Vehicle and Operator Services Agency, R (on the application of) v North Leicester Vehicle Movements Ltd & Anor [2003] EWHC 2638 (Admin)

Case No CO/3692/2003[2003] EWHC 2638 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 31 October 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF THE VEHICLE AND OPERATOR SERVICES AGENCYAppellant-v-
Between
NORTH LEICESTER VEHICLE MOVEMENTS LIMITEDRespondentALBERT FIELDRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M LAPRELL (instructed by Barry Culshaw) appeared for APPELLANTMR T NESBITT (instructed by Woodfine Foinette Quinn) appeared for 1st RESPONDENTTHE SECOND RESPONDENT APPEAR IN PERSON for in person
J U D G M E N T
[1]MR JUSTICE MITTING: This is an appeal by way of case stated from a decision of the justices for the county of Hampshire sitting in Southampton to the effect that a particular journey undertaken by the second respondent, Mr Field, driving a vehicle owned by the first respondent, North Leicester Vehicle Movements Limited, was not covered by Council Regulation No. 3821/85 and section 97 of the Transport Act 1968.[2]The facts could not be simpler. On 4 July 2002, Mr Field drove a two axle, 17 tonne tractor unit with a train weight of 38 tonnes from Leighton Buzzard to Southampton docks. He was delivering it for the purpose of permitting it to be exported to South Africa. It was not drawing a trailer or semi-trailer. It did not have fitted to it a tachograph in full working order, nor was there any tachograph disk in the device. The simple question which the court had to decide was whether or not there should have been a working tachograph installed, and if so, whether it should have had a disk in it recording the journey. To that simple question one would anticipate that the legislation provided a simple answer; but as Rougier J observed in Laverick v DPP [1999] RTR 417, questions arising in this area are frequently extremely tangled.[3]The starting point is English domestic legislation enacted before the accession of the United Kingdom to the European community, as it then was. Section 95 provided "This part of this Act shall have effect with a view to securing the observance of proper hours at work by persons engaged in the carriage of passengers or goods by road and thereby protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from fatigue."[4]English domestic regulations governed, and to some extent still govern, such matters. Following upon accession, the United Kingdom acquired a body of European Community law which, for present purposes, was restated in two Council Regulations (3820/85 and 3821/85). Article 3 of 3821/85 provides: "Recording equipment shall be installed and used in vehicles registered in a member state which are used for the carriage of passengers or goods by road except the vehicles referred to in Articles 4 and 14(1) of Regulation EEC 3820/85.[5]Article 2 provided that, for the purposes of Regulation 3821/85, the definition set out in Article 1 of Regulation 3820/85 shall apply. Regulation 3821/85 can accurately be referred to as the tachograph regulations. They lay down in detail provisions for the type, installation and use of tachographs. In particular, chapter 4, Articles 13 to 15 inclusive provide detailed regulations for the use of tachographs once installed. Article 1 of Regulation 3820/85 defines carriage by road as "any journey made on roads open to the public of a vehicle, whether laden or not, used for the carriage of passengers or goods". Sub-paragraph 2 defines "vehicles" as "motor vehicles, tractors, trailers and semi-trailers".

(b) :

