BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> National Trailer & Towing Association Ltd v Chief Constable Of Hampshire [1997] EWHC Admin 1001 (11 November 1997)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/1001.html
Cite as: [1997] EWHC Admin 1001

[New search] [Context] [Printable version] [Help]


NATIONAL TRAILER AND TOWING ASSOCIATION LTD v. CHIEF CONSTABLE OF HAMPSHIRE [1997] EWHC Admin 1001 (11th November, 1997)

IN THE HIGH COURT OF JUSTICE CO/2797/97
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

Royal Courts of Justice
Strand
London WC2

Tuesday, 11 November 1997



B e f o r e:

LORD JUSTICE PILL

and

MR JUSTICE GARLAND

- - - - - -



NATIONAL TRAILER AND TOWING ASSOCIATION LTD
Applicant

-v-

CHIEF CONSTABLE OF HAMPSHIRE
Respondent


- - - - - -

Computer Aided Transcript of the Stenotype notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
(Official Shorthand Writers to the Court)

- - - - - -

MR D LAMMING with MR D BOWEN (Instructed by Messrs Barker Gotelee, Ipswich IP7 3RF) appeared on behalf of the Applicant.

MR J FULLER (Instructed by Crown Prosecution Service, Basingstoke) appeared on behalf of the Respondent.

_____________

J U D G M E N T
(As approved by the Court )
____________

©Crown Copyright
Tuesday, 11 November 1997
J U D G M E N T

1. MR JUSTICE GARLAND: This appeal by way of case stated is, perhaps unusually, on the application of the National Towing and Trailer Association Limited as "a party aggrieved by the conviction" pursuant to s 111(1) of the Magistrates' Courts Act 1980.


2. The actual conviction was recorded against Bernard Peter Cowley on 14 February this year at Winchester for using a vehicle, a Daihatsu four-track 4 x 4, to which s 97 of the Transport Act 1968 applied, when there was not in the vehicle recording equipment (a tachometer) which had been installed in accordance with the Community Recording Equipment Regulation contrary to s 97(1)(a)(i) of the 1968 Act.


3. A company called Lindsays Limited were similarly charged after the information had been amended. They too were convicted, but it is now conceded that this conviction cannot be sustained because on the facts found the company did not use the vehicle. This is a matter to which I shall revert briefly.


4. The facts found were that on 23 May of last year Mr Cowley was driving the Daihatsu 4 x 4, towing an Avon Field trailer on which was a new Hyundai car which Mr Cowley was, in the course of his business as a self-employed transport contractor, delivering to Lindsays. Lindsays were Hyundai dealers. The trailer weighed some 2,600 kg. It was connected to the Daihatsu by a normal hitch. The Daihatsu weighed 2,550 kg, so the combined weight of the towing vehicle and trailer was 5,150 kg. The Daihatsu was not fitted with a tachograph.

5. Turning to the law, s 97(1) of the 1968 Transport Act provides that:

"No person shall use, or cause or permit to be used, a vehicle to which this section applies--
[(a)] unless there is in the vehicle recording equipment which--
[(i)] has been installed in accordance with the Community Recording Equipment Regulation...",

and I need read no further. Contravention is of course an offence. Sub-section (6) is important. That provides:
"This section applies at any time to any vehicle to which this Part of this Act applies if, at that time, Article 3 of the Community Recording Equipment Regulation requires recording equipment to be installed and used in that vehicle; and in this section and section 97A and 97B of this Act any expression which is also used in that Regulation has the same meaning as in that Regulation."

6. Article 3 para. 1 of the Council Regulation (EEC) No 3821/85 provides:


"Recording equipment shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers or goods by road, except the vehicles referred to in Articles 4 and 14(1) of Regulation (EEC) No 3820/85."

7. The relevant exception is Article 4, in that the regulation shall not apply "to vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, does not exceed 3,5 tonnes..."


8. I observe at this stage that Article 1 of that regulation contains definitions of "vehicle", "motor vehicle", "tractor", "trailer" and "semi-trailer" which may, as we shall see, have caused some confusion amongst the justices.


9. Vehicles which are required to have recording equipment installed are defined by s 95(2) of the 1968 Act, which provides as follows:

"This Part of this Act applies to--
(a) passenger vehicles, that is to say--
(i) public service vehicles; and
(ii) motor vehicles (other than public service vehicles) constructed or adapted to carry more than twelve passengers."

10. Of course that does not apply to this case. Then:


"(b) goods vehicles, that is to say--
(i) heavy locomotives, light locomotives, motor tractors and any motor vehicle so constructed that a trailer may by partial superimposition be attached to the vehicle in such a manner as to cause a substantial part of the weight of the trailer to be borne by the vehicle; and
(ii) motor vehicles (except those mentioned in paragraph (a) of this subsection) constructed or adapted to carry goods other than the effects of passengers."



