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|Judgments - Vehicle Inspectorate v. Nuttall
Lord Steyn Lord Hobhouse of Wood-borough
LORD SLYNN OF HADLEY
I have had the advantage of reading a draft of the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives, I would allow the appeal and remit the case to the justices for retrial.
LORD JAUNCEY OF TULLICHETTLE
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Steyn and Lord Nicholls of Birkenhead. For the reasons they have given, I too would allow the appeal from the Divisional Court only to the extent of ordering that the matter should be returned to the justices for retrial.
LORD NICHOLLS OF BIRKENHEAD
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse. For the reasons he gives, with which I agree, I would allow this appeal, set aside the direction to convict, and remit the case to the justices for a re-trial. I add only some brief observations on one aspect of this case, concerning the mental element of the relevant offence. This aspect of the case was not explored, and did not call for exposition, in earlier authorities usually cited in this field such as Roper v. Taylor's Central Garages (Exeter) Ltd.  2 T.L.R. 284, James & Son Ltd. v. Smee  1 Q.B. 78, and Grays Haulage Co. Ltd. v. Arnold  1 W.L.R. 534.
A driver of a vehicle who contravenes Community law restrictions on driving hours or driving distances commits an offence under section 96(11A) of the Transport Act 1968. So does the driver's employer if he "caused or permitted" the contravention. "Permitted" is a word commonly found in statutes creating criminal offences. Its meaning depends upon the context. Its meaning, for instance, may be confined to "allowed" or "authorised." Or it may be wider and embrace "failed to take reasonable steps to prevent." In the present case, in agreement with all your Lordships, I consider that "permitted" in section 96 (11A) bears the latter, wider meaning.
The former meaning ("allowed, or authorised") will usually import knowledge, in the sense of knowledge of what was being allowed or authorised. In the normal way, a person cannot be said to allow a particular activity, still less authorise it, unless he is aware of the activity being carried on or expected to be carried on. The latter meaning, however, directs attention in a different direction. Under the latter meaning the offence consists of an omission ("failed to take reasonable steps to prevent"). Thus, in section 96(11A) failure to take reasonable steps to prevent a contravention by the driver is prescribing a standard of conduct an employer is required to attain. The effect is to impose on the employer a duty. The prescribed standard is the objective standard of a responsible employer.
The acts needed to comply with this standard will depend on the circumstances. The employer must act as would a responsible employer in his position. Unless the allotted journeys are so short as to make this unnecessary, one of the steps a responsible employer will normally take is to check the tachograph records periodically. That is the purpose for which they exist. That is why they must be installed in coaches and certain other vehicles. A responsible employer checks them. A responsible employer is mindful of his obligation to ensure that the rules on drivers' hours are observed.
If the employer fails to act as would a responsible employer in his position, he commits an offence, provided his failure was causally linked to the driver's contravention and provided further, and this is the mental element in the offence, his failure so to act was deliberate (in the sense that his omissions were deliberate, and not due to honest mistake or accident).
Beyond this, I can see no significant scope in practice for a further fault element, by way of mens rea, in this offence. In particular, once it is accepted that "permitted" includes failure to take reasonable steps to prevent, there is no place for subjective foresight of the prospect, or risk, of a contravention being committed. The objective standard of a responsible employer applies to all employers, not just those who subjectively foresee a risk (of uncertain degree) of a contravention by a driver. If subjective foresight were an additional ingredient in the offence, it would mean that one employer running this type of business would commit an offence when he deliberately failed to take the relevant steps, being the steps a responsible employer in his position would take, another employer behaving in a similar fashion would not. This would be a surprising conclusion.
This is a case about an owner of a coach business who decided not to examine charts produced by tachographs installed in his vehicles thereby disabling himself from discovering a series of drivers' hours offences committed by his drivers. In layman's terms a tachograph is recording equipment which has the ability to record the time, speed, distance travelled, and work a driver is engaged on. It is a valuable aid in the promotion of road safety.
