Williams (t/a Williams of Porthmadog) v Vehicle and Operator Services Agency [2008] EWHC 849 (Admin)

Case No CO/7179/2007[2008] EWHC 849 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 9th April 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE KEENE
MR JUSTICE TREACY
Between
EMLYN WILLIAMS T/A WILLIAMS OF PORTHMADOGClaimantv
Between
VEHICLE AND OPERATOR SERVICES AGENCYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mark Laprell (instructed by Blackhouse Jones) appeared for Claimant for The Defendant was not represented and did not attend
J U D G M E N T

LORD JUSTICE KEENE:

[1]I will ask Treacy J to give the first judgment.[2]MR JUSTICE TREACY: I would like to begin by expressing my appreciation of the submissions made by Mr Laprell. During the course of those, he has in a practical way recognised that his primary duty is to the court. We are grateful.[3]This is an appeal by way of case stated from a decision of the Gwynedd justices sitting at Pwllheli Magistrates' Court on 11th May 2007. The justices convicted this appellant of two offences of using a school bus with component parts in a dangerous condition contrary to regulation 100(1) of the Road Traffic (Construction and Use) Regulations 1986 and section 42 of the Road Traffic Act 1988. Both offences relate to the same vehicle on the same occasion and in the same place, namely on a road at Bala in the County of Gwynedd on 22nd June 2006.[4]The facts found, as set out in paragraph 2 of the case stated, are as follows:
"a) that the defects outlined in the informations existed and they were such that the vehicle was not in such a condition that no danger was caused or likely to be caused to persons in or on the vehicle or on the road. B) that the operator licence displayed on the vehicle in question bore [the appellant's] name and address. C) that the vehicle was owned by [the appellant, trading in his surname, and of an address which is given]."
The finding at d) is controversial. It reads as follows:
"that the driver at the time of the offences, Ms Mari Evans, was employed by Mr Emlyn Williams [the appellant] and was driving on his [bus] at the time."
The driver of the vehicle, Ms Mari Evans, did not give evidence for the Crown. The only prosecution witness was the traffic examiner, a Mr Mill. The justices' summary of his evidence in the case stated is as follows:
"He had spoken to the driver, who identified herself as Mari Evans and who said that she was carrying out a contract transporting school pupils from Ysgol y Berwyn, Bala."
[5]It will be seen that the evidence of Mr Mill, recorded at that point in the case statement, does not go as far as explicitly stating that Ms Evans was employed by the appellant and was driving on his business at the time. However, at paragraph 3 of the case we find this:
"The appellant argued that the court had heard no evidence of the employment position and that the only evidence that touched on this were the driver's indication to the witness Mr Mill that she was employed by Mr Emlyn Williams and the fact that the vehicle was being operated in his name."
Counsel has this morning frankly told us that in giving oral reasons for their finding, the justices referred to the passage which I have just read out from paragraph 3 of the case stated, and therefore he acknowledges that that evidence was in fact given by Mr Mill, although it did not appear in the short statement of his evidence at paragraph 2.[6]There were two further facts which were found by the justices and which appear in paragraph 6 of the case stated. Firstly that the appellant was contracted by Gwynedd Council, from September 2004 to March 2008, to carry pupils from Ysgol Y Berwyn, Bala, and secondly that the driver confirmed to Mr Mill that she was transporting pupils from Ysgol y Berwyn on the day of the offences. The argument for the appellant, correctly put at the lower court, was to the effect that the word "use", in a charge brought under legislation where there is an available alternative charge of "causing or permitting use", is to be construed narrowly. In such cases, in order to render the owner/operator liable, the prosecutor must prove that the driver at the material time was employed by the owner/operator of the vehicle under a contract of service, and that the driver was driving on the owner/operator's business.[7]Those submissions were based on a decision of this court in West Yorkshire Trading Standards Service v Lex Vehicle Leasing Ltd [1996] RTR 70. Again, that was a case under the Construction and Use Regulations of the Road Traffic Act 1988. At page 74G of the report Dyson J said:
"The so-called narrow approach to the meaning of the word 'use' or 'uses,' where it is found in criminal statutes in conjunction with the alternatives of 'causes or permits,' has a long pedigree."
He then went on to examine an extensive line of authority which considered the precise test to be applied in cases such as this and, having made that analysis, distilled the relevant principle as follows, at page 76E:
"A person is a user only if he is the driver or the owner of the vehicle, but it applies to the owner only if the driver is employed by the owner under a contract of service and at the material time he is driving on his employer's business. The line has been described variously as not wholly logical and as somewhat artificial, but it has been drawn by this court after due consideration has been given to those criticisms, to some extent, for pragmatic reasons and to avoid confusion."
It will therefore be noted that the employment of the driver in a general sense is insufficient. Working as a self-employed driver or as an agency-supplied driver, for example, would not be enough. It is necessary that the driver was working for the owner under a contract of service.[8]At the lower court the prosecutor, who has not appeared before us today, submitted that the justices could draw common-sense inferences to conclude that Ms Evans was employed by the appellant at the material time and was carrying out his business. The justices' reasoning is set out at paragraph 6 of the case. They said this:
"As the appellant was contracted by Gwynedd Council from September 2004 to March 2008 to carry pupils from Ysgol y Berwyn, Bala; also, as the appellant's operator licence was displayed clearly on the vehicle and finally, that the driver confirmed to Mr Mill that she was transporting pupils from Ysgol y Berwyn on the day of the offences, we are of the opinion that the driver was driving the vehicle on her employer's business and that she was employed by the appellant. The evidence of the vehicle inspector regarding the defects made it clear that the vehicle constituted a danger to others. For the reasons outlined above we convicted the appellant on both charges."
[9]The questions posed by the justices are set out at paragraph 7 of the case. It reads as follows:
