House of Lords
|Session 2001- 02
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|Judgments - Cantabrica Coach Holdings Limited v. Vehicle Inspectorate (On Appeal From A Divisional Court of The Queens Bench Division)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Hutton Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
CANTABRICA COACH HOLDINGS LIMITED
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEENS BENCH DIVISION)
ON 22 NOVEMBER 2001
 UKHL 60
LORD SLYNN OF HADLEY
1. On 10 May 1999 the appellant defendant was convicted of failing to comply with a requirement under section 99(1) of the Transport Act 1968 in that "[it] failed to produce a record sheet which [it was] required by article 14(2) of the Community Recording Equipment Regulation [Council Regulation (EEC) No 3821/85] to retain contrary to section 99(4) of the Transport Act 1968 as amended".
2. The 1968 Act which originally provided a domestic regulatory code dealing with hours of driving of those engaged in the carriage of passengers and goods by road was amended to take account of Community Regulations and in particular of the provisions of Council Regulations (EEC) Nos 3820/85 and 3821/85 as amended. Regulation 3820/85 was directed to harmonising conditions of competition between methods of inland transport, "especially with regard to the road sector and the improvement of working conditions and road safety". It laid down, inter alia, driving and rest periods for drivers. Regulation 3821/85 provides for recording equipment to be installed and used in vehicles registered in a Member State which are used for the carriage of passengers and goods and for monitoring compliance with the regulations. Article 14(1) of that Regulation requires the employer to give to drivers a sufficient number of record sheets of an approved model. By article 14(2)
3. It is to be noted that by article 15(7), whenever a request is made by an authorised inspecting officer to do so, the driver must be able to produce the record sheets for the current week, and in any case for the last day of the previous week on which he drove. There the obligation is limited to producing.
4. Part VI of the 1968 Act as amended provides for "Drivers' Hours". That part by section 95(1) "shall have effect with a view to securing the observance of proper hours or periods of work" by the drivers covered by the legislation "and thereby protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from fatigue". Subsequent sections of the Act provide the detail of permitted hours and for the installation and use of recording equipment and empower the Secretary of State by section 98 to make regulations to achieve the objectives of the legislation. By section 99(1)(bb) with which this appeal is concerned:
(a) at any time, enter any vehicle to which this Part of this Act applies and inspect that vehicle and any recording equipment installed in it and inspect and copy any record sheet on the vehicle on which a record has been produced by means of the equipment or an entry has been made;
(b) at any time which is reasonable or having regard to the circumstances of the case, enter any premises on which he has reason to believe that such a vehicle is kept or that any such record sheets, books, registers or other documents as are mentioned in subsection (1) of this section are to be found, and inspect any such vehicle, and inspect and copy any such record sheet, book, register or document, which he finds there."
5. In subsection (3) the officer is given power to detain the vehicle during such time as is required for the exercise of his power under subsection (2)(a).
6. Subsection (5) creates offences of making false entries and by subsection (6):
7. It is plain that for these provisions to be effective, adequate monitoring of records of hours worked is essential for the protection both of the public and of the drivers. Slackness and dishonest records could defeat the purpose of the legislation. It is no less evident that drivers and employers are entitled to say that the activities of enforcing officers must fall squarely within the powers conferred on them. It is not to be assumed that there is a licence for unlimited intervention. It is the balance between these two factors which has led to the present appeal.
8. The justices, when asked to state a case for the opinion of the High Court, found the following facts:
9. Having found the case proved the justices fined the defendant £400 and ordered costs to be paid by it in the sum of £3955.87. They put the following question for the opinion of the High Court:
10. The Divisional Court answered each question in the affirmative. They certified as a point of law of general importance involved in the decision:
11. Both sides attach importance to the answer to this question in what is being treated as a test case. Although the case only involves in effect tachograph records it is to be borne in mind that the right to require the production and the duty to permit the officer to inspect and copy apply not only to tachographs under section 99(1)(bb) but also to other documents. Thus the power and the obligation apply also to (a) any book or register which that person is required by regulation to carry or have in his possession, or which is required to be "carried on any vehicle of which that person is the driver"; (b) any book or register which that person is required to preserve; (c) if that person is the owner any other document which the officer may "reasonably require to inspect" for the purposes of ascertaining whether the Act and Regulations made under it have been complied with and (d) any book, register or document required by Community rules which the officer may "reasonably require to inspect" to ensure that Community rules have been complied with. The scope of the power and duty provided for in section 99(1) must be referable to these too.
12. The charge was of failing to "hand over" the charts contrary to section 99(1)(bb) and (4)(a) of the 1968 Act. As appears from the findings of fact the real problem here was that whereas the company was willing to let the officer inspect the charts at their office, they were not willing to let him take them away; he was only satisfied by being given permission to take them away, presumably to inspect and perhaps to copy them at his office. It seems to me that the requirement to "produce" involves no more than providing them for the officer to see. If the officer on notice, or in circumstances where they are readily available and when they can be shown very quickly, requires production at the company's premises a refusal to provide them for him to see would be an offence. Even though they were not in fact so provided or produced in this case that was only because the officer was not interested in having them at the premises and the company would not let him take them away. There was not in any sense a refusal to "produce" them to the officer at the company premises.