"Any mechanically self-propelled vehicle circulating on the road, other than a vehicle running on rails, and specifically designed to pull, push or move trailers, semi-trailers, implements or machines."
[6]Article 2 provides that the regulation "applies to carriage by road as defined in Article 1(1) within the community". Article 4 provides for exceptions to the general scope of the regulation. The exceptions are defined both by reference to types of vehicle and by reference to the user of the vehicles. For example, vehicles used for the carriage of goods where the maximum permissble weight of the vehicle including trailer or semi-trailer does not exceed 3.5 tonnes; vehicles with a maximum authorised speed not exceeding 30 kilometres per hour; and specialised vehicles used for medical purposes, are exempt from the regulations. Those are exemptions by reference to type of vehicle. Vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres, and vehicles undergoing road tests for technical development, repair or maintenance purposes, and any new or rebuilt vehicles which have not yet been put into service, are exemptions by reference to the use to which vehicles are put.[7]Section 97 of the Transport Act 1968 provides that:
"No person shall use or cause or permit to be used a vehicle to which this section applies -- (a) unless there is in the vehicle recording equipment which - (i) has been installed in accordance with the community recording equipment regulation; (ii) complies with annexes 1 and 2 to that regulation; and (iii) is being used as provided by Articles 3 to 15 of that regulation."
That, for present purposes, is a reference to regulation 3821/85.[8]The question simple to pose but far from simple to answer raised by this appeal is: what is meant by "used for the carriage of passengers or goods by road" in Article 3 of Regulation 3821/85? The appellant contends, in effect, that it means constructed or adapted for use for that purpose. Implicitly the magistrates found that it meant: actually used for that purpose on the day on which it was stopped. Competing considerations point in opposite directions as to the construction of that phrase. First, there is the canon of English law that English criminal statutes must be, where ambiguous, strictly construed so as not to impose a penalty upon a citizen, save in clear terms. The explanation of that canon of construction, having regard to the words in section 95(1) which state for what purpose part (vi) of the 1968 Act is to have effect -- "shall have effect with a view to securing the observance of proper hours of work by persons engaged in the carriage of passengers or goods by road" -- suggests that "used" should mean what it ordinarily means in English: not constructed or adapted for use, but actually used or in use on the road at the relevant time.[9]Pulling in the opposite direction is the canon of construction of European Union legislation which requires that it be construed purposively. It is trite EU law that one must, when construing EU legislation, seek to derive from the preambles to regulations and directives the purpose for which they are to have effect. In the case of these regulations, some assistance in that respect is to be derived from the speeches in the House of Lords in Vehicle Inspectorate v Bruce Cooke Road Planing Ltd [1999] 4 All ER and in particular the speech of Lord Clyde in which he identifies at page 771 the purposes of Regulation 3820/85:
"Regard has to be had to the further purpose indicated in the preamble of the improvement of working conditions and road safety. Encouragement then is to be given to the imposition of limitations on driving periods in the interest of the welfare of the drivers and also with a view to avoiding danger to other road users through drivers of carrier vehicles becoming fatigued through excessively long periods of driving."
In addition, as the preambles indicate, one of the purposes is harmonisation within and across EU states.[10]Mr Laprell submits that the two regulations when read together clearly apply, subject to exceptions expressly identified, to vehicles, rather than to the use to which vehicles are to be put. He can derive some support for that proposition from the preambles to Regulation 3821 which include:
"Whereas the obligation to use such recording equipment can be imposed only for vehicles registered in member states, whereas furthermore certain of such vehicles may without giving rise to difficulty be excluded from the scope of this regulation."
[11]He submits that, following the observations of Lord Clyde and the preambles to both regulations, the predominant purpose of the regulations is to improve road safety both for the drivers of large vehicles and other road users. Such purpose would be, in part at least, frustrated, or at least made more difficult if enforcement of the regulations depended upon a minute analysis of the precise purpose for which any particular journey was undertaken. He submits that the opening words of Article 1, in paragraph 1, which refer to a journey made on roads of a vehicle whether laden or not, suggest that the target of the regulations is the vehicle -- vehicles of a particular type, namely those that are ordinarily used for the carriage of passengers and goods -- and not the precise purpose for which they happen to be on the road on the day in question. How, he asks rhetorically, could the enforcing authorities distinguish between a lorry that was on a return journey from delivering goods, and a lorry being taken from one distributor of lorries to another, or from one point to docks, as here, for export. He submits that additional words would have to be read into Article 1, paragraph 1 to achieve the latter effect: such as after "any journey made on roads open to the public by a vehicle", the words, "operated by persons engaged in the business of the carriage of passengers or goods". Although I have not found this an easy question and it has given rise to an interesting and wide ranging debate between bench and bar, I have come finally to the conclusion that those submissions are right, and that read as a whole, the purpose of the regulations is to ensure that certain categories of vehicle, namely those which are capable of being used for the carriage of passengers or goods on roads, are the subject of the tachograph regulations -- subject to specific and clearly defined exemptions.[12]My principal hesitation in reaching that conclusion arises out of the canon of construction of English criminal statutes that requires them to be strictly or narrowly construed and to the words in section 95(1) of the 1968 Act to which I have already referred.