“1.1.1 Before final loading takes place, all existing cuts or tears in the outer shell or fabric of the vehicle, which exceed 25 centimetres in length, must be repaired and sealed so as to prevent unauthorised entry. 1. 1.2 If present at the time of final loading, the owner, hirer or driver of the vehicle must check it to ensure that no persons have gained entry and are concealed within. It must then be locked, sealed, or otherwise made secure to prevent unauthorised entry. If not present at the time of final loading the owner, hirer or driver must, where possible, ensure that such checks are conducted at that point by reputable persons and then obtain written confirmation from those persons that these checks were properly conducted and that the vehicle did not contain concealed persons at the time of final loading and securing. 1. 1.3 When the final loading has been completed, the load space must be secured immediately by lock, seal or other security device, which prevents unauthorised entry. 1. 1.4 Tilt cords and straps, where used, must be undamaged, pass through all fastening points, made taut and be secured by lock, seal or other security device. 1. 1.5 There must be no means of entry to the load space, other than via access points which have been secured by lock, tilt cord / strap and seal, or other security device. 1. 1.6 Locks, tilt cords, straps and other devices used to secure the load space must be of robust quality and effective. 1. 1.7 Seals, other than Customs’ seals, must be distinguished by a number from a series which is unique to the owner, hirer or driver. This must be recorded in documentation accompanying the vehicle. 1. 1.8 Where a sealed container (except a container sealed by Customs) is loaded onto a vehicle, the owner, hirer or driver must, where possible, check to ensure that it does not contain unauthorised persons. It must then be resealed and made secure in accordance with the above requirements. These actions and the number of the new seal used must be recorded in documentation accompanying the vehicle. 1. 1.9 The same checking, securing and recording procedure detailed in paragraph 1.1.8 above must be followed where the load space in the vehicle has been opened by the owner, hirer, driver, or any other person before the final checks detailed in section 1.2 below are carried out. 1. 1.10 Where a new driver becomes responsible for the vehicle en route to the United Kingdom, he should ensure that it does not contain unauthorised persons and that the requirements detailed above have all been met. 1. 1.11 Paragraphs 1.1.1 to 1.1.10 above will not apply in relation to any vehicle, which it is not possible to secure by means of lock, seal or other security device. However, in such circumstances it will be for the owner, hirer or driver concerned to establish alternative arrangements to prevent unauthorised entry; and to be able to demonstrate that such arrangements have been made and complied with.”
“1.2.1 Where used, check tilt cords and straps for evidence of tampering, damage or repair. 1. 2.2 Where used, check that seals, locks or other security devices have not been removed, damaged or replaced. In order to ensure that there has been no substitution, numbers on seals must be checked to confirm that they correspond with those recorded on the documentation accompanying the vehicle. 1. 2.3 Check the outer shell / fabric of the vehicle for signs of damage or unauthorised entry, paying particular attention to the roof, which may be checked from either inside or outside the vehicle. 1. 2.4 Check any external storage compartments, tool boxes, wind deflectors and beneath the vehicle. 1. 2.5 Check inside the vehicle. Effective detection devices may be used for this purpose at the discretion of the owner, hirer or driver, but this will not obviate the requirement that the other checks detailed above be carried out. Where it is not possible to secure a vehicle by means of lock, seal or other security device, a thorough manual check of the load and load space must be conducted.”
“1.3.1 Vehicles should be checked regularly en route to the United Kingdom to ensure that they have not been entered, particularly after stops when left unattended. 1. 3.2 A document detailing the system operated to prevent unauthorised entry must be carried with the vehicle, so that it may be produced immediately to an immigration officer on demand in the event of possible liability to a penalty. 1. 3.3 A report detailing the checks that were carried out must be carried with the vehicle. If possible to arrange, the report should be endorsed by a third party, who has either witnessed or carried out the checks himself by arrangement with the owner, hirer or driver, as the report will then be of greater evidential value. 1. 3.4 Whilst owners, hirers or drivers may contract with other persons to carry out the required checks on their behalf, they will nevertheless remain liable to any penalty incurred in the event of failure to have an effective system in place or to operate it properly on the occasion in question. 1. 3.5 Where the checks conducted suggest that the security of the vehicle may have been breached, or the owner, hirer or driver otherwise has grounds to suspect that unauthorised persons have gained entry to the vehicle, it must not be taken onto the ship, aircraft or train embarking for the United Kingdom, or to the UK immigration control at Coquelles. Any such circumstances must be reported to the police in the country concerned at the earliest opportunity, or at the latest, to the passport control authorities at the port of embarkation. In the event of difficulties arising, owners, hirers or drivers should contact the United Kingdom Immigration Service at the proposed port of arrival for advice.”