In 1995 the Vehicle Inspectorate, acting on behalf of the Secretary of State for Transport, brought seventeen charges against the defendant under section 96(11A) of the Transport Act 1968, read with the applicable Community rules, of permitting drivers of his coaches to contravene the requirements of the relevant rules. The prosecution abandoned the charge contained in the first information. On the remaining informations justices sitting at Leyland heard evidence and argument. In respect of those charges tachograph charts established contraventions by the drivers. The dispute before the justices centred on the question whether the prosecution had established against the operator and employer the mental element of the offences. The justices were not satisfied that the mental element was established and acquitted the defendant on all charges.
The Vehicle Inspectorate asked the justices to state a case for the opinion of the High Court. The justices did so. The principal question posed by the justices was:
On appeal the Divisional Court concluded that the justices had answered this question wrongly and ordered that the case be returned to the justices with a direction to convict the defendant on the remaining sixteen charges. The judgment of Popplewell J. (with which McCowan L.J. agreed) is reported under the heading Wing v. Nuttall in The Times Law Reports of 30 April 1997  T.L.R. 225-226. The Divisional Court certified the following question as involving a point of public importance:
This is the basis on which the appeal comes before the House.
The Community rules
Council Regulation (EEC) No. 3820/85 of 20 December 1985 lays down, inter alia, requirements in respect of driving periods, breaks and rest periods. The sixteen charges are variously based on the following provisions of the Regulation 3820/85:
Article 15 of Regulation 3820/85 is also material. It provides:
As an operator of vehicles the defendant also had to comply with the requirements of Council Regulation (EEC) No. 3821/85 of 20 December 1985. Regulation 3821/85 made provision for the installation, maintenance and use of recording equipment or tachographs in vehicles. Regulation 3821/85 places the responsibility on employers for seeing that the equipment functions correctly and is used. The employers must issue record sheets to drivers and keep the returned records for at least a year.
The defendant was the owner and operator of a business trading under the name Redline Coaches with approximately fifteen vehicles and a team of drivers. The sixteen charges cover incidents taking place over a period of two months, namely the period 31 May to 30 July 1995. Seven different drivers were involved. The charges were all brought under section 96(11A) of the Act of 1968. It reads as follows:
The charges are respectively linked with Articles 6.1, 7.1, 8.1 and 8.2 of Regulation 3820/85. The differences between the Articles relied on do not affect the issues raised by the appeal. For illustrative purposes it will be sufficient to quote the second information which recites that the defendant on:
The prosecution did not rely on any particular circumstances to establish the mental element under the various charges. Instead they relied on the general circumstances of the case coupled with the defendant's acknowledged failure to examine the tachograph charts over a period of two months as establishing a prima facie case that the defendant was shutting his eyes to the risk of contraventions by his drivers. The defendant's case, on the other hand, was that recklessness could not be inferred from his mere failure to examine the charts.
The findings of the justices
The justices found that all the vehicles were fitted with tachograph equipment; that the drivers kept records of their journeys by way of tachograph charts; that they returned the charts to the defendant; that the charts revealed that in all the cases under consideration the drivers had contravened the provisions of the Regulation regarding the working hours; and that if the defendant had examined the charts the defendant would have realised that the drivers had contravened the requirements of the provisions of the Regulation. But the justices accepted that the operator's explanation that he had not in fact examined the tachograph charts. The justices then explained their reasons for dismissing the charges in the following paragraphs of the case stated:
That was the context in which the justices posed the question for the opinion of the High Court set out at the beginning of this judgment.
The Divisional Court judgment
In the Divisional Court counsel for the prosecution argued that the justices misdirected themselves in that, in the light of all the circumstances before them, this was a case where the operator had shut his eyes to the obvious possibility of contraventions. In his judgment Popplewell J. pointed out that the attention of the justices had not been drawn to the obligation of the employer under Article 15 of Regulation 3820/85 to perform periodic checks on tachograph charts. He concluded:
The principal submission on behalf of the defendant before the House has been that the Divisional Court has impermissibly blurred the distinction between recklessness and negligence.