13. If that had been all there would have been, it seems to me, no offence under the section. The real question is whether the company had failed to "permit him to inspect and copy" which seems to be what was intended by the allegation that the company had failed "to hand over" the charts, a phrase taken from article 14(2) of Council Regulation (EEC) No 3821/85 which requires that they shall be "produced or handed over".
14. The defendant says that as a matter of language "permit to inspect and copy" does not include taking away to inspect and copy. If production is satisfied by providing the documents at the premises the company is only required to permit inspection and copying at those premises. The defendant also says that this is a deliberate part of the statutory scheme. Section 99(1)(bb) is concerned with routine inspection. If more is required then the power in the concluding words of section 99(1) must be used as it would be if the officer knew that by reason of the quantity of the records it would be necessary or more convenient to have them at his office. A further stage is provided for in the power of seizure under section 99(6) of the Act where it is suspected that the documents have been falsified.
15. I do not consider that the power to require documents to be taken to the office of the traffic commissioner in the final words of section 99(1) in itself necessarily leads to the conclusion that documents can only be taken away by an officer if he gives 10 days' notice under that final provision. The question remains whether the power to require the person to permit the officer to inspect and copy the record sheets includes the power to take them away for that purpose.
16. I accept the defendant's argument that, even acknowledging the importance of this monitoring process in the interests of road safety, it is necessary to be satisfied that Parliament intended the opening words to confer a power to take possession of business documents and to remove them from the company's premises even if temporarily and for the specified purpose. It is perhaps easier to accept that this was intended in respect of records which the Act or Regulations made by the Community or by the Secretary of State require to be kept in order to achieve the objectives of the legislation than in respect of "any other document[s]" referred to in section 99 (1) (c). The position however of all these documents has to be considered.
17. I do not consider that any assistance is to be obtained on the question in this case from the provisions of section 99(2).
18. It is essential to bear in mind that the power is given so that the officer can "inspect and copy". If the documents are few and copying facilities are available at the company's premises so that it is not reasonably necessary to take them away, production to the officer for inspection and copying there is in my opinion a compliance with the section. If on the other hand the documents are many or such that a proper inspection and copying is only possible with other equipment which is not immediately available then to enable the officer to inspect and copy he must be able to take them away but only for such period as is reasonably required for their inspection and copying.
19. It is to be noted that the power to require documents in paragraphs (c) and (d) of the section 99(1) can only be exercised "reasonably" and whether it is reasonably necessary to take documents away in order to inspect and copy is no more difficult to answer in my view than it is to answer the question whether under paragraphs (c) and (d) the requirement is reasonable. It seems to me that this approach should not unusually cause any difficulties though I realise that there may be grey areas where the officer and the company may not agree as to what is reasonable. If, however, the officer reasonably requires to take the documents away and the company refuses it will of course risk prosecution. If the company's refusal is based on the claim that it is not reasonably necessary to take the documents away for inspection and copying and that defence is raised before the magistrates, then it seems to me at present (though the matter did not arise here and was not argued on this basis) that the prosecution must satisfy the magistrates that it was reasonable to take the documents away. The magistrates will of course have regard to the purpose and importance of the officer's inspection.
20. I regard this conclusion as clearly compatible with the requirements of article 14(2) of Council Regulation (EEC) No 3821/85 and do not find it necessary to refer a question to the European Court of Justice as to the meaning of that article.
21. It seems to me accordingly that where no notice has been served under the concluding words of section 99(1) and there is no reason to believe that an offence has been committed under section 99(5) of the Act an offence will be committed if the transport operator refuses to permit a vehicle inspector to take documents that it is reasonably necessary for him to take in order to inspect and copy them.
22. I do not consider that such a conclusion can possibly be a violation of article 8 of the Convention rights set out in Schedule 1 to the Human Rights Act 1998. As the Divisional Court held the provision is "in accordance with the law" and "necessary in a democratic society in the interests of public safety".
23. As to the facts of the present case it seems to me that, it not having been contended that the officer's request to take away the documents in order to inspect and copy them was unreasonable and that that in itself was a defence, the justices were entitled to find the offence proved. I would accordingly dismiss the appeal.
24. Road safety is a high imperative. What can reasonably and sensibly be done to promote it, must be done. Driver fatigue is apparently a significant factor in road accidents in the United Kingdom. The risk affects both drivers of heavy goods vehicles and ordinary car drivers. Added to this, however, it is a notorious fact that drivers of heavy vehicles are sometimes under commercial pressures, or feel under commercial pressure, to drive inordinately long hours. In order to reduce the risk of accidents resulting from fatigued drivers it is necessary to control the number of hours they drive per day. The tachograph has to-date been a prime tool in establishing and operating the regulatory system. A tachograph records the measurements of a tachometer: it notes the speed and times at which the vehicle was driven. An indispensable part of the regulatory system has been the regular and effective inspection and examination by the Vehicle Inspectorate of the relevant record sheets.
