Cantabrica Coach Holdings Limited v Vehicle Inspectorate)

An authorised vehicle examiner may require a transport operator, without prior notice or suspicion of falsification, to hand over tachograph records for removal to the inspectorate’s premises when this enables effective inspection and copying. The opening power in section 99(1) of the Transport Act 1968 is concurrent with the separate power to require production at a traffic commissioner’s office on at least ten days’ notice. It is also distinct from seizure following suspected falsification.

The statutory power includes removal for computer-assisted examination. The majority held that reasonableness of removal is not an additional element which the prosecution must prove, although an exercise of the power may be challenged on public law grounds.

A licensed coach operator offered to let an authorised Vehicle Inspectorate officer inspect its August 1998 tachograph charts at its premises, but refused to let him remove them for examination elsewhere. The charts were consequently not inspected. Hertfordshire justices convicted the operator under sections 99(1)(bb) and 99(4)(a) of the Transport Act 1968.

The Divisional Court, reported at [2000] RTR 286, dismissed an appeal by case stated. It held that an officer could demand the records at the operator’s premises and take them away for detailed analysis. The certified question was whether section 99(1) conferred that power without prior notice and without reason to suspect falsification under section 99(5).

1. Appeal dismissed unanimously. Lord Steyn and Lord Hutton delivered the principal majority reasoning; Lord Hope agreed with both. Lord Slynn and Lord Scott agreed in the result and in recognising a power of removal, but differed from the majority on reasonableness as an element of the offence.

2. Per Lord Steyn and Lord Hutton, section 99(1) of the Transport Act 1968 authorises an officer to require tachograph records to be handed over and removed for examination and analysis at Vehicle Inspectorate premises. Effective monitoring of drivers’ hours may require specialist equipment and staff located there. Section 99(10), although not commenced, was a legitimate and compelling aid to construing the section as a whole because it contemplated processes for eliciting recorded information.

3. Per Lord Steyn and Lord Hutton, the opening power in section 99(1) and the concluding power to require production at the traffic commissioner’s office on at least ten days’ written notice are concurrent and distinct. The notice requirement attached only to the latter. The seizure power in section 99(6), exercisable where falsification was suspected, was a different and more stringent procedure and did not confine routine inspection under section 99(1).

4. Per Lord Hope, agreeing with Lord Steyn and Lord Hutton, the statute imposed no additional requirement that the prosecution prove it was reasonable to take the documents away. It was enough to prove a properly made requirement concerning an item within the officer’s statutory authority and non-compliance. A requirement could nevertheless be challenged on public law grounds.

5. Lord Slynn and Lord Scott considered that removal was authorised only so far as reasonably required to provide a reasonable opportunity for inspection and copying. Lord Scott regarded an unreasonable request as unlawful and available as a defence if raised. Lord Slynn considered that, once such a defence was raised, the prosecution should establish that removal was reasonable. This qualification did not affect the result because the operator had not contended that the request was unreasonable.

6. Per Lord Hutton, even assuming that article 8 of the Convention could apply to a limited company, removal for careful examination was lawful, necessary for public safety and proportionate. The conviction and the Divisional Court’s decision therefore stood.

1. House of Lords: The operator’s appeal was dismissed unanimously. The Divisional Court’s construction and the conviction were upheld: [2001] UKHL 60.

2. Divisional Court of the Queen’s Bench Division: Kennedy LJ and Butterfield J dismissed the appeal by case stated and held that an authorised officer could require tachograph sheets to be handed over for removal and detailed analysis: [2000] RTR 286.

3. Hertfordshire justices: The operator was convicted of failing to comply with a requirement under sections 99(1)(bb) and 99(4)(a) of the Transport Act 1968, fined £400 and ordered to pay costs.