Murfitts Transport Ltd v Department of Transport
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE BUXTON |
| Judgment Date | 10 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0710-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 1997 |
| Docket Number | CO/0433/97 |
[1997] EWCA Civ J0710-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice Of England
(Lord Bingham of Cornhill)
and
Mr Justice Buxton
CO/0433/97
CO/0447/97
MR DAVID LAMMING and MR P MILLER (instructed by Messrs Baker Gotelee, Martlesham Heath) appeared on behalf of MURFITTS TRANSPORT LIMITED
MR MARK HARRIS (instructed by Messrs Fraser Brown, Nottingham) appeared on behalf of THE DEPARTMENT OF TRANSPORT
Thursday 10 July 1997
The judgment delivered by Buxton J has been circulated in these cases. In application CO/433/97 the appeal by Murfitts will be dismissed. In case CO/447/97 the Department of Transport's appeal will similarly be dismissed.
There are before the court two appeals by case stated. Both appeals concern a series of informations, relating to the same basic facts, which were heard by the Peterborough Justices on 9 September 1996. The parties concerned are Murfitts Transport Limited ("Murfitts"), a very large commercial haulage company, and the Department of Transport ("the DoT"). The first group of nine informations were preferred by the DoT on 23 November 1995, alleging breaches by Murfitts of section 97(1)(a)(iii) of the Transport Act 1968 ("the 1968 Act"). Murfitts were convicted on those informations and now appeal, in Case CO/433/97. For reasons that will become apparent we will identify that matter as "the using case". The second group of 12 informations were preferred by the DoT on 6 December 1995, alleging breaches by Murfitts of sections 99(1)(bb) and 4(a) of the 1968 Act. The Justices found that Murfitts had no case to answer on those informations, and dismissed the informations. The DoT appeals against that decision in Case CO/447/97. For reasons that will become apparent we will identify that matter as "the production case".
Both matters raise issues of general importance, that go beyond the limits imposed by the way in which the case was pursued before the Justices. That is particularly so because before the Justices certain concessions were made or assumptions adopted that in our view were not correct. We of course dispose of the appeals themselves on the same basis as the informations were argued before the Justices, and which is adopted by the Justices in their stated Cases; but we do not think that we would be justified in simply doing that, without averting to the wider issues inherent in these matters. We will therefore not turn immediately to the Cases and the questions that they ask of us, but rather first give some indication of the general context in which these cases arise.
The statutory background
Both cases concern the statutory provisions restricting the number of hours that may be driven by drivers of commercial vehicles. That there should be restrictions on drivers' hours has long been regarded as a matter of the first importance in the interests not only of those drivers themselves but also of the public, and that attitude has been reinforced, since the United Kingdom became a member of the European Union, by Community provisions for the harmonisation of social legislation relating to road transport.
So far as the United Kingdom itself is concerned, the objects of this part of the 1968 Act are set out in the Act itself, which in section 95 recites that it has been passed
"with a view to securing the observance of proper hours or periods of work by persons engaged in the carriage of passengers or goods by road and thereby protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from fatigue."
The principle Community provision is Regulation 3820/85, which in its recitals sets out a wide range of social objectives, including the need to secure proper conditions for drivers and to ensure that they do not drive for longer than they can with complete safety; and also emphasises the importance of securing compliance with the Regulation by both employers and drivers. The combined effect of these provisions is to be found in section 96 of the 1968 Act, which lays down a detailed code for drivers' hours and rest-breaks and rest days, and provides by sections 96(11) and (11A) that if either that code, or any further requirements of applicable Community rules, are breached by a driver, both he and his employer are liable to prosecution.
Central to the arrangements for securing compliance with the Regulations are the provisions for recording the length of journeys driven, and for retaining those records for inspection by the authorities. That is achieved by the required presence in every vehicle of recording equipment, colloquially known as the tachograph. Detailed rules for the installation, use and operation of such equipment; the retention of records made by the equipment; and the inspection of those records by national authorities; are laid down by Regulation (EEC) 3821/85. Those Community provisions are translated into English domestic law by section 97 of the 1968 Act as to installation and use of recording equipment, the section with which we are concerned in the using case; and by section 99 of the 1968 Act as to inspection of records, the section with which we are concerned in the production case.
It will be convenient to set out here the text of the relevant statutory provisions:
"97.Installation and use of recording equipment
(a) No person shall use, or cause or permit to be used a vehicle to which this section applies unless there is in the vehicle recording equipment which --
i)has been installed in accordance with the Community Recording Equipment Regulations
ii) complies with Annexes I and II to that Regulation; and
iii) is being used and provided by Articles 13 to 15 of that Regulation; or
(b) in which there is recording equipment which has been repaired (whether before or after installation otherwise than in accordance with the Community Recording Equipment Regulation.
and any person who contravenes this sub-section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
97A Provisions supplementary to Section 97.
(1) if an employed driver of a vehicle to which Section 97 of this Act applies fails U+2013
a) without reasonable excuse to return any record sheet which relates to him to his employer within twenty-one days of completing it; or
b) where he has two or more employers by whom he is employed as a driver of such a vehicle, to notify each of them of the name and address of the other or others of them.
he shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(2) If the employer of drivers of a vehicle to which Section 97 of this Act applies fails without reasonable excuse to secure that they comply with sub-section (1)9(a) of this section, he shall be liable on summary conviction to a fine not exceeding Level 4 on the standard scale.
99. Inspection of records and other documents -
(1) An officer may, on production if so required of his authority, require any person to produce and permit him to inspect and copy U+2013
a) any book or register which that person is required by regulations under Section 98 of this Act to carry or have in his possession for the purpose of making in it any entry required by those regulations or which is required under those regulations to be carried on any vehicle of which that person is the driver;
b) any book or register which that person is required by regulations under Section 98 of this Act to preserve;
bb) any record sheet which that person is required by Article 14(2) of the Community Recording Equipment Regulation to retain or by Article 14(7) of that Regulation to be able to produce;
c) if that person is the owner of a vehicle to which this Part of this Act applies, any other document of that person which the officer may reasonably require to inspect for the purpose of ascertaining whether the provisions of this Part of this Act or of regulations made thereunder have been complied with;
d) any book, register or document required by the applicable Community rules or which the officer may reasonably require to inspect for the purpose of ascertaining whether the requirements of the applicable Community rules have been complied with;
4) Any person who --
a) fails to comply with any requirement under sub-section 1) of this section; or
b) obstructs an officer in the exercise of his powers under sub-section 2) or 3) of this section,
shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Chapter IV
Use of Equipment
Article 13
The employer and drivers shall be responsible for seeing that the equipment functions correctly
Article 14
1. The employer shall issue a sufficient number of record sheets to drivers, bearing in mind the fact that these sheets are personal in character, the length of the period of service and the possible obligation to replace sheets which are damaged, or have been taken by an authorized inspecting officer. The employer shall issue to drivers only sheets of an approved model suitable for use in the equipment installed in the vehicle.
2. The undertaking shall keep the record sheets in good order for at least a year after their use and shall give copies to the drivers concerned who request them. The sheets shall be produced or handed over at the request of any authorized inspecting officer.
Article 15
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