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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Cantabrica Coach Holdings Limited v. Vehicle Inspectorate [2001] UKHL 60 (22nd November, 2001)
URL: http://www.bailii.org/uk/cases/UKHL/2001/60.html
Cite as: (2002) 166 JPN 550, [2001] UKHL 60, [2001] 1 WLR 2288, [2001] WLR 2288, (2002) 166 JP 423, [2002] RTR 8, [2002] 1 All ER 595

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Cantabrica Coach Holdings Limited v. Vehicle Inspectorate [2001] UKHL 60 (22nd November, 2001)

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

(APPELLANTS)

v.

VEHICLE INSPECTORATE

(RESPONDENT

(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEENS BENCH DIVISION)

ON 22 NOVEMBER 2001

[2001] UKHL 60

LORD SLYNN OF HADLEY

My Lords,

    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:

(i)

(ii)

(iii)

    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.

LORD STEYN

My Lords,

    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:

(bb)

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) [2000] 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.

    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:

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:

Article 19(1) provides:

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

(2)

(b)

(a)

(b)

(5)

(a)

(c)

(6)

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:

The certificate of conviction was worded:

    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:

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

    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 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.

    66. It is, therefore, not surprising to find that Article 19(1) of Regulation 3821/85 provides:

    67. European Community Regulations have, in general, a direct effect in member states. But there is, in my opinion, no reason in principle why a provision contained in a Regulation should not be so framed as to invite, or require, individual member states to bring into effect domestic legislation to implement the provision in question. Regulation 3821 does not contain provision for any criminal sanctions for breach of its provisions. It has been common ground before your Lordships that provisions for offences and penalties must be made by the domestic legislation contemplated by article 19(1). The article expressly contemplates, also, domestic legislation relating to checks on compliance.

    68. But the express references in article 19(1) to these matters are prefaced by the words "inter alia". So it is quite clear that the scope of the domestic legislation contemplated by the article is not limited to the matters expressly referred to. It is a reasonable conclusion, therefore, that one of the things that article 19(1) left it open to member states to provide by supplementary domestic legislation is the detail that the second sentence of article 14(2) so notably omitted. In the framing of any supplementary domestic legislation a margin of appreciation must be permitted to each member state. Provided the domestic legislation establishes a regulatory system consistent with the express provisions of Regulation 3821 it is, in my opinion, franked by article 19(1).

    69. Part VI of the Transport Act 1968 established, among other things, a United Kingdom regulatory system for passenger vehicles and goods vehicles that predated by many years the tachograph requirements imposed by Regulation 3820/85. The domestic legislation contemplated by article 19(1) of Regulation 3821/85 took the form, so far as the United Kingdom was concerned, of amendments to Part VI of the 1968 Act. The amendments were added by the Community Drivers' Hours and Recording Equipment Regulations 1986 (SI 1986 No 1457).

    70. Part VI of the 1968 Act, as amended, commences with a statement of the purpose of the regulatory system:

    71. The relevant operative provisions are to be found in section 99, headed "Inspection of records and other documents". Section 99, as amended, provides, as far as relevant to tachograph records:

(bb)

    72. Subsections (1) to (9) of section 99 as originally enacted were brought into force on 1 March 1970: Transport Act 1968 (Commencement No 6) Order 1970 (SI 1970 No 259). Oddly, subsection (10) has never been brought into force. This is, presumably, an oversight. Nonetheless the contents of subsection (10) can properly be used as an aid to construction of the other provisions of the section that refer to inspection and copying. Parliament enacted the section as a whole, and it is as a whole that it should be read and construed.

    73. The issue before your Lordships arises out of a prosecution of the appellant defendant, Cantabrica Coach Holdings Ltd, for an offence under section 99(4)(a). The facts can be very shortly stated.

    74. The defendant is a licensed coach operator and, accordingly, under an obligation to comply with Part VI of the 1968 Act. On 15 September and again on 1 October 1998 an official of the Vehicle Inspectorate attended the defendant's office and requested permission to remove all the defendant's tachograph record sheets in respect of August 1998. The defendant was willing to produce the sheets and allow the officer to inspect them at the defendant's office. The defendant was not willing to allow the officer to remove them from the office. Since, on each occasion, the officer's purpose in attending the defendant's office had been to take away the record sheets, in view of the defendant's refusal to allow this the officer withdrew, and the sheets were, in the event, not produced.

