Vehicle and Operator Services Agency v Jones [2005] EWHC 2278 (Admin)

Case No CO/2686/2005

[2005] EWHC 2278 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 5th October 2005

Strand

London WC2

B E F O R E:

LORD JUSTICE KEENE

MR JUSTICE POOLE

Between

VEHICLE AND OPERATOR SERVICES AGENCYClaimant

-v-

Between

NEIL JONESDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR TIM NESBITT (instructed by Messrs Woodfine Foinette Quinn, Regency Court, 228 Upper Fifth Street, Milton Keynes MK9 2HR) appeared for CLAIMANT

THE DEFENDANT APPEARED IN PERSON for in person

J U D G M E N T

LORD JUSTICE KEENE:

[1]This appeal from the Magistrates' Court at Milton Keynes concerns the operation of tachographs in goods vehicles. It is an appeal by way of case stated from the decision, dated 2nd July 2004, whereby the Justices acquitted the respondent, Neil Jones, of two offences under Section 97(1)(a)(iii) of the Transport Act 1968 and Article 15(2) of the Community Recording Equipment Regulation (EEC) No 3821/85 ("the Regulation").

[2]Two informations had been laid by the appellant charging Mr Jones with offences on two separate days of using a vehicle to which Section 97 applied, in which:

"... the recording equipment was not used as provided by Article 13-15 of the Community Recording Equipment Regulations in that unauthorised withdrawal of the tachograph record sheet had been made before the end of the working period by the driver, contrary to Article 15(2) of Council Regulation (EEC) No 3821/85."

[3]There was no dispute that the respondent had been driving the goods vehicles on the two occasions nor that it was a vehicle which was covered by Articles 13 to 15 of the Regulation. The facts as found by the Justices show that the tachograph in the vehicle had been interfered with, resulting in a false reading and that it had been the respondent who, as the driver, had interfered with it. His evidence was that, while travelling, he had opened the tachograph cover because his speedometer was not working properly and he thought that this action might result in unjamming the speedometer. He said that he had done this before and the speedometer on that previous occasion had started working then. But it seems from the case stated that the result of the respondent's actions on each of the two occasions was that the styli in the tachograph were no longer in contact with the chart in the tachograph, on which would normally be recorded the speed, the distance travelled and whether the vehicle was stationary or in motion.

[4]It is perhaps helpful, before I go any further, to seek to explain that a tachograph, with which every large goods vehicle over a certain weight must be fitted, looks rather like a speedometer. We have, with the consent of both parties, been shown a typical one. It is normally fitted in the dashboard. The glass face of the tachograph and part of the equipment opens up and forward and inside, attached to the part which opens, there is a circular disc upon which a circular card, known as a record sheet or card, is placed at the beginning of the working day. Beneath that record sheet, when the equipment is closed up, are located three styli so that opening the lid in the way that I have just described lifts the record sheet away from the styli. They no longer make contact.

[5]In the normal way, once the record sheet is in and the tachograph switched on, the sheet rotates slowly and constantly through 360 degrees every 24 hours, recording different aspects of the vehicle and driver's movement throughout the working day via those three styli or needles, which mark different parts of the sheet.

[6]The Justices in the present case found that the tachograph record sheet had not been removed from within the equipment. It was simply that opening the cover meant that the record sheet was no longer marked by the three needles or styli. The Justices also found that the respondent could not, at the speed of 56 miles-per-hour at which he had been travelling on the second occasion, have removed the record sheet. That seems to have meant removed the record sheet from the equipment as a whole.

[7]The argument before the Justices seems to have been couched in terms of whether what the respondent had done amounted to a withdrawal by him of the record sheet. The Justices concluded that it did not and they therefore acquitted him.

