England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE FORBES: This is a prosecutor's appeal by way of Case Stated against an adjudication of the Justices for the Haringey Petty Sessions Area sitting at the Magistrates' Court, Lordship Lane, North London on 11th August 1998, whereby they dismissed a summons served on the Respondent which alleged an offence under the Greater London (Restriction of Goods Vehicles) Traffic Order 1985.

2. By a letter dated 6th July 1999, addressed to the Crown Office, the solicitors acting for the Respondent have indicated that the Respondent has decided not to be represented at this appeal and is content to rely upon the Case Stated by the Justices.

3. As I have already stated, the Respondent, Mr Morton, had been summoned under the Greater London (Restriction of Goods Vehicles) Traffic Order 1985. The information laid against him was that, on 10th October 1997, he did use a Scania lorry, registration number B570LK, being a goods vehicle exceeding 16.5 tonnes maximum gross weight on Bounds Green Road, London N22, a restricted street for the purposes of the said Order during the prescribed hours, namely 16.20 hours, contrary to section 8(1) of the Road Traffic Regulation Act 1984.

4. The relevant facts were not in dispute and are conveniently set out in paragraph (5) of the Case Stated as follows:

5. We have also been told that, although there is no reference to it in paragraph (5) of the Case Stated, it was also admitted that John Morton, trading as Morts Trucking Co, is the registered keeper of the lorry in question, namely lorry registration number B570LK.

6. The Appellant is the local authority responsible for enforcing the "LBTS night-time and weekend lorry control" on behalf of all the participating London Boroughs. It has power to prosecute pursuant to section 222 of the Local Government Act 1972.

7. The Greater London (Restriction of Goods Vehicles) Traffic Order 1985 was made pursuant to the powers conferred by section 6 of the Road Traffic Regulations Act 1984. Article 3 of the Greater London (Restriction of Goods Vehicles) Traffic Order 1985 (as amended) (hereafter, "the Order") provides as follows:

8. Article 4 of the Order deals with the circumstances where a goods vehicle has been issued with a permit. In this case it was common ground that no permit had been issued to the Respondent.

9. Section 8(1) of the Road Traffic Regulations Act 1984 provides:

10. The central issue in the case was whether, on the agreed facts, Mr Morton did use the lorry in question, that being the basis upon which the information had been laid against him. Accordingly, as the Justices point out in paragraph (5) of the case, submissions were centred on the proper construction of the word "use" for the purposes of Article 3 of the Order. On behalf of Mr Morton, it was submitted to the Justices that the term "use" in Article 3 should be given a restricted meaning and only apply to a non-driving owner of the vehicle in question if the actual driver was at the relevant time employed by the owner under a contract of service and at the material time was driving on his employer's business. In support of that submission, reference was made to, and reliance placed upon, an unreported decision of this court in West Yorkshire Trading Standards Service v Lex Vehicle Leasing Limited CO/1616/94, Transcript - 9th February 1995, where the court had to consider the meaning of the word "use" for the purposes of section 41B of the Road Traffic Act 1988 and Regulation 80(1)(b) of the Road Vehicles' (Construction and Use) Regulations 1986.

11. So far as material, those particular provisions are respectively in the following terms. Section 41B(1):

12. In the course of his judgment in the West Yorkshire Trading Standards case, Dyson LJ, who gave the first judgment (with which McCowan LJ agreed) said, at page 6D to E of the transcript, this:

13. Dyson J then carefully reviewed a number of previously decided cases and, at page 10B, continued as follows:

14. In the present case the Justices were persuaded that there was no essential or important distinction between the wording of the statutory provisions considered in the West Yorkshire Trading Standards case when compared with those with which they were concerned in the present case.

15. For the reasons which I give later in this judgment, I have come to the conclusion that the Justices were in error in reaching that particular conclusion. The Justices came to the further following conclusion, and I quote from paragraph 11 of the case:

16. Accordingly, in the light of that finding, the questions for the opinion of the High Court are as follows:

17. On behalf of the Appellant, Mr Alliott accepted that the word "use" has been defined narrowly in circumstances where it is found in criminal statutes in conjunction with the alternatives of "causes or permits to be used", and he accepted that the relevant case law to that effect was reviewed by Dyson J in the West Yorkshire Trading Standards case. However, Mr Alliott drew particular attention to the wording of Article 3 of the Order which falls to be considered in this case, where the word "use" appears in conjunction with the alternatives of "drive or causes or permits to be driven", not in conjunction with the alternatives "causes or permits to be used", as provided in section 41B of the Road Traffic Act 1988 and Regulation 80(1)(b) of the 1986 Regulations.

18. Mr Alliott submitted that the rationale of the cases which construed "use" in the narrow sense was that, if it had a wider sense, then the alternatives encompassed by the words "cause or permit to be used", would be otiose. He therefore argued that the line of cases which were summarised in the West Yorkshire Trading Standards case and the restatement of the narrow definition of the word "use" in that case is confined to provisions which have an alternative expressed in words such as "causes or permits to be used" and are not applicable to the words used in Article 3 of the Order, where the word "use" is followed by an alternative expressed in wording based on a different and probably more limited activity (i.e. driving).

19. By way of example in the previously decided cases reviewed by Dyson J in the West Yorkshire Trading Standards case, I refer to the following passages:

20. Furthermore, Mr Alliott suggested that, in at least two of the cases reviewed in the West Yorkshire Trading Standards case, it is apparent that the court has had great difficulty in justifying the narrow definition of the word "use", even when it appears in the context of the clause containing an alternative of "causes or permitting to be used". He pointed out that those two cases were reviewed in the West Yorkshire Trading Standards case, namely NFC Forwarding Limited v Director of Public Prosecutions [1989] RTR 239 and Hallett Silberman Limited v Cheshire County Council [1993] RTR 32. Those cases are reviewed at pages 12 and 30 of the West Yorkshire Trading Standards case respectively.