The ingredients of the offences
It is now necessary to examine the ingredients of the offences. No distinction need be made in regard to the various applicable Community rules. It is sufficient to consider the matter generally in regard to what constitutes the prohibited conduct actus reus and what is required to be proved in respect of the mental element mens rea. I deal first with the prohibited conduct. Section 96(11A) prohibits the employer of a driver from "causing" or "permitting" a driver to contravene the requirements of the applicable Community rules. Depending on the context the word "permit" is capable of bearing, on the one hand, a narrow meaning of assenting to or agreeing to or, on the other hand, a wider meaning of not taking reasonable steps to prevent something in one's power. But I am persuaded that the second or wider meaning best matches the context. óKóóKThe manifest purpose of the Community rules is to place a responsibility on an employer of drivers to use tachograph records in order to prevent contraventions and to promote road safety. The objective of the rules militates in favour of accepting the second or wider interpretation. The Community rules would be difficult to enforce against employers if "permitting" is interpreted to mean assenting to or agreeing to. In that event section 96(11A) would be relatively ineffective in respect of the criminal responsibility of employers. In my view counsel for the Vehicle Inspectorate correctly submitted that the contextual meaning of "permitting" in section 96(11A) is failing to take reasonable steps to prevent contraventions by drivers.
The mental element of the offence must now be considered. It is not an offence of strict or absolute liability. Nothing less than wilfulness or recklessness will be sufficient. In practice recklessness will be the relevant mens rea. There was some controversy about where the line between recklessness and negligence in respect of an offence under Section 96(11A) should be drawn. Counsel for the defendant cited the judgment of Devlin J. (later Lord Devlin) in Roper v. Taylor's Central Garages (Exeter) Ltd.  2 T.L.R. 284 for a clear statement in an analogous context of the distinction between recklessness and negligence. The context was the meaning of the word "permit" in a provision in the Road Traffic Act 1930. Devlin J. observed [at 288]:
These distinctions were also made in later decisions: see James & Son Ltd. v. Smee; Green v. Burnett  1 Q.B. 78; Gray's Haulage Co. Ltd. v. Arnold  1 W.L.R. 536, and Robinson v. Director of Public Prosecutions  R.T.R. 315. I am satisfied that if the defendant's state of mind is one of not caring whether a contravention of the provisions of the regulation took place that would generally be sufficient to establish recklessness and that that is the necessary mental element in a charge under section 96(11A) of the Act of 1968. If recklessness in at least this sense is not established no offence is committed. Counsel for the defendant invited your Lordships to put a gloss on this statement of the law. He submitted that the prosecution must prove at least that the defendant had knowledge that the contravention was likely to occur and that with such knowledge the defendant permitted the contravention. For my part I would not accept this qualification in the present context. Smith & Hogan, Criminal Law, 8th ed. (1996), p. 64, identify the problem:
Following this reasoning one must take into account that the objective of Section 96(11A) and the applicable Community rules is to protect road users. By ignoring tachograph records an employer takes the risk that this conduct may imperil the safety of the public. If, in the knowledge that there was a possibility that contraventions may be committed, the defendant fails to take reasonable steps to prevent such contraventions the required mental element would generally be satisfied.
The effect of an employer's failure to check tachograph charts
My Lords, it is with some hesitation that I make observations on the position facing justices in a case where an operator decides not to examine tachograph records at all over a period of time. Caution is necessary because the circumstances which may come before the justices may vary greatly. But a few limited propositions can be stated. The reason for the imposition of the tachograph regulations, which have been in operation since 1985, is the notorious fact that in order to fulfil the tasks assigned to them, and for various other reasons, drivers are under considerable pressures and drivers will from time to time feel compelled to exceed reasonable periods of driving. In so acting drivers pose a danger to other road users. The existence of the regulations, and the detailed requirements, designed to promote road safety, must be widely known in the industry. In the absence of contrary evidence, justices are entitled to assume that a licensed operator will be aware that for road safety purposes he is obliged to perform periodic checks on tachograph records. It is true that this obligation under Article 15 of Regulation 3820/85 is not backed by a criminal penalty but it is nevertheless an enforceable obligation. Moreover, the justices are entitled to take judicial notice of two further circumstances:
(a) The application for an operator's licence, which is in standard form, provides that the operator shall make arrangements to ensure that the rules on driver's hours are observed; (b) From time to time drivers, acting deliberately or inadvertently, breach the permitted hours of driving regulations. The installation and operation of the tachograph system is designed to combat the real risk of contraventions by drivers and the endangering of other road users.