[8]The questions posed in the case stated for this court's opinion are:

"(i) Whether or not the opening of the tachograph head constitutes a withdrawal of the tachograph record sheet as it withdraws the tachograph from the recording mechanism and means that the sheet is no longer in contact with the styli, and "(ii) Whether it was reasonable on the facts found by the Court in the exercise of their discretion that it was not possible for a driver of a lorry to remove a tachograph sheet whilst the vehicle is in motion."

[9]It may be sensible to touch on the second of those questions first. The appellant regards it as the less important of the two questions and I entirely agree. It is contended by Mr Nesbitt on behalf of the appellant that there was no evidence before the Magistrates as to the impossibility of opening a tachograph and removing the chart while the vehicle was in motion. I see the force in that but this issue does not really arise on the facts in this case. It was neither party's case at trial that the record sheet had been physically removed from the tachograph on either occasion. The respondent denied doing so and the prosecution's case seems to have been that there was no record because the tachograph head had been opened and the needles or styli thus were no longer in contact with the chart. It is true that the prosecution argued that this meant that the record had been "withdrawn" while the vehicle was travelling at speed but it appears that that expression was used as a technical term to cover the lifting of the record sheet or chart from the styli. So the finding of the Magistrates referred to in the second question in the case stated is in my judgment irrelevant and I would decline to answer it.

[10]I return to the first question, which does raise a significant point of law.

(a) (iii) of the Transport Act 1968 provides:

"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... (iii) is being used as provided by Articles 13 to 15 of that Regulation."

That Regulation is of course the Community Recording Equipment Regulation to which I have referred earlier. The subsection then goes on to make the contravention of its provisions a summary offence.

[11]It is perhaps worth noting also the terms of Section 97(5). That states:

"For the purposes of this section recording equipment is used as provided by Articles 13 to 15 of the Community Recording Equipment Regulation if, and only if, the circumstances of its use are such that each requirement of those Articles is complied with."

[12]Article 13 of the Regulation provides:

"The employer and drivers shall ensure the correct functioning and proper use of, on the one hand, the recording equipment and, on the other, the driver card where a driver is required to drive a vehicle fitted with the recording equipment in conformity with Annex IB."

I can then go straight to Article 15. Paragraph 2 of that Article states:

"Drivers shall use the record sheets [or driver card] every day on which they are driving, starting from the moment they take over the vehicle. The record sheet [or driver card] shall not be withdrawn before the end of the daily working period unless its withdrawal is otherwise authorised. No record sheet [or driver card] be used to cover a period longer than that for which it is intended."

That was the paragraph, paragraph 2 of Article 15, which was specifically referred to in the informations laid. It will be remembered that those informations, in laying the charges under Section 97, specified "unauthorised withdrawal" of the record sheet.

[13]It is contended on the behalf of the appellant that the opening up of the tachograph, so as to lift the record sheet from the styli, amounts to a "withdrawal" of the record sheet. Mr Nesbitt emphasises the well-known principles of construction applicable to European legislation, as opposed to domestic legislation, and in particular the need for a purposive rather than a literal approach. He relies on the well-known passage in the judgment of Lord Denning MR in P Bulmer Ltd v J Bollinger [1974] 2 AER 1226 but the point has been made in a number of cases, including, as one obvious example, the decision in Litster v Forth Dry Dock Company Ltd [1989] 1 AER 1134. Such a purposive approach may require the court to look at the preamble of the European Regulation in the question.

[14]We have consequently been taken to the preamble to the Regulation which, amongst other things, states:

"Whereas automatic recording of other details of a vehicle's journey, such as speed and distance covered, will contribute significantly to road safety and will encourage sensible driving of the vehicle; whereas, consequently, it appears appropriate to provide for the equipment also to record those details."

And then a little later:

"Whereas, in order to achieve the aims hereinbefore mentioned of keeping a check on work and rest periods, it is necessary that employers and drivers be responsible for seeing that the equipment functions correctly and that they perform with due care the operations described."