11. The decision of the justices appears at paragraph 6 of the case, and is to this effect:

"We were of the opinion that the Daihatsu 4 x 4 was a goods vehicle within the meaning of section 95(2)(b)(i) Transport Act 1968, and should, therefore, have been fitted with the appropriate recording equipment, and accordingly we convicted both the defendants."



12. The prosecution had not called any evidence about the weight of the trailer being superimposed or transferred to the towing vehicle (the Daihatsu). The defendants had. That is referred to in paragraph 3(c) of the Case as follows:

"No evidence had been led by the prosecution as to the amount of the weight of the trailer which was or would be borne by the Daihatsu vehicle when the trailer was connected to it. Further, the evidence of Mr. Hanley for the defendants (which was not contradicted by any other evidence) was that a 'fifth wheel' was required before a trailer could be partially superimposed in such manner as to cause a substantial part of the weight of the trailer to be borne by the vehicle: a towbar of the type on the Daihatsu could not possibly bear a substantial part of the trailer weight. Thus, the Daihatsu was not a goods vehicle within the meaning of section 95(2)(b)(i) of the Act."

(That passage appears as a summary of the contentions on behalf of the defendant and is not a finding of fact.)

13. The justices decided, as has already been said, that the Daihatsu must have been a motor vehicle so constructed that a trailer might, by partial superimposition, be attached to the vehicle in such a manner as to cause a substantial part of the weight of the trailer to be borne by the vehicle. Of course it would have had to have been borne by the tow bar.

14. Today the applicants have put before us sketches of a standard articulated truck; a truck and turntable self-steering trailer; a truck and articulated trailer with converter dolly; and a light vehicle towing a Group O2 trailer, which is what this case is concerned with. It appears to the Court, although these matters must always be founded on findings of fact, that the superimposition passage in (b)(i) of s 95(2) is dealing with an articulated truck with a fifth wheel.


15. It is now conceded by the respondent that the question posed by the justices, which is as follows:

"...whether we were correct to conclude, as a matter of law, that a Daihatsu 4 x 4 vehicle when drawing a trailer was a goods vehicle as defined by section 95(2)(b)(i) of the Transport Act 1968 where the combined weight of them both was in excess of 3,500 kilos and therefore would by virtue of the Community Equipment Recording Regulation 1985 require a tachograph",

must be answered in the negative. The justices made, as has already been said, no finding of fact. All they have done is to recite the defendant's argument at 3(c), to which reference has been made.

16. That findings of fact are essential is supported by the case of Director Public Prosecutions v Free's Land Drainage Company Limited [1990] RTR 37 which concerned a tractor unit and a dolly interposed between the tractor and the trailer where a substantial proportion of the weight of the trailer was apparently transferred to the dolly but not to the tractor unit. The justices had made no finding of fact whether and, if so, how much of the trailer weight was borne by the tractor unit, and an appeal against the dismissal of the information was not allowed by this Court on the basis that there was simply no finding of fact and the Court declined to speculate.

17. We were invited by the respondent to give some indication as to how to approach the word "substantial". This invitation we declined as it is essentially a matter of evidence in each individual case.


18. The respondent, as well as conceding the first point in the case, and the one on which the justices determined it, endeavoured to argue that attaching the trailer turned the Daihatsu into a motor vehicle adapted to carry goods within s 95(2)(b)(ii), because it was argued that "carry" in this context must include carriage by towing and should not be given the restricted meaning contended for by the applicants, who submit that "carry" means "in or on the vehicle itself". That argument, they submit, is supported by the words "other than the effects of passengers" which appear in the statute itself. The necessary adaptation would of course be the fitting of the tow bar.


19. In my judgment, this is an untenable argument. Some consideration of a similar point was made in the case of Taylor v. Mead [1961] 1 WLR 435, which concerned the installation by a commercial traveller of rails in the back of a car on which dresses and other clothing could be hung so that he could transport them in the course of his business. The installation of the rails did not interfere with the use of the car by passengers in the ordinary way. It was contended that the vehicle had been adapted for the carriage of goods and therefore attracted a higher vehicle excise licence rate. I quote very briefly in the judgment of the Lord Parker CJ at page 438 where he says:

"It seems to me that, by the conjunction of the words 'constructed or adapted', the definition is really saying 'originally constructed or where the structure is subsequently altered'. Immediately one says that, the question arises whether it can be said that the structure of the vehicle in the ordinary sense of the word has been altered, or whether the structure remains the same, but that some small fitting or attachment is made which, although it physically involves making small holes for screws in the structure, could not in any ordinary sense of the word be an alteration of the structure. Indeed, in Minty v Glew , the alteration was that the wagonette in question had been fitted with stronger springs and the wheels had been strengthened and widened, matters which quite clearly, as it seems to me, would be alterations in the structure."