“Requirements of the Immigration & Asylum Act 1999 (as amended) and the Home Office Code of Practice to Prevent Clandestine Entry: The legislation requires road hauliers and drivers to operate an ‘effective system' to protect their vehicles against the carriage of clandestine entrants. An effective system will not guarantee that no clandestine entrants can enter the United Kingdom in a vehicle but will, if properly operated, more likely than not prevent their carriage. It is only by operating an effective system that penalties can be avoided in the event that clandestine entrants are carried. There are five areas of responsibility for the company in operating an effective system: 1. To provide the driver with adequate training in the system to prevent clandestine entry. In the event of an objection weight is given to evidence which demonstrates that the driver was systematically trained, assessed, and monitored. Training records and regular reports would support this part of the system 2. To provide adequate written instructions describing the system to be operated to prevent clandestine entry. These may form a part of a driver's manual, and must be carried on the vehicle for the driver to refer to whenever required. They must be available for inspection on the request of a Border Force officer in the event of an incident. The Instructions must be specific to the prevention of clandestine entry, other topics will not be taken into account. 3. To provide adequate and effective security devices to secure the vehicle. Locks, seals and padlocks must be robust and of good quality. Tilt cords where used must be locked and sealed. Seals must be unique numbered and where used should be recorded on the CMR 4. To provide a checklist for the driver to complete after every stop; to indicate that he has completed effective checks of the vehicle, load and load space. The checklist should reflect the fact that the security system operated was effectively and efficiently maintained and monitored. Please note The Code of Practice indicates, paragraph 1.3.4 that, "Whilst owners, hirers or drivers may contract with other persons to carry out the required checks on their behalf, they will nevertheless remain liable to any penalty incurred in the event of failure to have an effective system in place or to operate it property on the occasion in question". 5. To provide evidence that the system was operated effectively. Due weight will be given to evidence which establishes that the system to prevent clandestine entry was effectively maintained by both company and driver. There are three areas of responsibility for the driver: 1. To secure his vehicle effectively as required by the company's system. 2. To maintain and check the vehicle, security devices, load and load space to prevent entry. 3. To maintain a record of the checks completed, as required by the employer.”
“Accreditation For your information the UK Border Force runs a Civil Penalty Accreditation Scheme to give recognition to companies who make all reasonable efforts to prevent the carriage of clandestine entrants. To gain this accreditation, companies must show that they have in place an effective system which meets the requirements of the Prevention of Clandestine Entrants: Code of Practice and do everything they can to ensure proper operation of it. Companies will be asked to provide evidence of an effective system to prevent the carriage of clandestine entrants. If we consider the requirements are met, we will accredit them to the scheme. This will be reviewed at regular intervals. The scheme is free and open to road haulage companies of any size or nationality. You can find more information about the accreditation scheme, including details on the Code of Practice, examples of checklists and the requirements as per theImmigration and Asylum Act 1999 , and on our website: …”
“A company must be able to show that it: •. has an effective system for preventing clandestine entrants (this is described in the prevention of clandestine entrants code of practice) •. takes reasonable measures to make sure that the system works, eg training and monitoring its drivers”
“We may need to request evidence from your driver. The scheme doesn’t prevent us from fining drivers if they haven’t operated your system properly. If you employ the driver, your company must pay the fine imposed upon the driver.”
“36. It seems to me that logically the first issue for this court to determine is whether the judge was correct to hold that the appellant's defence under section 34 of the 1999 Act failed. Although section 35A provides that an appeal to the judge is “a re-hearing of the Secretary of State's decision”, thereby incorporating the full discretion enjoyed by the respondent under section 32(2), the fact is that, if a responsible person establishes its defence under section 34(3) or (3A) on the facts, then there can be no liability at all to the imposition of a penalty, and the respondent's discretion as to whether to impose a penalty simply does not come into play. Likewise the court has no discretion as to whether the defence is satisfied; the defence is either established or it is not. The court at the first stage, therefore, simply has to determine on the evidence whether the responsible person has established all the relevant elements set out in section 34(3)(a) to (c) or section 34(3A)(a) to (d). If the responsible person fails to establish the defence, then the court has to move on to the second stage; it has to decide whether to impose a penalty, exercising the respondent's discretion under section 32(2). It is clear that, even though the defence has not been established, nonetheless the court still has a discretion whether in all the circumstances to impose a penalty, and if so, in what amount.”