    75. On 29 January 1999 the defendant was charged in the Watford Magistrates' Court with an offence under section 99(4)(a). The Information said that the defendant "when asked by an authorised officer to hand over tachograph charts . . . failed to do so contrary to section 99(1)(bb) and 4(a) of the Transport Act 1968".

    76. The information was not, in my opinion, strictly accurate. The defendant had been agreeable to handing over the record sheets so as to enable them to be inspected by the officer at the defendant's office, but had not been willing to hand them over so as to enable the officer to take them away.

    77. On 10 May 1999 the defendant was convicted by the magistrates. The conviction was recorded as a conviction for having "failed to produce a record sheet which you were required by article 14(2) of the Community Recording Equipment Regulation [3821/85/EEC] to retain. Contrary to section 99(4) of the Transport Act 1968 as amended." This, too, was in my opinion inaccurate. The defendant's failure was a failure to permit the officer to take the records away. It was not a failure to produce them.

    78. The magistrates were requested by the defendant to state a case for the Divisional Court. The case stated posed the following question for the opinion of the High Court:

    79. The magistrates posed also the question whether they were right to conclude on the evidence before them that the defendant had committed an offence in failing to hand over the tachograph records.

    80. The reference in the second question to the evidence is important. The facts found by the magistrates were set out in six short subparagraphs of paragraph 2 of the case stated. Subparagraphs (a) and (b) relate to the status of the official who visited the defendant's premises and the status of the defendant. Nothing turns on them. It is necessary, however, for me to set out the other four subparagraphs:

    81. These four subparagraphs show, it is said, that an offence under sections 99(1)(bb) and (4)(a) of the 1968 Act had been committed. It is important to notice, however, that there was no finding at all about copying; there was no finding as to whether reasonable facilities for inspection of the records or for copying the records existed at the defendant's offices; there was no finding as to the purpose of the Inspectorate in wanting to remove the records. Your Lordships were told by counsel for the Inspectorate, Mr Plender QC, that the purpose was to subject the records to inspection by technologically advanced equipment located at the Inspectorate's own offices. But the magistrates made no finding about this. Your Lordships do not know, and there is nothing to suggest that the magistrates knew, whether it would have been practicable for the Inspectorate to have brought the equipment to the defendant's office and operated it there. There is nothing to show that the defendant was told about the reason why the Inspectorate deemed it necessary, or desirable, to remove the records for inspection at their own office. There is nothing to indicate for how long the Inspectorate might have needed to retain the records or that any indication about the duration of the retention was given to the defendant.

    82. On the bare facts as found by the magistrates, the question posed for the Divisional Court was a very stark one: Is an offence committed simply by an operator's refusal to permit an inspector to remove tachograph records and without regard to whether the request was in the circumstances a reasonable one?

    83. Mr Plender's response was that the law provides, by way of judicial review proceedings, a remedy for unreasonable behaviour by officials. I think that this response is correct. But its implications need to be followed through. A remedy in judicial review proceedings for an unreasonable request by an inspector for the removal of documents would have to be based on the premise that the request was in the circumstances an unlawful one in that it went beyond the power conferred by the statute. In that event the operator would have no obligation to comply with the request and an offence would not be committed by his refusal to comply with it. It must, therefore, in principle be open to an operator charged with failing to comply with a request made under section 99(1)(bb) to contend that the request was in all the circumstances an unreasonable one. It does not appear, however, that the defendant did so contend.

    84. The submissions made, both to your Lordships and in the Divisional Court, about the correct construction to be placed on section 99(1)(bb) of the 1968 Act did not mention at all the need that an inspector's request should not be one that in the circumstances was unreasonable. Mr Phillips QC, for the defendant, simply submitted that the vehicle operator did not have to comply with a request that the inspector be permitted to remove the records for inspection and copying elsewhere. If inspection at the Inspectorate's offices was desired, the inspector had to serve a notice of not less than 10 days requiring the vehicle operator to produce the records at the office of the traffic commissioner. Otherwise, the only obligation placed on the operator was to permit inspection and copying at its own premises.