"The questions for the opinion of the High Court are: A) whether the Justices were entitled in law to infer 'using' the bus by the appellant on the basis of the evidence produced above, and B) was the Court entitled to treat the hearsay evidence given by Mr Richard Mill as to what the driver said as admissible, and were they correct to attach any weight to that evidence in the proceedings in the absence of a prosecution application for it to be admitted under [section 114 of the] Criminal Justice Act 2003 and the absence of express agreement."
As to the latter question, this arises, of course, because Ms Evans was not called to give evidence. Therefore, what she said to Mr Mill, the traffic examiner, was hearsay. There does not appear to have been any specific argument on the point before the justices. It seems that Mr Mill gave his evidence without any application being made by the prosecutor or any objection to the evidence being given on behalf of the appellant. It does not seem as if any notice was given formally to the appellant's legal representative of an intention to adduce hearsay evidence, but what is clear is that, prior to the hearing, a copy of Mr Mill's witness statement had been submitted to the defence solicitor, along with a statement of facts. Both of those contained the material which is now objected to as hearsay.[10]It does not appear that any objection was made by the appellant's solicitor in advance of the hearing, let alone whilst Mr Mill was giving his evidence. It is clear that no specific agreement was sought from the appellant's legal representative to the admission of this evidence, and nor was any agreement forthcoming in express terms. It does appear, however, that at no time during the course of Mr Mill's evidence, nor in submissions made later, did the appellant's solicitor take the point before the justices that the evidence was hearsay.[11]In the circumstances, the justices, having correctly identified that part of Mr Mill's evidence as hearsay, decided to treat it as admissible, pursuant to section 114(1)(c) of the Criminal Justice Act. At the end of paragraph 2 of the case, the justices record this:
"The appellant did not suggest that any part of Mr Mill's evidence was inadmissible hearsay evidence. The court therefore treated the hearsay evidence given by Mr Mill as being admissible in accordance with s.114(1)(c) Criminal Justice Act 2003."
Section 114(1)(c), of course, provides for the admissibility of hearsay evidence where all parties agree to it being admissible.[12]It was argued before us that what the driver had said to Mr Mill was inadmissible hearsay as there had been no express agreement by the defence to that evidence being adduced. In addition, it was argued that whether or not that evidence was admissible, the evidence adduced was not sufficient to make the justices sure that Ms Evans, the driver, was employed at the material time under a contract of service by the appellant and working in the course of his business.[13]The first issue is whether the justices were right to act as they did in regard to the hearsay element of Mr Mill's evidence. This is not a case in which we have had the benefit of bilateral argument. Therefore, I would refrain from attempting to give any extended analysis as to what is meant by the term "agree" in section 114(1)(c) of the Criminal Justice Act 2003, or indeed to attempt any exhaustive analysis of the circumstances in which agreement can arise. However, what I am quite clear about is that "agreement", for these purposes, does not necessarily require some contract law analysis of "offer" and "acceptance", nor does it require some formal recording of the position by the court, nor does it necessarily require express agreement between the parties in all circumstances.[14]Those experienced in criminal litigation are familiar with the situation whereby something is done in the course of a hearing by one party without demur from the other side. Judges and justices up and down the country regularly hear evidence admitted without anything formal being said by the parties to the court. The tribunal infers, in the absence of objection or submission, that there is no objection to the admissibility of the evidence, and thus that there is agreement to its admissibility. In effect, the agreement is implicit, or capable of being implicit, in the circumstances pertaining before the court, and particularly in circumstances where the appellant has the benefit of legal representation.[15]I would hold that this is what has occurred in the present case. Thus, the justices were entitled to give the hearsay evidence given by Mr Mill such weight as they saw fit, despite the absence of formality. I remind myself that in this case there had been disclosure in advance, of Mr Mill's witness statement, and that there had been no objection taken during the course of trial, let alone prior to it. Nor, it appears to me, was any submission made to the justices, even after Mr Mill had completed his evidence, to the effect that this evidence was inadmissible as hearsay. What appears to have happened is that submissions were made as to the weight to be attributed to the evidence but not to its admissibility. This was not a situation in which, in the circumstances, any unfairness or prejudice can be argued.[16]I have come to the conclusion that the justices, in the circumstances which obtained, were entitled to treat the agreement as to the adducing of hearsay evidence as one which arose from the circumstances as they presented themselves before the court, and I do not think the justices were wrong in so acting. Accordingly, the evidence of what the driver, Ms Evans, said, was admissible. It provided evidence of her employment status vis-à-vis the appellant. That evidence was not contradicted or rebutted by any evidence from the appellant, or called on his behalf. The justices were entitled to act upon that evidence and, in the absence of any qualification, either by anything that was said by Ms Evans, or evidence to the contrary, were entitled to infer that this was the ordinary employment situation between an employer and employee, in the sense of a contract of service rather than some other arrangement existing.[17]The evidence was, in my judgment, capable of satisfying the requirements that, in circumstances such as these, the driver should be acting under a contract of service with the operator of the service. There was therefore sufficient evidence to satisfy what I would call the West Yorkshire Test. This evidence, together with the other evidence adduced, also enabled the finding to be made that the driver, at the material time, was engaged on the appellant's business. For those reasons, I would answer both questions posed by the justices in the case stated in the affirmative, and I would dismiss this appeal.