20. Some support for that approach appears in a decision of this Court in The Vehicle Inspectorate v Richard Read Transport Limited given on 25th November of last year. I do not think it necessary to refer in detail to that case, but it has to be said that the respondent's argument must necessarily mean that the vehicle with no trailer attached would cease to be a goods vehicle, but once the trailer was attached, providing it was carrying goods, it became a goods vehicle.


21. The justices made no findings of fact to found this particular argument, and it is, so far as this Court is concerned, a matter of speculation. We have noted the absence of findings of fact to found the justices' decision under paragraph (b)(i), and also the absence of any finding of fact as to whether or not the vehicle was constructed or adapted for the carriage of goods. We take the view that it is incumbent on prosecuting authorities, before launching a prosecution of this nature, to ensure that they have addressed their minds to the correct section of the Act and indeed to the correct regulation, and then, if necessary, to call expert or other evidence, in this case specifically not only of the bare weight but of the extent of the transfer of any weight, if the prosecution is being launched under paragraph (b)(i).


22. We also note, from the way in which the case is constructed, that in paragraph 5 the justices say:

"We were given advice by our legal adviser that the issue hinged on whether or not the Daihatsu 4 x 4 vehicle could be regarded as a goods vehicle within the meaning of the Transport Act 1968."

23. That is simply a statement of what had to be decided.


"We were referred to the Community Recording Equipment Regulation (EEC Regulation 3821/85) and, in particular, to Article 3(1), and to Article 4(1) of the Regulation (EEC) 3820/85."

24. However, it would appear that some confusion must have crept in as between the two EEC regulations and the relevant provisions of the Act. As has been suggested on behalf of the respondents, there is a possible inference that the justices drew on the definitions to which reference has been made in Article 1(2) of 3820 rather than concentrating on the definition of "goods vehicle" in s 95(2)(b)(i) which contains the superimposition provision.


25. So far as Lindsays are concerned, again it is conceded that the conviction cannot stand. Taking the matter very briefly, they were charged by amendment with using the vehicle and not with causing or permitting it to be used. There was a finding that Mr Cowley was an independent contractor. He owned the Daihatsu and he owned the trailer. Thus, on the authority of West Yorkshire Trading Standards Service v Lex Vehicle Leasing Limited [1996] RTR 70 at page 76E they could not be said to use the vehicle and, quoting briefly from that authority at the page and letter indicated:

"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."

26. That of course on the finding of fact was plainly not the case and therefore the conviction cannot stand.


27. LORD JUSTICE PILL: I agree and I express agreement with Mr Justice Garland's concern as to the confusion in the Magistrates' Court. That is illustrated by the fact that counsel for the respondents has had to concede that he is not able to seek to uphold the convictions upon the basis which they were found proved.


28. The law is somewhat complex and requires cross-referencing between United Kingdom statutes and Community regulations. It is incumbent on prosecuting authorities to consider the effect of the law and to present their case accordingly. In this case, the prosecution called no evidence at all on the point which was vital to the case as subsequently found to be proved by the justices. The prosecuting solicitor did refer the magistrates to the correct statutory provision, and the errors which occurred were not by reason of any failure of defence counsel to put the appropriate points to them on behalf of the defendants.


29. The matter did not end there, because the justices state in the case they have submitted to the Court that they were given advice by their legal adviser. There is, however, in the case as stated to the Court, no reasoning as to how they reached their conclusions upon the basis of the facts which they had found.


30. I too would answer the question posed for the opinion of this Court in the negative.


31. MR LAMMING: My Lords, I am grateful. It remains for the Court to consider what order should be made. I indicated to my Lords in the opening to the appeal that this is an unusual appeal because it is by a third party, and one has to look to see what the provision in the Act say. May I take your Lordships to a 28A of the Supreme Court Act, in the White Book vol 2, at page 1730, where my Lords will see the opening words:


"The following provisions apply where a case is stated for the opinion of the High Court under section 111 of the Magistrate's Court Act 1980...
(2) The High Court may, if it sees fit, cause the case to be sent back for amendment [and that does not apply] (3) The High Court shall hear and determine the question arising on the case...and shall--
(a) reverse, affirm or amend the determination in respect of which the case has been stated, or
(b) remit the matter to the justice or justices with the opinion of the court,
and may make such other orders in relation to the matter (including as to costs) as it thinks fit" -----

LORD JUSTICE PILL: Well, what order are you seeking?

