Pritchard & Anor v Crown Prosecution Service

This is an appeal by way of case stated from the decision of the justices for the County of Greater Manchester, acting in and for the Petty Sessional Division of Leigh, in respect of an adjudication as a Magistrates Court sitting at Wigan on 18 December 2002. By that adjudication the appellants, Stefan Devenish and Colin Pritchard were each convicted of an offence contrary to Section 97 of the Transport Act 1968 in that on 2 May 2002 at Leigh they used a vehicle, namely a motor pick-up, Nissan Cabstar, registration number L301 VCC, to which that section applied, without there being recording equipment installed in the vehicle in accordance with the Community Recording Equipment Regulation. In other words, the justices found that the vehicle should have a tachograph and that it did not have one on the occasion alleged.

The facts as found by the Justices were as follows:

“(a)

At 14.55 hrs on the 2^nd May 2002 PC 3797 Robinson of the Greater Manchester Police stopped a Nissan Cabstar pickup registration L301 VCC (plated weight 3,400 kg) on Atherleigh Way, Leigh.

(b)

The driver was Colin Pritchard. The vehicle had a train weight of 5100 kg and was towing a single-axle Bocker H16 hoist which had an unladen weight of 950 kg. There was no tachograph fitted to the vehicle;

(c)

The owners of the vehicle were the partnership Industrade who were later reported by PC Lovatt;

(d)

Subsequently, a partner of INDUSTRADE, Stefan Devenish was interviewed under caution by PC Lovatt who outlined the above facts to the Defendant;

(e)

It was accepted that the vehicle in question was being used to carry goods in connection with trade or business, for hire or reward which was sales, hire and provisions of service vehicles;

(f)

Colin Pritchard was driving that vehicle on the 2^nd May 2002 on company business on instructions issued by the partner of the company, Stefan Devenish himself.

3.

Evidence was heard from Police Constable L3797 Grahame Robinson of The Greater Manchester Police, who has Area Traffic Unit duties.

(a)

PC Robinson was and is authorised by the Chief Constable to weigh and inspect all types of vehicles. He disclosed his relevant qualifications and experience. Upon the prosecution request, and with the agreement of the defence, we were satisfied that it was appropriate to class him as an expert in this field;

(b)

The oral evidence in chief given by PC Robinson was in accordance with the facts as outlined in paragraph 2 above, as such were accepted by all parties immediately prior to the hearing commencing;

(c)

PC Robinson was not cross-examined, nor asked any questions by the court.

4.

Evidence was heard from Stefan Devenish, a partner of the firm trading as “Industrade”.

(a)

The trading partnership had between eighteen and twenty vehicles of this type and for the past twenty-five years the partnership had been using mobile elevators on a “hired out” basis;

(b)

The mobile elevator had been towed by the Cabstar on 2^nd May 2002 and had also been towed on other occasions by other vehicles such as a Landrover, Toyota Hilux or Volkswagen;

(c)

The partner did not employ “drivers”. Pritchard was in fact employed to service the machines although he did take machines “on site” and install them as well;

(d)

Generally the machines were installed within a fifty mile radius of the partnership’s premises although they do go further afield when required;

(e)

Driving was not the main job of the engineers. On average they would spend probably no more than twenty percent of their working day driving;

(f)

As far as Mr. Devenish was aware none of their vehicles of the Bocker Hoist type had ever been stopped and asked about the installation of a tachograph although they have been stopped in relation to other matters. Upon no prior occasion of being stopped had any advice been given about installing tachograph equipment;

(g)

Upon being cross-examined Mr. Devenish stated that Pritchard delivered the machines to site where he would install the machine. The Bocker Hoist would then be left on site and he would drive back in the van. Mr. Devenish accepted that the weight of the Bocker H16 is in excess of 101kg;

(h)

Mr. Devenish confirmed that no training on road haulage legislation had been given to employees.”

Having recited the rival submissions the Justices state their opinion as follows:

“We are of the opinion that:-

A “trailer” was defined by Statutory definitions within the EC Regulations as “any vehicle designed to be coupled to a motor vehicle or tractor.”

