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Cite as: [1998] EWHC Admin 989, [1998] EG 147, [1999] Crim LR 217

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BRITISH TELECOMMUNICATIONS Plc v. NOTTINGHAMSHIRE COUNTY COUNCIL [1998] EWHC Admin 989 (21st October, 1998)

IN THE HIGH COURT OF JUSTICE CO/1694/98

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

DIVISIONAL COURT

Royal Courts of Justice

The Strand

London

Wednesday 21 October 1998

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Bingham of Cornhill )

and

MR JUSTICE COLLINS

B E T W E E N:

BRITISH TELECOMMUNICATIONS Plc Appellant

- v -

NOTTINGHAMSHIRE COUNTY COUNCIL Respondent

_______________

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone No: 071-421 4040

(Official Shorthand Writers to the Court)

_______________

MR JEREMY CARTER-MANNING QC and MR MARK BRYANT-HERON (instructed by

BT Group Legal Services, Milton Keynes) appeared on behalf of

THE APPELLANT

1. MR C TREACY QC (instructed by the Solicitor to Nottinghamshire County Council) appeared on behalf of THE RESPONDENT

_______________

J U D G M E N T

(As Approved by the Court )

_______________

Wednesday 21 October 1998

2. THE LORD CHIEF JUSTICE: BT appeals by case stated against its conviction by the Stipendiary Magistrate for the County of Nottingham under two informations preferred against it by the Nottingham County Council as prosecutor.

3. The first information alleged that between 30 January and 28 July 1997, at Worksop, BT, as an undertaker, having executed street works in Claylands Avenue, Worksop, in 1994, on 30 January 1997 and thereafter did fail to comply with the requirements prescribed in the specification for the reinstatement of openings in highways made under section 71 of the New Roads and Street Works Act 1991 as to the standards of workmanship to be observed in reinstating the street contrary to sections 71(1) and 71(5) of the 1991 Act.

4. The second information was in identical terms, save that it referred to the specification of materials to be used in reinstating the street instead of the standards of workmanship to be observed in reinstating the street.

5. The facts were not in issue before the stipendiary magistrate, and as helpfully summarised by him were as follows. BT in the course of its business caused an excavation of a footpath in a street at Claylands Avenue, Worksop, in February and March 1994 and purported to reinstate on completion of its work. In December 1996 an employee of the County Council found a depression in the reinstated area and gave notice to BT to make good the repairs to an acceptable standard. BT denied that it was liable to do so. On 30 January 1997 the County Council took core samples along the stretch of repaired footpath at six points. Analysis of the samples suggested defects in materials and standards of workmanship which had been in existence since the reinstatement of the footpath in February 1994. The defects complained of included insufficient compaction of the in-fill material, insufficient depth of suitable materials, and presence of other inappropriate material in the reinstatement, making the repairs in breach of the statutory provisions and codes of practice.

6. BT declined to undertake the work required to make good the reinstatement, and summonses were issued on 28 July 1997. The sole argument between the parties, as the stipendiary magistrate records, was in relation to the limitation of time for the laying of these informations in summary proceedings. BT relied on section 127(1) of the Magistrates' Courts Act 1980, and contended that the stipendiary magistrate could not try the informations because they had not been laid within six months from the time the offences had been committed, which had been in early 1994. The County Council, on the other hand, contended that the offences were continuing offences, continuing so long as the defective reinstatement remained unrectified. Accordingly the County Council submitted that the informations had been laid within the six-month time limit. It was that submission which the stipendiary magistrate accepted.

7. The New Roads and Street Works Act 1991 contains a number of provisions which bear on the present question. By section 68(1) an undertaker executing street works is obliged to afford the street authority reasonable facilities for ascertaining whether he is complying with his duties under that Part of the Act, and it is an offence if an undertaker fails to afford the street authority such facilities. It is not in doubt that in this case BT were for the purposes of the Act an undertaker and the County Council were the street authority.

8. Section 70 is also of relevance and contains the following subsections:

"(1) It is the duty of the undertaker by whom street works are executed to reinstate the street.

(2) He shall begin the reinstatement as soon after the completion of any part of the street works as is reasonably practicable and shall carry on and complete the reinstatement with all such dispatch as is reasonably practicable.

