Vehicle Inspectorate v York Pullman Ltd
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 29 January 2001 |
| Neutral Citation | [2001] EWHC 113 (Admin) |
| Date | 29 January 2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1894/2000 |
[2001] EWHC 113 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
The Lord Chief Justice of England and Wales (The Lord Woolf of Barnes) and
Mr Justice Newman
CO/1894/2000
MR M LAPRELL (instructed by Messrs Shulmans, Leeds LS1 2EX) appeared on behalf of THE APPELLANT
MR R SERLIN (instructed by Messrs Wedlake Saint, London WC1N 2EB) appeared on behalf of THE RESPONDENT
Monday 29 January 2001
I will ask Mr Justice Newman to give the first judgment.
: This is an appeal by way of case stated from the decision of the Crown Court at York. The Vehicle Inspectorate appeals against the decision of His Honour Judge Adams to allow the appeal by York Pullman Ltd against its conviction for twelve offences contrary to section 96(11A) of the Transport Act 1968. The case raises an important, and not entirely straightforward, point of interpretation of the relevant Council Regulation.
The facts can be briefly stated. During May 1998, York Pullman Ltd employed one Edward Booth to drive a passenger coach. The twelve summonses which were issued related to twelve separate dates alleging that York Pullman had permitted Mr Booth to drive the passenger coach when he had not taken an adequate weekly rest prior to those twelve driving periods. According to the findings of fact in the Crown Court, before starting work on 5 May 1998 Mr Booth had had a rest amounting to 84.5 hours. He then drove eleven driving periods on eleven consecutive days before taking a rest of 61.5 hours on Saturday and Sunday 16 and 17 May 1998. He then drove for another eight driving periods between 18 and 25 May, and took a rest of 34 hours 25 minutes on Tuesday 26 May. There were then four further driving periods on four successive days to 30 May 1998.
The relevant statutory provisions provide as follows. Section 96(11A) of the Transport Act 1968 in its material part provides:
"Where, in the case of a driver ….. of a motor vehicle, there is in Great Britain a contravention of any requirement of [the applicable Community rules] as to periods of driving, or distance driven, or periods on or off duty, then the offender and any other person (being the offender's employer or a person to whose orders the offender was subject) who caused or permitted the contravention shall be liable on summary conviction to a fine …."
The relevant EC regulation is Council Regulation (EEC) No 3820/85 of 20 December 1985. Since, in my judgment, it is important to resolve the issue which has arisen on this appeal by reference to the object and purpose of the regulation, it is particularly relevant that some of the recitals should be set out in this judgment:
"Whereas, with regard to driving periods, it is desirable to set limits on continuous driving time and on daily driving time, but without prejudice to any national rules whereby drivers are prohibited from driving for longer than they can with complete safety;
Whereas a longer driving day, together with a shorter driving time over a two-week period is likely to facilitate the management of transport undertakings and to contribute to social progress;
….
Whereas with regard to rest periods, it is desirable to lay down the minimum duration of and other conditions governing the daily and weekly rest periods of crew members;
….
Whereas it is beneficial to social progress and to road safety to lengthen weekly rest periods, while enabling these periods to be shortened, provided that the driver can compensate for parts of his rest period which have not been taken in a place of his choosing within a given time;
…."
The regulations provide definitions in Section 1, Article 1. The relevant one reads:
"'week' means the period between 00.00 hours on Monday and 24.00 on Sunday."
Article 6 in Section IV is headed "Driving Periods". It provides:
"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 10 hours.
A driver must, after no more than six daily driving periods, take a weekly rest period as defined in Article 8(3).
The weekly rest period may be postponed until the end of the sixth day if the total driving time over the six days does not exceed the maximum corresponding to six daily driving periods.
In the case of the international carriage of passengers, other than on regular services, the terms 'six' and 'sixth' in the second and the third subparagraphs shall be replaced by 'twelve' and 'twelfth' respectively.
Member States may extend the application of the previous subparagraph to national passenger services within their territory, other than regular services.
…."
Articles 7 and 8, which then follow after the heading "Breaks and rest periods" (along with some other Articles which it is unnecessary to mention) are in Section V. Article 8, which is germane to the appeal, provides:
"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….
….