“8. There were reminders and I have seen, in particular, at page 28, exhibit PM002, the way in which the system worked: texting the driver saying, for example, "Is the seal in place?" and the answer coming back "yes". That is clear evidence, as I find, of a system of monitoring which seems to me to be satisfactory in terms of the requirements. I remind myself that I am remaking this decision, not reviewing it. 9. It does seem to me that the failure of the driver to provide a checklist at that time, does amount to a failure to meet the requirements. It is that failure which the respondent now emphasises. The checklist should have been produced when asked for. That failure is, in my view, significantly mitigated by the fact that the evidence was provided, albeit at a later date. It is not clear to me what the reason was for the driver's failure to produce it at the time, given that it was produced at a later date. The Border Force officer asked about the systems. The checklist was not provided. 10. In those circumstances, it seems to me that it was open to the Secretary of State to impose a penalty for that failure, but not for the failure to monitor the driver's compliance. The first question, therefore, is whether or not, in all the circumstances of this case, the Secretary of State could reasonably have exercised her discretion not to impose any penalty at all, in light of the fact that the checklist was provided later, and in light of the fact that there was otherwise, as I find, compliance with the requirements. 11. It seems to me that the failure of the driver to produce the checklist is a feature which could entitle the Secretary of State to impose a penalty and, in the circumstances of this case, it seems to me that it would not be unreasonable in the exercise of her discretion to impose a penalty.”
“16. The system must be an effective system, and although it has been submitted on behalf of the appellants that this was an effective system, it clearly did not work. It has been submitted on behalf of the respondent that "effective” is to be given its ordinary meaning, which means it works and is effective, and I agree with that interpretation. 17. The appellant's system of checking on the driver was not an effective system. It relied on the driver completing a simple tick box form with no effective check that each step had been correctly completed by the driver. … It would have been effective and appropriate, for example, to require drivers to take photographs or a video on their mobile telephone, showing that the tilt cord had been properly applied and that the other required steps to secure the vehicle had also been correctly followed. 18. Page 45 shows that the tick box had been incorrectly filled in by the second appellant and the first appellant had no effective way of checking that the vehicle had been properly secured. The first appellant's paper checking of the checklist completed by the second appellant is at page 48 of the bundle and it records that the checklist had been filled out and that it had been completed correctly. The employee or agent of the first appellant checking the tick box form checklist therefore wrongly assessed the checklist as being correct, despite the vehicle not having been secured because of the wrongly applied tilt cord. The form's assessor was merely looking to see if boxes on a form had been ticked without any consideration or evidence as to whether the form had been completed accurately. This is not an effective monitoring system, because it failed to pick up that there was a problem, even when the first appellant would or should have known that clandestine entrants had been found on board. 19. I also note that the telematics used by the first appellant did not ask the driver whether he had correctly applied the tilt cord through all the fasteners, but merely asked about the padlock and seal which do not secure a vehicle when the tilt cord has been incorrectly fitted so that access can be gained into the vehicle. The padlock and seal did not secure the vehicle because the tilt cord to which they were attached did not secure all the fasteners. 20. It has been submitted on behalf of the appellants that, on this interpretation of the section 34 defence, there would be no potential defence available, but a defence would be available if, for example, a clandestine entrant tears a hole in the cover or does something to force entry. In the agreed factual matrix before this court the situation was very different: the appellant's driver failed to secure the vehicle and the first appellant had no effective system to ensure the checks had been properly conducted and the vehicle had been properly secured.”
“This was not the most serious of breaches on the part of the first appellant and the penalty of£1,200 takes this into account. The penalty is aggravated by the fact that the first appellant has had previous penalties imposed. The penalty of£1,200 is appropriate in the light of the fact that whilst this is not the most serious of breaches, the record of the first appellant's previous penalties is an aggravating matter that must be taken into account. The first appellant's system did not work and they have a lack of insight into why this is an issue. There is no suggestion that lessons have been learnt.”
