Cantabrica Coach Holdings Limited v. Vehicle Inspectorate

The House of Lords held that section 99(1)(bb) of the Transport Act 1968 (as amended to implement Council Regulation (EEC) No 3821/85) authorises an authorised officer to require an operator to hand over tachograph record sheets so that they may be taken away for inspection and copying. The coda to section 99(1) (requiring not less than ten days' notice where production is required at the traffic commissioner's office) is a separate power and does not limit the officer's power under the opening words of section 99(1). Section 99(10) and the objectives of the domestic and Community regulatory scheme support a broad construction permitting removal for examination using specialist processes or equipment.

Although some Law Lords emphasised that an operator may defend a prosecution by showing that the officer's request to remove documents was unreasonable in all the circumstances, the majority concluded that the statute does not require the prosecution to prove reasonableness as an element of the offence. The appellant's conviction was therefore upheld on the factual basis that no plea of unreasonableness had been advanced.

Background and procedural posture.

• The appellant, a licensed coach operator, was prosecuted at magistrates' court for failing to comply with a requirement under section 99(1)(bb) and section 99(4)(a) of the Transport Act 1968 after refusing to permit an authorised Vehicle Inspectorate officer to take away tachograph charts for August 1998; the company had been willing to permit inspection at its premises but refused to allow removal.
• The magistrates convicted and the defendant obtained a case stated to the Divisional Court. The Divisional Court ([2000] RTR 286) answered in the affirmative that an officer may require handing over of records for removal and analysis without prior notice or suspicion of falsification. The point was certified to the House of Lords.

Nature of the appeal and issues.

• The appeal concerned statutory construction: whether the first part of section 99(1) permits an authorised officer to require handing over and temporary removal of records for inspection and copying without giving the ten days' notice required by the coda to the subsection and without having reason to suspect an offence under section 99(5).
• Secondary issues were whether the power to seize under section 99(6) or the coda implied that removal by an inspecting officer without notice was unlawful, and whether requirement to permit removal engages Convention rights (article 8).

Court's reasoning.

• The majority construed section 99(1) purposively in light of Part VI objectives (section 95(1)) and the Community Regulation's aim of effective checking: the opening words allowing an officer to require production, inspection and copying were broad enough to include requiring handing over and temporary removal when that is necessary to enable meaningful inspection and analysis.
• The coda requiring ten days' notice applies to a distinct power to require production at the traffic commissioner's office and does not limit the power in the opening words. The seizure power under section 99(6) is a separate, more draconian remedy aimed at suspected falsification and does not displace the inspecting power to take records away for analysis.
• Section 99(10) (though not commenced) confirms that inspection may include processes for eliciting recorded information and supports the practical need to allow removal when specialist equipment or staff are required.
• On the reasonableness point there was some difference of emphasis. Several Law Lords held that the statute itself does not make reasonableness a precondition which the prosecution must prove, but it is open to an operator to contend as a defence that the officer's request to remove documents was unreasonable in all the circumstances; if that defence is raised the officer must justify the request.
• As to human rights, the taking away of records for inspection was held to be "in accordance with the law" and proportionate for the public safety objective.

Appeal dismissed. The House of Lords concluded that section 99(1)(bb) authorises an authorised officer to require handing over of tachograph record sheets and to take them away for inspection and copying where that is necessary to inspect and copy the records; the coda to section 99(1) (ten days' notice for production at the traffic commissioner's office) is a separate power and does not restrict the officer's power to require removal. Although an operator may argue that a request to remove records was unreasonable as a defence, the statute does not make the prosecution's case dependent on proving reasonableness in every case. The appellant's conviction was therefore upheld on the facts (no unreasonableness was asserted).

Magistrates' Court: defendant convicted (Watford Magistrates' Court). Case stated to Divisional Court (Queen's Bench Division). Divisional Court (Kennedy LJ and Butterfield J) [2000] RTR 286: appeal dismissed and question of law certified. Appeal to House of Lords: [2001] UKHL 60 (appeal dismissed).