(back to preceding text)

    32. It will be observed that "produce" under the coda unquestionably contemplates handing over of records. The result is therefore that on the defendant's interpretation the word "produce" is used in different senses in the opening words and in the coda of the subsection. While this is by no means a decisive argument, it is a pointer against the submission of the defendant.

    33. Another contextual indication against the narrow interpretation of the defendant is that under subsection (2)(a) of section 99 an authorised officer is given power to enter certain vehicles "at any time" and under subsection 2(b) to enter any premises "at any time which is reasonable". The defendant's restrictive interpretation of section 99(1) appears to be in disharmony with the admittedly strong powers of the Vehicle Inspectorate under section 99(2).

    34. Concentrating still on the statutory language, there is an even stronger indication in section 99(10) against the defendant's interpretation. It reads:

"In this section references to the inspection and copying of any record produced by means of equipment installed for the purposes of section 97 of this Act in a vehicle include references to the application to the record of any process for eliciting the information recorded thereby and to taking down the information elicited from it."

Subsection (10) refers back to the words "require any person to produce, and permit him to inspect and copy" in subsection (1) when it provides for "the application to the record of any process." Plainly, subsection (10) is wide enough to cover examination and analysis using a computer at the premises of the Vehicle Inspectorate. The fact that, due perhaps to an oversight, there has been no commencement order made in respect of section 99(10) is no answer. Subsection (10) is a sure guide to the best interpretation of the opening words of section 99(1).

    35. Finally, if the interpretation of the defendant is adopted the effectiveness of a regulatory system will be affected. Sometimes an examination and analysis of records at the premises of the Vehicle Inspectorate will be essential. It is true that on the defendant's interpretation the power in the coda exercisable on 10 days' notice will still be available. But, if this was the only available power authorising handing over and removal of the records for examination at the Vehicle Inspectorate's premises, there will be a chance for unscrupulous operators to "lose" the records at their premises or in the post. There may also be scope for tampering with the records. The interpretation of the Vehicle Inspectorate significantly reduces such risks. It therefore best promotes the objective of the statute, viz an effective checking system.

    36. The balance of arguments demonstrate convincingly that under section 99(1) an authorised officer may require the handing over of records. I would therefore endorse the interpretation of the Divisional Court. This conclusion is based on the interpretation of our domestic legislation but it is right to add that my reading of it is consistent with the United Kingdom's obligations under article 14(2) of Regulation 3821/85.

    37. For these reasons as well as the reasons given by my noble and learned friend Lord Hutton, I would therefore dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    38. I have had the advantage of reading in draft the speeches which have been prepared by my noble and learned friends Lord Steyn and Lord Hutton. I agree with them. For the reasons which they have given I too would dismiss the appeal.

    39. There is a division of opinion among us as to whether, in order to establish that an offence under section 99(1)(bb) of the Transport Act 1968 was committed in a case where the officer wishes to take the documents away for inspection and copying, the prosecution must satisfy the magistrate that it was reasonable for the officer to take the documents away. I note that counsel did not address their arguments to this point. But in any event I respectfully agree with Lord Steyn and Lord Hutton that the statute lays down no such requirement.

    40. Section 99(1) confers power on the officer to do things. First, he may, on production if so required of his authority, require any person to produce any of the items listed in that subsection and permit him to inspect and copy them. Second, he may by notice in writing require that person to produce any of those items at the office of the traffic commissioner within such time of the notice as may be specified. Section 99(8), as amended by section 48 and Schedule 4, paragraph 2 of the Road Traffic Act 1991, provides that in that section "officer" means an examiner appointed under section 66A of the Road Traffic Act 1988 and any person authorised for the purposes of that section by the traffic commissioner for any area. In neither case does the subsection provide that the requirement which the officer has made must be shown to have been reasonable. All that the prosecutor needs to show is that the officer made the requirement in the manner which the subsection lays down and that the item which was not produced was one in respect of which he was entitled to make the requirement.