(3) He shall before the end of the next working day after the day on which the reinstatement is completed inform the street authority that he has completed the reinstatement of the street, stating whether the reinstatement is permanent or interim.

(4) If it is interim, he shall complete the permanent reinstatement of the street as soon as reasonably practicable and in any event within six months (or such other period as may be prescribed) from the date on which the interim reinstatement was completed; and he shall notify the street authority when he has done so.

....

(6) An undertaker who fails to comply with any provision of this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

...."

9. Section 71, under which these informations were laid, provides:

"(1) An undertaker executing street works shall in reinstating the street comply with such requirements as may be prescribed as to the specification of materials to be used and the standards of workmanship to be observed.

(2) He shall also ensure that the reinstatement conforms to such performance standards as may be prescribed --

(a) in the case of interim reinstatement, until permanent reinstatement is effected, and

(b) in the case of permanent reinstatement, for the prescribed period after the completion of the reinstatement."

10. We are told, and it is common ground, that the period prescribed for the purposes of section 71(2)(b) is two years.

11. By subsection (4) of section 71 the Secretary of State is empowered to

"issue or approve for the purposes of this section codes of practice giving practical guidance as to the matters mentioned in subsections (1) and (2); and regulations made for the purposes of the subsection may provide that --

(a) so far as an undertaker complies with such a code of practice he shall be taken to comply with his duties under this section; and

(b) a failure in any respect to comply with any such code is evidence of failure in that respect to comply with those duties."

12. Subsection (5), the penal provision, reads:

"An undertaker who fails to comply with his duties under this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale."

13. Section 72 empowers the street authority to carry out such investigatory works, as appears to the authority to be necessary to ascertain whether an undertaker has complied with his duties under the Act, and (putting the matter shortly) the cost of that investigation is borne by the undertaker if he is found to be in breach, and by the County Council if he is not.

14. Attention must be drawn to section 95 of the Act, which provides as follows:

"(1) Any provision of this Part imposing criminal liability in respect of any matter is without prejudice to any civil liability in respect of the same matter.

(2) Where a failure to comply with a duty imposed by this Part is continued after conviction, the person in default commits a further offence."

15. Our attention has also been drawn to section 105(1) where "reinstatement" is defined to include "making good" and we have also been referred to a code of practice issued by the Secretary of State under section 71 of the Act for the reinstatement of openings in highways, which defines "permanent reinstatement" as meaning "the orderly placement and proper compaction of reinstatement layers up to and including the finished surface level".

16. The County Council rely on the statutory provisions in particular, but also on decided cases to support their construction that section 71 created a continuing offence where reinstatement was carried out and completed, but improperly completed because of a failure to use proper materials or standards of workmanship. It was this argument which the stipendiary magistrate accepted, and he posed three questions for the opinion of the court:

"(a) Whether Section 71 New Roads and Street Works Act creates a continuing offence?

(b) Whether I was entitled to hear and determine the specific informations laid?

(c) (If it is not a continuing offence), whether the six month limitation of time for laying an information runs from the date the offence was committed (ie the time the defective reinstatement was effected) or from the date of the discovery?"

17. Whether a statutory provision creates a continuing obligation such that failure to comply with it creates a continuing offence necessarily depends on the language of the provision in question and on its correct construction. For that reason it seems to me that caution is called for when applying the observations in one case with reference to one statute, to different provisions of a different statute in another case. However, Mr Carter-Manning QC, representing BT, as a general principle, draws our attention to an observation made by Croom-Johnson J in R v Wimbledon Justices, ex parte Derwent [1953] 1 QB 380, where at page 390 he said:

"As a general rule, the court is not, I think, eager to find continuing offences created by a statute, and certainly not without express words which make clear that that was the intention of the legislature when the statute was passed."

18. That seems to me to be consistent with the general approach in these matters that conduct is not to be criminalised unless Parliament has made plain its intention that it should.

