Divisional Court
| Published date | 01 June 1998 |
| Date | 01 June 1998 |
| DOI | 10.1177/002201839806200302 |
| Subject Matter | Divisional Court |
DIVISIONAL COURT
TACHOORAPH 'RECORDING EQUIPMENT'
Birkett and Nay/or v Vehicle Inspectorate
Vehicle Inspectorate v Dukes Transport
Ltd
Punch once published a purported advertisement which asked, 'Is your
pencil-sharpener sharpener sharp enough?' and added,
'if
not, try our
pencil-sharpener sharpener sharpener'. While each of those instruments
constitutes equipment for keeping pencils sharp, the sharpened pencil does
not fall within the same category. A tachograph is machinery or equipment
for producing record sheets.
It
might at first sight be thought that the
record sheets themselves do not fall within the same category as the
equipment that produces them. The court, which decided the two cases
reported in
(1997)
161
JP 805, was called on to determine the meaning of
the term 'recording equipment' as defined in s 97 of the Transport Act
1968.
The question in both cases was whether the term 'recording
equipment' includes not only the machinery, but also the record sheets
produced by the machinery which have been taken away and are
filed
elsewhere. In Birkett and Nay/or's case, the Manchester justices convicted
the driver (and his employer) of a vehicle, which came within the Act, of
a failure to produce the record sheets when required to do so by an officer
entitled to demand their production. They held that the record sheet was
part of the 'recording equipment'. In the Dukes Transport case, the Penrith
justices found that the record sheets were not part of the 'recording
equipment' since they were the record itself. They therefore dismissed the
case. In the first case, the defendants appealed by way of case stated and
in the second case the prosecutor appealed in the same way. The Divisional
Court dismissed the first appeal and allowed the second.
Section 97(1)(c)(iii) of the Transport Act
1968
makes it an offence to
fail to produce what is required by art
15(7)
of
Regulation (EEC)
3821/85
when required to do so by an authorised officer. That offence, with which
both the driver and the employer who permits the vehicle to be used on
the road in breach of the provisions may be charged, is an offence of
absolute liability. In the Manchester case, both were charged, but in the
Penrith case only the driver was charged. The Penrith justices explained
their decision to dismiss the charge as being on the ground that the term,
'recording equipment', while including not only the machinery itself but
also any sheetsheld in the machinery, did not extend to any sheets which
had already been detached from the machinery, for any such sheet would
'merely become a historical document'. It followed that a breach of
art
15(7)
could not be charged under s 97 of the
1968
Act. Section
97(7)
of that Act defines 'recording equipment' as meaning 'equipment for
recording information as to the use of a vehicle'. The defendants in both
cases argued that if an offence had been committed by the driver it was
an offence contrary to s 99 of the
1968
Act, which expressly requires the
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Divisional Court
driver to produce his record sheets. Both defendants claimed that s 97 is
intended to relate only to the machinery itself, even though it could be
argued that any sheets still in the machine were still part
of
it.
It
was
further argued that when the Act refers to the 'use' of recording
equipment, this can mean only the use of the machinery; it cannot refer
to the use of sheets which have been removed from the machine.
Otherwise, when an employer was guilty of an offence
of
failing to keep
the record sheets for 12 months, the driver, too, would be liable, even
though he had no means of controlling the employer's actions. He would,
indeed, be so liable, even if he had himself kept the copies
of
the sheets
(which he was entitled to
receive).
Counsel while agreeing that it was
unlikelythat any driver would be prosecuted in such circumstances, argued
that a driver should not be left to the fortuitous exercise of discretion of
the prosecuting authority, but should be protected by an interpretation of
the statute which would make such a prosecution impossible.
It
was
therefore argued that s 97 is confined to the use of the machinery while
the vehicle was being used and that there is no need for a wider definition,
in the light of the term of s 99. The prosecution submitted that if the
court were to apply a purposive interpretation to the Act, it would be seen
that the term 'recording equipment' must include the record sheets, in
order to
fulfil
the Act's purpose
of
protecting drivers; but it may be
remarked that Regulation (EEC)
3821185
itself states that 'recording
equipment should in particular be capable
of
providing on separate sheets
for each driver . . . recorded details of the various periods of
time'-a
statement in the Regulation which confines the term to the machinery, to
the exclusion
of
the record sheets.
The prosecution submitted that s 97 and s 99 are aimed at different
types of conduct, s 97 being aimed at direct infringement of the Regulation
and s 99 at any obstruction of an investigation into the question whether
there has been an infringement. The proper construction
of
the word 'use'
in s 97 is that it includes the production on demand of the record sheets
produced by the machinery. A failure to produce the record is a failure to
use the machinery properly, since personal production of the output is a
necessary part of the process. The court construed the section in the light
of the purpose
of
the Act, which is to provide safeguards for drivers (and
so for the public). In the enforcement of the Act, the right to make spot
checks to see that the machinery is working properly must include a right
to see whether the correct records have been produced and this can only
be done on the production of the records by the driver, which production
is therefore an essential part of the inspection of the working of the
recording process carried out by the recording equipment. But does the
production of a pencil, to have its point examined, make either pencil or
its production part of the 'equipment' for sharpening it? But the court
held that the terms of s 97 are capable of bearing a broad meaning, since
the section refers to the 'circumstances of its [sc the machinery's] use'. The
court therefore held that the term 'recording equipment' included the
record sheets, although a literal interpretation might perhaps be expected
to distinguish between the producer and the product.
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