    41. The various items in respect of which an officer is entitled to make the requirement fall into two categories. On the one hand there those which a person is required by regulations to carry or have in his possession, to preserve, to retain or to be able to produce: see section 99(1)(a), (b) and (bb). In their case all that needs to be shown is that the item was of the description laid down by the relevant paragraph. On the other hand there are those which the officer reasonably requires to inspect for the purpose of ascertaining whether the provisions of regulations have been complied with: see section 99(1)(c) and (d). In their case it must be shown that it was reasonable for the officer to require to inspect the item for the purpose laid down in the paragraph.

    42. The question whether it was reasonable, or reasonably necessary, for the officer to take any of these items away for the purpose of inspecting and copying them - which is the point at issue in this case - is a different question, which the subsection does not address. To say that this is a further condition that must be satisfied by the prosecutor would in effect be to insert into the subsection something which is not there. I prefer to base my decision on a construction of the words used by the statute. That is not to say that a requirement made under section 99(1) may not be open to challenge on public law grounds. But that is not the issue in this case.

LORD HUTTON

My Lords,

    43. Part VI of the Transport Act 1968 contains sections which were enacted for the purpose of securing the observance of proper hours or periods of work by drivers of passenger or goods vehicles in order to protect the public against the risks which arise on the roads when those drivers are suffering from fatigue. Section 99 in Part VI relates to the inspection of records and other documents by authorised officers in order to ensure that the permitted driving times have not been exceeded. In 1986 subsection (1) of section 99 was amended by the addition of paragraph (bb) to give effect to Council Regulation of 20 December 1985 (3821/85/EEC) on recording equipment in road transport.

    44. Article 14(2) of the EEC Regulation provides:

"The undertaking shall keep the record sheets in good order for at least a year after their use and shall give copies to the drivers concerned who request them. The sheets shall be produced or handed over at the request of any authorised inspecting officer."

Article 19(1) provides:

"Member States shall, in good time and after consulting the Commission, adopt such laws, regulations or administrative provisions as may be necessary for the implementation of this Regulation.

Such measures shall cover, inter alia, the re-organisation of, procedure for, and means of carrying out, checks on compliance and the penalties to be imposed in case of breach."

    45. The relevant parts of section 99 of the 1968 Act now read:

"(1) An officer may, on production if so required of his authority, require any person to produce, and permit him to inspect and copy -

. . .

[(bb) any record sheet which that person is required by [article 14(2)] of the Community Recording Equipment Regulation [3821/85/EEC] to retain or by [article 15(7)] of that Regulation to be able to produce;]

. . .

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.

An officer may, on production if so required of his

authority -

[(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];

at any time which is reasonable 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.

. . .

(4) Any person who -

fails to comply with any requirement under subsection (1) of this section; or

obstructions an officer in the exercise of his powers under subsection (2) or (3) of this section,

shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale].

. . .

Any person who makes, or causes to be made, [any record or entry on a record sheet kept or carried for the purposes of the Community Recording Equipment Regulation or] section 97 of this Act or any entry in a [book, register or document kept or carried] for the purposes of regulations under section 98 thereof [or[the applicable Community rules]] which he knows to be false or, with intent to deceive, alters or causes to be altered any such record or entry shall be liable -

on summary conviction, to a fine not exceeding [the prescribed sum];

on conviction on indictment, to imprisonment for term not exceeding two years.

If an officer has reason to believe that an offence under subsection (5) of this section has been committed in respect of any record or document inspected by him under this section, he may seize that record or document; and where a record or document is seized as aforesaid and within six months of the date on which it was seized no person has been charged since that date with an offence in relation to that record or document under that subsection and the record or document has not been returned to the person from whom it was taken, a magistrates' court shall, on an application made for the purpose by that person or by an officer, make such order respecting the disposal of the record or document and award such costs as the justice of the case may require.

. . .

(10) In this section references to the inspection and copying of any record produced by means of equipment installed for the purposes of section 97, of this Act in a vehicle include references to the application to the record of any process for eliciting the information recorded thereby and to taking down the information elicited from it."

