John Mann International Ltd v Vehicle Inspectorate
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE OWEN,MR JUSTICE OWEN |
| Judgment Date | 28 May 2004 |
| Neutral Citation | [2004] EWHC 1236 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/921/2004 |
| Date | 28 May 2004 |
[2004] EWHC 1236 (Admin)
The Honourable Mr Justice Owen
Case No: CO/921/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
T. Nesbitt (instructed by Hill Dickinson, Solicitors) for the Claimant
Miss J. Beech (instructed by Fraser Brown, Solicitors) for the Defendant
The appellant, John Mann International Limited, appeals by way of case stated against an adjudication by Justices of the Peace for the County of Lincoln sitting in the Petty Sessional Division of Sleaford on 18 June 2003.
THE FACTUAL BACKGROUND
The appellant is an international road haulier operating a fleet of approximately ninety vehicles under an operator's licence issued by the Traffic Commissioner for the Eastern Traffic Area.
A transport operator is obliged by law to collect and to preserve the records generated by the tachographs fitted to their vehicles which record the periods for which the vehicles are driven.
The Vehicle Inspectorate, now known as the Vehicle and Operator Services Agency ("VOSA") is a statutory body charged inter alia with the prosecution of cases in which there has been a failure to comply with the regulatory regime relating to commercial transport operations.
On 8 February 2002 a Traffic Examiner, Catherine Wench, visited the appellant's operating centre at Sleaford and served a written notice under section 99(1) of the Transport Act 1968 requiring the production of all tachograph record sheets for the period 1 November 2001 to 31 January 2002 by 26 February 2002 on the appellant's Transport Manager. On 26 February 2002 the appellant produced 3,540 record sheets. The records were analysed by the Traffic Examiner and on 13 May 2002 she again visited the appellant's premises when a further 90 record sheets were produced. She then served a further notice under section 99(1) of the Act for the production of the records that the analysis had shown to be missing for the period to which the first request related. The notice required production of the outstanding record sheets by 27 May 2002, and the missing records were itemised in a seven page schedule annexed to it. In response to that notice the appellant produced a further 43 records. On 19 July 2002 the Traffic Examiner served a third notice under section 99(1) of the Act. The schedule annexed to the notice identified 116 tachographs that had yet to be produced. The notice required production of those records by 2 August 2002. No further record sheets were produced.
On 3 October 2002 the Traffic Examiner interviewed the appellant's Transport Manager who confirmed that the appellant could not produce the charts that remained outstanding.
On 17 December 2002, the respondent laid forty-four informations in the Sleaford Magistrates Court relating to the failure to produce record sheets for of forty-four vehicles. Save for the registration number of the vehicle in question, the informations were in identical form –
"On Saturday 3 August 2002, at Sleaford, in the County of Lincolnshire, having been served with a notice in writing by an authorised officer, to produce tachograph record sheets, from vehicle …, required to be kept by Article 14(2) of Council Regulation (EEC) 3821/85 on recording equipment in Road Transport, failed to do so within the time specified in the notice, contrary to section 99(1)(b) and (4)(a) of the Transport Act 1968."
The facts summarised above were not in issue. It was acknowledged at the hearing before the Magistrates Court that the appellant had failed to produce records relating to forty-four vehicles in response to the notices served by the Traffic Examiner. But in the course of the hearing it was submitted on behalf of the appellant that the offence in relation to each of the forty-four vehicles was committed when the appellant failed to produce the relevant records in response to the first of the notices served upon it, namely by 26 February 2002, that the informations had not been laid within the period of six months specified in section 127 of the Magistrates Courts Act 1980, and that the failure to respond to the second and third notices could not give rise to further criminal offences as they related to the same records. It was therefore submitted that the appellant was entitled to be acquitted.
In response the prosecution argued that the offence of failure to comply with such a notice was a continuing offence, alternatively that the Justices were entitled to treat the third notice requiring production of records by 2 August 2003 as the notice that should have been complied with by the appellant, that the informations had been laid within six months of that date, and that accordingly there had been compliance with section 127.
At paragraph 7 of the case stated the Justices concluded that:
"There were two matters upon which we had to make a finding. Firstly whether the offences were continuing offences and secondly whether there had been an abuse of process by the issuing of a third notice to the company.
We are of the opinion that the offences are not continuing offences. We accepted that there is an ongoing obligation to retain and produce records. However, it is a once only obligation to produce on each order for production whether or not this results in a prosecution.
We were also of the opinion that the six months delay in bringing the prosecution was not unreasonable and that the issue of the third notice was not an abuse of process in view of the investigations involved. In fact, the time given helped the defendant company to produce some extra records.
We therefore convicted John Mann International of all 44 offences with fines of £200 on each offence and costs to the Vehicle Inspectorate of £1,335.
The questions for the opinion of this Court are set out in paragraph 8 of the case statement:
"Whether, in the circumstances outlined, we were correct in coming to the conclusion that the offences were not continuing offences.
If we were correct in finding that the offences were not continuing offences, were we correct in treating the third notice (i.e. that which required production of records by 2–8–03)as the one which should have been complied with"."
THE STATUTORY FRAMEWORK
Section 127 of the Magistrates Court Act 1980 provides that:
"A Magistrates' Court shall not try any information or hear a complaint unless the information was laid, or the complaint made within six months from the time when the offence was committed or the matter of the complaint arose."
The offence of failing to produce tachograph records is provided for by section 99 of the Transport Act 1968, the relevant parts of which provide that:
"99 (1) An officer … may require any person to produce and permit him to inspect and...
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