LORD JUSTICE KEENE: I agree. Like my Lord, I cannot accept that section 114(1)(c) of the 2003 Act can only be met by an express agreement on admissibility. That would mean, for example, that hearsay evidence might be given on an important point without objection, though without express agreement, on which evidence the prosecution relied, and it then being argued, after the close of the prosecution case, that there was no admissible evidence on that point and so, in certain circumstances, no case to answer. If that were done as a deliberate tactic by the defence, it would amount to an ambush, against which the courts have set their faces for some time. I do not suggest that that was the situation here, but it would be one which could easily arise if the appellant's argument were right. In my judgment, for that reason, as well as for those given by my Lord, agreement under section 114(1)(c) may be express or implied.

[19]I would emphasise that agreement to the admission of hearsay evidence under that particular provision is not to be inferred automatically or in all circumstances from an absence of objection at the time the evidence is given. It depends on all the circumstances. In particular, if a defendant is unrepresented, it would be very difficult indeed for such an inference to be drawn. In most cases it would be impossible. But such an inference may be open to the court where the defendant is legally represented and no objection to admissibility is taken. Even then the court is not obliged to draw such an inference, but it may, in appropriate circumstances, do so. In the present case, I agree that the justices were entitled to draw such an inference, and I too would dismiss this appeal.[20]MR LAPRELL: My Lord, there is one (inaudible), your Lordship. I mention this to assist the transcript -- the recorder -- referred to the driver as Ms Davis. It was Miss Evans.

MR JUSTICE TREACY: Evans, I am sorry.

[22]MR LAPRELL: I can see how that arose.[23]MR JUSTICE TREACY: Thank you very much for pointing that out. I will note that.[24]MR LAPRELL: My Lord, I think, given that VOSA have not appeared, there are no cost consequences.

LORD JUSTICE KEENE: No, and you are not legally aided either, I assume.

[26]MR LAPRELL: No.

LORD JUSTICE KEENE: Very well. Thank you very much indeed for your very interesting submission.

Cited in 1 later judgment