A commencement order (Transport Act 1968 (Commencement No 6) Order 1970 (SI 1970 No 259)) made under section 166(2) and (3) of the 1968 Act brought subsections (1) to (9) of section 99 into force on 1 March 1970 but, perhaps due to an oversight, no commencement order has been made bringing subsection (10) into force.

    46. The Hertfordshire justices convicted the defendant, a coach operator, of an offence under section 99(1)(bb) and (4)(a) and, rejecting its argument, held that an authorised officer was entitled to require it to hand over at its office tachograph records so that he could take them to be examined and analysed at the office of the Vehicle Inspectorate. The offence was charged in the summons as follows:

"Cantabrica Coach Holdings Ltd . . . on Tuesday 15 September 1998 at Elton Way, Watford in the county of Hertfordshire, or elsewhere, 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."

The certificate of conviction was worded:

"On 15 September 1998 at Elton Way, Watford did fail to comply with a requirement made by an officer under section 99(1) of the Transport Act 1968 in that you failed to produce a record sheet which you were required by article 14(2) of the Community Recording Equipment Regulation [No 3821/85] to retain. Contrary to section 99(4) of the Transport Act as amended."

    47. The defendant appealed by case stated to the Divisional Court which dismissed the appeal. The conclusion of the Divisional Court (Kennedy LJ and Butterfield J) was stated as follows in the judgment of Butterfield J [2000] RTR 286, 304:

"In my judgment the construction placed on section 99(1) of the 1968 Act by the defendant is flawed. I conclude that the operator is required to produce and hand over tachograph record sheets on demand at the operator's premises if such a request is made of him. It is clear that in requiring the production of the document or the handing over of the records the Community legislature took account of the need to ensure effective checking. On the interpretation of section 99 of the 1968 Act as I would hold, it is within the discretion of the authorised officer whether he chooses to inspect the tachograph sheets at the operator's premises (which he might be content to do if the volume of documentation was small and if he had no real concern about it) or take the sheets away for more thorough and detailed analysis (which he might wish to do if, for example, he had concerns about the documentation or if his preliminary inspection suggested to him that all was not as it should be or if the volume of it was such that it was difficult or impossible effectively to inspect at the premises). Alternatively he might require production and handing over of the records at the office of the traffic commissioner."

    48. The Divisional Court refused leave to appeal but certified the following point of law of general public importance:

"Whether it is right to construe the requirement imposed on an operator under section 99(1) of the Transport Act 1968 to produce a record sheet required to be kept under article 14(2) of Council Regulation (EEC) No 3821/1985 3821 of 1985 as conferring a power on the authorised officer to require the handing over of the record sheet on demand without prior notice and without having reason to believe that an offence has been committed contrary to section 99(5) of the Act."

    49. My Lords, the point argued before the House by Mr Phillips QC for the defendant and Mr Plender QC for the respondent was a narrow one. It was whether section 99(1) empowered an authorised officer, who had not given at least 10 days' notice as referred to in the concluding part of section 99(1), to go to the office of the coach operator and require it to hand over to him the tachograph records so that he could remove them for examination at the office of the Vehicle Inspectorate. This was the question set out in the point of law certified by the Divisional Court and it was the question to which the submissions of counsel were directed. It appears that the issue of the reasonableness of the request made by the authorised officer was not raised before the justices or the Divisional Court and counsel did not address the issue of reasonableness as a substantive point in their submissions to the House. Mr Phillips submitted that in the absence of at least 10 days' notice the authorised officer had no power to take away the tachograph records whereas Mr Plender submitted that the first part of section 99(1) gave him that power and that the refusal to permit him to do so constituted an offence under section 99(1)(bb) and (4).

    50. My noble and learned friend Lord Scott of Foscote has considered the issue of reasonableness in his opinion, but having regard to the terms in which the Divisional Court formulated the certified question and to the way in which counsel have advanced their arguments, I confine my opinion to the issue of construction.

