Mitchell v Morrison
| Jurisdiction | Scotland |
| Judgment Date | 17 December 1937 |
| Docket Number | No. 12. |
| Date | 17 December 1937 |
| Court | High Court of Justiciary |
HIGH COURT. (Full Bench).
Lord Justice-General. Lord Justice-Clerk. Ld. Moncrieff. Lord Mackay. Lord Pitman. Lord Wark. Lord Russell.
Statutory Offences—Road Traffic Acts—Failure of owner of goods vehicle "to keep or cause to be kept" a record of driving periods of driver—Inaccurate record kept by driver—Whether owner guilty of offence although all reasonable steps taken by him to ensure that proper record kept—Mens rea—Vicarious criminality—Road and Rail Traffic Act, 1933 (23 and 24 Geo. V, cap. 53), sec. 16 (1), (4) and (5)—Goods Vehicles (Keeping of Records) Regulations, April 5, 1935 (S. R. & O. 1935/314), Regs. 6 (1) and 8.
The Road and Rail Traffic Act, 1933, enacts, by sec. 16 (1), that, subject to the provisions of regulations made under the section, the holder of a licence for a goods vehicle "shall keep or cause to be kept," in accordance with the regulations, current records, showing, inter alia, as respects every person employed by him as a driver, the times at which that person commenced and ceased work; and, by subsec. (5), that, if any person fails to comply with the provisions of any regulations made under the section, he shall be guilty of an offence.
The Goods Vehicles (Keeping of Records) Regulations, 1935, made in exercise of the above section provide, by Reg. 6 (1), that every driver shall keep and every holder of a licence shall cause to be kept a current record for each period of twenty-four hours in the manner described in the appropriate forms therein referred to; and, by Reg. 8, that every record shall be carried by the driver until he shall have completed his work for the period to which the record relates; the driver shall then sign the record, and shall deliver it to the holder of the licence within seven days of the expiry of that period.
A haulage contractor, the owner of a motor lorry and the holder of a licence under the Road and Rail Traffic Act, 1933, was charged with a contravention of section 16 and Regulations 6 and 8. It was proved that the contractor had issued to the driver the appropriate form to be filled up; that on a certain date the driver had made an incorrect entry therein relating to the use of the motor lorry; that on the following day the driver, on request, handed the form to the police; and that the contractor had no opportunity of checking the correctness of the entry. The contractor was found guilty of failing to cause to be kept a correct record.
Held by a Full Bench (diss. Lord Moncrieff, Lord Mackay and Lord Pitman) (1) that a licence holder is guilty of the offence of failing to cause to be kept a current record when a driver employed by him has made an incorrect entry in the current record; (2) that it is immaterial that the licence holder has not had an opportunity of checking such entry; and (3) that mens rea is not a necessary ingredient in the commission of the offence.
William Alexander Mitchell, haulage contractor, Grangemouth, was charged, along with Alexander Morrison Begg, motor driver, Denny, in the Sheriff Court at Falkirk, upon a complaint in the following terms:—"That on 26th March 1937 on the public road, Camelon Road, Falkirk, near Burnfoot Lane, you William Alexander Mitchell, being the holder of an “A” licence under the Road and Rail Traffic Act, 1933, and an authorised vehicle under said “A” licence namely, motor lorry W G 5107, being then used by the said Alexander Morrison Begg, did fail to keep and cause to be kept by him a current record in accordance with the Regulations aftermentioned, and you Alexander Morrison Begg, being the driver of said authorised vehicle then being used as aforesaid, did fail to keep a current record showing the particulars required by law: Contrary to the Road and Rail Traffic Act, 1933, sections 16 and 25,1 and the Goods Vehicles (Keeping of Records) Regulations, 1935, Regulations 6 and 8 thereof2; whereby you are liable to a penalty not exceeding £20 each and in default of payment thereof to imprisonment in terms of section 48 of the Summary Jurisdiction (Scotland) Act, 1908."
The accused motor driver, Alexander Morrison Begg, pleaded guilty. The Sheriff-substitute (Hendry), after evidence had been led, convicted the accused William Alexander Mitchell, and, at his request, stated a case for appeal to the High Court of Justiciary.