25. Article 14(2) of Council Regulation (EEC) No 3821/85 imposes on a transport operator obligations relating to the retention, production and handing over of tachograph records. It provides:
Article 15(7) of the Regulation imposes on the driver of a vehicle fitted with a tachograph an obligation to produce certain record sheets to an inspecting officer. The Regulation has direct effect. It is the backcloth to the corresponding provisions in our domestic legislation.
26. The obligation under the law of England and Wales to produce records to an inspecting officer is contained in section 99(1)(bb) of the Transport Act 1968, which was added as part of the amendments made to Part VI of the 1968 Act in order to give effect to the European code. The relevant part of section 99(1) reads:
and that record sheet, book, register or document shall, if the officer so requires by notice in writing served on that person, be produced at the office of the traffic commissioner specified in the notice within such time (not being less than 10 days) from the service of the notice as may be so specified."
The words after paragraph (bb) I will call the coda. Subsection (4)(a) of section 99 makes it an offence to fail to comply with a requirement under section 99(1).
27. The appellant defendant, a coach operator, was prosecuted for an offence contrary to section 99(1)(bb) and section 99(4) of the 1968 Act in that "on . . . 15 September 1998 . . . when asked by an authorised officer to hand over tachograph charts required to be kept by article 14(2) of Council Regulation (EEC) No 3821/85 failed to do so contrary to section 99(1)(bb) and (4)(a) of the Transport Act 1968". It was common ground that on 15 September 1998 an authorised officer required the defendant to hand over the relevant records for August 1998. Through a senior employee the defendant agreed to allow the authorised officer to inspect the records but refused to allow the officer to remove the records from the defendant's premises. When the requirement was renewed on 1 October 1998 the defendant adopted the same position. A prosecution was launched. The information came before justices for hearing. The defendant contended that he was not legally obliged to hand over the records. On 10 May 1999 Hertfordshire justices convicted the defendant. The defendant was fined £400 and ordered to pay costs of £3,955.57. At the request of the defendant the justices stated a case for the Divisional Court of the Queen's Bench Division. The case stated in effect raised the question of law whether the authorised officer was entitled to require the records to be handed over to enable them to be examined and analysed at the premises of the Vehicle Inspectorate.
28. The Divisional Court (Kennedy and Butterfield LLJ)  RTR 286 answered the question in the affirmative and dismissed the appeal. The conclusion of the Divisional Court is contained in the following passage in the judgment of Butterfield J, at p 304:
The Divisional Court refused leave to appeal but certified the following question:
The rival contentions are as follows: The Vehicle Inspectorate contend that properly construed section 99(1) authorises a requirement that the relevant records be handed over so that they can be examined and analysed at premises of the Vehicle Inspectorate. The defendant argues that section 99(1) does not authorise a requirement that the records be handed over: it only authorises a requirement that the records be produced for inspection and copying on the defendant's premises. This is a narrow point of statutory construction. It is the only issue before the House. In particular there is no issue as to whether the exercise of the power under section 99(1), whatever the precise scope of the power, was reviewable on public law grounds.
29. It is of paramount importance to keep in mind the objective of the statutory power under section 99(1). The purpose is spelt out in section 95(1). It provides that Part VI of the 1968 Act, of which section 99(1) forms a part, shall have effect:
The preambles of Regulation 3821/85 make clear that this "social legislation" is intended "in the interests of road safety" to provide for "effective checking of records" of drivers' hours. The system is intended to "minimise any possibility of fraudulent use". This overriding objective of the European code is spelt out at length in Council Directive of 23 November 1988 (88/599/EEC). Significantly it provides in article 4(3) that:
The context, European and domestic, shows that a regulatory system of routine checks of records, which is effective to secure the objective, was contemplated by the 1968 Act as amended.
30. Counsel for the defendant contrasted the provisions of section 99(1) with the provisions of section 99(6) which authorises seizure of records when an officer has reason to believe that an offence of tampering with records under section 99(5) has been committed. He argued that section 99(6) shows that "produce" in the opening words of section 99(1) does not authorise a requirement to hand over records. This argument equates a handing over of records for examination and analysis with a seizure of records. That is not a legitimate position. The remedy of seizure under section 99(6) is a more draconian remedy than handing over records (if that is authorised by section 99(1)) for the limited purpose of examination and copying at the Vehicle Inspectorate's premises. The point does not assist the defendant.
31. Similarly, I must reject the argument on behalf of the defendant based on the power contained in the coda of section 95(1) to require "production" of records at the office of the traffic commissioner upon no less than 10 days' notice. This is a different power: it involves not an obligation to produce or hand over but an obligation to deliver records at the office of a different agency, viz the traffic commissioner. The subsection therefore provides for two distinct powers: the power under the opening words of section 99(1) requires no specified period of notice as a condition precedent to its exercise; and the power under the coda of section 99(1) requires 10 days', notice to be given. The existence of two such separate powers are in no way inconsistent: the existence of separate powers is part of a coherent and rational statutory scheme. The two powers must not be confused or conflated. It is impossible to read into the opening words the implication that 10 days', notice must be given before that power is exercised.