England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		10 March 2010

Wednesday, 10 March 2010

1. LORD JUSTICE LEVESON: This is an appeal by way of case stated by the justices for the County of Essex in respect of a finding dated 18 September 2009 when the appellant was convicted of failing to take a sufficient daily rest period, contrary to section 96(11A) of the Transport Act 1968 (as amended). He was absolutely discharged for that offence.
2. The facts can be summarised quite shortly.
3. On 27 February 2008 at 06.10, the appellant commenced a journey driving a vehicle to which Regulation (EC) No 561/2006 ("the Regulations") applies. The vehicle was carrying abnormal load from Tamworth. Tachograph charts show that on that day he commenced work at 6.10 and finished at 20.12.
4. Article 8 of the Regulation provides that in each 24-hour period a driver must take a daily rest period of 11 consecutive hours. This period may be reduced to a minimum of nine consecutive hours not more than three times per week between two weekly rest periods.
5. It was the appellant's intention to stop on the A34 abnormal load lay-by. Unfortunately, that lay-by was full, so the appellant had to stop at the next available lay-by at 18.50. He then removed his tachograph, intending to rest for the night. Having done so, the appellant felt unsafe as the cab and trailer were rocking while other vehicles were passing. He considered this to be unsafe for himself and other road users and took the decision to drive to Chieveley Services. He inserted the tachograph chart back into the tachograph then drove to the services. Having stopped there, however, he found that he was blocking another vehicle and so moved to a different position, a distance of about half a kilometer. He found a suitable place to park for the night and then removed his tachograph at 20.16.
6. At 04.18 on 28 February Mr Harding again commenced to drive. Thus a total period of eight hours and two minutes had lapsed, although the minimum required rest period was nine consecutive hours. He inserted his tachograph into the machine and delivered the load at 08.15. He claimed that under Article 12 of the Regulation the departure from Article 8 was justifiable in the interest of road safety. By his own admission he made no written note at all of the reason for moving the vehicle, that is from the lay-by to Chieveley Services and then within Chieveley Services, and for failing to take the required nine-hour minimum rest period.
7. Having heard the evidence, the magistrates reported their findings as follows:

"(a) Having heard all of the evidence, we reminded ourselves that the prosecution were required to prove beyond reasonable doubt that [the appellant] had failed to comply with the requirements of [the Articles] Article 8(2) of the Regulation.

"(b) Mr Harding had commenced driving on 27th February 2008 at 06.10 hours when he had departed from Tamworth with a load he was instructed to deliver by 08.15 the following day.

"(c) Mr Harding was an HGV driver of some 25 years experience. He was aware that he had to take a daily rest of not less than 9 hours. He planned to stop at the abnormal load lay-by on the A34 in West Berkshire at 18.50 hours, take his rest and recommence driving at 04.20 on 28 February 2008 and make the delivery at 08.15 hours.

"(d) It was agreed by the parties that Mr Harding had only taken a rest of 8 hours and 2 minutes; 58 minutes short of the required 9 hours. We were of the opinion that the prosecution had proved beyond reasonable doubt that Mr Harding was guilty of an offence under Article 8(2).

"(e) We then considered that, notwithstanding the above, Mr Harding had proved to us, on the balance of probabilities, that he fell within the exemption provided by Article 12 of Regulation (EC) No 561/2006.

"(f) We found it proved on the balance of probabilities that Mr Harding had intended to park up and rest for the night in the abnormal vehicle lay-by on the A34. Finding that lay-by full with vehicles, he had driven on to the next available lay-by. Mr Harding had then driven his vehicle from its initial stopping place in a lay-by on the A34 to Chieveley Services as he felt this course of action was necessary to ensure his own safety and that of other road users. We therefore found it proved on the balance of probabilities Mr Harding had moved his vehicle for reasons of road safety. The first limb of Article 12 was satisfied.

"(g) We then turned to the second limb of Article 12 and considered whether Mr Harding had discharged his burden, on the balance of probabilities, to prove that he had made a written record of the nature and reason for his departure from his initial stopping place. This record to be written on the record sheet of the recording equipment or on a printout from the recording equipment or on his dusty roster.

"(h) By his own admission, Mr Harding had not made any written record as required by Article 12. He said he was tired and had forgotten to write the reason on the back of a tachograph chart.

"(i) We therefore found Mr Harding had failed to prove on the balance of probabilities he had made a written record of the nature and reason for the breach of daily rest hours. We found no evidence within the Transport Act 1968 or Regulation (EC) No 561/2006 that there was a legal requirement for the prosecution to prove Mr Harding had acted dishonestly. We found Mr Harding guilty of the offence of failing to have a daily period of not less than the required number of consecutive hours as required by Article 8(2)."

8. The question posed for this court was whether the court were correct in finding Mr Harding failed to establish on the balance of probabilities that he fell within the exemptions for Article 8(2) of Regulation (EC) No 561/2006 as provided by Article 12 by failing to make a written record of the nature and reason for the breach of Article 8(2)."

The law

9. The Regulation is designed to improve social conditions for employees who are covered by it, as well as to improve general road safety (see preamble 17).
10. Chapter 2 identifies crews, driving times, breaks and rest periods. That chapter includes within Article 8 the provision to require daily and weekly rest periods. Article 8(2) requires:

"Within each period of 24 hours after the end of the previous daily rest period or weekly rest period a driver shall have taken a new daily rest period.

"If the portion of the daily rest period which falls within that 24 hour period is at least nine hours but less than 11 hours, then the daily rest period in question shall be regarded as a reduced daily rest period."

