Vehicle & Operator Services Agency v Ace Crane & Transport Ltd

Evidence of an employer’s earlier failures to monitor or act on drivers’ recording breaches may be evidence of the alleged facts of a later offence of permitting a failure to make a record. It is therefore outside the statutory definition of bad-character evidence where it forms part of the proof that the employer failed to take reasonable steps to prevent the later breach. The distinction between failures to record and erroneous entries is too narrow. Evidence that an employer failed to detect erroneous entries may be equally probative of a failure to detect non-entries. Such evidence may be admitted without a bad-character application under the Criminal Justice Act 2003.

The Agency appealed by case stated from the decision of Deputy District Judge Hines at North Avon Magistrates’ Court. The respondent company faced nine charges under section 99ZE(1)(d) of the Transport Act 1968, alleging that it had permitted a driver to fail without reasonable excuse to make required records or entries.

The prosecution sought to rely on earlier tachograph-record breaches and failures to detect or act on them. The deputy district judge treated that material as evidence of bad character, excluded it because no application had been made, and acceded to a submission of no case. The central issue was whether the earlier material concerned the alleged facts of the offences and was admissible without a bad-character application.

1. Appeal allowed. The answer to the first question was no. The second question did not arise. The matter was remitted for a fresh hearing before a differently constituted court.
2. The court applied the reasoning in Vehicle Inspectorate v Chaney, Raymond and Nuttall, trading as Red Line Coaches [1999] 1 WLR 629. For an offence of permitting a driver’s breach, the employer’s actus reus is conduct preceding the breach which could have prevented it. This may be proved by showing a systematic failure to perform the employer’s duty, or earlier breaches which were not detected, addressed or adequately responded to.
3. Those earlier failures were evidence concerning the alleged facts of the offences within section 98(a) of the Criminal Justice Act 2003. They were therefore outside the statutory definition of bad-character evidence and did not require a formal application.
4. The respondent’s proposed distinction between earlier failures to detect non-entries and earlier failures to detect erroneous entries was too narrow. A failure to detect an erroneous entry could be equally probative of a failure to detect a non-entry. Treating the former as inadmissible would produce a paradoxical result, and the two categories could overlap in practice.
5. The respondent was ordered to pay the Agency’s costs, summarily assessed at £5,000. The fresh hearing was to take place before a differently constituted court.

• High Court (Administrative Court): appeal by case stated allowed. The magistrates’ court’s exclusion of the evidence was held erroneous, and the matter was remitted for a fresh hearing before a differently constituted court.
• North Avon Magistrates’ Court: Deputy District Judge Hines excluded the earlier evidence as bad-character evidence and upheld a submission of no case.