In these circumstances, if apart from proof of a series of contraventions by drivers the only evidence is an explanation by the employer that he did not examine the records over the relevant period of time, the case is capable of amounting to a prima facie case of the employer failing to take reasonable steps to prevent contraventions in the state of mind of not caring whether contraventions take place or not. But a prima facie case is capable of being rebutted. That could arise, for example, if an employer gives evidence that he took some other precautions to prevent contraventions. And finally it is necessary to emphasise that if justices are not satisfied on the whole of the evidence that the employer has committed the actus reus with at least a reckless state of mind the defendant must be acquitted.
The correctness of the justices' decision
It is now necessary to turn back to the reasons of the justices. To the extent that they directed themselves that knowledge may be implied "if the defendant is reckless or shut his eyes to what was occurring," the justices may have overstated what needs to be proved in respect of the mental element. They may have intended to convey that the mental element is not satisfied if the operator is merely aware that there was a realistic possibility that drivers were committing contraventions of the driving hours provisions of the Community rules. But I am disinclined to rest anything on such a nicety of language. On balance I am content to assume that the justices did not misdirect themselves on this point.
But I am quite satisfied that the justices erred in concluding that the defendant had no reason to examine the tachograph charts. The defendant was obliged to perform periodic checks of the charts. Subject to a contrary explanation, one is entitled to infer that he was aware of this obligation. His disregard of this obligation shifts the evidential burden to him to explain why he did not comply with the obligation. Contrary to the view of the justices, the defendant's failure to examine the tachograph charts was capable of creating a prima facie case of recklessness in the required sense. In this respect the justices misdirected themselves. It follows that the Divisional Court correctly held that the decision of the justices is fundamentally flawed and must be quashed.
The direction to convict
But the Divisional Court went further and directed the justices to convict. In my judgment that was going too far. It is for the justices to consider the facts and it was for them to decide whether the evidence of the defendant that he relied on the scheduling of vehicles, which the justices record but do not mention in their findings, could rebut a prima facie case of recklessness. It follows that the direction to convict must be set aside. The appropriate order is to return the case to the justices for a retrial.
The conduct element (actus reus)
Counsel for the defendant persuasively argued that the conduct element of the offence was, in any event, not established for the first alleged offence which took place on 31 May 1995 or even some of the other earlier offences. This aspect of the case was not considered by the justices or by the Divisional Court, and is not raised by the certified question. On a retrial the evidence may be presented differently. Apart from the cumulative effect of the drivers contraventions, which must be relevant, there may or may not be admissible evidence of antecedent contraventions. In these circumstances I do not propose to express a concluded view on this argument. On a retrial it will no doubt be necessary to consider it.
The disposal of the appeal
Given my observations on the general issues, it is in my view unnecessary to answer the certified question. The appeal from the Divisional Court's judgment should be allowed only to the extent of ordering that the matter should be returned to the justices for retrial. There should be no order as to costs in the Divisional Court or on the appeal to the House.
