Williams (t/a Williams of Porthmadog) v Vehicle and Operator Services Agency

Where legislation distinguishes between using a vehicle and causing or permitting its use, an owner is treated as the user only if the driver works for the owner under a contract of service and drives on the owner’s business. Under section 114(1)(c) of the Criminal Justice Act 2003, agreement to admit hearsay may be express or implied. It may be inferred from the circumstances, including legal representation, prior disclosure and the absence of any objection, although no automatic inference arises from silence. Admissible evidence of the driver’s own account, uncontradicted by the defendant, may support the necessary employment and business findings.

The claimant appealed by way of case stated from convictions by Gwynedd justices sitting at Pwllheli Magistrates’ Court. He had been convicted of two offences involving the use of a school bus with dangerous component parts, contrary to regulation 100(1) of the Road Traffic (Construction and Use) Regulations 1986 and section 42 of the Road Traffic Act 1988.

The vehicle was owned and operated by the claimant. The driver told a traffic examiner that she was transporting pupils under the claimant’s school transport contract. The central issues were whether the evidence justified treating the claimant as having used the vehicle and whether the driver’s account was admissible hearsay under section 114(1)(c) of the Criminal Justice Act 2003.

1. Appeal dismissed. The court answered both questions in the case stated in the affirmative.
2. For offences using the word “use” where the legislation also provides for causing or permitting use, the owner is a user only where the driver is employed by the owner under a contract of service and, at the material time, is driving on the employer’s business. This was the principle stated in West Yorkshire Trading Standards Service v Lex Vehicle Leasing Ltd [1996] RTR 70, and was applied as the “West Yorkshire Test”. General employment, self-employment or agency driving is insufficient.
3. Agreement under section 114(1)(c) of the Criminal Justice Act 2003 need not be formal or express. It may be implicit in the circumstances. The inference depends on the whole context and is not automatic merely because no objection was made. It may nevertheless be drawn where the defendant is legally represented, the evidence was disclosed in advance, no objection was taken during the hearing, and submissions addressed the weight rather than admissibility of the evidence.
4. In this case the driver’s statement was therefore admissible. The justices were entitled to give it weight and, in the absence of contrary evidence or qualification, to infer an ordinary employer-and-employee relationship involving a contract of service. The evidence, together with the claimant’s school transport contract and the displayed operator licence, was capable of establishing that the driver was acting on the claimant’s business.
5. Keene LJ agreed, emphasising that the inference of agreement would be particularly difficult where a defendant was unrepresented and that the court retained a discretion whether to draw it. There were no cost consequences.

• High Court (Administrative Court): The Divisional Court heard an appeal by way of case stated from convictions imposed by Gwynedd justices sitting at Pwllheli Magistrates’ Court on 11 May 2007. The appeal was dismissed.