19. The first of the cases to which we have been referred is Hodgetts v Chiltern District Council [1983] 2 AC 120. In that case the informations preferred by the council against Mr Hodgetts alleged a breach of section 89(5) of the Town and Country Planning Act 1971, the terms of which are recited by Lord Roskill in his speech at page 127. Subsection (5) read:

"Where, by virtue of an enforcement notice, a use of land is required to be discontinued, or any conditions or limitations are required to be complied with in respect of a use of land or in respect of the carrying out of operations thereon, then if any person uses the land or causes or permits it to be used, or carries out those operations or causes them or permits them to be carried out, in contravention of the notice, he shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding £400, or on conviction on indictment to a fine; and if the use is continued after the conviction he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding £50 for each day on which the use is so continued, or on conviction on indictment to a fine."

20. He then continued:

"My Lords, much of the difficulty which has arisen in connection with these subsections is due to the use of the words 'continuous' or 'continuing' offence as descriptive of the offences chargeable without regard to the fact that neither adjective is to be found in the subsections creating the offences and also without consideration of the precise meaning to be given to those adjectives in the context in which they have been used.

Section 89 deals with penalties for non- compliance with two classes of enforcement notices: (a) those, dealt with in subsections (1) to (4), which require the owner of land to do something on it ('do notices'), and (b) those, dealt with in subsection (5), which require the user of land to stop doing something on it ('desist notices'). As respects each of these classes of notices the section creates two types of offences (i) an initial offence created by subsection (1) and by the first limb of subsection (5) down to the semi-colon, respectively; and (ii) what is described as a 'further offence' which is created by subsection (4) and by the second limb of subsection (5) after the semi-colon, respectively, and can only be committed by a person who has already been convicted of the corresponding initial offence.

It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time. The initial offence created by subsection (1) in the case of non-compliance with a 'do notice', is complete once and for all when the period for compliance with the notice expires; but it is plainly contemplated that the further offence of non-compliance with a 'do notice' created by subsection (4), though it too is a single offence, may take place over a period of time, since the penalty for it is made dependent upon the number of days on which it takes place.

Similarly, as respects non-compliance with a 'desist notice', it is in my view clear that the initial offence (as well as the further offence) though it too may take place over a period, whether continuously or intermittently (e.g. holding a Sunday market), is a singe offence and not a series of separate offences committed each day that the non-compliance prior to the first conviction for non-compliance continues. If it were otherwise it would have the bizarre consequence that upon summary conviction a fine of £400 per diem could be imposed for each such separate offence committed before the offender received his first conviction, whereas for any further offence committed after the offender against a 'desist' notice had been convicted, a daily fine of only £50 could be inflicted. Uniquely a previous conviction would be a positive advantage to the offender. This can hardly have been Parliament's intention."

21. That is a passage to which attention has repeatedly been paid in later cases, but it is in my judgment important to bear in mind that it is all with reference to the giving of notices telling someone either to do or stop doing something.

22. The second case which has been extensively discussed before us is Camden London Borough Council v Marshall [1996] 1 WLR 1345. This concerned the exercise by a local authority of its powers under the Housing Act 1985 in relation to premises in multiple occupation. Under section 352 of that Act the local authority had power to require certain works to be done. The case turned in large measure on the terms of the penal section, which is section 376 which, as amended, read:

"(1) A person on whom a notice has been served under section 352, or 372 (notices requiring the execution of works) who wilfully fails to comply with the notice commits a summary offence and is liable on conviction to a fine not exceeding level 4 on the standard scale. (2) The obligation to execute the works specified in the notice continues notwithstanding the expiry of the period which under section 375(2) is appropriate for completion of the works in question; and a person who wilfully fails to comply with that obligation, after being convicted of an offence in relation to the notice under subsection (1) or this subsection, commits a further summary offence and is liable on conviction to a fine not exceeding level 4 on the standard scale. (3) References in this section to compliance with a notice shall be construed in accordance with section 375(2)."

23. That subsection lays down a time-scale for compliance.

24. Henry LJ, giving the first judgment in this court, said:

"Analysis of those sections shows that there were three obligations comprised in the notice. The first and substantial obligation was to do the works. The second obligation was to begin them within time. The third obligation was to complete them within the time specified. Breach of any one of these three requirements would constitute a non-compliance. Here on the face of it it would seem that all three were breached. One of these obligations, namely the obligation to execute the works, was specifically made a continuous obligation by section 376(2):

....

