"?  If you drive a motor vehicle in the UK you are expected to know and to adhere to the law that applies to your vehicle.  Full stop.

 

It doesn't matter what you, I, or anybody else thinks is reasonable - it's what the law is.

 

11 hours ago, Braveheart2009 said:

 

...There was nothing wrong with the load it was safe and secure 50-60% of the loading area was empty drove for miles with no issues its all what if that actually never happen. An empty vehicle is as dangerous as a loaded vehicle be it 1 or 90%. You cannot make up that the 90% vehicle will crush more of a car or person! ...

 

... well it wasnt a danger for 160 miles and 3 hours with hundreds if not thousands of cars and vehicles passing by. The trucks and vehicles around me posed a danger regardless of being overloaded or not they were driving to fast...

 

 

If I were you I wouldn't mention any of that in court...

 

You seem to have some strange views about courts and the law.  Are you a Freeman on the Land by any chance?

[BazzaS]

FMOTL? Well, the OP hasn’t yet said “I wasn’t driving, I was travelling…..” (but that is just about the only bit of rubbish they haven’t yet come out with).

 

I’m not sure the OP has come to CAG for advice, but probably looking for validation of their views.

In the end, it’ll be the view(s) of the bench that matter.

 

The question is if the OP (being so sure of the reasons they aren’t guilty that they’ve stated here) will try to impress those points  on the Magistrates.

It’s a shame we won’t be there to observe the results….

 

Note that this is general comment, not advice for the OP, as it seems they don’t want advice.

Edited February 7, 2023 by BazzaS

[Braveheart2009]

1 hour ago, Manxman in exile said:

 

What a load of rubbish.  Did you get sent to prison for your previous conviction?

 

It's been explained to you here and on other forums that you can't go to prison for an offence under s40A of the RTA 1988.  People have even given you references to the Act so you can check it yourself.  You don't need to be a lawyer to understand that.  And you can only be disqualified if you committed a previous offence under s40A within the last 3 years.

 

 

Nothing you have said.

 

 

Well, er, yes.  Does that come as a surprise to you?  Have you never heard of one of the most basic priciples of criminal law:  "Ignorance of the law is no defence"?  If you drive a motor vehicle in the UK you are expected to know and to adhere to the law that applies to your vehicle.  Full stop.

 

It doesn't matter what you, I, or anybody else thinks is reasonable - it's what the law is.

 

 

If I were you I wouldn't mention any of that in court...

 

You seem to have some strange views about courts and the law.  Are you a Freeman on the Land by any chance?

Im not a highway code book. We all know the basic rules but not every rule ffs. 

 

The law is there but authorities dont have a clue how to use it is the reason why miscarriges of justice and appeals are successful on a daily basis. 

 

I've been to court and had first hand experience and you havent what people read and see on TV is not what happens there its all trend based convictions not individual cases look at its a shared court with convicts. 

 

So, if i were a freeman least they have a voice against corruption and have won many court cases, but people still laugh at them and have no clue about black laws dictionary. 

 

1 hour ago, BazzaS said:

FMOTL? Well, the OP hasn’t yet said “I wasn’t driving, I was travelling…..” (but that is just about the only bit of rubbish they haven’t yet come out with).

 

I’m not sure the OP has come to CAG for advice, but probably looking for validation of their views.

In the end, it’ll be the view(s) of the bench that matter.

 

The question is if the OP (being so sure of the reasons they aren’t guilty that they’ve stated here) will try to impress those points  on the Magistrates.

It’s a shame we won’t be there to observe the results….

 

Note that this is general comment, not advice for the OP, as it seems they don’t want advice.

 

Im not trying to impress anyone, i caused no one any problems ive done a similar job in the past with no problems at all they just want my money and to take me off the road for being a good driver. 

[BazzaS]

Well, tell the court you are a good driver (and the rest of your arguments) : See if they agree.

 

black laws dictionary? What is “black law/s” in that context?

 

If you are referring to Black’s Law Dictionary : it is one of the DEFINITIVE tomes. The only problem : it is definitive for US law, not E&W!

also : it is a dictionary … best for interpretation of legal terms.

 

Mind you, if you struggle with the Highway Code …….

Edited February 7, 2023 by BazzaS

[Manxman in exile]

52 minutes ago, Braveheart2009 said:

... So, if i were a freeman least they have a voice against corruption and have won many court cases, but people still laugh at them and have no clue about black laws dictionary...

 

Well if you are under the delusion that freemen have won many court cases you're beyond help.

 

Can you point to a case that has been won by a freeman?

[Braveheart2009]

my friend a civil engineer is a freeman of the land won 4 court cases. When he was being bombared by solicitors and even family that the authorities were gods and cannot be wrong. Got told first offence, dont do it again for 3 years and you wont be back here! 

[Manxman in exile]

Then why are you on here and umpteen other forums asking if you can go to prison if you have a friend who obviously knows more about the law than Perry Mason and is a legal Houdini.

 

Go and ask him.

[Man in the middle]

14 hours ago, Braveheart2009 said:

Pleading not guilty fed up with people trying to screw you up trying to do a good cause thinking your robot perfect. 

 

Do be sure to let us - and the people on the other forums you have posted on, who gave their free time to advise you -  how you get on. I'm sure we'd all like to learn from your experience.. 

[Braveheart2009]

2 hours ago, Manxman in exile said:

Then why are you on here and umpteen other forums asking if you can go to prison if you have a friend who obviously knows more about the law than Perry Mason and is a legal Houdini.

 

Go and ask him.

I have a right to be on here without your permission. I can ask in how many forums I want. Just heard from a traffic lawyer they can change the summary conviction to a criminal conviction to the crown as they see fit depending on the seriousness of the case it can be changed to a dangerous driving offence thats why I will plead not guilty due to the courts/authorities being a mess. The judge doesnt look at your paperwork unless you plead not guilty. 

[BazzaS]

But, you believe you haven’t done anything wrong, so (according to you, at least) it can’t be careless (below the standard of a careful / competent driver) driving,  let alone dangerous (well below the standard of a careful / competent driver) driving.

 

So, what’s your point?

 

(mind you they can’t change “a summary conviction to a criminal conviction to the crown” (they change a summary prosecution to a crown court prosecution…. “prosecution” not “conviction” ….. the conviction comes at a later stage.

I know, maybe you should be checking the definitions in Black’s Legal Dictionary!  If you are such a fan of it ……

 

unless you mean the magistrates deciding their sentencing poses are insufficient, where they remit sentencing to the Crown Court (again, “sentencing”, not “conviction”)

 

what / which do you actually mean?

Edited February 7, 2023 by BazzaS