    85. Mr Plender, for the Inspectorate, submitted that section 99(1)(bb) obliged the operator to permit the inspector to remove the records for inspection and copying elsewhere whenever the inspector desired to do so.

    86. The Divisional Court [2000] RTR 286 preferred the construction contended for by the Inspectorate, and concluded, at p 304, 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" and that "it is within the discretion of the authorised officer whether he chooses to inspect the tachograph sheets at the operator's premises . . . or take the sheets away for more thorough and detailed analysis" (paragraph 36 of Butterfield J's judgment).

    87. While the basic approach to construction of Mr Plender is, in my opinion, to be preferred to that of Mr Phillips, Mr Plender's approach omits the limiting requirement that the inspector's request must not be an unreasonable one.

    88. Section 99(1) starts by saying that "An officer may . . . require any person to produce, and permit him to inspect and copy" the various documents specified. It is important to notice that this language does not give the officer any positive right other than to make a request. It places an obligation on the recipient of the request to comply with it. Failure to comply is an offence under subsection (4)(a). The officer's request, and the operator's consequent obligation, has two elements to it. First, the request is for production of the documents. So the operator must produce them. Second, the request is for permission to inspect and copy the documents. So the operator must permit the officer to do so. As to production of the documents, the operator must be allowed a reasonable time for compliance. What constitutes a reasonable time will depend upon the content of the request. Many requests for production of documents could reasonably be expected to be complied with then and there. In respect of others, some time for compliance might be necessary. This was not a problem in the present case where the original request was made on 15 September 1998 and the repeat of the request took place on 1 October. The intervening period of two weeks was plainly ample for the August 1998 tachograph records to have been collected and produced.

    89. The request to be permitted to inspect and copy the records may present more difficulty. Both inspection and copying require facilities. The facilities may be available at the operator's premises or they may not. The equipment necessary for the inspection and copying, if not already available at the operator's premises, may or may not be able to be brought there. The statutory obligation on the operator to "permit" the officer to inspect and copy must require the officer to be given a reasonable opportunity to inspect and copy. What constitutes a reasonable opportunity will depend on the circumstances of the case and the content of the particular request.

    90. The memorandum of conviction in the present case was drafted on the footing that a failure to permit records to be taken away constituted a failure "to produce". This, in my opinion, was an error. A failure to allow documents to be taken away for inspection and copying may constitute a failure to permit inspection and copying, but does not constitute a failure to produce, particularly where production for inspection on site is offered to the inspector but refused by him.

    91. Ordinarily, the obligation placed by section 99(1) on an operator "to produce" the records is, in my opinion discharged by their production at the operator's own premises. But the final four lines of section 99(1), referred to in argument as the "coda", prescribes an alternative form of production if the requisite notice is given by the authorised officer.

    92. In the submissions to your Lordships both counsel tended to attribute to the word "produced" in the coda a different meaning to that of the word "produce" in the opening lines. In my opinion there is no difference in meaning. Both require the documents to be produced in the sense of being made physically available to the inspector. The only difference is as to the place where this is to happen. But, whether the production is at the operator's premises or at the traffic commissioner's office, the obligation on the operator to permit inspection and copying still applies. The coda prescribes a different place for the production but there apart the obligations placed on the person who is to produce the documents are the same. A reasonable opportunity for the inspector to inspect and copy must be afforded him.

    93. In summary, section 99(1) on its correct construction requires, in my opinion, that the vehicle operator provide the inspector with a reasonable opportunity to inspect and copy the tachograph records that under article 14(2) of Regulation 3821/85 the operator is required to retain. A reasonable opportunity may require the inspector to be allowed to remove the records in order to subject them to examination by equipment located elsewhere. Subsection (10) makes clear that inspection need not be confined to visual inspection. But if the inspection and copying can be carried out at the operator's premises, if the removal of the records would have a disruptive effect on the operator's business, if the equipment in question can be taken to the operator's premises and operated there without too much difficulty, it may be that the request to be allowed to remove the records for inspection and copying will be an unreasonable one. If that is so, for those or any other reasons that may apply in a particular case, the operator will, in my opinion, have no obligation to comply with the unreasonable request for the removal of the records.

