Clandestine entrants – take action to avoid £4,000 penalty per entrant

With the crisis in Calais continuing, we discuss the ongoing risk of clandestine entrants illegally using commercial vehicles destined for the UK, the consequences for vehicles found to be carrying entrants and how both companies and drivers can take steps to secure their vehicles and minimise their risk of penalties.

Consequences for vehicles found to be carrying clandestine entrants

A HGV driver and his employer can each receive a penalty of up to £2,000 for each clandestine entrant found in the vehicle. The vehicle could also be detained if there are outstanding fines or the UK Border Force (UKBF) is concerned that the fine will not be paid on time.

As a company is jointly and severally liable for its drivers’ fines, operators could be exposed to a penalty of £4,000 per clandestine entrant. Penalties of £20-30,000 are not unusual.

Take preventative measures

To reduce exposure to fines, vehicle operators must take active steps by having effective systems in place to prevent people hiding in or on their vehicles.

Operators should:

  • Implement a clear system to prevent people hiding in and on their vehicles.
  • Produce a clandestine entrant policy including clear written instructions on the system.
  • Provide handbooks to drivers enclosing the clandestine entrant policy and UKBF guidance.
  • Provide drivers with security equipment to secure their vehicle, load and load space.
  • Provide adequate ongoing training to all drivers on how to prevent clandestine entrants and the application of security devices on vehicles.
  • Provide all drivers with vehicle security checklists for drivers to record the checks that they have carried out to prevent clandestine entrants.
  • Monitor drivers’ compliance with the clandestine entrant’s policy. Failure to comply with the clandestine entrant’s policy by drivers should lead to disciplinary action.

DWF’s Regulatory Team recommends operators join the UK Border Agency’s free accreditation scheme. The scheme is open to operators of any size or nationality who undertake journeys between mainland Europe and the United Kingdom. To qualify, an operator must show that it has an effective system to prevent it carrying clandestine entrants. It must also show that it takes all reasonable steps to ensure the system operates properly.

If an operator is accepted onto the scheme and clandestine entrants are subsequently discovered in its vehicles, a civil penalty will not be imposed if the operator is found to be operating in accordance with the scheme.

10 Steps to an effective system for drivers

The Home Office recommends that drivers follow a 10 step guide to avoid a penalty.

Conclusion

The risk to operators of clandestine entrants is one that is on the rise and is not a problem that is likely to be resolved anytime soon. With a potential fine for companies of £4k per entrant and entrants willing to risk their lives to enter the UK; both companies and drivers need to ensure they are complying with effective systems to minimise risk.

DWF’s Regulatory Team can:

  • Provide advice on preventative steps to protect your business.
  • Advise businesses on applying to the UK Border Force’s Accreditation Scheme.
  • Help with all aspects of objecting, appealing and reducing a penalty against you or your driver.

For further information please contact Joanne Witheford or Vikki Woodfine.

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Sentencing guidelines start to bite big corporates

In the wake of the £5m fine imposed on the owners of Alton Towers, regulatory expert Vikki Woodfine, writes for Lexis Nexis about huge health and safety fines becoming the new norm.

The last few months have seen a number of large fines for health and safety breaches. What are the fines that have been imposed?

Since the introduction of the new sentencing guidelines for health and safety offences in February 2016 we have seen some significant fines being handed out by the courts. The sentencing guidelines are truly starting to bite big corporates and the upward trend in penalties for health and safety breaches cannot be ignored. In September 2016 alone we have seen six fines being handed down in respect of health and safety offences that were in excess of £1m. That works out at more £1m fines per month than the previous rate of £1m fines per year—prior to the implementation of the new sentencing guidelines. For reference, that now gives a total of 16 £1m plus fines which have taken account of the new sentencing guidelines (including three cases from the week prior to the implementation of the new sentencing guidelines).
What do these cases tell us about how the courts are interpreting and imposing the Definitive Sentencing Guideline, which came into force in February 2016?

There has been a clear increase in the number of £1m fines since February 2016. These cases show us that there has been a shift in the landscape in health and safety sentencing and the courts are now more than willing to give sentences in the £1m plus range, even where a death has not occurred. Non-fatal incidents are attracting these high fines which is something that we have rarely previously seen.

This article was originally written for Lexis Nexis

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For further information contact Vikki Woodfine

Operators Beware – the application of the new sentencing guidelines

The new Sentencing Guidelines represent the biggest shake up to the Regulatory landscape in recent years, with fines up to 10 times higher (or more in some cases), than their previous levels. With respect to individuals we are expecting to see cases of imprisonment of directors and managers in cases where that would have been unheard of before.

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HSE to prosecute employer for Harrison Ford injury

Harrison Ford, better known as Hans Solo, sustained a broken leg when he was struck by a heavy metal door during the filming of Star Wars Episode VII: The Force Awakens. The accident happened in August 2014 at Pinewood Studios whilst the actor was filming a scene set inside the well-known intergalactic freighter, the Millennium Falcon.

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