Therefore while the requirement to begin the works by 16 October 1993 was irreparably breached when the works were not started on that day, and the obligation to complete the works by 25 December 1993 was irreparably breached by Boxing Day of that year, by virtue of the first part of section 376(2) the obligation to execute the works continued notwithstanding the expiry of those periods. In those circumstances, as the work had not been done by 6 March 1995, the defendant was in breach on that day of that continuous obligation."

25. He then referred to Hodgetts and observed:

"The similarity between that case and this case is that there too the statutory scheme was an initial offence in section 89(1) (the equivalent of section 376(1) in this case), and a further offence or offences, which cannot be prosecuted until after the defendant has been convicted of the initial offence: see section 89(4) of the Act of 1971 and section 376(2) of the Act of 1985 respectively."

26. He then referred to section 89(1) of the 1971 Act. He made reference to Lord Roskill's speech in the passage at page 128A-C and commented:

"That logic would also apply to section 376 of the Act of 1985, if the first half of section 376(2) were not in the statute:

....

The presence of those words in the statutory scheme in my judgment make it quite clear that the reasoning of the court in Hodgetts's case is inapplicable, and that the initial offence may, in so far as it consists of failure to do the work, take place over the whole period from when it should have been done to when it is finally done."

27. The County Council place particular reliance on that case because of the analogy between section 376(2) and the reference in section 95(2) to the continuation of a duty after conviction.

28. We were also referred to Hertsmere Borough Council v Alan Dunn Building Contractors Ltd (1985) 84 LGR 214. In that case the penal provision was section 4(6) of the Public Health Act 1961, which provided:

"If a person contravenes or fails to comply with any provision contained in building regulations .... he shall be liable to a fine .... and to a further fine not exceeding £50 for each day on which the default continues after he is convicted."

29. The council laid a large number of informations against the contractor, alleging breaches of regulations A10 and A11 of the Building Regulations 1976. The gravamen of their complaint was that the building contractors carried out work in about 1982 and the early part of 1983, but failed to deposit plans or give notices as required by the regulations. It was common ground in the case that all the relevant works had been begun and ended more than six months before the informations were laid, and accordingly the application of section 127 of the 1980 Act was again central to the argument.

30. After extensive reference to authority Neill LJ, giving the first judgment, referred at some length to Hodgetts, which he described as giving guidance of general application, and he said:

"From this passage in Lord Roskill's speech it is possible to extract two points which are of direct relevance in the instant case. In the first place, if one slightly adapts Lord Roskill's language, it is plain that the requirements in regulations A10 and A11 are 'do provisions'. Secondly, it follows that the initial offence of non-compliance with the 'do provision' is complete once and for all when the period for compliance with the provision expires.

Each of the paragraphs and subparagraphs of the regulations with which we are concerned required the deposit of plans or the giving of a notice before a specified deadline. In regulation A11 the deadline was stated with precision. In regulation A10 the time for compliance was less precise but it was sufficiently clear from the context that the relevant step had to be taken before any work began. Once that deadline had been passed the offence had been committed. In the light of the plain words used by Lord Roskill I do not consider that it is possible to hold that after the deadline had passed the builders were 'continuing' to commit either a single offence or a series of offences."

31. That, as I repeat, was a conclusion reached in relation to a failure to deposit plans or give notices as required by the regulations, and those were obligations which had to be performed by a clear and discernible deadline.

32. The last authority to which we have been referred in detail is Torridge District Council v Turner (1991) 90 LGR 173. The penal provision was contained in section 35 of the Building Act 1984, which provided:

"If a person contravenes any provision contained in building regulations, other than a provision designated in the regulations as one to which this section does not apply, he is liable on summary conviction to a fine not exceeding level 5 on the standard scale and to a further fine not exceeding £50 for each day on which the default continues after he is convicted."