We were satisfied that the definition of “vehicle” and “trailer” were adequately defined within that legislation.

Both the Crown and the Defence agreed that the Bocker hoist unit was coupled, in this case, to a Nissan Cabstar, by means of a ball hitch coupling. A braking cable was also attached as would be required for a trailer of the acknowledged weight of the Bocker.

We were of no doubt that the Bocker Hoist fell squarely within the definition of “trailer” under the regulation.

Accordingly both the plated and train weight limits would have been exceeded making it a requirement that the Nissan Cabstar be fitted with tachograph equipment which should have been used in accordance with the Regulations”.

As a result they convicted each defendant of the offence charged and sentenced each to be absolutely discharged. They ordered Mr. Devenish alone to pay £200 costs within 28 days. In stating their Case the Justices posed the following question:

“The question for the opinion of the High Court is whether or not this court was correct in holding the single axle Bocker H16 hoist is a trailer for the purposes of S97 of the Transport Act 1968 within the definition of EEC regulation 3820/85 Article 1(2)(c) ?

The defendants now appeal.

In his written argument, Mr. Nesbitt for the appellants submitted that the proper question would be slightly differently phrased:

“…whether the actual weight of the Bocker H16 was a weight which regard was to be had to in determining whether the exemption in Article EEC Regn 3820/85 applied…”

[2:1:8]

The Justices declined to alter the question. However, Mr. Nesbitt submitted that the correct and relevant question was as he advanced it and that it is open to this Court to consider any point of law which arises upon the facts stated. He cited Knight v Halliwell (1874) LR 412, Giebler v Manning [1906] 1 KB 709 and Kates v Jeffrey [1914] KB 160. At the hearing of the appeal, Miss Boocock, who appeared for the respondent, did not object to the questions of law being argued at large.

The relevant legislation is labyrinthine in nature:

Section 97 provides

“(1)

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 any person who contravenes this subsection shall be liable on summary conviction to a fine …”

“(6)

This section applies at any time to any vehicle to which this part of this Act applies if, at the time, Article 3 of the Community Recording Equipment Regulation requires recording equipment to be installed and used in that vehicle …

(7)

in this Part of this Act –

[“the Community Recording Equipment Regulation” means Council Regulation (EEC) No.3821/85 on recording equipment in road transport [q.v.] as it has effect in accordance with-

(a)

Commission Regulation (EEC) No. 3314/90

(b)

Commission Regulation (EEC) No. 3688/92; and

(c)

Commission regulation (EC) No. 2479/95;

and as read with the Community drivers’ Hours and Recording Equipment (Exemptions and Supplementary Provisions) Regulations 1986 [S.I. 1986 No 1456 (q.v.)]

EEC Regulation 3821/85 Article 3(1) 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 the Regulation (EEC) No. 3820/85.”

Obviously, the Nissan Cabstar is within this definition being a vehicle used for the carriage of goods by road. The elevator alone is not within it because it is not used for the carriage of passengers or goods.

As we have seen, S.97(7) requires one to define Community Recording Equipment Regulations as being Reg. 3821/85 (and other regulations) as read with the “Community Drivers’ Hours and Recording Equipment(Exemptions and Supplementary Provisions) Regulations 1986 (S.I. 1986 No.1456). From the judgment of Wright J in Small (supra) it can be seen that Reg.1 of those 1986 Regulations provides that the expression “permissible maximum weight” shall have the same meaning as in S. 108 of the Road Traffic Act 1988. That section provides a further definition of “permissible maximum weight” as follows:

“ “permissible maximum weight”, in relation to a goods vehicle (of whatever description), means –

(a)

in the case of a motor vehicle which neither is an articulated goods vehicle nor is drawing a trailer, the relevant maximum weight of the vehicle,

(b)

in the case of an articulated goods vehicle …. (not applicable here)

(c)

in the case of a motor vehicle (not being an articulated goods vehicle) which is drawing a trailer, the aggregate of the relevant maximum weight of the motor vehicle and the relevant maximum weight of the trailer, …”.