LORD HOBHOUSE OF WOODBOROUGH
I gratefully adopt the explanation given by my noble and learned friend Lord Steyn of the manner in which this case has come before your Lordships' House and will not repeat it. The question raised by this appeal concerns what constitutes the commission by an employer of an offence contrary to section 96(11A) of the Transport Act 1968 as amended by the European Communities Act 1972. The relevant words read:
This provision refers to the relevant Council Regulations and must be read together with them. It was under this section that Mr. Nuttall was charged with 16 offences identified by various dates between 31 May and 30 July 1995 when various of his employees had driven his buses for periods exceeding those permitted by the Regulations. There was no dispute that his employees, the relevant drivers, had on 15 out of the 16 occasions committed the offence and that this was apparent from an examination of their tachograph records.
The only person being tried before the Magistrates was Mr. Nuttall. The issue for them was whether the prosecuting authority, the respondents to this appeal, had proved that he had committed the offences charged against him. The charges alleged that he had permitted a person employed by him or subject to his orders to exceed the required limits. The Magistrates therefore had to consider what are the constituents of this crime of permitting: what are the physical and mental elements, the actus reus and mens rea, of the offence.
The criminal liability of the employer under this section is dependant on his employee having contravened the relevant requirement as alleged. If the employee did not infringe the Regulations, then there can be no question of the employer being liable under this section of causing or permitting the alleged infringement. But the offence of causing or permitting is a separate offence only capable of being committed by the employer in distinction from the driver. It is not a vicarious or secondary liability. It is not an "accessory" liability as that term is properly understood. It depends upon the conduct of the employer and his state of mind. However, because the offence is permitting some other event to occur, it is necessary that there be some causal relationship between the conduct of the employer and the employee's infringement. I will have to come back to this aspect later.
The word "permit", like very many other words, is capable of a range of meanings--from "authorise" to "fail to prevent." In any given situation it has to take its meaning from its context. In the context of this legislation and the Regulations, it means, in my judgment, fail to take reasonable steps to prevent. It is used in the section in addition to the word "cause" and has a wider meaning. The person covered by the criminal obligation is a person who is in a position to control the driver; the driver is his employee or subject to his orders. Under the Regulations the employer is under a duty to make periodic checks to ensure that the Regulations are being complied with and, if breaches are found, to take appropriate steps to prevent their repetition. (Article 15.2 of 3820/85.) In agreement with Lord Steyn I consider that the actus reus of the offence of permitting in this section is the failure of the employer to take reasonable steps to prevent the infringement of the Regulations by the driver.
This offence of permitting is a crime of omission which arises from the duty to act and involves the failure to perform that duty. What actual conduct will amount to the offence of permitting will be a question of fact depending on the circumstances of the particular case. For example, an employer whose employees are always, to his knowledge, back in the yard within the required time need not carry out the same checks as one whose employees are sent out on longer journeys which will necessitate the taking of breaks if the Regulations are not to be infringed. Such an employer must certainly carry out some checks. The Regulations require the making of periodic checks and it is implicit that these include checking the tachograph records. The test of reasonableness must be applied objectively having regard to the relevant circumstances which will vary from case to case. But it is not a question of the employer doing what he thinks is reasonable. He must do whatever is involved in taking the reasonable steps to prevent breaches. It is an objective not a subjective criterion. If he does not perform his duty, he has committed the actus reus of the offence.
Offences of this character are to be found in other parts of the criminal law, including driving offences and arson. Thus, offences involving recklessness have an actus reus which involves an objectively assessed element of risk and it is in relation to that actus reus that the subjective element of mens rea then falls to be considered. (R. v. Reid  1 W.L.R. 793; R. v. Prentice  Q.B. 302.)
As already mentioned, the conduct constituting the actus reus must also have a causal relationship to the conduct of the employee which constituted the employee's breach of the Regulations. Where the employer is charged with having caused the employee's breach, the need for the prosecutor to prove such a causal relationship is obvious. Similarly, where the employer is merely charged with permitting, the conduct of the employer must still have been conduct which permitted the employee to commit that breach, i.e. failed to prevent him from exceeding the limits on that particular occasion. The employer's conduct must therefore be conduct which preceded the employee's breach and it must be shown that the performance by the employer of his duty could have prevented that breach. The actus reus of the offence of permitting under section 96(11A) is failing to take reasonable steps to prevent the breach in question. This may be proved in any of a number of different ways depending upon the circumstances of the case. For example, in some cases it may be proved by showing a systematic failure of the employer to perform his duty which, it can then be inferred, contributed to the specific breach of the employee; in others, it may be proved by showing that earlier breaches by the particular employee (or his fellow employees) had not led to any intervention by the employer, either because they had not been picked up or, having been picked up, had been ignored or inadequately responded to by the employer.