33. That section was invoked in relation to an alleged breach of the Building Regulations 1985, which alleged that the builder had used or allowed others to use an agricultural exhibition centre and farm produce unit contrary to the 1985 Regulations and section 35 of the Act. It is plain from the judgment given by Woolf LJ, in particular, that the court found the possible application of section 127 problematical on the facts of the case before them. With the benefit of the guidance given both by Hodgetts and Hertsmere, however, the court came to the conclusion that it was a one-off offence and not a continuing offence. With reference to Hertsmere Woolf LJ said at page 183:

"The importance of that decision for present purposes is that it makes it clear that an offence of the type created by section 35 of this Act is not necessarily a continuing offence. It is also important for the distinction which it draws between what Neill LJ called 'do provisions' and 'other provisions;' a 'do provision' being one which does not create a continuing offence.

With the help of the guidance provided by that case, when I consider the offence which should have been charged in this case with its reference to the requirements contained in Schedule 1 of the Building Regulations 1985 with reference to the 'building shall be so constructed' I am forced to the conclusion that this offence is also an offence in respect of a 'do provision', the 'do provision' being to construct the building in the way which complies with the requirements of the Act of 1984. This means that a person responsible for constructing the building commits the offence, when the building works are completed and when those works are completed in a way which does not comply with the relevant requirements of the regulations. It follows therefore that the justices who came to the conclusion that this information was out of time in my judgment came to the correct conclusion."

34. Woolf LJ went on to find reinforcement for his conclusion in the practical consequences which would follow if another construction were adopted.

35. By analogy Mr Carter-Manning for BT submits that this case is of assistance to him since he argues in reliance on it that his offence was complete when the reinstatement was completed and that there was no continuing duty thereafter. Mr Treacy QC, on the other hand, draws attention to the terms of the regulations and suggests that there was no finite moment at which the duty was to have been completed.

36. It is necessary after that excursus into the authorities to remind oneself of the particular provisions with which this appeal is concerned. If an undertaker reinstates a street using materials or workmanship which do not comply with the specification, does the duty to reinstate in accordance with the specification continue indefinitely so that his failure to reinstate in accordance with the specification constitutes a continuing offence for which he may be prosecuted at any time until the street is reinstated in accordance with the specification? Or is the offence complete when the undertaker reinstates otherwise than in accordance with the specification so that an offence is committed then and any information must be laid within six months of the purported completion?

37. I for my part have found this a difficult question and my mind has altered more than once in the course of argument. On balance, however, I have concluded that the stipendiary magistrate reached the correct answer. It seems to me important that the overriding duty to reinstate in section 70(1) of the Act is expressed in wholly general terms and without any qualification whatever as to time, albeit the undertaker is required to give notice to the street authority. Furthermore, the duty laid on an undertaker in section 71(1) is again an obligation to reinstate properly, there being no limitation of time whatever attached to that duty. Mr Treacy is, I think, entitled to submit that 'reinstate' means "reinstate properly", both because the definition section refers to the street being made good and because the code of practice which is incorporated by reference indicates that compliance with proper standards is inherent in the concept of reinstatement. It does not appear to me that section 71(2) undermines that conclusion since, although it refers to what is in effect a guarantee period, that would be applicable in a case where the work had initially been done properly but had developed defects during the two-year period.

38. Furthermore it seems to me very difficult, as it seemed to Henry LJ in Camden London Borough Council v Marshall , to give any effect to section 95(2) if there is not, in fact, a continuing duty. It was the language of section 376(2) that was the crucial factor leading to his decision. It seems to me difficult to construe section 95(2) on the premise that a duty ends on the completion of reinstatement, even if that reinstatement is defective. It is scarcely possible as it seems to me to envisage any prosecution being begun before purported completion of the reinstatement, but on BT's argument the duty to reinstate properly would have come to an end on purported completion, yet here in section 95(2) we find reference to a failure to comply with a duty being continued after conviction and that seems to me to point strongly towards the continuation of the duty.

39. I do not for my part regard this case as closely analogous with the cases in which a party is required to give a notice, or do a single act like depositing a plan, which can much more readily be regarded as a one-off act. Nor does it seem to me that the power of the local authority to investigate under section 72 of the Act is inconsistent with a continuing duty, not least because the power to investigate is itself without limit of time.

40. I would accordingly conclude that the failure to reinstate in accordance with the Act and prescribed standards and the specification creates a continuing offence which may be the subject of prosecution unless and until the time comes when the reinstatement is properly carried out. If further proceedings are brought after a conviction then the matter is covered by section 95(2).

