Vehicle and Operator Services Agency v Jones

For the purposes of tachograph offences, withdrawal of a record sheet does not require its complete removal from the tachograph. Applying a purposive construction to the Community Recording Equipment Regulation, lifting the sheet away from the recording styli before the end of the daily working period constitutes withdrawal because it prevents proper recording. A driver’s motive is irrelevant to whether the offence is committed. Interference which prevents the equipment from functioning correctly may also constitute a breach of the duty to ensure its correct functioning and proper use.

The Vehicle and Operator Services Agency appealed by way of case stated against the acquittal of Neil Jones by the Milton Keynes Magistrates’ Court on two charges under section 97(1)(a)(iii) of the Transport Act 1968 and article 15(2) of Council Regulation (EEC) No 3821/85. Mr Jones had opened the tachograph head while driving, causing the record sheet to lift away from the styli. The sheet remained inside the equipment. The magistrates concluded that this was not withdrawal of the sheet and also found that physical removal while the vehicle was moving was impossible. The central issue was whether lifting the sheet from the recording mechanism amounted to unauthorised withdrawal.

1. Appeal allowed. The matter was remitted to the Magistrates’ Court with a direction to convict on both offences.
2. The second question in the case stated was irrelevant and was declined. Neither party’s case was that the record sheet had been physically removed. The prosecution relied on the tachograph head being opened so that the styli no longer contacted the sheet.
3. Section 97(1)(a)(iii) of the Transport Act 1968, read with section 97(5), required the recording equipment to be used in compliance with articles 13 to 15 of Council Regulation (EEC) No 3821/85. Article 15(2) required the record sheet to be used throughout the daily working period and prohibited its withdrawal before that period ended unless authorised.
4. The Regulation required a purposive construction directed to its functions of monitoring drivers’ working and rest periods, promoting road safety, ensuring reliable operation and minimising fraudulent use. The court accepted the approach to the statutory purpose described in Birkett & Another v Vehicle Inspectorate [1998] RTR 264, and took account of the purposive approach illustrated by P Bulmer Ltd v J Bollinger [1974] 2 AER 1226 and Litster v Forth Dry Dock Company Ltd [1989] 1 AER 1134.
5. On that construction, any action lifting the record sheet from the styli before the end of the daily working period amounted to withdrawal. Complete removal from the tachograph was unnecessary. The driver’s motive was irrelevant to commission of the offence, although it could be relevant to sentence.
6. The same conduct could also have supported a charge based on article 13, because interference causing the equipment not to function correctly could breach the driver’s duty to ensure its correct functioning and proper use. The court suggested that prosecuting authorities should consider that alternative where appropriate.
7. No order was made as to the appeal costs, having regard to the magistrates’ error of law and Mr Jones’s financial circumstances.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The magistrates’ acquittals were set aside, and the case was remitted with a direction to convict.
• Milton Keynes Magistrates’ Court: On 2 July 2004, the respondent was acquitted of two tachograph offences.