MR LAMMING: My Lords, I would invite your Lordships to say that the right order would be to quash the convictions of both Lindsays and Mr Cowley, and, together with quashing the convictions, dispose of the penalties by way of fine and the orders for costs against them.

LORD JUSTICE PILL: Yes.

MR LAMMING: My Lords, I would then ask that, so far as the costs are concerned, that your Lordships should order the respondent to pay the costs of my client in this Court for this appeal. In my submission, that must follow as a matter of practice.

LORD JUSTICE PILL: Yes.

MR LAMMING: That leaves the question of the costs of Lindsays and Mr Cowley in the lower court. One view may be that Section 28(a) is wide enough to allow your Lordships to make an order in respect of their costs -- to make an order in relation to "the matter" as your Lordships think fit. Certainly when an appellant is successful and he has been the party below, it is quite common for this Court to order costs here and below.

My Lords, the other way of approaching it would be to look at the provisions of the Prosecution of Offences Act 1985, and may I hand copies of that up to the Court. (Document handed)

LORD JUSTICE PILL: Thank you.

MR LAMMING: These are the provisions as extracted from Archbold. I draw this to the Court's attention because very often, of course, it is said by prosecutors that orders for costs should not be made against the prosecution unless the prosecution is one which should not have been brought. If your Lordships were to consider that costs out of central funds was the appropriate order, then s 16(5) provides:

"Where --
(a) in any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen's Bench Division...the court may make a defendant's costs order in favour of the accused ...",

but I think I ought to also draw attention to sub-section (6):
"A defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings."

32. If those words, "the proceedings", must be read as referring back to the proceedings in sub-section (5), really it does have to do with the proceedings in the lower court, and in my submission that paragraph is wide enough to encompass that, so that in my submission your Lordships have the appropriate powers and it is a matter of discretion as to whether to make the order in favour of Mr Cowley and Lindsays, and if so, whether it is a defendant's costs order or alternatively an order against the prosecution. In respect of that, I would of course refer to the observations that both my Lords have made concerning the duty on the prosecutor, and to look at the case that the prosecutor was putting to the court.


33. But so far as Lindsays are concerned, there is a further point, that the prosecution clearly did not think about the case, with respect, on the question of using the vehicle. Your Lordships have seen how the original information was laid on that matter, and so far as that was concerned, the evidence that was called before the justices included an interview with Mr Harry Baines, the sales director of the company, and in response to the allegation that the vehicle had been used without a tachograph, the officer who is conducting the interview put that to him and his answer was: "Basically we have a need to move vehicles about the country on ... and because of ever-increasing staff costs we do not have our own drivers, and rely on the service of outside companies. I would have thought that anyone setting setting up in the business of transporting vehicles would be fully aware of the regulations." The officer said to that: "So you have no control over the driver, who is self-employed, save to tell him where to go and what to do?" Answer: "That is right."

34. So the interview itself highlighted for the prosecution, if they considered it, the very point which is now conceded by my learned friend. What we submit in those circumstances is that the costs should be ... costs ... in the lower court.


35. LORD JUSTICE PILL: Yes. Can you have costs out of central

funds -- your association?

36. MR LAMMING: My Lord, I am not sure we can, because costs out of central funds are in favour of the accused and we are not the accused. I think we fall within the more general discretion in s 28, this being a matter where we are the only party that has incurred costs in this Court. If Lindsays had chosen to appeal, which they would have been entitled to do, they would have been entitled to their costs here in the normal way. But in this appeal ...


37. LORD JUSTICE PILL: Yes, thank you. Mr. Fuller?


38. MR FULLER: My Lords, I cannot oppose any order you would make in favour of the original defendants getting their costs out of central funds. May I just observe this. The appellants today are not the original defendants in the case. If they had been, then the Court would have had power to order the costs of the successful appeal to be paid out of central funds, and it would not fall on the respondent, who in effect is now, because it is a prosecution taken over by the appellant in this case, going to bear a burden that, if the normal course of appeals in these sorts of cases had taken place, it would not have had to bear.


39. It is again something that, on balance, could be seen to operate unfairly against the respondent, and I would ask you to give that what weight you could, and not award the appellant's costs against the respondent.


40. LORD JUSTICE PILL: Thank you. Anything in reply?


41. MR LAMMING: My Lord, only to say that the normal order ...


42. LORD JUSTICE PILL: We will retire.


(After a brief adjournment)

43. LORD JUSTICE PILL: The convictions will be quashed and it follows that the penalties that follow them will be quashed. The defendants in the magistrates' court will have their costs out of central funds. On the appeal the appellants, the association, will have their costs against the respondents under s 28A of the Supreme Court Act.


44. Are there any other matters arising? We are grateful to counsel for their submissions.


__________


© 1997 Crown Copyright


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/1001.html