41. Accordingly, in relation to the questions asked by the stipendiary magistrate, I would answer question (a) in paragraph 7: "Yes". I would give the same answer to (b). The question posed in (c) does not arise.

42. MR JUSTICE COLLINS: I agree. This case underlines the importance of considering and construing the particular statutory provisions applicable. The cases which have been cited have dealt with other statutory provisions and are as it seems to me of limited value. It is dangerous to draw conclusions relating to case A from provisions in statutes which cover different fields and are dealt with in case B.

43. Having said that, there are principles which may be of general application and may assist in the construction in any individual case. Here one has to consider what it is that the duty involves and, like my Lord, it seems to me clear that the duty is to reinstate properly. Thus a reinstatement which is not done properly, and in respect of which there is a breach of section 71(1), can be the subject of a prosecution, notwithstanding that the contractor in question has purported to complete the reinstatement.

44. That being so, the description of the nature of this duty as a "do provision" (which is the description that Mr Carter-Manning seeks to apply to it) may be misleading if by "do provision" one means a provision which does not create a continuing offence. In one sense this is a "do provision" in that it is an obligation to do something, but in making his observations, which my Lord has already cited in Torridge District Council v Turner , it seems to me quite plain that Woolf LJ was referring only to a duty which was to be completed within a specified time. Furthermore, the conclusions which follow upon which Mr Carter-Manning particularly relies and which my Lord has cited, must be read in the context of the precise duty which was in issue. It is not altogether easy to discover exactly what that was, not least because the prosecuting authority had chosen to prosecute for the wrong offence. But the obligation in question was to carry out building work so that it did not adversely affect the safety of the building. Accordingly in that case the duty was breached once the building was completed in the offending manner. It is easy in those circumstances to see why in Torridge it was possible for the court to construe the duty as not being a continuing one.

45. The situation here, as my Lord has said, is quite different. In those circumstances I have no hesitation in finding that this was indeed a duty which continued and thus the stipendiary magistrate was correct. For those reasons, in addition to those given by my Lord, I agree with his conclusions.

46. MR TREACY: My Lord, I would ask you to make an order for costs in favour of the respondent, to be taxed if not agreed?

47. THE LORD CHIEF JUSTICE: I do not suppose you can resist that, Mr Carter-Manning?

48. MR CARTER-MANNING: I cannot, my Lord.

49. THE LORD CHIEF JUSTICE: Very well. We shall make that order.

50. MR CARTER-MANNING: My Lord, may I raise the observation that your Lordship has made: "I have found this a difficult question and my mind has changed more than once".

THE LORD CHIEF JUSTICE: Yes.

51. MR CARTER-MANNING: My Lord, we would obviously be anxious to consider your Lordship's judgment. Might I return to this court, if it is felt appropriate, to invite your Lordship to certify?

52. THE LORD CHIEF JUSTICE: I think it is much more satisfactory to deal with it now. I think we shall probably not give leave.

53. MR CARTER-MANNING: My Lord, I was not anticipating your Lordships would give leave.

54. THE LORD CHIEF JUSTICE: Why do we not settle a question and that will save about £5,000?

55. MR CARTER-MANNING: I wish that were true.

56. THE LORD CHIEF JUSTICE: I was just beginning to rough out a question.

57. MR CARTER-MANNING: We at the Bar have not been quite as quick.

58. THE LORD CHIEF JUSTICE: Does this suffice: "May an information against an undertaker alleging a breach of section 71(1) of the New Roads and Street Works Act 1991 be laid more than six months after completion of works of reinstatement of a street which do not comply with the undertaker's obligation?"

59. MR CARTER-MANNING: Yes. My Lord, I would ask for leave on the basis of that question.

60. THE LORD CHIEF JUSTICE: You do not resist our certification of a question?

MR TREACY: No, I do not.

61. THE LORD CHIEF JUSTICE: We shall certify that question, Mr Carter- Manning, as a question of general public importance. We shall refuse you leave to appeal, and leave you to go to their Lordships for leave.

62. MR CARTER-MANNING: My Lord, I am grateful.

63. THE LORD CHIEF JUSTICE: Thank you both very much.

____________________________________