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Driver and Vehicle Testing Agency v McNicholas Construction Services Ltd  NICA 9 (7 March 2003)
"57.-(1) A person who –
(a) contravenes a construction and use requirement as to any description of weight applicable to –
(i) a goods vehicle; or
(ii) a motor vehicle or trailer adapted to carry more than eight passengers; or
(b) uses on a road a vehicle which does not comply with such a requirement, or causes or permits a vehicle to be so used,
is guilty of an offence.
(2) In any proceedings for an offence under this Article in which there is alleged a contravention of a construction and use requirement as to any description of weight applicable to a goods vehicle, it shall be a defence to prove either –
(a) that at the time when the vehicle was being used on the road –
(i) it was proceeding to a weighbridge which was the nearest available one to the place where the loading of the vehicle was completed for the purpose of being weighed, or
(ii) it was proceeding from a weighbridge after being weighed to the nearest point at which it was reasonably practicable to reduce the weight to the relevant limit, without causing an obstruction on any road, or
(b) in a case where the limit of that weight was not exceeded by more than 5 per cent –
(i) that that limit was not exceeded at the time when the loading of the vehicle was originally completed, and
(ii) that since that time no person has made any addition to the load."
Regulation 79 of the Motor Vehicles (Construction and Use) Regulations (Northern Ireland) 1999 requires the vehicles to which it applies to be equipped with a plate attached to the vehicle showing, inter alia, the maximum permitted weight for each axle. Under Regulation 93(1) it is an offence to use, or cause or permit to be used, a vehicle on a road if any of the weights shown on the plate is exceeded.
"(i) The Defendant was at the material time the employer of the driver who was driving lorry Registration Number LAZ 3862 which was weighed by officials of the Department on 7 September 2001.
(ii) When weighed the second axle of the lorry was 2900kg overloaded being 27.6% over the permitted loading.
(iii) The Defendant provided full training for all drivers in relation to the loading of lorries including internal and external training.
(iv) The Defendant advised drivers that overloading a lorry was a serious disciplinary offence.
(v) The Defendant took steps to advise drivers of this fact by the display of notices in the workplace and by the regular distribution of pamphlets.
(vi) The Defendant carried out regular spot checks on its vehicles using a portable weighbridge."
"5. As a result of (iii) to (vi) above I concluded that the Defendant's actions in the case were neither reckless nor intentional. I was further of the view that it would be difficult to prove negligence on the part of the Defendant.
6. Having considered the law on the matter I concluded that the offence created by Article 57(1) of the 1995 Order creates an offence of strict liability that does not permit any defence outside the terms of Article 57 and in particular does not allow any defence of using reasonable care.
7. I further concluded that the approach taken by the legislature was proportionate and that Article 57(1) is compliant with the European Convention on Human Rights and Fundamental Freedoms."
The case stated posed two questions for the opinion of this court:
"(i) Was I correct in holding that Article 57(1) of the Road Traffic (Northern Ireland) Order 1995 insofar as it does not require proof of recklessness, negligence or intention, or, in the alternative, does not afford a defence of using reasonable care, is nonetheless consistent with Article 6 of the European Convention on Human Rights and Fundamental Freedoms?
(ii) Was I correct in holding that Article 57(1) of the Road Traffic (Northern Ireland) Order 1995 insofar as it creates an offence of strict liability places no impermissible burden on the Defendant and is not contrary to Article 8 of the European Convention on Human Rights and Fundamental Freedoms and Article 1 of the First Protocol taken together with Article 6?"
(a) The presumption that proof of mens rea is required has not been rebutted by sufficiently cogent reasons why the offence should be regarded as one of strict liability.
(b) If the offence is to be regarded as one of strict liability, the appellant should be able to establish a defence that it had taken reasonable care.
(c) To impose strict liability would be in breach of the appellant's Convention rights.
"In their Lordships' opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellant's counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be guilty of a criminal offence (2) the presumption is particularly strong where the offence is truly criminal in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."