    51. I summarise Mr Phillips' submissions as follows. Pursuant to article 19(1) of the Regulation 3821/1985 section 99, as amended, implemented article 14(2) in graduated stages. The first stage was that an authorised officer was given power to require the production of the tachograph records at the transport operator's office and to inspect and copy those records in that office, but he was not given power to take them away for examination at the office of the traffic commissioner. The second stage was that if the Vehicle Inspectorate wished to inspect the tachograph records at the office of the traffic commissioner, then in pursuance of the concluding part of section 99(1) an officer must give at least 10 days' notice in writing requiring production of the records at the office specified in the notice. In addition, if an officer had reason to believe that the offence of the falsification of a record had been committed contrary to section 99(5) he had power to seize the record under section 99(6).

    52. Mr Phillips placed reliance on the point that article 14(2) provided that the records shall be "produced or handed over" at the request of any authorised officer whereas the first part of section 99(1) contained only the word "produced" and not the words "handed over". Mr Phillips accepted that when records were produced at the office of the traffic commissioner pursuant to a notice under the concluding part of section 99(1) the Vehicle Inspectorate could retain the records for examination in that office, but he submitted that the separate power to require production at the traffic commissioner's office and the separate power to seize if there was reason to believe falsification pointed to the conclusion that there was no power under the first part of section 99(1) to take away the records from the office of the transport operator.

    53. Mr Phillips also sought to derive support for the construction for which he contended from article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmnd 8969) ("the European Convention") and submitted that when falsification is not suspected a power for the authorised officer to remove a transport operator's records from its office without notice is an interference with the operator's right of privacy which is excessive and is not proportionate to the legitimate aim of the legislation.

    54. In summary Mr Plender submitted that the requirement in the first part of section 99(1) "to produce" records and to permit them to be inspected includes by necessary implication the handing over and retention for inspection of those records, and that the taking away of the records for effective and thorough examination in the office of the Vehicle Inspectorate is within the ambit of the power of inspection given by the subsection. He submitted that on some occasions the volume of documentation to be inspected by an authorised officer would be substantial and that a proper and effective inspection would not be possible unless the records could be taken away. A transport operator which produced documents in its office which could not be effectively inspected unless they could be taken away for examination by computer or other special equipment in an office of the Vehicle Inspectorate, could not be said to have produced those documents for inspection if it refused to let them be taken away, having regard to the purpose for which article 14(1) of the Regulation 3821/1985 was adopted by the Council of the European Communities and the statutory purpose of section 99.

    55. I consider that the submissions on behalf of the Vehicle Inspectorate are correct. I do not think that the powers contained in the first and concluding parts of section 99(1) were intended to be graduated steps so that the records could only be inspected in the office of the Vehicle Inspectorate if 10 days' notice had been given. I agree with Butterfield J that the powers are concurrent and that it is a matter for the discretion of the authorised officer, depending on the circumstances, to decide whether to go to the office of the transport operator to require production of the records which he may then take away for detailed inspection or to give 10 days' notice requiring the records to be produced at the office of the traffic commissioner. I also consider that the power to seize records under section 99(6) where there is reason to believe falsification relates to a different procedure in different circumstances than the procedure of inspection provided for in the first part of section 99(1) and does not have the effect, as a matter of construction, that the power to inspect is to be as read as confined to inspection in the office of the transport operator.

    56. The purpose of article 14(1) and of section 99 is to protect those who use the roads against the risk of accidents arising from tiredness and lack of concentration by drivers of goods and passenger vehicles who drive for excessive periods. A necessary part of the procedure to give this protection is the careful checking and examination of tachograph records, and it is apparent that such checking and examination will require on occasions that the tachograph records be taken to an office of the Vehicle Inspectorate where the necessary specialised equipment and requisite number of staff will be available. In my opinion this conclusion is strongly supported by the terms of section 99(10) which can be taken into account on the issue of construction notwithstanding that no commencement order has been made in respect of it. It relates to the inspection and copying of records as provided for by section 99(1) and clearly envisages that inspection and copying will require the application to the records of processes for eliciting the information recorded in them. These processes will include the use of computers and other equipment which will only be available for use in the offices of the Vehicle Inspectorate. This is a compelling reason to hold that the power to inspect given by section 99(1) includes the power to take away for the purpose of inspection.

