QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
|GARY MARTIN HARDING||Claimant|
|VEHICLE & OPERATOR SERVICES AGENCY (VOSA)||Defendant|
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Mr Miles Bennett (instructed by CPS solicitors) appeared on behalf of the Defendant
Crown Copyright ©
Wednesday, 10 March 2010
"(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)."
"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."
"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."
"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 ..."
"... 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."