QUEENS BENCH DIVISION
Appeal by way of case stated from decision of
The Greater Manchester Magistrates for the Petty
Sessional Division of Leigh sitting at Wigan
London, WC2A 2LL
B e f o r e :
| COLIN PRITCHARD
|- and -
|CROWN PROSECUTION SERVICE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Lisa BOOCOCK (instructed by Crown Prosecution Service) for the respondent
Crown Copyright ©
Mr Justice McCOMBE :
"(a) At 14.55 hrs on the 2nd May 2002 PC 3797 Robinson of the Greater Manchester Police stopped a Nissan Cabstar pickup registration L301 VCC (plated weight 3,400 kg) on Atherleigh Way, Leigh.
(b) The driver was Colin Pritchard. The vehicle had a train weight of 5100 kg and was towing a single-axle Bocker H16 hoist which had an unladen weight of 950 kg. There was no tachograph fitted to the vehicle;
(c) The owners of the vehicle were the partnership Industrade who were later reported by PC Lovatt;
(d) Subsequently, a partner of INDUSTRADE, Stefan Devenish was interviewed under caution by PC Lovatt who outlined the above facts to the Defendant;
(e) It was accepted that the vehicle in question was being used to carry goods in connection with trade or business, for hire or reward which was sales, hire and provisions of service vehicles;
(f) Colin Pritchard was driving that vehicle on the 2nd May 2002 on company business on instructions issued by the partner of the company, Stefan Devenish himself.
3. Evidence was heard from Police Constable L3797 Grahame Robinson of The Greater Manchester Police, who has Area Traffic Unit duties.
(a) PC Robinson was and is authorised by the Chief Constable to weigh and inspect all types of vehicles. He disclosed his relevant qualifications and experience. Upon the prosecution request, and with the agreement of the defence, we were satisfied that it was appropriate to class him as an expert in this field;
(b) The oral evidence in chief given by PC Robinson was in accordance with the facts as outlined in paragraph 2 above, as such were accepted by all parties immediately prior to the hearing commencing;
(c) PC Robinson was not cross-examined, nor asked any questions by the court.
4. Evidence was heard from Stefan Devenish, a partner of the firm trading as "Industrade".
(a) The trading partnership had between eighteen and twenty vehicles of this type and for the past twenty-five years the partnership had been using mobile elevators on a "hired out" basis;
(b) The mobile elevator had been towed by the Cabstar on 2nd May 2002 and had also been towed on other occasions by other vehicles such as a Landrover, Toyota Hilux or Volkswagen;
(c) The partner did not employ "drivers". Pritchard was in fact employed to service the machines although he did take machines "on site" and install them as well;
(d) Generally the machines were installed within a fifty mile radius of the partnership's premises although they do go further afield when required;
(e) Driving was not the main job of the engineers. On average they would spend probably no more than twenty percent of their working day driving;
(f) As far as Mr. Devenish was aware none of their vehicles of the Bocker Hoist type had ever been stopped and asked about the installation of a tachograph although they have been stopped in relation to other matters. Upon no prior occasion of being stopped had any advice been given about installing tachograph equipment;
(g) Upon being cross-examined Mr. Devenish stated that Pritchard delivered the machines to site where he would install the machine. The Bocker Hoist would then be left on site and he would drive back in the van. Mr. Devenish accepted that the weight of the Bocker H16 is in excess of 101kg;
(h) Mr. Devenish confirmed that no training on road haulage legislation had been given to employees."
Having recited the rival submissions the Justices state their opinion as follows:
"We are of the opinion that:-
A "trailer" was defined by Statutory definitions within the EC Regulations as "any vehicle designed to be coupled to a motor vehicle or tractor."
We were satisfied that the definition of "vehicle" and "trailer" were adequately defined within that legislation.
Both the Crown and the Defence agreed that the Bocker hoist unit was coupled, in this case, to a Nissan Cabstar, by means of a ball hitch coupling. A braking cable was also attached as would be required for a trailer of the acknowledged weight of the Bocker.
We were of no doubt that the Bocker Hoist fell squarely within the definition of "trailer" under the regulation.
Accordingly both the plated and train weight limits would have been exceeded making it a requirement that the Nissan Cabstar be fitted with tachograph equipment which should have been used in accordance with the Regulations".
As a result they convicted each defendant of the offence charged and sentenced each to be absolutely discharged. They ordered Mr. Devenish alone to pay £200 costs within 28 days. In stating their Case the Justices posed the following question:
"The question for the opinion of the High Court is whether or not this court was correct in holding the single axle Bocker H16 hoist is a trailer for the purposes of S97 of the Transport Act 1968 within the definition of EEC regulation 3820/85 Article 1(2)(c) ?
The defendants now appeal.
" whether the actual weight of the Bocker H16 was a weight which regard was to be had to in determining whether the exemption in Article EEC Regn 3820/85 applied "
The Justices declined to alter the question. However, Mr. Nesbitt submitted that the correct and relevant question was as he advanced it and that it is open to this Court to consider any point of law which arises upon the facts stated. He cited Knight v Halliwell (1874) LR 412, Giebler v Manning  1 KB 709 and Kates v Jeffrey  KB 160. At the hearing of the appeal, Miss Boocock, who appeared for the respondent, did not object to the questions of law being argued at large.