"In section 1(1) of the Act of 1960 Parliament has not expressly negatived the need for a mental element in respect of the age element of the offence. The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by necessary implication. "Necessary implication" connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence."
"I do not understand how the sale of adulterated food is going to be prevented simply by imposing an absolute liability … An absolute liability will not assist in preventing the sale of adulterated food where the seller honestly believes upon reasonable grounds that it is unadulterated. All the imposition of such a liability will do is to obtain convictions for conduct which is manifestly not criminal in nature by any recognised standards of justice."
This dictum should in our opinion be taken in its context. If the offence is one where the person charged may hold an honest belief that he has not committed it, then it may have some validity. Where that is not likely to occur, such as in an offence of overloading, the imposition of strict liability will in our view furnish a definite incentive to users of heavy vehicles to ensure that they carry only the permitted loads. We consider that the necessary implication referred to by Lord Nicholls of Birkenhead has been established in the present case and that Parliament intended that the offence charged should be one of strict liability.
" … just as the judges invented the presumption in favour of mens rea, they could have invented a presumption of a negligence requirement in particular types of case."
He goes on, however, to state that they chose not to do so: the opportunity was there in B (a minor) v DPP, but the House of Lords declined it in favour of a requirement of full mens rea. It is right to say, however, that that appeal was decided on the first ground, that proof of mens rea was required, and accordingly the House did not need to address the possibility of adopting the halfway house approach. Nevertheless we do not think that we should be justified, sitting in the Court of Appeal, to adopt this approach to offences of strict liability, attractive though it may be, and we consider that if such a defence is to be afforded, it should be done by legislation.
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing …
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
Article 1 of the First Protocol provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
It was contended that if the offence is to be regarded as one of strict liability it places an impermissible burden on the defendant and is not a proportionate response to the need for road safety. The prosecution should be required to prove intention or recklessness or, in the alternative, the defendant should be able to establish a defence that he took reasonable care in the circumstances to avoid the vehicle being overloaded. In accordance with the requirements of section 3 of the Human Rights Act 1998, Article 57 of the 1995 Order should be construed so as to be given effect in a way which is compatible with the appellant's Convention rights. If this cannot be done, then Article 57 should be held to be incompatible with the Convention.
"… in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention (Engel and others judgment of 8 June 1976, Series A no. 22, p.34, para. 81) and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States."
Mr Larkin pointed to a subsequent passage in paragraph 28 of the Court's judgment in the same case:
"Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
The ECtHR affirmed this view in Janosevic v Sweden (Application no 34619/97), when it referred to Salabiaku v France and said at paragraph 101 of its judgment:
"Thus, in employing presumptions in criminal law, the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved."
That this balancing has to be done by specific reference to the individual case appears with clarity from a passage in the opinion of Lord Bingham of Cornhill in Brown v Stott  2 All ER 97 at 115:
"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within art 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the convention (see Sporrong v Sweden (1982) 5 EHRR 35 at 52-53 (para 69), Sheffield v UK (1998) 5 BHRC 83 at 94 (para 52)."
We would refer also to the extended discussion of the principle in Lord Clyde's opinion in R v Lambert  2 AC 545 at paragraphs 150-154.
"Furthermore, it is necessary to bear in mind, in the first place, that a system of strict liability may prompt the employer to organize the work of his employees in such a way as to ensure compliance with the regulation and, secondly, that road safety, which, according to the third and ninth recitals in the preamble to Regulation No 543/69, is one of the objectives of that regulation, is a matter of public interest which may justify the imposition of a fine on the employer for infringements committed by his employees and a system of strict criminal liability."
"Judicial recognition and assertion of the human rights defined in the convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies."
We consider that the public interest in ensuring that vehicle owners see that their vehicles are not overloaded is substantial. Under Article 57 there are specific defences available, and while the offence of suing is one of strict liability if none of those applies, the penalty is of reasonable amount. All of these factors were taken into account by the magistrate in reaching his conclusion that the legislation was proportionate and was compliant with the requirements of the Convention. We consider that he was correct in so holding.