England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 May 2004

THE HONOURABLE MR JUSTICE OWEN :

1. The appellant, John Mann International Limited, appeals by way of case stated against an adjudication by Justices of the Peace for the County of Lincoln sitting in the Petty Sessional Division of Sleaford on 18 June 2003.
2. THE FACTUAL BACKGROUND

The appellant is an international road haulier operating a fleet of approximately ninety vehicles under an operator's licence issued by the Traffic Commissioner for the Eastern Traffic Area.

3. A transport operator is obliged by law to collect and to preserve the records generated by the tachographs fitted to their vehicles which record the periods for which the vehicles are driven.
4. The Vehicle Inspectorate, now known as the Vehicle and Operator Services Agency ("VOSA") is a statutory body charged inter alia with the prosecution of cases in which there has been a failure to comply with the regulatory regime relating to commercial transport operations.
5. On 8 February 2002 a Traffic Examiner, Catherine Wench, visited the appellant's operating centre at Sleaford and served a written notice under section 99(1) of the Transport Act 1968 requiring the production of all tachograph record sheets for the period 1 November 2001 to 31 January 2002 by 26 February 2002 on the appellant's Transport Manager. On 26 February 2002 the appellant produced 3,540 record sheets. The records were analysed by the Traffic Examiner and on 13 May 2002 she again visited the appellant's premises when a further 90 record sheets were produced. She then served a further notice under section 99(1) of the Act for the production of the records that the analysis had shown to be missing for the period to which the first request related. The notice required production of the outstanding record sheets by 27 May 2002, and the missing records were itemised in a seven page schedule annexed to it. In response to that notice the appellant produced a further 43 records. On 19 July 2002 the Traffic Examiner served a third notice under section 99(1) of the Act. The schedule annexed to the notice identified 116 tachographs that had yet to be produced. The notice required production of those records by 2 August 2002. No further record sheets were produced.
6. On 3 October 2002 the Traffic Examiner interviewed the appellant's Transport Manager who confirmed that the appellant could not produce the charts that remained outstanding.
7. On 17 December 2002, the respondent laid forty-four informations in the Sleaford Magistrates Court relating to the failure to produce record sheets for of forty-four vehicles. Save for the registration number of the vehicle in question, the informations were in identical form –

"On Saturday 3 August 2002, at Sleaford, in the County of Lincolnshire, having been served with a notice in writing by an authorised officer, to produce tachograph record sheets, from vehicle …, required to be kept by Article 14(2) of Council Regulation (EEC) 3821/85 on recording equipment in Road Transport, failed to do so within the time specified in the notice, contrary to section 99(1)(b) and (4)(a) of the Transport Act 1968."

8. The facts summarised above were not in issue. It was acknowledged at the hearing before the Magistrates Court that the appellant had failed to produce records relating to forty-four vehicles in response to the notices served by the Traffic Examiner. But in the course of the hearing it was submitted on behalf of the appellant that the offence in relation to each of the forty-four vehicles was committed when the appellant failed to produce the relevant records in response to the first of the notices served upon it, namely by 26 February 2002, that the informations had not been laid within the period of six months specified in section 127 of the Magistrates Courts Act 1980, and that the failure to respond to the second and third notices could not give rise to further criminal offences as they related to the same records. It was therefore submitted that the appellant was entitled to be acquitted.
9. In response the prosecution argued that the offence of failure to comply with such a notice was a continuing offence, alternatively that the Justices were entitled to treat the third notice requiring production of records by 2 August 2003 as the notice that should have been complied with by the appellant, that the informations had been laid within six months of that date, and that accordingly there had been compliance with section 127.
10. At paragraph 7 of the case stated the Justices concluded that :

"There were two matters upon which we had to make a finding. Firstly whether the offences were continuing offences and secondly whether there had been an abuse of process by the issuing of a third notice to the company.

We are of the opinion that the offences are not continuing offences. We accepted that there is an ongoing obligation to retain and produce records. However, it is a once only obligation to produce on each order for production whether or not this results in a prosecution.

We were also of the opinion that the six months delay in bringing the prosecution was not unreasonable and that the issue of the third notice was not an abuse of process in view of the investigations involved. In fact, the time given helped the defendant company to produce some extra records.

