Tuck v Vehicle Inspectorate
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MACKAY,LORD JUSTICE KENNEDY |
| Judgment Date | 24 March 2004 |
| Neutral Citation | [2004] EWHC 728 (Admin) |
| Date | 24 March 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6697/2003 |
[2004] EWHC 728 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice Kennedy
Mr Justice Mackay
CO/6697/2003
MR N HOFFMAN (instructed by Rowe Sparres) appeared on behalf of the APPELLANT
MR T DEAL (instructed by Daltons, Horsham) appeared on behalf of the RESPONDENT
Wednesday, 24th March 2004
This is an appeal by way of case stated from a decision of the justices sitting at the Sussex Northern Magistrates' Court made on 16th December 2003. They convicted the appellant of exceeding the gross permitted weight on a goods vehicle, contrary to Regulation 80(1)(b) of the Road Vehicles (Construction and Use) Regulations 1986 and section 41B of the Road Traffic Act 1988 with Schedule 2 of the Road Traffic Offenders Act 1988.
The case was lodged some eight days beyond the ten day time limit allowed. This was due to a letter from the appellant to his solicitors concerning his representation going astray. We grant the necessary extension of time.
The facts as proved and found by the magistrates at the close of the prosecution case were these. On 7th November 2002 on the A23 in Sussex vehicle road checks were being carried out. One of the vehicles seen and checked was a Ford lorry driven by the appellant. This vehicle was weighed on a dynamic weighbridge by Mr Paul Chapman, a vehicle inspector. The weight of the first axle was found to be 3,280 kilos —an overload, as he stated, of 13.1 per cent. The authorised weight of the vehicle was 7,500 kilos and the permitted weight for the first axle was 2,900. A copy of the till receipt displaying the weight was given to the appellant, with a copy of the weight certificate. He was cautioned before being interviewed at the site, but did not sign the record of interview and left the site after redistributing the weight evenly across his vehicle.
On those facts the appellant made a submission of no case to answer. He argued that the prosecution had failed to prove, firstly, that a plating certificate had been issued in respect of this particular vehicle and, secondly, that the weight transmitted through the front axle exceeded the weight permitted in column 2 of that certificate. In the result the magistrates allowed a prosecution application to recall Mr Chapman, their principal witness, who had examined this lorry by the roadside. He was duly recalled and the appellant himself gave evidence and then the following further facts were found: firstly, that Mr Chapman had determined the permitted maximum weight of the first axle from the ministry plate on the vehicle; that he was unable to remember where the plating certificate was on this particular vehicle but stated that he knew it was in the form of a ministry plate; and that he had made a witness statement on 14th February 2003 and conceded that there was no mention of the plating certificate in that statement or in his contemporaneous notes.
The magistrates were of opinion therefore, in response to the submission of no case to answer, that Mr Chapman could be recalled and that thereafter there was a case to answer. They found that the weight of the first axle did exceed the permitted weight.
The reason for their decision to allow the prosecution's application to recall Mr Chapman was that they thought they had a discretion, which they believed they had properly exercised, that the conflicting interests of the appellant and the public were weighed up and it was decided that the overall interests of justice were best served by allowing the prosecution to re-open their case.
They went on to describe the reasons for their decisions in the rest of the case after the evidence was concluded in this way: they thought the prosecution had adduced sufficient evidence to support their case and for a tribunal properly directed to convict; Mr Chapman's evidence, though inconsistent in parts, was generally credible; and Mr Tuck's evidence was insufficient to discharge the presumption that the weighbridge was calibrated and accurate.
The magistrates posed three questions for the opinion of this court in these terms:
(1) Should the magistrates, having heard a no case to answer submission, have acceded to the prosecution application to reopen their case given that no evidence had been put before them of a plating certificate?
(2) Were the magistrates correct in placing weight on the evidence of Mr Chapman when he was recalled after the case was reopened bearing in mind: (a) there was a 10 month gap between the incident and the trial, (b) he had made no mention of a plating certificate or corresponding number in his contemporaneous note or later statement and (c) his evidence could have been contaminated by his continued presence in court listening to the legal arguments prior to giving further evidence or an addendum statement?
(3) If the answer to questions 1) and 2) above are in the affirmative, at the conclusion of the case could the magistrates be satisfied to the criminal standard of proof of the existence of, and contents of, the plating certificate and therefore find that the defendant's vehicle was loaded in such a way as to exceed the prescribed limit for that vehicle?"
The relevant legislation
The Road Traffic Act section 41B states as follows:
"(1) A person who -
(a) contravenes or fails to comply with a construction and use requirement as to any description of weight applicable to -
(i) a goods vehicle …
is guilty of an offence."
The Road Vehicles (Construction and Use) Regulations 1986 regulation 80(1) reads, so far as relevant:
"Subject to paragraphs (2), (2A), (2B), (2C) and (4), no person shall use, or cause or permit to be used, on a road a vehicle —…
(b) for which a plating certificate has been issued, if any of the weights shown in column (2) of the plating certificate is exceeded."
Turning then to the first question posed by the magistrates, there was undoubtedly a clear lacuna in the prosecution case when it was closed for the first time. The prosecution did not seek to mend it by suggesting that the magistrates could infer the existence of, and the terms of, a plating certificate from the evidence that Mr Chapman had already given, which evidence I remind myself included the assertion that the permitted weight for the first axle was 2,900 kilograms.
There is, it is accepted rightly by Mr Hoffman, a clearly established discretion which would allow the prosecution to re-open their case in appropriate circumstances. The issue that has arisen is the extent of that discretion and whether it was correctly exercised by the magistrates in this case.
The appellant submits that the prosecution had failed to prove what they must have known from the outset was an essential part of their case, and that was clear from the evidence they had served in advance of the hearing, or, if it was not, at the hearing itself.
While the appellant concedes the discretion to allow the prosecution to...
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