England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISONAL COURT

		Royal Courts of Justice Strand, London, WC2A2LL
		22/07/2005

Lord Justice Kennedy:

1. This is a prosecutors appeal by way of case stated from a decision of Justices sitting at Cambridge who on 8^t September 2004 dismissed an information which alleged that on 9^th October 2003 the respondents used a heavy commercial vehicle on a road subject to a weight restriction order, contrary to section 5(1) of the Road Traffic Regulation Act 1984.
2. The material facts were not in dispute. A section of the B 1047 road including Ditton Lane and Homingsea Road in Cambridgeshire was subject to a properly implemented weight restriction. order, the County of Cambridgeshire (Various Streets, Cambridge, Fen Ditton and Homingsea) (Weight Restriction) Order 1989. That order, so far as material, provided in paragraph 2 that "no person shall '" cause or permit any vehicle the maximum gross weight of which exceeds 1 7 tonnes to proceed" on, amongst other roads, Ditton Lane and Horningsea Road.
3. On 9^th October 2003 a three axle vehicle with a crane belonging to the respondents was seen to be driving along the weight restricted road. It had a maximum gross plate weight of 26 tonnes. It was being driven, in the course of his employment, by the respondents' employee, Mr Taylor. When enquiries were made after the incident the respondents said that the vehicle was going to Suffolk, it need not have entered the weight restricted area, and they were not aware of the offence until it was brought to their attention by trading standards officers.
4. Section 5(1) of the Road Traffic Regulation Act provides that-

"A person who contravenes a traffic regulation order, or who uses a vehicle, or causes or permits a vehicle to be used in contravention of a traffic regulation order, shall be guilty of an offence."

The Information.

5. It was alleged in the information that the respondents committed the offence contrary to section 5(1) by using the vehicle on a road in contravention of the weight restriction order in that Article 2 of the order. restricts vehicles exceeding 17 tonnes "from proceeding on the above-mentioned road".
6. As Mr Collier for the respondents points out, that formulation of the offence fails to do justice to the terms of the Order, which is targeted at people who cause or permit heavy vehicles to proceed on weight restricted roads, not at the movement of the vehicles themselves.

The Findings and the Question.

7. In paragraph 7 of the case stated the justices made the following findings -

(i) Associated Lead Mills Ltd were clearly "using" the vehicle on the road as was agreed by the parties.

(ii) Associated Lead Mills Ltd were therefore in contravention of section 5(1) of the Road Traffic Regulation Act 1984

(iii) Cambridgeshire County Council had to prove contravention both of the 1989 Order and of section 5(1) of the Road Traffic Regulation Act 1984.

(iv) The County of Cambridgeshire (Various Streets; Cambridge, Fen Ditton and Horningsea) (Weight. Restriction) Order 1989 states that "No person shall .. cause or permit any vehicle the maximum gross weight of which exceeds 17 tonnes to proceed on any road or length of road specified ... "

(v) Contravention of the 1989 Order required proof that the company. had caused or permitted their vehicle to proceed on certain roads.

(vi) There was no evidence before the court as to the mind of the company.

(vii) The route taken did not give the driver access to the A14, the road he needed to take to complete his journey.

(viii) There was no evidence before the court that Associated' Lead Mills Ltd either caused or instructed the driver to use that . particular route.

(ix) As there was no such evidence, we could not find that the company were in contravention of the 1989 Order and accordingly we dismissed the charge against Associated Lead Mill Ltd.

8. The Justices then posed this guest ion for our determination-

"Were we correct in law to determine that on a prosecution under section 5(1) of the Road Traffic Regulation Act for use of a vehicle in contravention of the County of Cambridgeshire (Various Streets, Cambridge, Fen Ditton and Horningsea) (Weight Restriction) Order 1989 the prosecution had to prove knowledge of the route taken by the driver in order to establish . causation or permission on behalf of the defendant company?"

The Appellant's Submissions.

9. Mr Magee, for the appellant prosecutor, submits that when, as here, a vehicle is being driven by an employee in the course of his employment it is being "used" by the employer, and that in order to establish liability under section 5 all that had to be shown was that the vehicle was in contravention of the relevant order at the material time. It was not necessary to show that the employers knew where the vehicle was being driven.
10. Alternatively Mr Magee submits that when, as in this order, the words "cause or permit" appear without the word "use" they give rise to strict liability. An employer can cause or permit an activity by an employee (acting in the course of his employment) of which the employer is unaware (c.f. Alphacell v Woodward [1972] AC 824, a river pollution case, and Ross Hillman v Bond [1974] QB 435, which was concerned with vehicle overloading).