“2. On11 July 2020 one of SKAT's (the haulier) vehicles was being driven by Mr. Kasinski (one of their drivers) and was stopped seeking to enter the United Kingdom. Seven clandestine entrants were found in the vehicle. The seal and tilt cords were in place on the vehicle and the method of entry was unknown. The driver had a checklist, which should indicate what checks had been carried out, when and where but that was not filled in. Penalties in relation to that matter were imposed upon the driver (Mr Kasinski) in the sum of£400 per entrant x seven (£2,800 ) and on the haulier (SKAT)£600 per entrant x seven (£4,200 ). 3. Mr Kasinski no longer works for SKAT. They lost contact with him in or about October 2020. Attempts to trace him subsequently have come to nought. That is of some concern to SKAT, since under the legislation they are jointly and severally liable for any unpaid penalty imposed upon Mr Kasinski. 4. On29 July 2020 a SKAT lorry being driven by Mr Owcarz was stopped as it tried to enter the United Kingdom. Thirteen clandestine entrants were found in the trailer of that vehicle. As I understand it, it was a soft-sided vehicle (tarpaulin covered). Again seal and tilt cords were in place but there was a hole cut in the roof. There was, it was said, insufficient evidence that the driver had checked the roof - he saying that he had checked it some 20 minutes prior to the discovery of the clandestine entrants - but given that there were 13 inside 20 minutes later, that was viewed with some scepticism. Penalty notices were imposed in relation to this stoppage of£200 upon the driver x 13 entrants (£2,600 ), again£600 upon SKAT x 13 (£7,800 ).”
“17. I am bound to say that in respect of various of these cases that I have dealt with before it is a more impressive system than most that I see. It is, nonetheless, criticised by the Secretary of State. It is criticised because it is said there is (quite literally) a hole in the system, and that hole relates to the checking of the inside of the vehicle. If the customer seals the trailer, how does one check inside because inside is where the clandestine entrants will be? One can rely, to some extent, upon seals and tilt cords, but they are not wholly effective. 18. There is a code of practice which is promoted by the Secretary of State and which is recognised in the statute and that gives indications as to what may or may not constitute an effective system. The code of practice makes reference to the checks to the inside of vehicles. Section 1.2 deals with: "Measures to be taken immediately prior to the vehicle boarding” its means of arrival in United Kingdom. A requirement of "checking seals and cords and straps," requirement for "checking the shell and the fabric of the vehicle, checking the external compartments, toolboxes" et cetera and also "checking the inside the vehicle. Effective devices may be used for this purpose at the discretion of the owner, hirer or driver, but this will not obviate the requirement that other checks detailed above should be carried out." 19. This was a soft-topped and sided trailer. I accept that the SKAT system was not sufficient to meet the standards of an accredited system. … 20. It is said on behalf of the Secretary of State that the system operated by SKAT - commendable in many respects though it may well be - does not reach that standard. As I say, I accept that the system is not one which would meet the requirement for accreditation (at least not quite) and the deficiency lies in particular in the ability to check inside a vehicle, particularly one which is bearing a customer seal. 21. That then takes me to the statutory defence in relation to each of the two stops. So far as what I will call the 'Kasinski stop' is concerned, the statutory defence fails so far as the haulier SKAT is concerned because, as I have found, limb (b) is not satisfied in that the system was not one that was effective to prevent access of clandestine entrance to the vehicle. It fails also, I find, in relation to limb (c) in that on the occasion in question a person or persons responsible for operating that system did not do so properly. 22. It fails in those two respects. Firstly, Mr Kasinski did not operate the system. He did not complete the checklist. Indeed there is some doubt as to whether he did any check at all. Further than that, he was not properly monitored. Although monitoring is not part of the code of practice, it was part of the SKAT system. If he failed to send a scan of his checklist to the billing department, they should have been on to him pretty quickly but from the start of this trip he did not send any checklist, either on loading or at any point thereafter. He missed, therefore, three points where he should have sent a scan and following which he should have been contacted to find out what was going on. Thus (c) is not met either by Mr Kasinski or by those in the billing department who should have been operating the system that they themselves were saying was sufficient to prevent the problem with which I am dealing here. … 25. So far as the 'Owcarz stop' is concerned there is the same problem for the company. Limb (b) is not satisfied because the system - commendable though it may be - is not an effective system for preventing the carriage of clandestine entrants, as I have already found. And for Mr Owcarz, he has the same problem. Despite adhering, I have no doubt, to his training and being conscientious in carrying out his instructions (as I so find), he cannot rely upon the statutory defence because (b) is not met - there was no effective system for preventing the carriage of clandestine entrants, so the statutory defence for all appellants fails.” (Emphasis added)
“26. That then takes me to the question of discretion. I accept that that should not be used as a way of circumventing the statutory defence and perhaps filling in small holes that may have developed around it.” 27. So far as Mr Kasinski is concerned, the failures on his part are quite substantial and they do not persuade me to exercise discretion in his favour to avoid him having to pay a penalty - he is clearly culpable. 28. So far as SKAT is concerned, there was an inadequate system (as I have found) but, as I have also indicated, better than many. That, in my judgment, is relevant to the level of penalty but not as to whether there should be one. If the system the deficient, they are vulnerable to a penalty.”