We therefore convicted John Mann International of all 44 offences with fines of £200 on each offence and costs to the Vehicle Inspectorate of £1,335.

The questions for the opinion of this Court are set out in paragraph 8 of the case statement:

"Whether, in the circumstances outlined, we were correct in coming to the conclusion that the offences were not continuing offences.

If we were correct in finding that the offences were not continuing offences, were we correct in treating the third notice (i.e. that which required production of records by 2-8-03 )as the one which should have been complied with"."

11. THE STATUTORY FRAMEWORK

Section 127 of the Magistrates Court Act 1980 provides that:

"A Magistrates' Court shall not try any information or hear a complaint unless the information was laid, or the complaint made within six months from the time when the offence was committed or the matter of the complaint arose."

12. The offence of failing to produce tachograph records is provided for by section 99 of the Transport Act 1968, the relevant parts of which provide that:

"99 (1) An officer … may require any person to produce and permit him to inspect and copy –

(bb) Any record sheet which that person is required by Article 14(2) of the Community Recording Equipment Regulation to retain or by Article 15(7) of that Regulation to be able to produce …

And that record … if the officer so requires be produced at the office of the Traffic Commissioner specified in the notice within such time (being not less than ten days) from the service of the notice as may be so specified.

(4) Any person who –

(a) Fails to comply with any requirement under sub-section (1) of this section …

shall be liable on conviction to a fine …."

13. Article 14 of Regulation (EEC 3821/85) is in the following terms:

"(1) The employer shall issue a sufficient number of record sheets to drivers of vehicles fitted with recording equipment in conformity with Annexe I, bearing in mind the fact that these sheets are personal in character, the length of the period of service and the possible obligation to replace sheets which are damaged, or have been taken by an authorised inspecting officer….

(2) The undertaking shall keep the record sheets in good order for at least a year after their use and shall give copies to the drivers concerned who request them. These sheets shall be produced or handed over at the request of any authorised inspecting officer."

14. QUESTION 1

The first question posed by the case stated is whether the Justices were correct in coming to the conclusion that the offences were not continuing offences. They concluded that although there was a continuing obligation to retain and produce tachograph records, " … it is a once only obligation to produce on each order for production whether or not this results in a prosecution."

15. Mr Nesbitt, who appeared for the appellant, submitted that in the light of the decision of the House of Lords in Hodgetts v Chiltern District Council [1983] 2 AC 120, that was the only conclusion open to the Justices. The decision concerned the offence of non-compliance with an enforcement notice under section 89 (1) of the Town and Country Planning Act 1971. The single issue before the House of Lords was:

"Whether an information which alleges initial failure to comply with the provisions of an enforcement notice under section 89(5) of the Town and Country Planning Act 1971 'on and since a certain date' is bad for duplicity."

Lord Roskill, with whom the remainder of the House agreed, distinguished the two classes of enforcement notices to which section 89 gave rise, namely those which required the owner of the land to do something on it ("do notices") and secondly those which required the user of land to stop doing something on it ("desist notices"). At page 128 A-B he set out what Mr Nesbitt submits is the principle that provides the answer to the first question posed by the Justices:

"It is not an essential characteristic of a criminal offence that any prohibitive act or remission, 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 sub-section (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 …"

16. In my judgment Lord Roskill's analysis plainly applies to the offence created by section 99(4) of the Transport Act 1968. It is an offence of non-compliance with a 'do notice' which is "complete once and for all when the period of compliance with the notice expires". It follows that in my judgment the Justices were correct in their conclusion that the offence did not continue beyond the date specified in the notice for production of the records.
17. QUESTION 2

The second question posed by the Justices is whether they were correct in treating the third of the notices served on the appellant requiring production of specified records by 2 August 2003 as the one which should have been complied with.