[13]Although construction of the regulations is not an easy task, in the end, the answer is clear, and once made clear, then any difficulty that arises from construction and any need to construe strictly disappears. If it were necessary for me to hold that the EU canon of construction should prevail over that of the English canon of construction of criminal statutes, then I would hold that the EU canon of construction prevails; but it is not in fact necessary for me to do that. I base my conclusion upon a combination of an analysis of the words of the regulations and of the domestic statute and the purpose for which the regulations were promulgated.[14]Incidental advantages of the construction which I uphold of the regulations are that matters hereafter will, for both the enforcing authorities and the haulage industry, be clear, and that enforcement will not depend upon niceties of purpose for which a journey is undertaken. The answer to the question posed by the magistrates, "were we correct in law in finding that a 'tractor' within the meaning of Article 1(2)(b), Regulation (EEC) 3820/85 was not being used on a journey to which Regulations (EEC) 382O/85 and 3821/85 applied if being driven unladen and without a trailer and while subject to trade plates on a journey to the docks for the purposes of being exported?" is: no.[15]The question arises as to what order I should make consequent upon that decision. So far as Mr Field is concerned, he has been used as a guinea pig for the purpose of clarifying a law that, until this decision, has not been wholly clear. The Magistrates had no difficulty in accepting his evidence about the purpose for which the journey was made. They cast no doubt whatever upon his truthfulness. I have heard him briefly make submissions to me. I share that view. I think he has performed enough of a public service by being the second respondent to this appeal and should not be further vexed with this matter.[16]Accordingly, although I answer the question posed by the magistrates in the negative in his case, I decline to remit it to them with a direction that they should either continue hearing the case against him or convict him. It seems to me that were I to do so, the inevitable result of doing so would be that the magistrates would discharge him absolutely and no useful purpose would be served by continuance of the proceedings against him.[17]I have not said anything about the position of the first respondent because I do not know whether the tentative agreement reached between you and the first respondent still obtains.[18]MR LAPRELL: So far as I am concerned, yes. I certainly do not treat my learned friend as having gone behind that by the limited observations he made during the course of the hearing.[19]MR NESBITT: My Lord, I rather wish I had in a sense because I suspect that if I had and the agreement was off, then your Lordship might be inclined to follow the same course that my Lord has adopted in relation to Mr Field. This is a small business who was morally innocent in the same way -- perhaps even more morally innocent than Mr Field. I think it remains in your Lordship's discretion, without wishing to go behind the agreement.[20]MR LAPRELL: My Lord, I entirely accept that it is within your Lordship's discretion. I put the agreement to your Lordship at about a quarter to 12 today on the basis that it was all subject to your Lordship approving and exercising your discretion in accordance with the agreement we had reached. Therefore I entirely accept that, whatever my learned friend and I have agreed, this is a matter well within your Lordship's discretion. I am not encouraging one way or the other.[21]MR JUSTICE MITTING: The appellant's accept, do they, that the first respondent is in effectively the same boat as Mr Field -- a small operator innocent of any moral blame and if I were to remit the matter then it would only result in an absolute discharge?[22]MR LAPRELL: There are two problems for the first respondent. The first is that those who engage others and have responsibility for the vehicle -- and I am deliberately not using technical terms -- are sometimes perceived by the courts as the ones that have the real responsibility to tell the man who is driving it what he should and should not be doing. Secondly, because that is what they did in this case because their own manual to their drivers said always use a tachograph, it is right to observe that they were entitled to say: we are operating under domestic regulations, you can then elect to record your hours by tachograph rather than by manual recording if you wish. They do not say why they were directing drivers to do that. An instruction sheet was given to every driver which said: use a tachograph always.[23]MR JUSTICE MITTING: It is not for me to get into the merits of this now. You gave me the broadest of winks that in Mr Field's case you had got what you wanted and he should not be further troubled. I am asking you now whether I am to understand you to have the same attitude in relation to the first respondent.[24]MR LAPRELL: I am not able to take instructions from the VOSA. I do not believe they would have the same attitude. Having said that, I do acknowledge ultimately that what the VOSA think is not the determining factor. It is entirely your Lordship's discretion. If your Lordship were to take the view that this has clarified the law on this particular subject and that it would not serve any purpose to order a retrial on the issue of using as against the first respondent, then that is a matter entirely for your Lordship.[25]MR JUSTICE MITTING: I am asking you because it is not a matter upon which, unlike Mr Field's case, I am in a position to make a judgment. In Mr Field's case, I was able to make a judgment upon it because of the submission you made to me and because I have heard him personally. Now, I am not in that position in relation to the first respondent. There are two things I can do. One is the same as Mr Field if you concede, and the second is to order remission to the magistrates to determine the question that you agree is live with a view to you making a decision, or the Authority that instructs you making a decision about it in due course.[26]MR LAPRELL: My Lord, on the basis that I cannot take instructions, I would rather the latter course. But if your Lordship disagrees with that you are perfectly entitled to override whatever view the appellant takes and take the view yourself. For example, whilst the VOSA do not concede that the first respondent is in entirely the same position as Mr Field, he may still fall within a bracket in your Lordship's view where no significant penalty would be imposed and it would not be appropriate given the fact that they have incurred the cost of coming here today, but those would be matters that your Lordship, in my submission, could properly take account of. My difficulty is that if I could take instructions I would.[27]MR JUSTICE MITTING: Mr Nesbitt, I think I am going to have to leave it to the prosecuting authority to make this decision.[28]MR NESBITT: My Lord, could I just check with Mr Laprell?