There appears to be no definition of trailer in that section.

The Nissan is a motor vehicle and is not an articulated goods vehicle. Therefore, its “permissible maximum weight” within the definition is either (a) or (c) depending upon whether the elevator in issue was a “trailer”. In each case the “permissible maximum weight” is what is called “the relevant maximum weight”. That is further defined in Section 108; “relevant maximum weight”, in relation to a motor vehicle or trailer is:

“(a)

in the case of a vehicle to which regulations under section 49 of this Act apply which is required by regulations under section 41 of this Act to have maximum gross weight for the vehicle marked on a plate issued by the secretary of state under regulations under section 41, the maximum gross weight so marked on the vehicle,

(b)

in the case of a vehicle which is required by regulations under section 41 of this Act to have a maximum gross weight for the vehicle marked on the vehicle and does not also have a maximum gross weight marked on it as mentioned in paragraph (a) above, the maximum gross weight marked on the vehicle,

(c)

in the case of a vehicle on which a maximum gross weight is marked by the same means as would be required by regulations under section 41 of this Act if those regulations applied to the vehicle, the maximum gross weight so marked on the vehicle,

(d)

in the case of a vehicle on which a maximum gross weight is not marked as mentioned in paragraph (a), (b) or (c) above, the notional maximum gross weight of the vehicle, that is to say, such weight as is produced by multiplying the unladen weight of the vehicle by the number prescribed by the Secretary of State for the class of vehicle into which that vehicle falls, …”.

These definitions are all related to regulations required to be marked upon vehicles under sections 41 and 49 of the Act.

In this case it is common ground that the elevator was not required to be marked with any weight as required by those subsections but the Nissan is subject to that requirement. Therefore, if this elevator was a trailer paragraph (d) of that definition applies. The Nissan Cabstar had a marked or “plated” weight of 3,400 kgs, presumably so marked or plated in accordance with the Sections that I have mentioned. It is common ground that the Regulations referred to in paragraph (d) of the definition of “relevant maximum weight” are the Goods Vehicles (Ascertainment of Maximum Gross Weights) Regulations 1976 made under an earlier Act: see the supplementary written arguments of Mr. Nesbitt and Miss Boocock at paragraphs 2, and 1 to 5 respectively; Stones Justices’ Manual (2003) p. 3152 and the Road Traffic (Consequential Provisions) Act 1988 s. 2(1) and (4). Paragraph 3 of the 1976 Regulations provides :

“ 3. For producing, for the purposes of paragraph (d) in the definition of “relevant maximum weight” in section 110 of the Act of 1972, the notional maximum gross weight of a vehicle of a class listed in column (1) of Schedule 1 to these Regulations, the number set against that class in column (2) of that Schedule is hereby prescribed as the number by which the unladen weight of that vehicle is to be multiplied.”

By virtue of Section 2 of the Consequential Provisions Act of 1988 the reference to Section 110 of the Act of 1972 in the 1976 Regulations must now be read as a reference to Section 108 of the 1988 Act. Schedule 1 is divided into “Part A – Motor Vehicles” and “Part B – Trailers”. The first listed item in Part B is “Engineering plant”. In the Schedule’s interpretation section “engineering plant” is defined as “moveable plant and equipment being a motor vehicle or trailer (not constructed primarily to carry a load) especially designed or constructed for the special purposes of engineering operations”. I think that it must be clear that the elevator in this case fell within that definition.

It can hardly be any surprise that these provisions have led to difficulties in this case, and no doubt in others. Surely, the time has come when all this material should be consolidated into one, hopefully more readily comprehensible enactment.

The rival contentions of the parties can be shortly stated. Mr. Nesbitt for the Appellants says that, for the purposes of these provisions, the weight of the elevator is to be wholly excluded and the only relevant weight was the 3,400 kg plated weight of the Nissan Cabstar. Miss Boocock for the Respondent says that the weight of the elevator, as “engineering plant” calculated in accordance with the 1976 Regulations, is to be included. This, she submits, must be added to the “relevant maximum weight” of the Nissan which produces a weight in excess of the 3.5 tonne exemption set out in Article 4 of Regulation 3820/85.