Respondents submissions.

11. For the respondent Mr Collier submits that in order to establish against the employer an offence contrary to section 5(1) it is necessary to show not only that the employee driver was acting in the course of his employment but also that the employer caused or permitted the vehicle to proceed on the road, in other words that someone exercising a directing mind over the employer's affairs knew what the driver was doing. Mr Collier submits that there is no public policy reason for rendering this driving offence one of strict liability, although, as he concedes, it could have been made an offence of strict liability if the Order had been differently worded.

Discussion.

12. In my judgment the approach adopted in the lower court is unhelpful because one should start with the words of the Order. Clearly the driver contravened the prohibition because he caused the vehicle to proceed on the weight restricted road. That made him guilty of an offence contrary to section 5(1) because he contravened a traffic regulation order. But what about the employer? Unless the words "cause or permit" in this context give rise to strict liability it cannot be suggested on the facts of this case that the employer contravened the prohibition in the Order, and Mr Magee rightly did not contend that the employer contravened the Order. Authorities such as Ross Hillman (supra) and Vehicle Inspectorate. v Nuttall [1999] 1 WLR 629 demonstrate the need for some prior knowledge on the part of the defendant when these words are used.
13. Turning then to section 5(1) and in particular to the words selected for the purposes of this information, it seems to me that the employer can only be found liable if the selected wording imports the concept of vicarious liability, but there is clear authority. for the proposition that it does so. In West Yorkshire Trading Standards Service v Lex Vehicle Leasing Ltd [1996] RTR 70 Dyson J, after reviewing earlier authorities, said at 76 E -

"Thus the line has been clearly and consistently drawn by this court. A person is a user only if he is the driver or the owner of the vehicle, but it applies to the owner only if the driver is employed by the owner under a contract of service and at the material time he is driving on his employer's business. The' line has been described variously as not wholly logical and as somewhat artificial, but it has been drawn by this court after due consideration has' been given to those criticisms, to some extent, for pragmatic reasons and to avoid confusion."

That passage was cited with approval in Jones v DPP [2001] RTR 80, and in the current 21^st Edition of Wilkinson's Road Offences (2003) at paragraph 1.179 a number of propositions are set out, the third of which begins -

"Where the statute creates the offence of 'causing' or 'permitting' as well as 'using', only the driver, a person in the vehicle controlling the driver, a person engaged in a joint enterprise with the driver and the driver's employer, while it is being used on the employer's business, 'use' it."

Conclusion.

14. For the reasons set out above I would answer the question posed by the case stated in the negative, allow this appeal and remit the matter to the Justices with a direction to convict, but as Mr Justice Walker has reached a different conclusion the appeal fails arid is dismissed. (See Civil Procedure 2005 Volume 2 paragraphs 9A -314 and cases therein cited). We considered the possibility of not delivering judgment and arranging for the matter to be re-argued before 3 judges, but the importance of the subject-matter is not such as to justify that extra cost. On the other hand we do believe that the wording of the relevant Order should be re-considered.

Mr Justice Walker:

15. I have the misfortune to differ from my Lord. The respondent company was charged with 'using' a vehicle in contravention of an Order made by the appellant council, contrary to section 5(1) of the Road Traffic Regulation Act 1984. The appellant says that an offence under section 5(1) is a crime of strict liability, in other words a crime in which the prosecution need not prove a mental element on the part of the defendant. Smith and Hogan, Criminal Law, 10^th Edition (2002) observes at pages 119-121 that Lord Reid in Sweet v Parsley [1970] AC 132 powerfully reaffirmed the presumption that a mental element is an essential ingredient in every offence, and that Lord Diplock in R v Sheppard [1980] 3 All ER 899 at 906 noted that the climate of both parliamentary and judicial opinion had been growing less favourable to the recognition of absolute offences over- the last few decades. The distinguished author of that work comments that 'the effect [of these statements] on the practice of the court does not seem to have been great.' However, the author goes on to note that we may well have reached a turning point with recent decisions of the House of Lords in B (a minor) v DPP [2000] 2 AC 256 and K [2001] 3 All ER 897. Having analysed those cases, the conclusion of the author is that all offences of strict liability are vulnerable to challenge by the re-vitalised presumption .
16. In the present case it was assumed that if the words "or who uses" in section 5(1) of the 1984 Act applied to this case then they would import strict liability, and thus we heard no argument on the question whether such a construction can be consistent with the re-vita1ised presumption described by Professor Smith. The trend against strict liability is nevertheless relevant, as it is relied upon by Mr Collier in opposing Mr Magee's construction of section 5(1).
17. Paragraph 2 of the 1989 Order imposes a prohibition on persons: they are not to cause or permit a vehicle exceeding a maximum gross weight of 17 tons to proceed on certain roads. Even before the recent cases in the House of Lords cited by Professor Smith it had been held by this court in Ross Hillman Ltd v Bond [1974] QB 435 that to show guilt of an analogous criminal offence of "causing or permitting" the prosecution must prove a mental element on the part of the defendant. There was at one stage a faint contention by Mr Magee that in reliance on Alphacell v Woodward [1972] AC 824 the words "causes or permits" in the Order could be construed as importing strict liability. Ross Hillman Ltd v Bond involved the phrase "uses, ... or causes or permits to be used". Mr Magee accepted that in that context "causes or permits" entailed proof of a mental element. He suggested that the words "causes or permits" may be construed to have a different meaning, one importing strict liability, when - as in the 1989 Order - they are deployed on their own and not as an alternative to "uses". As pointed out by May J in Ross Hillman Ltd v Bond such a construction would depart from ordinary English usage. I can see no good reason for any such construction, and I reject it. It follows from the findings of fact by the justices that the respondent did not contravene the 1989 Order.
18. Thus this is a case in which the relevant traffic regulation order prohibits persons from doing certain things, the respondent did not do those things, and it is said that the respondent is nevertheless guilty of an offence under section 5(1) of the 1984 Act. To my mind this is a surprising result. For that reason alone I view the appellant's suggested construction of section 5(1) with some concern. The appellant adds that by so construing section 5 (1) it can convert a contravention of an Order which requires a mental element into a crime of strict liability. This doubles my concern. So far as I am aware, counsel did not cite to us any case in which such a result has come about, and unless driven to do so by authority I would be reluctant to hold that it has been achieved.
19. An offence under section 5(1) of the 1984 Act can be committed in two main ways. It is an offence, first, if a person contravenes a traffic regulation order. For the reasons I have given, the respondent did not contravene the 1989 Order. Alternatively, it may be an offence if a person "uses a vehicle, or causes or permits a vehicle to be used in contravention of' a traffic regulation order.
20. It seems to me that as a matter of construction section 5(1) of the 1984 Act is concerned to do two things. First, it ensures that a person who contravenes a traffic regulation order is guilty of an offence. Thus, in the present case anyone who caused or permitted this vehicle to be driven on a weight restricted road contravened the 1989 Order and was guilty of an offence. Second, section 5(1) identifies other circumstances in which an offence may arise. Those circumstances identify as an offender a person who uses a vehicle, or causes or permits a vehicle to be used in contravention of a traffic regulation order. When one examines the general position concerning traffic regulation orders in section 1 and section 2 of the Act, it can be seen that it is not essential for a traffic regulation order to identify the persons who will contravene it. Such an order may require vehicular traffic to do certain things, or prohibit such traffic from doing certain things. Thus a traffic regulation order may be drafted in such away that it may be the vehicle, rather than any person, that contravenes the order. Ross Hillman Ltd v Bond offers an example, although it concerns earlier legislation which referred to regulations rather than orders. Regulation 121 of the Motor Vehicles (Construction and Use) Regulations 1969 provided that as respects certain vehicles a specified axle weight should not be exceeded. The regulation was not framed so as to identify any person who contravened it, it simply identified vehicles that contravened it.
21. I conclude that in section 5(1) of the 1984 Act the words 'or who uses a vehicle, or causes or permits a vehicle to be used in contravention of a traffic regulation order' are present in order to cater for cases where the traffic regulation order identifies a vehicle, and not a person, as contravening it. That being their purpose, they are not engaged in cases where the traffic regulation order identifies persons who contravene it. Such a construction avoids the concerns I have identified earlier in this judgment. The result is that in my view the facts of the present case disclose no offence under section 5( 1) of the 1984 Act, and the justices were right to dismiss the information.
22. For these reasons I would answer the question posed by the case stated, "Yes, because in relation to the 1989 Order only those persons who contravene it will be guilty of an offence under section 5( 1) of the 1984 Act."