18. The question is not well expressed. Each of the notices had to be complied with. The question is whether the failure to comply with the third notice gave rise to offences under section 99(4).
19. As to that it is submitted on behalf of the appellant that the offences were committed by the failure to produce the relevant records in response to the first notice, and that a failure to respond to further notices relating to the same records cannot give rise to further offences. Mr Nesbitt relies upon the dictum of Lord Roskill in Hodgetts that an offence of non-compliance with a 'do notice' "… is complete once and for all when the period for compliance with the notice expires". Mr Nesbitt submits that the essence of the offence is that the appellant failed to collect and/or retain records for a particular period, and in consequence was unable to produce the records in response to the notice. He argues that that gave rise to a criminal offence but that there was no further act or omission giving rise to further criminal liability upon the failure subsequently to produce the same records in response to the second and third notices.
20. Miss Beech, who appeared for the respondent, first sought to set the issue in context. The long standing practice of Traffic Examiners when undertaking routine compliance investigations in relation to a transport operator, is to issue a preliminary request for the production of tachograph records. The request is in the form of a notice under s. 99(1) of the Act, that being the only means available to the Traffic Examiner to require the production of such records. The records are then analysed by the Traffic Examiner. Depending upon the size of the operator's fleet, the task of analysing the charts may be a major exercise. If on analysis there are missing records, the operator is given at least one further opportunity (and usually two) to produce them by the service of further notices under s 99(1). That allows for administrative inefficiencies on the part of the operator. Unlike the first request, which is for all tachograph charts for a specified period, the follow-up requests identify the missing charts by date, vehicle and mileage. If after the second or third request it is clear that record sheets remain outstanding, the operator is interviewed; and it is only after such interview that a decision is made as to whether to lay informations for failure to comply with the final notice under s. 99(1). She argues that the effective enforcement of the regulatory regime requires a degree of flexibility, and that such flexibility is to the advantage of the operator.
21. Secondly Miss Beech submits that operators are under a continuing obligation to retain records for a period of one year, and that service of a notice under s. 99(1) does not relieve them of that obligation. She argues that each notice gave rise to fresh obligations on the part of the appellant, and that the failure to comply with each notice gave rise to a criminal offence. She acknowledges that where a failure to comply with a notice results in a conviction, then a further prosecution based upon failure to comply with a further notice but in relation to the same records, could not succeed. But she submits that where earlier notices have not given rise to a prosecution, then there is no reason why an information cannot be laid following failure to comply with a second or third notice.
22. She further submits that in any event each of the notices was in a different form, the first being in general terms and the second and third specific as to the records that remained outstanding.
23. In my judgment Miss Beech's submissions are well founded. An operator is obliged to retain tachograph records for a period of a year. He can be called upon at any point to produce such records by a notice served under s. 99(1). The failure to produce such records in compliance with the notice will amount to an offence. I see no reason in law why an information should not be laid as a result of failure to comply with the third notice.
24. As the informations were laid within six months of the date of compliance with the third notice, the Justices were entitled to convict the appellant for failure to comply with that notice.
25. The appeal is therefore dismissed.
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MR JUSTICE OWEN: This appeal is dismissed for the reasons set out in the judgment that I have handed down.

MS BEECH: There is one matter remaining outstanding. That is the question of costs.

MR JUSTICE OWEN: Yes.

MS BEECH: I would ask that there be the usual order that the appellant pay the respondent's costs. I have in fact a summary schedule for assessment of those costs for your Lordship today, if you would be so minded to make such an order. (Handed)

This is a very straightforward matter and the figures involved are relatively moderate for a hearing such as the one your Lordship heard.

MR JUSTICE OWEN: Yes. I will hear what Mr Nesbitt has to say.

MR NESBITT: I do not seek to resist the cost in principle. The only area which I would query is the work done on documents by Mr Hodgson, who instructed my learned friend, which is 7 hours. The burden of preparing the documents in this case lay with those instructing me, so I do not quite understand how that amount of work was put in. I would have no argument with any other part of the schedule.

MR JUSTICE OWEN: Well, Mr Nesbitt, I am satisfied that Ms Beech is correct to submit that this is in fact a relatively modest schedule of costs by comparison to many that come before me, and I think it appropriate therefore to assess the costs summarily in the sum claimed which is £4,818.50, and so there will be an order that the appellant pay the respondent's costs assessed in that sum. Thank you both very much.