[15]Thus Mr Nesbitt submits that it can be seen that one of purposes, and indeed the foremost purpose, of the Regulation is, in conjunction with the restriction on the working hours of drivers of heavy goods vehicles, the prevention of tired drivers operating very large and potentially lethal vehicles. In short, it enables the regulatory system concerning drivers' hours and rest periods to be enforced. For myself, I agree with that. Moreover, it is confirmed by a passage in the judgment of Pill LJ, sitting in this court, in the case of Birkett & Another v Vehicle Inspectorate [1998] RTR 264, where, at page 277, it was said:

"In my judgment, the purpose of the Act of 1968 and the Regulation is to provide safeguards for the drivers themselves and the public against, amongst other things, excessive hours. The Vehicle Inspectorate have the power to make spot checks and for these to be effective they involve consideration of not only whether the machine is operating properly, but also the driver's personal record."

[16]Taking all that into account, it is argued on behalf of the appellant that opening the tachograph head so as to lift the record head from the styli amounts to a "withdrawal" of the sheet. Mr Nesbitt points out that Article 15(2) does not specify from what the record sheet is not to be withdrawn and he contends that it should be read so as to cover withdrawing the record from the styli and not merely from the apparatus as a whole. Otherwise, it is said, the system could be readily circumvented by drivers adopting such a method of evasion, as apparently happens widely in practice.

[17]Further, it is submitted that, as article 15(2) also requires the drivers to "use the record sheets... every day on which they are driving", what happened in this present case was a failure to use the equipment "as provided by Articles 13 to 15 of that Regulation" (see the wording of Section 97(1)(a)(iii)).

[18]For his part, Mr Jones, who has appeared in person this morning, has not sought to advance any legal arguments. He emphasises that, in opening the tachograph head, he had no malign motive. He says, as he said before the Magistrates, that he was not trying to stop the tachograph working but trying to sort out the problem of his speedometer. As to that, I am the bound to say that motive is not a relevant consideration in deciding whether this offence has been committed. It may, of course, be highly significant when it comes to sentencing but if a driver breaches any part of Article 13 to 15 of the Regulation he commits an offence.

[19]I propose to take Mr Nesbitt's last point about failure to use the equipment as provided by Articles 13 to 15 first. Taken as a point of principle, it seems to me to have force and, indeed, what happened in this case could also have founded a charge under Section 97(1)(a)(iii) by reference to Article 13, because that Article requires a driver to ensure "the correct functioning and proper use" of the recording equipment. If a driver interferes with the equipment with the result that it does not function properly, then, whatever his motive, he commits an offence under Section 97(1)(a)(iii) unless he can rely upon one of the specific defences set out in the 1968 act. One does not need, in such circumstances, to get into arguments about whether causing the record sheet to lift from the styli amounts to a "withdrawal" of the former.

[20]In a sense that, of course, weakens one of the appellant's points, since it is clear that even a narrow construction of the word "withdrawal" in Article 15(2) in the way adopted by the Justices here would not enable widespread evasion of the system to occur. It could be prevented in the way which I have described. But it seems to me that this court does need to consider the proper construction of that word "withdrawn" since that was part of the information supporting the charges and how the matter was dealt with at the Magistrates' hearing. The information could, of course, have been amended with the leave of the court to rely on Article 13 or on the earlier part of Article 15(2), but it was not, and the respondent did not advance arguments at that hearing about such an alternative approach to the Section 97 charge.

[21]I bear in mind the need for a purposive approach to interpretation and the purposes of the Regulation already referred to. I would also add that another part of the preamble to the Regulations seems relevant here: that part which states:

"Whereas, in order to ensure effective checking, the equipment must be reliable in operation, easy to use and designed in such a way as to minimise any possibility of fraudulent use; whereas to this end recording equipment should in particular be capable of providing, on separate sheets for each driver and in a sufficiently precise and easily readable form, recorded details of the various periods of time."