11. Article 12 provides an exception:

"Provided that road safety is not thereby jeopardised and to enable the vehicle to reach a suitable stopping place, the driver may depart from Articles 6 to 9 to the extent necessary to ensure the safety of persons, of the vehicle or its load. The driver shall indicate the reason for such departure manually on the record sheet of the recording equipment or on a printout from the recording equipment or in the duty roster, at the latest on arrival at the suitable stopping place."

12. Section 96(11A) of the Transport Act 1968 provides:

"Where, in the case of a driver of a motor vehicle, there is ... a contravention of any requirement of [the applicable Community rules] and 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 not exceeding ..."

13. The point taken on this appeal by Mr Clarke is that the recording requirement contained in Article 12 is there for the purpose of establishing contemporaneously his reasons for derogating from the article so that, if necessary, those reasons may later be tested by a competent authority.
14. Having decided that the appellant had acted neither dishonestly nor improperly where his early failure was one of failure to record his reasons for derogating from the article, Mr Clarke argues that he should not have been convicted of the offence. With great skill in this court he amplified that argument by submitting that the only purpose of a driver writing on a tachograph was to provide a contemporaneous record of the reason which the Vehicle Operator Services Agency could accept, but that once the court had accepted the truthfulness of the driver's explanation the purpose of the legislation was satisfied and there was no basis for pursuing the driver solely because he had failed to comply with the requirement to record the detail on his tachograph or otherwise contemporaneously.
15. He submitted that a comparison could properly be drawn with Article 9 ("the ferry rule"), which also derogates from the driving time requirements for the purpose of accompanying a vehicle transported by ferry or train by noting that no contemporaneous note was required in those circumstances because a ticket would be available to prove the derogation. Road safety, he submitted, is not improved by the requirements of the recording and therefore the word "must" in Article 12 should be read down, so that where, as here, the court finds a complete justification for the movement of the vehicle is established no offence is proved.
16. For my part I do not agree. The language of the regulation and the legislative purpose, are not only to require compliance, but to permit derogation only in very restricted circumstances to ensure the safety of persons, vehicle or load with contemporaneous evidence to justify that derogation available for all to see from the first possible moment up to and including weeks or months later, should records fall to be checked.
17. Mr Clarke argues the appellant should not be punished for what was a clerical error. Although he recognises that the appellant was absolutely discharged, he points to the non-penal consequences of the finding of guilt and issues such as employment or insurance. In my judgment those consequences follow from the failure to comply with the regulation and for no other reason.
18. I would dismiss this appeal.
19. MR JUSTICE CRANSTON: I agree.
20. The thrust of Regulation (EC) No 561/2006 is not only on road safety but also on enforcement of this purpose and the Regulation's social welfare purpose. That is evident throughout the recitals to which reference can be made. Record-keeping facilitates the road safety aim. As my Lord has said, the terms of Article 12 are clear. The record-keeping is mandatory. Case C-235/94, Bird [1995] ECR I-03933 supports that conclusion. Paragraph 12 of the judgment, addressing a comparable provision in the earlier regulation, couples the road safety and record keeping limbs of Article 12:

"... it is for the driver to decide whether it is necessary to derogate from the Regulation, to choose a suitable stopping place and to indicate the nature of and reason for the derogation on the record sheet of the recording equipment or in his duty roster."

21. LORD JUSTICE LEVESON: Thank you very much, Mr Clarke. Nobody can say that you didn't ...
22. Yes, Mr Bennett.
23. MR BENNETT: Costs.
24. LORD JUSTICE LEVESON: Have the relevant schedules been served? The answer is either, "Yes" or "No".
25. MR BENNETT: The answer is "No". It has been drawn to my learned friend's attention and I do have a schedule. I am not trying to argue against myself here but I am also acutely aware that my involvement has been late and not of great assistance and imagination and I am aware that we are a government agency.
26. But the reason why, albeit late in the day, the Vehicle Operator Services Agency decided to become involved was because of the possible risk in relation to floodgates of drivers simply being able not to record and pointing to Divisional Court authority thus making enforcement that much more difficult and when we realised that most of these alleged offences and breaches come to light not by stopping the driver at the roadside but by inspection of records many months later where without a contemporaneous record it is almost impossible to see what the driver was doing and whether there was genuine reason or a poor reason. That is why I make the application. But it is a matter as we all know entirely in the discretion of the court.
27. LORD JUSTICE LEVESON: What do you say, Mr Clarke?
28. MR CLARKE: My Lord, one of the reasons why we brought this appeal was because up until my Lord's judgments there was no law on this point. And there has been (inaudible) some uncertainty as to the true position. Secondly, for what it is worth and I accept that it is worth very little, myself and those instructing me appear by (inaudible) and so either way nothing accrues to us. Thirdly, we are dealing with a government agency who have a budget and are responsible for the enforcement.
29. LORD JUSTICE LEVESON: I thought they didn't have a budget any more.
30. MR CLARKE: I think they do.
31. LORD JUSTICE LEVESON: They have a budget but it is not --
32. MR CLARKE: It is not enormous, but they have a budget.
33. (Pause)
34. LORD JUSTICE LEVESON: What is the schedule?
35. MR BENNETT: £2,565.38.
36. MR CLARKE: My Lord, I have not seen the schedule. No question that it is anything other than proper but I would like to see a copy. (Handed).
37. LORD JUSTICE LEVESON: Do you want to say anything about the figure, Mr Clarke?
38. MR CLARKE: My Lord, no. As I have said I have no doubt it is perfectly proper.
39. LORD JUSTICE LEVESON: I think if you seek to challenge a case like this I think you probably have to bear the consequences.
40. MR CLARKE: That is not the unexpected ruling.
41. LORD JUSTICE LEVESON: I will make an order in the sum mentioned.