    57. I also consider that there is no substance in the defendant's reliance on article 8 of the European Convention. Even if article 8 can apply to the affairs of a limited liability company (a question on which I express no opinion) the power to take away tachograph records for careful examination is "in accordance with the law and is necessary in a democratic society in the interests of . . . public safety (article 8(2))", and in my opinion it is clear that the power to take away records for such examination cannot be regarded as disproportionate to the legitimate aim of the legislation.

    58. Accordingly, I consider that the decision of the Divisional Court was correct and I would dismiss this appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    59. Tachographs must, subject to some exceptions, be fitted to all commercial vehicles used for the carriage of goods or passengers. Their function is to monitor the work performance of the driver, the speeds at which he is driving, the hours he is at the wheel, the rest periods he takes and so on. The purpose of this is two-fold, namely, first, the well-being of the driver, to try and ensure that he is not being exploited by being required to be at the wheel for longer hours than he should; and second, the safety of the public, who would be at risk if drivers, through driving continuously for too many hours or taking insufficient rest periods, became overtired while at the wheel. These are very important purposes.

    60. The tachograph records must, in order to achieve these purposes, be available for inspection by the authorities. In the United Kingdom, this is one of the functions of the Vehicle Inspectorate. Their inspectors have statutory powers to inspect and copy, and in certain circumstances to seize, tachograph records as well as other records held by the vehicle owners or operators.

    61. The importance of the efficient functioning of the regulatory system to which I have referred is not open to question. But there is another side to the coin to which attention must also be paid. It is easy for officious officialdom to become an offensive burden to the public whom the officials are supposed to serve. It is important that the limits of the powers which allow officials to intrude into the lives and affairs of citizens should be clearly defined and that the limits should be observed. It is of course the function of the courts to support the Vehicle Inspectorate's inspectors in operating the tachograph regulatory system but it is also the function of the courts to guard against the assumption by the inspectors of excessive powers not warranted by the terms of the statutory system.

    62. It is the tension between these two imperatives that has led to the test case that is now before your Lordships.

    63. The tachograph regulatory system consists in part of European legislation and in part of domestic legislation. It is convenient to start with the former.

    64. The Regulations currently in force are Council Regulation (EEC) No 3820/85 and Council Regulation (EEC) No 3821/85, both of 20 December 1985. Regulation 3820/85 sets out the rules relating to drivers and their work that must be observed by the owners or operators of motor vehicles used for the carriage of goods or passengers. Regulation 3821/85 requires the installation in these vehicles of recording equipment, ie tachographs, in order that observance of the Regulation 3820/85 rules may be monitored.

    65. Article 14(2) of Regulation 3821/85 provides that:

"The undertaking shall keep the [tachograph] record sheets in good order for at least a year after their use and shall give copies to the drivers concerned who request them. The sheets shall be produced or handed over at the request of any authorised inspecting officer."

The article does not say what the inspecting officer who has requested the production or handing over of the sheets may then do with them. It is plain enough, given the inspecting officer's monitoring function, that he may inspect the sheets with a view to checking whether the Regulation 3820/85 rules are being observed. But can he remove them for a more detailed examination elsewhere? And, if so, how long can he retain them? The article is silent. Can the inspecting officer take copies of the sheets? The article is silent. Some form of statutory authority for the taking of copies would presumably be necessary to avoid breach of copyright problems. If the inspecting officer is entitled to remove the sheets from the premises of the operator, must any prior notice be given before he does so? The removal of the sheets before the operator has had a chance to take copies might disrupt the administration of the business. On this, too, the article is silent. It seems to me that the cited sentence of article 14(2) is of a skeletal character. Some detail, some flesh, seems to be needed for it to be implemented.