3. In the course of each week, one of the rest periods referred to in paragraphs 1 and 2 shall be extended, by way of weekly rest, to a total of 45 consecutive hours. This rest period may be reduced ….
4. A weekly rest period which begins in one week and continues into the following week may be attached to either of these weeks.
5. In the case of the carriage of passengers to which Article 6(1), fourth or fifth subparagraph, applies, the weekly rest period may be postponed until the week following that in respect of which the rest is due and added on to that second week's weekly rest."
The judge who heard the matter in the Crown Court succinctly identified the issue which arose on the appeal. He stated:
"The prosecution contend that the rest period on 16.5.98 and 17.5.98 should have been at least 72 hours. All driving thereafter would have been illegal until a weekly rest period, in accordance with the law, had been taken. The rest period due for the first week (36 hours) was postponed to the end of the second week, and then it had to be consecutive to the 36 hours due for the second week.
The appellant argues that the prosecution's interpretation ignores the effect of Article 8(4). Mr Booth, according to the unchallenged evidence of the appellant's manager, Mr Dew, had enjoyed 84.5 hours rest immediately before he started work again on Tuesday 5.5.98. At least 36 hours of that can be allocated as the rest period for the first week, so that there is no need to postpone the weekly entitlement to the end of the second week. The requisite rest period for the second week would then be 36 hours only, which was in fact taken….
We hold that the appellant's argument is well—founded. It was not raised in the court below, but that does not debar the appellant from raising it now, this being a re-hearing. If Article 8(4) is to have effect, it seems to us that it must be this. Indeed prosecuting counsel could not suggest any other."
The effect of the provisions, insofar as they are non—contentious, are as follows: A week runs from 00.00 hours on a Monday to 24.00 hours on a Sunday. Drivers of heavy goods vehicles and public service vehicles have to take daily and weekly rests as specified in the regulations. But in the case of carriage of passengers (other than on regular services), the weekly rest period referred to in Article 6(1) must occur after no more than twelve daily driving periods rather than six, and it may be postponed until the end of the twelfth day in the circumstances set out. The weekly rest period can be reduced in circumstances which apply here to a minimum period of 36 consecutive hours provided the reduction is compensated for by an equivalent period of rest within the three weeks. When a driver is operating on a standard cycle of not more than six daily driving periods, Article 6(1) and Article 8(3) provide that in the course of each week one of the rest periods referred to in Article 8(1) and (2) shall be extended. The words of Article 8(5) provide that a weekly rest which straddles the 24 hours on the Sunday may be attached to either of the two weeks in which it partially falls. Article 8(5), which has been the subject of consideration by the court in a case to which I shall come, provides that, if postponing the weekly rest period so as to operate with twelve daily driving periods between weekly rests, the weekly rest period can be deferred until the week following that in respect of which the rest is due and it is added on to the second week's weekly rest.
Mr Laprell, on behalf of the Vehicle Inspectorate, submits that if the object and purpose of the regulations is to be met, then Article 6 must be interpreted as laying down a mandatory obligation to take a weekly rest after driving, which is a separate and distinct obligation from the obligation which is set out in Article 8, which lays down an obligation that in the course of each week one of the rest periods referred to shall be extended by way of a weekly rest.
By way of introduction to his argument, he submits that, applying common sense, the period of rest taken by a driver prior to driving is vital to enable him to drive safely in the driving periods upon which he then embarks. Safety requires that a driver is not tired when he starts his driving...
To continue reading
Request your trial
-
R (Carroll and Greenfield) v Secretary of State for the Home Department
...of State successfully resisted the appellant's contentions before the Queen's Bench Divisional Court (Latham LJ and Potts J) [2001] EWHC Admin 113, [2001] 1 WLR 1731, and the Court of Appeal (Lord Woolf CJ, Tuckey and Arden LJJ) [2001] EWCA Civ 1224, [2002] 1 WLR 545. Those courts did n......
-
R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Greenfield, [2005] N.R. Uned. 6 (HL)
...successfully resisted the appellant's contentions before the Queen's Bench Divisional Court (Latham, L.J., and Potts, J.) [2001] EWHC Admin 113, [2001] 1 W.L.R. 1731, and the Court of Appeal (Lord Woolf, C.J., Tuckey and Arden, L.J.J) [2001] EWCA Civ 1224, [2002] 1 W.L.R. 545. Tho......