This leaves the question what is the mens rea that must be shown in the offence of permitting. On the authorities as cited by Lord Steyn, a reckless state of mind suffices. The case stated, in that it seems to concentrate upon knowledge, fails to address the relevant point. In my judgment, a proper analysis of what is involved in the actus reus of the alleged offence of the employer under the section shows that no significant difficulty arises in the present case on the state of mind of Mr. Nuttall. Contrary to the argument of the parties, the problem in the present case is not one of the mens rea. The conduct of the employer in cases of this type is for better or worse deliberate. He knows that he is not checking the tachograph records. He has a duty to perform. He has a choice: he either takes the requisite steps or he does not. Either his conduct objectively assessed is a reasonable performance of his duty or it is not. It is conduct for which he is criminally responsible if it is of the proscribed character and permits one of his drivers to breach the Regulations.
The commission of the offence does not in practice depend upon any particular subjective state of mind or any particular knowledge of the employer. It is part of his duty to see that he is informed of the relevant facts. The well known dictum of Devlin J. in Roper v. Taylor's Central Garages (Exeter) Ltd.  2 T.L.R. 284 at 288-289, categorising various degrees of knowledge does not help. The relevant question in this type of case will normally be not what he did or did not know but what the performance of his duty required him to know. Absent any special factor such as accident or innocent mistake of fact (neither of which are suggested in the present case), he will not be able to escape criminal responsibility for his acts and omissions, nor will he be able to rebut the case made against him.
An illustration of a situation where, under earlier legislation, it was held that the operator was under an obligation to inform himself is provided by the judgment in James v. Smee  1 Q.B. 78. The offence was permitting the use of a vehicle with defective brakes. The actual user was held strictly liable but the allegation of permitting was held to involve proof of the defendant's state of mind--knowledge or closing the eyes to the obvious. The Divisional Court considered an argument that this conclusion was inconsistent with the earlier case of Browning v. Watson  1 W.L.R. 1172 in which coach proprietors were convicted of permitting one of their coaches to carry public passengers. That conviction was upheld even though the proprietors did not know that such persons were or were going to be carried. The conviction was upheld because "it is clear that the proprietors should take some precaution" to ensure that no members of the public were carried. The Divisional Court in James v. Smee distinguished that decision saying: "It was the failure of the [proprietors'] responsible officer to take any precautions that constituted the permission." (p. 93)
The failure to take the requisite precautions both constitutes the actus reus and, in practical terms, satisfies the requirement of providing prima facie proof of mens rea.
This is in no way a harsh conclusion. The employer is under a positive duty to take the steps which an employer can reasonably take to detect and prevent breaches. He is not required to do the impossible; but he is not at liberty to omit to take those reasonable steps.
The Magistrates were in error since they clearly did not have proper regard to the duty which rests upon an employer of drivers of vehicles coming within the ambit of the Regulations. But similarly the Divisional Court was wrong to direct the Magistrates to convict without further consideration of the evidence. It is necessary that the court be satisfied that the defendant has committed the actus reus--that he has failed to take reasonable steps to prevent the relevant breach of the Regulations. The position may well be different for the offence charged by reference to the breach on 31 May 1995 from those referred to in the subsequent charges. Evidence as to what was the position as disclosed by the available tachograph records prior to 31 May 1995 will clearly be admissible and relevant.
The case must therefore be remitted to the Magistrates' Court for a retrial. I agree that there should be no order as to costs in the Divisional Court or on appeal to the House.
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