Vehicle Inspectorate v Nuttall

For the offence of permitting a driver to contravene restrictions on driving hours, “permitting” means failing to take reasonable steps to prevent the contravention. The employer’s performance is judged objectively by the standard of a responsible employer.

The omission must be deliberate rather than attributable to honest mistake or accident, and it must be causally connected with the driver’s contravention. Subjective foresight that a particular breach was likely is unnecessary. A deliberate failure to check tachograph records may establish a rebuttable prima facie case, but the tribunal must consider all the evidence before convicting.

The appellant operated a coach business whose drivers committed a series of contraventions of Community rules governing driving periods, breaks and rest periods. Tachograph charts disclosed the contraventions, but the appellant had not examined them. The justices acquitted him of charges under section 96(11A) of the Transport Act 1968, finding insufficient knowledge or recklessness.

The Divisional Court, in Wing v Nuttall [1997] T.L.R. 225, quashed the acquittals and directed convictions. The employer appealed. The central issues were the conduct and mental elements of “permitting”, the causal connection required between an employer’s omission and a driver’s breach, and whether failure to inspect tachograph charts justified a direction to convict.

1. Appeal allowed to the limited extent of setting aside the direction to convict. The House unanimously remitted the charges to the justices for retrial. The acquittals had been based on a misdirection, but conviction was not inevitable on the available findings.

2. Per Lord Steyn, Lord Nicholls of Birkenhead and Lord Hobhouse of Woodborough, “permitted” in section 96(11A) of the Transport Act 1968 bears its wider contextual meaning: failure to take reasonable steps to prevent a driver’s contravention. This construction advances the road-safety purpose of the Community rules and reflects the employer’s duty to supervise compliance.

3. Per Lord Hobhouse, the employer’s liability is a separate offence rather than vicarious, secondary or accessory liability. The actus reus is an omission to take objectively reasonable preventive steps. The omission must precede and be causally related to the particular contravention. The prosecution must show that performance of the employer’s duty could have prevented it. A systematic failure to supervise, or a failure to respond to earlier breaches, may support that inference.

4. Per Lord Nicholls, the employer must act as a responsible employer in the same circumstances. Periodic inspection of tachograph records will normally be required unless the nature of the allotted journeys makes it unnecessary. The employer commits the offence where a deliberate failure to attain that standard is causally linked to the contravention. An omission caused by honest mistake or accident is different. Subjective foresight of the risk of a particular contravention is not an additional ingredient.

5. Per Lord Steyn, the offence is not one of strict or absolute liability. Wilfulness or recklessness is required. An employer who knows that contraventions are possible and fails to take reasonable preventive steps may generally be found reckless. A deliberate failure to inspect tachograph charts over time may establish a rebuttable prima facie case of not caring whether contraventions occur.

6. The justices wrongly concluded that the employer had no reason to inspect the charts, despite the duty of periodic checking under article 15 of Council Regulation (EEC) No. 3820/85. The Divisional Court nevertheless exceeded its proper role by directing convictions. The justices had to decide whether the employer’s evidence and the causal circumstances rebutted the prima facie case. No order was made as to costs.

1. House of Lords: Allowed the appeal only to the extent of setting aside the direction to convict. The case was remitted to the justices for retrial.

2. Divisional Court: In Wing v Nuttall [1997] T.L.R. 225, quashed the justices’ decision and returned the case with a direction to convict on the remaining 16 charges.

3. Leyland justices: Acquitted the appellant because they were not satisfied that the required knowledge or recklessness had been proved.