MR JUSTICE MITTING: Yes.

[30]MR NESBITT: My Lord, could I just seek to persuade my Lord to change his mind? As Mr Laprell rightly says, your Lordship does have a complete discretion as to whether to remit it, and in my respectful submission, my Lord has the material in the facts as found by the magistrates, which are on page two of their judgment. Those facts include that Mr Field was self-employed, that the respondent company was simply arranging for a delivery of the vehicle on behalf of a vendor who was therefore presumably the owner at the time -- possibly the title might have past to the purchaser at that point. As you have heard from Mr Laprell after an abundance of caution, in reality the respondent company, notwithstanding the view that they took that they understood (inaudible) told their drivers to use tachographs; told Mr Field, as I think he will acknowledge, to use a tachograph. In that sense, I am able to say and do submit to your Lordship that the respondent company were even more morally innocent than Mr Field because not only were they faced as a small business with the same sort of level, frankly, of legal expertise as Mr Field, were faced with the bewildering tangle of legislative material that your Lordship has had to grapple with today. So we are in a state of forgivable confusion about that. Not only were they in that position, they were also giving the correct instructions to the person they engaged, not in a contract of services, but a contract for services. So in my respectful submission, if it is right as against Mr Field that the matter as an exercise of your Lordship's discretion should not be remitted, it must follow that it would not be right for it to be remitted in relation to the respondent company. There is no negative difference if I can put it that way from the point of the respondent company and Mr Field and there is only a positive difference. So on that basis, I would invite your Lordship not to remit this matter. They have incurred the cost of me coming along and the drafting of my skeleton. They have incurred significant cost already in relation to this.

MR JUSTICE MITTING: Thank you.

[32]MR LAPRELL: The only further thing I can say is this. I do know, and you may take this as a point against remitting it rather than a point in favour of remitting it, but I do know that the VOSA wish the higher court to look again at LexVehicle Leasing(?) for very obvious reasons because if it really is the determining factor as to whether the man that you put in the cab is acting on a self-employed basis or pursuant to a contract of service, then there are a lot of hauliers out there who are avoiding using offences in this day and age because it has become very fashionable to have people on that sort of contract. Now, you could take two views about that.

MR JUSTICE MITTING: Yes, that does need to be looked at again.

[34]MR LAPRELL: I do not know if your Lordship has read Lex.[35]MR JUSTICE MITTING: No, I have not. I appreciate what the point is. The implied threat here is that the first respondents are going to be subjected to another round.[36]MR LAPRELL: I indicated that this could cut both ways, and your Lordship may think that that is either fair or unfair, but I do not make any bones about it. If the magistrates are right -- and it is right that your Lordship knows this -- if the magistrates are right in their findings of fact, which I am far from convinced necessarily, but if they are, that this was a contract for services rather than a contract of service, and if they are right about ownership of the vehicle never having passed through the hands of the first respondent, then unless Lex is not followed or is overturned or simply put into a little siding, then the prosecution will not succeed -- certainly not at first instance and I acknowledge that. Whether it is a proper matter for your Lordship to consider that the VOSA are looking for a suitable vehicle to ask the higher courts to look again at Lex is, as I said at the outset, very much a double edged sword which your Lordship may take the view that both of these respondents have been submitted to enough test cases. That is a matter for your Lordship. I simply thought it was only appropriate to tell you.

MR JUSTICE MITTING: Thank you.

[38]MR NESBITT: What that therefore amounts to, as I read it, is that the prosecuting authority accept that if you do remit it, at first instance, on the face of it, the prosecution is going to fail. Insofar as you are being asked to remit this matter, it is to remit to an almost certain or a likelihood of a failed prosecution at yet more expense to the first respondent. My Lord will not be surprised to hear that the first respondent will react in horror at the prospect of getting engaged in another round of litigation leading up through the higher courts with all the expense that that involves. I do say that that is a matter that one ought to weigh heavily in relation to this matter.[39]MR JUSTICE MITTING: Thank you very much. Mr Laprell has persuaded me with the skill with which he has advanced his arguments in the course of the substantive hearing that it would be quite unfair to the first respondent to remit this matter to the Magistrates' Court. I think they have, like Mr Field, been at the wrong end of one test case. To subject them to another would be, arising out of a single journey, quite unjust and I decline to remit the matter.[40]MR LAPRELL: My Lord, I do not seek to go behind what I indicated there in relation to costs. I do not think with the way it has been dealt with and not remitted would have led your Lordship to any other conclusions in the circumstances.[41]MR JUSTICE MITTING: Thank you. You cannot apply for costs, nor can you Mr Field. At least as far as you are concerned it is now over.[42]CLAIMANT: Thank you very much for that.[43]MR JUSTICE MITTING: Your name may appear in some law report somewhere, but apart from that you leave with your character unscathed.