Nuttall v Vehicle Inspectorate
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD JAUNCEY OF TULLICHETTLE,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 18 March 1999 |
| Judgment citation (vLex) | [1999] UKHL J0318-1 |
| Date | 18 March 1999 |
| Court | House of Lords |
[1999] UKHL J0318-1
Lord Slynn of Hadley
Lord Jauncey of Tullichettle
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hobhouse of Wood-borough
HOUSE OF LORDS
My Lord,
I have had the advantage of reading a draft of the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives, I would allow the appeal and remit the case to the justices for retrial.
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Steyn and Lord Nicholls of Birkenhead. For the reasons they have given, I too would allow the appeal from the Divisional Court only to the extent of ordering that the matter should be returned to the justices for retrial.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse. For the reasons he gives, with which I agree, I would allow this appeal, set aside the direction to convict, and remit the case to the justices for a re-trial. I add only some brief observations on one aspect of this case, concerning the mental element of the relevant offence. This aspect of the case was not explored, and did not call for exposition, in earlier authorities usually cited in this field such as Roper v. Taylor's Central Garages (Exeter) Ltd. [1951] 2 T.L.R. 284, James & Son Ltd. v. Smee [1955] 1 Q.B. 78, and Grays Haulage Co. Ltd. v. Arnold [1966] 1 W.L.R. 534.
A driver of a vehicle who contravenes Community law restrictions on driving hours or driving distances commits an offence under section 96(11A) of the Transport Act 1968. So does the driver's employer if he "caused or permitted" the contravention. "Permitted" is a word commonly found in statutes creating criminal offences. Its meaning depends upon the context. Its meaning, for instance, may be confined to "allowed" or "authorised." Or it may be wider and embrace "failed to take reasonable steps to prevent." In the present case, in agreement with all your Lordships, I consider that "permitted" in section 96 (11A) bears the latter, wider meaning.
The former meaning ("allowed, or authorised") will usually import knowledge, in the sense of knowledge of what was being allowed or authorised. In the normal way, a person cannot be said to allow a particular activity, still less authorise it, unless he is aware of the activity being carried on or expected to be carried on. The latter meaning, however, directs attention in a different direction. Under the latter meaning the offence consists of an omission ("failed to take reasonable steps to prevent"). Thus, in section 96(11A) failure to take reasonable steps to prevent a contravention by the driver is prescribing a standard of conduct an employer is required to attain. The effect is to impose on the employer a duty. The prescribed standard is the objective standard of a responsible employer.
The acts needed to comply with this standard will depend on the circumstances. The employer must act as would a responsible employer in his position. Unless the allotted journeys are so short as to make this unnecessary, one of the steps a responsible employer will normally take is to check the tachograph records periodically. That is the purpose for which they exist. That is why they must be installed in coaches and certain other vehicles. A responsible employer checks them. A responsible employer is mindful of his obligation to ensure that the rules on driver's hours are observed.
If the employer fails to act as would a responsible employer in his position, he commits an offence, provided his failure was causally linked to the driver's contravention and provided further, and this is the mental element in the offence, his failure so to act was deliberate (in the sense that his omissions were deliberate, and not due to honest mistake or accident).
Beyond this, I can see no significant scope in practice for a further fault element, by way of mens rea, in this offence. In particular, once it is accepted that "permitted" includes failure to take reasonable steps to prevent, there is no place for subjective foresight of the prospect, or risk, of a contravention being committed. The objective standard of a responsible employer applies to all employers, not just those who subjectively foresee a risk (of uncertain degree) of a contravention by a driver. If subjective foresight were an additional ingredient in the offence, it would mean that one employer running this type of business would commit an offence when he deliberately failed to take the relevant steps, being the steps a responsible employer in his position would take, another employer behaving in a similar fashion would not. This would be a surprising conclusion.
My Lords,
This is a case about an owner of a coach business who decided not to examine charts produced by tachographs installed in his vehicles thereby disabling himself from discovering a series of driver's hours offences committed by his drivers. In layman's terms a tachograph is recording equipment which has the ability to record the time, speed, distance travelled, and work a driver is engaged on. It is a valuable aid in the promotion of road safety.
In 1995 the Vehicle Inspectorate, acting on behalf of the Secretary of State for Transport, brought seventeen charges against the defendant under section 96(11A) of the Transport Act 1968, read with the applicable Community rules, of permitting drivers of his coaches to contravene the requirements of the relevant rules. The prosecution abandoned the charge contained in the first information. On the remaining informations justices sitting at Leyland heard evidence and argument. In respect of those charges tachograph charts established contraventions by the drivers. The dispute before the justices centred on the question whether the prosecution had established against the operator and employer the mental element of the offences. The justices were not satisfied that the mental element was established and acquitted the defendant on all charges.
The Vehicle Inspectorate asked the justices to state a case for the opinion of the High Court. The justices did so. The principal question posed by the justices was:
"Were we correct in finding that the defendant could not be guilty of these offences solely by failing to check the tachograph charts, in the absence of any reason to put on him notice that offences may be being committed?"
On appeal the Divisional Court concluded that the justices had answered this question wrongly and ordered that the case be returned to the justices with a direction to convict the defendant on the remaining sixteen charges. The judgment of Popplewell J. (with which McCowan L.J. agreed) is reported under the heading Wing v. Nuttall in The Times Law Reports of 30 April 1997 [1997] T.L.R. 225-226. The Divisional Court certified the following question as involving a point of public importance:
"Whether knowledge in offences of permitting "driver's hours offences" is to be implied on the basis of the failure by the employer to check the very driver's hours records which would have revealed the driver's hours offences."
This is the basis on which the appeal comes before the House.
The Community rules
Council Regulation (EEC) No. 3820/85 of 20 December 1985 lays down, inter alia, requirements in respect of driving periods, breaks and rest periods. The sixteen charges are variously based on the following provisions of the Regulation 3820/85:
"Article 6.1 The driving period between any two daily rest periods or between a daily rest period and a weekly rest period, hereinafter called 'daily driving period,' shall not exceed nine hours. It may be extended twice in any one week to ten hours….
Article 7.1 After four-and-a-half hour's driving, the driver shall observe a break of a least 45 minutes, unless he begins a rest period.
Article 8.1 In each period of 24 hours, the driver shall have a daily rest period of at least 11 consecutive hours, which may be reduced to a minimum of nine consecutive hours not more than three times in any one week, on condition that an equivalent period of rest be granted as compensation before the end of the following week. …
Article 8.2 During each period of 30 hours when a vehicle is manned by at least two drivers, each driver shall have a rest period of not less than eight consecutive hours."
Article 15 of Regulation 3820/85 is also material. It provides:
"Article 15.1 The transport undertaking shall organise driver's work in such a way that drivers are able to comply with the relevant provisions of this Regulation and of Regulation (EEC) No. 3821/85.
Article 15.2 The undertaking shall make periodic checks to ensure that the provisions of these two Regulations have been complied with. If breaches are found to have occurred, the undertaking shall take appropriate steps to prevent their repetition."
As an operator of vehicles the defendant also had to comply with the requirements of Council Regulation (EEC) No. 3821/85 of 20 December 1985. Regulation 3821/85 made provision for the installation, maintenance and use of recording equipment or tachographs in vehicles. Regulation 3821/85 places the responsibility on employers for seeing that the equipment functions correctly and is used. The employers must issue record sheets to drivers and keep the returned records for at least a year.
The charges
The defendant was the owner and operator of a business trading under the name Redline Coaches with approximately fifteen vehicles and a team of drivers. The sixteen charges cover incidents taking place over a period of two months, namely the period 31...
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