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What happens if you face CoR prosecution?

September 6, 2018

From 1 October 2018, the new Chain of Responsibility (CoR) laws will be in place.

These laws will apply to anyone involved in the heavy vehicle supply chain; whether you own a transport company, are a contract driver, or are involved in arranging the delivery or receipt of freight.

Recently, we have seen the Regulator make an example out of companies with inadequate CoR policies and procedures.

In a recent case involving a large waste collection company, the Court stressed that even where road transport is conducted by a contractor or third party, it is critical that every party in the Chain has “an active system in place to manage the risk and to minimise the chance of road transport law being breached”.

This case highlighted:

  • the critical importance of properly managing the compliance conduct of contractors and third parties within the Chain;
  • the essential need to include CoR compliance assurance conditions in all supply chain contracts;
  • when contractors do not have their own reliable compliance systems in place, there is a need to subject contractors to internal awareness, training and compliance controls; and
  • the need to ensure that businesses have a documented compliance framework, and for this to be complete and substantive.

The Regulator has stated on many occasions that ignorance of the law is no excuse, and with changes coming in a month’s time, some companies may find themselves on the receiving end of a ‘please explain’ from the Regulator.

What can you expect? This is how the Regulator conducts its investigation and prosecution process.

Notice to Produce

Typically, the Regulator will commence an investigation process by issuing a Notice to Produce (Notice).

The Notice will usually require the production of documents within a specified period. Notices are usually drafted in broad terms and require parties to produce copies of relevant journey and transport documentation.

Parties who fail to produce sufficient documentation or ignore the Notice will face heavy fines.

Improvement Notice

The Regulator can issue an Improvement Notice when the HVNL has been found to be breached.

An Improvement Notice may require a person to take action or stop the contravention happening again, or to rectify the matters causing the contravention.

Issue of a Court Attendance Notice (CAN)

If your documents show insufficient CoR procedures, you may be issued with a Court Attendance Notice from the NHVR.

Each listed defendant will be required to attend court to answer charges for an offence under the HVNL.

Entering a plea

Once you receive a CAN, you will have to decide whether to plead guilty or not guilty to the charge.

Factors that dictate if it is appropriate to enter a guilty plea include:

  • what are the defences available to you in relation to the charges; and
  • what are the potential fines and costs of defending the charges.

The costs

The costs of defending a CoR prosecution are not just limited to legal costs (which may be substantial). The costs to reputation and time can be much more significant.

Importantly, when faced with a potential CoR investigation, the most important action is to identify how to prevent future incidents from occurring.

With the changes in CoR laws coming soon, businesses will need to be proactive, rather than reactive in their approach to meeting their obligations to avoid safety breaches.

Have you prepared for 1 October?

If you haven’t, your livelihood could be at stake.

Avoid CoR breaches and their sanctions by subscribing to CoR Adviser. It’s not too late to catch up on what’s changed because subscribers also get access to the entire CoR Adviser library of previous issues of the newsletter – and the downloadable documents in each one.

Written by the transport lawyers at Holding Redlich, it provides practical, strategic knowledge to help you ensure your business is CoR-compliant. Subscribe now!