Section 97 provides
"(1) No person shall use, or cause or permit to be used, a vehicle to which this section applies
(a) unless there is in the vehicle recording equipment which
(i) has been installed in accordance with the Community Recording Equipment Regulation: ...
and any person who contravenes this subsection shall be liable on summary conviction to a fine "
"(6) This section applies at any time to any vehicle to which this part of this Act applies if, at the time, Article 3 of the Community Recording Equipment Regulation requires recording equipment to be installed and used in that vehicle
(7) in this Part of this Act
["the Community Recording Equipment Regulation" means Council Regulation (EEC) No.3821/85 on recording equipment in road transport [q.v.] as it has effect in accordance with-
(a) Commission Regulation (EEC) No. 3314/90
(b) Commission Regulation (EEC) No. 3688/92; and
(c) Commission regulation (EC) No. 2479/95;
and as read with the Community drivers' Hours and Recording Equipment (Exemptions and Supplementary Provisions) Regulations 1986 [S.I. 1986 No 1456 (q.v.)]
EEC Regulation 3821/85 Article 3(1) provides:
"Recording equipment shall be installed and used in vehicles registered in a member state which are used for the carriage of passengers or goods by road, except the vehicles referred to in Articles 4 and 14(1) of the Regulation (EEC) No. 3820/85."
Obviously, the Nissan Cabstar is within this definition being a vehicle used for the carriage of goods by road. The elevator alone is not within it because it is not used for the carriage of passengers or goods.
Article 4 Regulation 3820/85 provides:
"This Regulation shall not apply to carriage by:
1. vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, does not exceed 3.5 tonnes "
Article 1 provides definitions of "vehicles" as follows:
"(a) "motor vehicle": any mechanically self-propelled vehicle circulating on the road, other than a vehicle running on rails, and normally used for carrying passengers or goods;
(c) "trailer": any vehicle designed to be coupled to a motor vehicle or a tractor "
It also defines "permissible maximum weight" as "the maximum authorised operating weight of the vehicle fully laden". I think it must be clear that the expressions "permissible maximum weight" and "maximum permissible weight" are interchangeable. They were so treated in Small v DPP  RTR 95, at p. 98H and K.
" "permissible maximum weight", in relation to a goods vehicle (of whatever description), means
(a) in the case of a motor vehicle which neither is an articulated goods vehicle nor is drawing a trailer, the relevant maximum weight of the vehicle,
(b) in the case of an articulated goods vehicle . (not applicable here)
(c) in the case of a motor vehicle (not being an articulated goods vehicle) which is drawing a trailer, the aggregate of the relevant maximum weight of the motor vehicle and the relevant maximum weight of the trailer, ".
There appears to be no definition of trailer in that section.
"(a) in the case of a vehicle to which regulations under section 49 of this Act apply which is required by regulations under section 41 of this Act to have maximum gross weight for the vehicle marked on a plate issued by the secretary of state under regulations under section 41, the maximum gross weight so marked on the vehicle,
(b) in the case of a vehicle which is required by regulations under section 41 of this Act to have a maximum gross weight for the vehicle marked on the vehicle and does not also have a maximum gross weight marked on it as mentioned in paragraph (a) above, the maximum gross weight marked on the vehicle,
(c) in the case of a vehicle on which a maximum gross weight is marked by the same means as would be required by regulations under section 41 of this Act if those regulations applied to the vehicle, the maximum gross weight so marked on the vehicle,
(d) in the case of a vehicle on which a maximum gross weight is not marked as mentioned in paragraph (a), (b) or (c) above, the notional maximum gross weight of the vehicle, that is to say, such weight as is produced by multiplying the unladen weight of the vehicle by the number prescribed by the Secretary of State for the class of vehicle into which that vehicle falls, ".
These definitions are all related to regulations required to be marked upon vehicles under sections 41 and 49 of the Act.
" 3. For producing, for the purposes of paragraph (d) in the definition of "relevant maximum weight" in section 110 of the Act of 1972, the notional maximum gross weight of a vehicle of a class listed in column (1) of Schedule 1 to these Regulations, the number set against that class in column (2) of that Schedule is hereby prescribed as the number by which the unladen weight of that vehicle is to be multiplied."
By virtue of Section 2 of the Consequential Provisions Act of 1988 the reference to Section 110 of the Act of 1972 in the 1976 Regulations must now be read as a reference to Section 108 of the 1988 Act. Schedule 1 is divided into "Part A Motor Vehicles" and "Part B Trailers". The first listed item in Part B is "Engineering plant". In the Schedule's interpretation section "engineering plant" is defined as "moveable plant and equipment being a motor vehicle or trailer (not constructed primarily to carry a load) especially designed or constructed for the special purposes of engineering operations". I think that it must be clear that the elevator in this case fell within that definition.
" In the past, there were differing views about whether non-goods carrying trailers (such as generators and compressors with permanently fitted wheels) should be taken into account when calculating maximum gross weights. DLTR advice is that only trailers with goods carrying capacity should be counted. This reflects FTA's long-held view, but has not been tested in the Courts".
MR JUSTICE MCCOMBE: For the reasons given in the draft judgment already handed down, these appeals are dismissed.