21. Although these observations were dismissed as obiter by Dyson J in the West Yorkshire Trading Standards case, Mr Alliott submitted that Auld J's judgment is a clear indication that the court, in certain circumstances, will apply a different and wider definition of the word "use" if the context so demands.

22. Mr Alliott accepted that, in the West Yorkshire Trading Standards case, Dyson J cast doubt on the reasoning of Beldam LJ, but nevertheless sought to distinguish the case as applying to its own particular subject matter, namely trailers: see pages 16E to 17A of the transcript. Accordingly, Mr Alliott submitted that, if it is open to the court to construe the word "use" in a wider sense when faced with particular statutory offences, even in a context where the clause goes on to provide an alternative such as "causing or permitting to be used", then the court must have greater power to do so where there is not such a follow on clause of "causing or permitting to be used" - particularly where the follow on clause involves a differently expressed and narrow activity.

23. Mr Alliott pointed out that Article 3 creates an offence of strict or absolute liability. No mens rea needs to be proved. In JG Williams (trading as Wiltrans International) v London Borough of Richmond-Upon-Thames , Queen's Bench Division (Divisional Court) Transcript - Tuesday, 20th February 1996, Otton LJ considered the position in the context of this legislation and came to that conclusion, citing with approval a "celebrated passage" of Devlin J (as he then was), in R v Reynolds v GH Austin & Sons Limited [1951] 2 KB 135, which was in turn approved in the Hallett Silberman case. A similar conclusion as to the absolute or strict power liability nature of the particular offence created by Article 3 of the Order was also reached in the decision of this court in London Borough of Richmond v JR Range and Sons Limited , CO/3600/98, Transcript - 12th November 1988 at page 5.

24. Furthermore, Mr Alliott submitted that the narrow definition of "use", being limited, as it is, to a non-driving owner of the vehicle only if the actual driver is employed by the owner under a contract of service and at the material time he is driving on his employer's business, does not sit happily within the framework of the articles of the Order which are the subject of consideration by this court in this case. Mr Alliott stressed that there is a rebuttable presumption that the registered keeper and/or hirer is the user: see the words of Article 3(b) of the Order. Mr Alliott suggested that such a presumption is meaningless if the definition of the "user" in this context only encompasses an owner or an employee under a contract of service who is driving on his employer's business at the material time.

25. Accordingly, Mr Alliott submitted that the word "use" within the meaning of Article 3 of the Order should be construed to include use by any person, corporate or otherwise, whose vehicle is being used by him or for his purposes and on his behalf, under his instruction and control, and that the precise nature of the driver's contract, whether it be of service or for services, is immaterial. He further submitted that the phrase "a person whose vehicle is being used" is not restricted to ownership but encompasses also lawful possession by way of hire, hire purchase, lease or conditional purchase.

26. I agree with Mr Alliott's submissions that, for the reasons he put forward, the wording of Article 3 of the Order does differ significantly from the wording of the statutory provisions which fell to be considered in the West Yorkshire Trading Standards case. I also agree with Mr Alliott that the apparent underlying rationale for the so-called narrower approach to the meaning of word "use" or "uses" when used in conjunction with alternatives of "causes or permits" does not apply in this case. The word "use" does not cover the same ground as the alternatives of "driving or causing or permitting to be driven".

27. The opening words of Article 3(a) referred to two principle activities in relation to the vehicle, namely the use and the driving of the vehicle, but the alternative of causing or permitting is limited to the activity of driving and is not expressed to extend to the activity of use. In those circumstances, as it seems to me, this court is not inhibited by earlier authority from giving a full and complete meaning to the word "use" in Article 3 of the Order. In my judgment, the construction placed upon that word by Mr Alliott is entirely in accordance with good sense and the natural meaning of the word "use" in its context, and I would construe it accordingly.

28. It follows that I would answer the questions as follows: (a) "no" and (b) "yes". I would allow this appeal accordingly.

29. LORD JUSTICE ROSE: I agree. Leaving authority aside, it would, to my mind, be a curious, indeed astonishing, result if the registered keeper of a vehicle, being used for his purposes on his business and on his instructions, is not to be regarded as using it within the 1985 and 1997 Regulations presently under consideration merely because, on a particular day, the driver hired to drive the vehicle in those circumstances did not have a contract of employment with the owner of the vehicle.

30. Accordingly, the question which arises is whether the authorities to which my Lord has referred, culminating in West Yorkshire v Lex , compel this court so to construe these Regulations. In my judgment, for the reasons given by my Lord, they do not. Those authorities deal with the construction of regulations differently framed, which refer (as the present regulations do not) to "causing or permitting use" as well as to "use", whereby a narrow construction of use has been held to be necessary. That reasoning does not apply to the present regulations where driving rather than use is the activity caused or permitted, to which the regulations refer.

31. Accordingly, this appeal is allowed.

32. MR ALLIOTT: My Lord, the appropriate Order is that the case be remitted back to the Magistrates' Court with either directions to convict or for a retrial.

33. LORD JUSTICE ROSE: Is there anything further that needs to be found before they should convict? I suspect the answer is not. No, we shall remit the matter to the Justices with the direction that they convict in accordance with the terms of our judgments.

34. MR ALLIOTT: My Lords, in terms of costs, might I apply for costs to be paid out of Central Funds?

35. LORD JUSTICE ROSE: Yes. Mr Alliott, it is implicit in our judgments that we are deeply indebted to you for your skeleton, as well, of course, as for your oral argument.