    94. This construction of section 99(1) seems to me consistent with the other subsections.

    95. Subsection (2) gives a positive right to an inspector (i) to enter a vehicle and (ii) to enter premises in order to inspect a vehicle and to inspect and copy any records which he finds in the vehicle or the premises. These rights of inspection and copying are independent of any permission granted by the operator and, in my opinion, would permit the officer to take away the records if it were reasonably necessary for him to do so for the purpose of inspection or copying.

    96. Subsection (6) confers on an inspector a positive right to seize records or other documents he has inspected under the section if he has reason to believe they have been falsified.

    97. The construction accords also with the second sentence of article 14(2). Article 14(2) requires the records to be "produced or handed over". One of the unsatisfactory features of the present case, to my mind, is that the verb 'hand over' has been given an extended meaning so as to cover the taking away of the documents and that the verb 'produce' has been given an extended meaning so as to cover the inspection of the documents. In my opinion these verbs should be confined to their ordinary meaning. A document is "produced" to an inspector if it is physically presented to him. A document is "handed over" to an inspector if it is placed for the time being in his possession. Section 99(1) provides expressly for the production of documents to an inspector and, unless the documents are handed over to the inspector, he cannot very well inspect or copy them. Neither article 14(2) nor section 99(1) provides any express right for an officer to take away elsewhere documents that have been handed to him for inspection and copying. But subsection (1), in my opinion, requires the operator to permit him to do so, and subsection (2) allows him to do so, unless the officer's decision to take them away is an unreasonable decision in all the circumstances.

    98. It appears that, at the trial before the magistrates, neither the appellant nor the Inspectorate directed itself to the reasonableness or otherwise of the inspector's request to be allowed to take the records away in order to subject them to examination at the Inspectorate's own offices. In my opinion, if an operator charged with an offence under sections 99(1)(bb) and 99(4)(a) wishes to contend that the officer's decision to take away the records for inspection and copying elsewhere was in all the circumstances an unreasonable one, it is for him to say so. And I think the officer must then be prepared to explain, why the removal of the documents was thought necessary. That explanation and its adequacy can then be tested.

    99. It has been made clear to your Lordships that this is a test case, brought to determine the extent of the obligations cast on vehicle operators by section 99(1)(bb) and of the corresponding legitimate expectations of the Inspectorate. In striking the balance between an effective regulatory system on the one hand and the interests of vehicle operators in being free of excessive intrusion by officials on the other, the key, in my opinion, is the reasonable requirements of the officials whose duty it is to monitor the regulatory system. Section 99 contemplates, in my view, that, in general, the inspection and copying should take place where the records are produced and handed over, i e at the operator's premises or, after the requisite notice, at the traffic commissioner's office. If, however, it is not reasonably practicable in the circumstances for the inspection and copying to take place at the operator's premises, the operator should, in my opinion, permit the records to be taken away for the purpose of inspection and copying elsewhere. On a prosecution under section 99(4)(a), or for that matter, section 99(4)(b), where the gravamen of the charge is that the operator has not permitted, or has hindered, the removal of the documents, the operator cannot, in my opinion, be convicted if the request to be permitted to remove them was so unreasonable as to be unlawful.

    100. It follows that I would deal with the first question posed in the case stated by answering that an offence would be committed in the postulated circumstances unless the request to be permitted to remove the records for inspection and copying to take place elsewhere than at the appellant's premises were unreasonable in all the circumstances. For the purposes of this answer, "inspection" of a record includes "the application to the record of any process for eliciting the information recorded thereby and . . . taking down the information elicited from it": see section 99(10).

    101. As to the second question, I would reply that, on the facts found as recorded in the case stated and in the absence of any contention that the officer's request to be allowed to remove the documents for inspection elsewhere was an unreasonable one, the justices were right to convict.

     102. I would, therefore, dismiss the appeal.


© 2001 Crown Copyright


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