[22]There is considerable emphasis there on the need for the equipment to be reliable and so designed as to minimise fraud. The Regulation does not specify the details of the equipment to be used by each member state in complying with its terms. Nothing we have been shown requires the equipment to involve the use of needles or styli on a record sheet. It would seem therefore that the regulation of Article 15(2) is simply intended to ensure that the record sheet is used to record the necessary information for the whole of the daily working period.

[23]On that basis, I am persuaded that, on a broad purposive approach to the construction of the word "withdrawn", any action which lifts the record sheet from the styli before the end of the daily working period can be regarded as falling within that word. Such an action withdraws the record sheet from such part of the mechanism so as to prevent its proper functioning. That, in my view, suffices. It amounts to a withdrawal of the record sheet. The sheet does not have to be totally removed from the tachograph for there to be a withdrawal and in my judgment the Justices were wrong to have adopted such an approach in the present case.

[24]For that reason, I would allow this appeal. However, I would suggest the prosecuting authorities should consider relying in appropriate cases on the terms of Article 13 and perhaps the first part of Article 15(2) as well when they are laying charges under Section 97(1)(a)(iii) or, if necessary, when seeking to amend an information at the hearing if new facts emerge during the hearing which justify such a course. I, for my part, consequently would answer the first question posed in the case in the affirmative and, as I have indicated, I would therefore allow the appeal. I would remit this matter to the Magistrates' Court with a direction to conviction.

MR JUSTICE POOLE: I agree.

[26]MR NESBITT: My Lords, I am grateful. As my Lords will expect, there have been costs incurred in this appeal, although they are of a figure which I would not for a moment expect the court to order Mr Jones to bear. The Vehicle Operating Servicing Agency would at least invite your Lordships to order Mr Jones to make a contribution to those costs.

LORD JUSTICE KEENE: What sort of costs are you talking about, Mr Nesbitt? The level of costs.

[28]MR NESBITT: The costs of the Magistrates' Court hearing are £1,154.44. The cost of the appeal comes to £4,587.50 plus VAT. The figures themselves are in terms of legal fees in the High Court and not of the lower court. I would not,as I say, expect your Lordships to ask Mr Jones to pay more than a modest contribution--

[29]MR JONES: I am not in a position to actually pay anything, your Honour, because I have not been working from the 30th of this month. I am leaving for Brighton--

LORD JUSTICE KEENE: Sorry, you are not working on the 30th of this month?

[31]MR JONES: Yes.

LORD JUSTICE KEENE: Why is that?

[33]MR JONES: Because I have a chronic illness.

[34]MR NESBITT: My Lord, I do recognise that in the Magistrates' Court the figure that the court would award on the trial would be no more than £150. I would not think, in the circumstances -- I am saying it with that sort of figure in mind. The Magistrates made the mistake. It is not Mr Jones' fault.

LORD JUSTICE KEENE: Mr Jones, can you help me on one matter. When you were driving, were you self-employed or were you driving for a company?

[36]MR JONES: I was driving for a company. They used to build their own lorries from scratch from the chassis and that is where they went wrong all the time. I now work for a very good company now that actually do things according to the book.

LORD JUSTICE KEENE: Yes, all right. Thank you. (pause)

[38]Mr Nesbitt, we do not think this an appropriate case to make an award of costs. Given that, of course, it is the Magistrates who went wrong on a point of law here and given also the financial circumstances of Mr Jones, we make no order as to costs in respect of the appeal. What the Magistrates do when this matter is remitted to them is entirely a matter for them.

[39]MR NESBITT: My Lord, I am grateful.

[40]MR JONES: Can I appeal for legal aid on this?

LORD JUSTICE KEENE: No, we have not made any order for costs against you, Mr Jones. The matter is going back to the Magistrates' Court with a direction that they must convict you of the two offences and they will then have to decide what penalty they impose.

[42]MR JONES: So you are saying that the Magistrates, in your opinions, are incompetent?