Vehicle Inspectorate v. Nuttall

This appeal concerned the meaning of "permitted" in section 96(11A) of the Transport Act 1968 read with Council Regulations 3820/85 and 3821/85 governing drivers' hours and tachographs. The court held that "permitted" bears a wider meaning in context: it can mean a failure to take reasonable steps to prevent contraventions. The offence is not one of strict liability; the requisite mental element is wilfulness or recklessness of the employer in the sense of deliberately failing to take steps (a state of mind of not caring whether contraventions occur), not mere negligence or constructive knowledge. Where an operator deliberately refrains from examining tachograph charts over a period, that conduct can give rise to a prima facie case that the employer failed to take reasonable steps and acted recklessly, subject to any rebuttal evidence. The House allowed the appeal only to the extent of remitting the case for retrial because the Divisional Court was wrong to direct conviction.

Material provisions considered included section 96(11A) of the Transport Act 1968 and Articles 6, 7, 8 and 15 of Council Regulation (EEC) No. 3820/85 and the provisions of Regulation 3821/85 concerning tachographs.

The Vehicle Inspectorate prosecuted the operator of a coach business on multiple informations under section 96(11A) of the Transport Act 1968 for "permitting" drivers to contravene Community rules on drivers' hours. Tachograph charts showed contraventions by drivers for various dates in 1995. At first instance the justices acquitted the defendant, concluding that mere failure to check charts did not establish the necessary mental element.

The Vehicle Inspectorate asked the justices to state a case to the High Court. The Divisional Court (Popplewell J., McCowan L.J.) held the justices erred, concluded that the operator had shut his eyes to the obvious and directed the justices to convict. The Divisional Court certified a question of public importance about whether knowledge can be implied from failure to check records.

The House of Lords addressed (i) the meaning of "permitted" in section 96(11A); (ii) what constitutes the actus reus and mens rea of the employer's offence; and (iii) whether the magistrates were wrong in acquittal and whether the Divisional Court should have directed conviction.

• Nature of the claim: criminal prosecutions seeking summary convictions of the employer under section 96(11A) read with Community Regulations governing driving hours and tachographs.
• Issues framed: interpretation of "permitted"; whether failure to check tachograph charts can constitute the offence; the mental element required (knowledge, recklessness or negligence); and whether a direction to convict was appropriate.
• Court's reasoning: in context "permitted" includes failure to take reasonable steps to prevent contraventions; the actus reus is the omission to take such steps (objectively assessed); the mens rea required is at least wilfulness or recklessness in the sense of deliberately failing to take steps or closing one's eyes to the obvious risk (a state of not caring), not mere negligence or constructive knowledge. An employer's deliberate failure to inspect tachograph records can therefore give rise to a prima facie case of permitting and recklessness, but that prima facie case can be rebutted by evidence of other precautions or explanations. The Divisional Court was right to quash the magistrates' conclusions but wrong to direct convictions; the matter was remitted for retrial. The House also noted that on retrial issues as to whether the actus reus was proved in relation to some earlier dates (for example 31 May 1995) would require further consideration.

Appeal allowed in part. The House held that in the context of section 96(11A) "permitted" can mean failing to take reasonable steps to prevent contraventions; the actus reus is an omission to take those steps and the mens rea required is wilfulness or recklessness (deliberate omission / a state of not caring). The Divisional Court was correct to find the magistrates erred in law in concluding that failure to check tachographs could never give rise to the offence, but was wrong to direct convictions. The proper order was to remit the case to the justices for retrial.

Magistrates' Court at Leyland: acquittal on all charges; case stated to High Court. Divisional Court (Popplewell J.; McCowan L.J.) allowed the Vehicle Inspectorate's appeal, quashed the magistrates' decision and directed conviction (reported as Wing v. Nuttall, The Times Law Reports, 30 April 1997 [1997] T.L.R. 225-226). House of Lords allowed the appeal only to the extent of remitting the matter to the justices for retrial ([1999] UKHL 14).