In support of his submissions, Mr. Nesbitt argues that the elevator should not be regarded as a “trailer” for the purposes of the legislation. He says that article 4 of Regulation 3820/85 speaks in terms of vehicles used for the carriage of goods or passengers: see Article 4(1) and (2). He points to a dictionary definition of vehicles as being “any conveyance for transporting people, goods etc., esp. on land”. Against this, Miss. Boocock says that a “trailer” is equally a proper word for something “trailed” behind another vehicle, whether used for the carriage of goods or not. Mr. Nesbitt referred me to the Freight Transport Association’s manual reciting the Department of Transport’s view on the matter which supports his submission. The relevant passage is as follows:

“ In the past, there were differing views about whether non-goods carrying trailers (such as generators and compressors with permanently fitted wheels) should be taken into account when calculating maximum gross weights. DLTR advice is that only trailers with goods carrying capacity should be counted. This reflects FTA’s long-held view, but has not been tested in the Courts”.

Mr. Nesbitt further submits that it is necessary to give a purposive reading to the legislation which, he submits, is concerned with laying down maximum driving periods for vehicles carrying goods or people by road. He reminds the Court that the elevator in this case is towed by engineers travelling short distances; the driving times are short. I do not think he would deny, however, that the legislation must also be construed against a hypothetical journey made by a vehicle such as the Nissan, with the elevator, over the length and breadth of the country and, indeed, the length and breadth of the European Union.

Looking at the legislation that I have set out as a whole, it seems clear that its object is rather broader than that identified by Mr. Nesbitt. It seems to be directed at providing maximum driving periods for heavy vehicles, including relatively light vehicles which exceed certain weights when a “trailer” is added.

Following the legislation through, the question is whether the Nissan required a tachograph. It is clearly a “vehicle” covered by Article 3 of Regulation 3821/85 unless covered by Article 4 of Regulation 3820/85. The question arising from Article 4 is whether the Nissan’s “maximum permissible weight” “including any trailer” does not exceed 3.5 tonnes. “Permissible maximum weight” is “the maximum authorised operating weight of the vehicle fully laden”. Section 97(7) of the Transport Act requires Regulation 3821/85 to be “read with” (among other enactments) the 1986 Community Drivers’ Hours and Recording Equipment etc. Regulations 1986. These Regulations import the provisions of Section 108 of the Road Traffic Act 1988. As already set out, that section introduces the concept of “relevant maximum weight”. In the case of a vehicle drawing a trailer that weight is the aggregate relevant maximum weight of the vehicle and trailer. Where the maximum gross weight is marked on either, the relevant maximum weight is that weight: see Small v DPP (supra) at p. 99 K-L per Wright J and at p. 100 C-D per Rose L.J. In this case, therefore, the “relevant maximum weight” of the Nissan is that which is marked on it, ie 3, 400 kg. How then is the elevator to be treated?

There is no definition of trailer in Section 108, although when one gets to the relevant regulations for defining the “relevant maximum weight” of a “trailer” the draftsmen clearly considered that moveable “engineering plant” came within that expression. Such plant, in my view, is clearly not excluded expressly by either Section 108 or any of the other relevant EU Regulations. Adopting a purposive approach, as urged by Mr. Nesbitt, I consider that the legislation is directed at the driving of heavy vehicles and their attachments on the roads. There can surely be no difference in the concept between a goods carrying trailer and a piece of heavy equipment towed behind a vehicle. In my view, Miss Boocock is right in submitting that for these purposes a “trailer” is something “trailed” behind another relevant vehicle.

I would, therefore, answer the question posed by the Justices in the affirmative and would dismiss the appeal. The alternative question suggested by Mr. Nesbitt does not, in my view, assist in resolving the issue arising in this case. In the end the determinative concepts are the definitions of “permissible maximum weight” and “relevant maximum weight” in Section 108 of the 1988 Act. I have endeavoured to explain this above. As indicated, these appeals are therefore dismissed.