Wednesday Law Report: Mental element of tachograph offence

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The Independent Culture
24 March 1999

Vehicle Inspectorate v Nuttall

House of Lords (Lord Slynn of Hadley, Lord Jauncey of Tullichettle, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hobhouse of Woodborough) 18 March 1999

IN SECTION 96(11A) of the Transport Act 1968, which prohibited an employer of drivers from causing or permitting a driver to contravene the requirements of Community rules restricting driving hours, the word "permitting" meant not taking reasonable steps to prevent contraventions of the rules by drivers.

The House of Lords allowed the defendant's appeal against the decision of the Divis- ional Court to remit charges against him under section 96(11A) of the Transport Act 1968 to the justices with a direction to convict, ordering instead that the matter should be returned to the justices for a retrial.

The defendant was the owner of a coach business. He was charged under section 96(11A) of the Transport Act 1968 with permitting his drivers to contravene the requirements of Community rules restricting driving hours. He had failed to examine charts produced by tachographs, installed in his drivers' vehicles, which established contraventions by the drivers. The justices were not satisfied that the mental element of the offences had been established, and acquitted the defendant on all charges.

The Vehicle Inspectorate appealed to the Divisional Court by way of case stated. The Divisional Court concluded that the justices had erred, and ordered that the case be returned to them with a direction to convict the defendant. The defendant appealed.

T.R.A. King QC and Mark Laprell (Backhouses) for the defendant; Jonathan Foster QC and Paul O'Brien (Dooley & Co) for the Vehicle Inspectorate.

Lord Steyn said section 96(11A) of the 1968 Act prohibited the employer from causing or permitting a driver to contravene the requirements of the rules. The word "permit" should be given the wide meaning of not taking reasonable steps to prevent contraventions of the rules by drivers.

The manifest purpose of the Community rules was to place a responsibility on an employer of drivers to use tachograph records in order to prevent contraventions and to promote road safety.

The offence was not one of strict or absolute liability. Nothing less than wilfulness or recklesness would be sufficient for the mental element of the offence, and in practice recklessness would be the relevant mens rea. If the defendant's state of mind was one of not caring whether a contravention of the regulations took place, that would generally be sufficient to establish recklessness.

In the absence of evidence to the contrary, justices were entitled to assume that a licensed operator would be aware that for road safety purposes he was obliged to perform periodic checks on tachograph records. If, in those circumstances, apart from proof of a series of contraventions by drivers the only evidence was an explanation by the employer that he did not examine the records over the relevant period of time, that was capable of amounting to a prima facie case.

A prima facie case was, however, capable of being rebutted. It had to be emphasised that if justices were not satisfied on the whole of the evidence that the employer had committed the actus reus with at least a reckless state of mind, he must be acquitted.

Contrary to the view of the justices, the defendant's failure to examine the tachograph charts was capable of producing a prima facie case of recklessness in the required sense. It followed that the Divisional Court had correctly held that the decision of the justices was fundamentally flawed and had to be quashed.

The Divisional Court had, however, gone too far in directing the justices to convict. It was for the justices to consider the facts and to decide whether the defendant was able to rebut a prima facie case of recklessness. The direction to convict would accordingly be set aside and the case returned to the justices for a retrial.

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