The case set forth that the following facts were admitted or proved:—"(1) The appellant is the holder of a licence No. M 240 A class granted under the Road and Rail Traffic Act, 1933, in respect of a motor lorry, W G 5107. (2) At all material times on Friday 26th March 1937 the appellant was the owner and the accused Begg was the driver of the said motor lorry employed by the appellant. (3) On 26th March 1937 the said lorry was being used by the appellant in his trade or business. (4) The accused Begg failed to make the proper entries relating to the user of the said motor lorry on the 26th March 1937 in the current record required to be kept under the provisions of the said Act and Regulations, in respect that the record showed that on the said date Begg arrived at Grangemouth at 1.45 p.m., and that he ceased work on said date at 5 p.m., when in fact he was seen driving the said lorry at 2.20 p.m. in Camelon Road, Falkirk, by Alexander Sandison M'Intosh, police constable, Falkirk, and at 5.45p.m. on said date in the said road, by the said Alexander Sandison M'Intosh and Alexander Campbell, police constable, Falkirk, and John Neil Smart, clerk, Wallace Street, Grangemouth. The accused Begg lives at Boghead, Denny, and the said motor lorry was at Denny during the night 26th/27th March 1937. (5) It was admitted by the appellant that an offence against the Regulations had been committed by the accused Begg. (6) The accused Begg, shortly after 12.25 p.m. on 27th March 1937, handed over the said record sheets to the police at the appellant's garage in Neilson Street, Grangemouth. The record sheet relative to 27th March 1937 contains an entry that Begg last ceased work on 26th March at 5 p.m., and that he commenced work on 27th March 1937 at 6 a.m. It also contains an entry that he left Grangemouth on that date at 6 a.m. with a load of timber. (7) Begg on several occasions previous to 26th March had loaded the lorry in the afternoon and driven it the same day to Denny. On the occasions when he did this he began his journey the following day from there. (8) This practice was known to the appellant, and was a privilege granted to Begg in respect that his home was in Denny. (9) On 26th March Begg loaded his lorry in the afternoon, and drove it to Denny where it remained over night. (10) The appellant was unaware that the lorry was in Denny on the night 26th/27th March 1937, or that the accused Begg was driving the said motor lorry at 5.45 p.m. on 26th March 1937, and had no
knowledge that the record kept by the accused Begg was incorrect. He did not see the record sheet for 26th March 1937, the said sheet being taken from Begg by the police at the time before stated. (11) The appellant was unable to indicate in what manner he checked the record sheets of his employees. (12) The appellant made no provision for the keeping of a record of the times when his lorries left and returned to the garage apart from supplying to his employees the official daily record forms to be filled up by them."The question of law for the opinion of the Court was:—"On the above facts was I entitled to convict the appellant?"
The case was heard before the High Court of Justiciary on 9th October 1937, and on that date was ordered to be re-heard before a Full Bench. The case was accordingly heard before a Full Bench (consisting of the Lord Justice-General, the Lord Justice-Clerk, Lord Moncrieff, Lord Mackay, Lord Pitman, Lord Wark, and Lord Russell) on 3rd December 1937.
At advising on 17th December 1937,—
LORD JUSTICE-GENERAL (Normand).—The Road and Rail Traffic Act, 1933,11 section 1, enacts, inter alia,that no person shall use a goods vehicle on a road for the carriage of goods for or in connexion with any trade or business carried on by him except under a licence, and section 2 prescribes various classes of licence. By section 8 (1) (d) it is made a condition of every licence that "the provisions of this Part of this Act relating to the keeping of records are complied with," and by section 9 it is provided that any person who fails to comply with any condition of a licence held by him shall be guilty of an offence.
The requirements relating to the keeping of records are to be found partly in the Act and partly in statutory Regulations12 made under sections 16 and 25 of the Act.
Section 16 (1) of the Act, so far as material to this appeal, provides that the holder of a licence shall keep or cause to be kept, in accordance with the regulations, current records showing, as respects every person employed by him as a driver or statutory attendant of an authorised vehicle, the times at which that person commenced and ceased work
and particulars of his intervals of rest, and the like information as respects himself when acting as such driver or attendant. The section also authorises the Minister to make provision by Regulations for requiring drivers to carry the prescribed documents and to make any prescribed entries therein. The licence holder is obliged (section 16 (4)) to preserve every record kept under the Regulations for a period up to six months commencing on the date when the record is made, and to produce it for inspection to authorised officers if required to do so during that period. Section 16 (5) provides that "if any person fails to comply with the provisions of this section or of any regulations made thereunder, he shall be guilty of an offence under this Part of this Act." By section 18 the person in charge of a goods vehicle is obliged to produce to certain authorised officers any document which he is required by the Act or the...To continue reading
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