Harding v Vehicle & Operator Services Agency (VOSA)

Article 12 of Regulation (EC) No 561/2006 permits departure from prescribed driving and rest requirements only within strict limits. A driver must both establish that the departure was necessary for safety and make a contemporaneous written record of its nature and reason. The record is a mandatory condition of the derogation. A court’s acceptance of the driver’s explanation does not cure the failure to record it. The requirement supports both road safety and effective enforcement, since breaches may be discovered long after the event. A failure to make the required record therefore remains a contravention even where the underlying movement was justified and the driver acted honestly.

The claimant appealed by way of case stated against his conviction by justices for contravening section 96 (11A) of the Transport Act 1968. He had taken less than the required reduced daily rest period under Article 8(2) of Regulation (EC) No 561/2006 after moving his vehicle from an unsuitable stopping place to safer parking.

The justices accepted that the movement was necessary for road safety and fell within the first limb of Article 12. They nevertheless convicted him because he had made no written record of the nature and reason for the departure. The issue before the Divisional Court was whether the absence of that record prevented reliance on the Article 12 exception.

1. The appeal was dismissed. The claimant’s failure to take the required daily rest period constituted an offence under Article 8(2), unless the conditions in Article 12 were satisfied.
2. Article 12 permits departure from Articles 6 to 9 only to the extent necessary to enable the vehicle to reach a suitable stopping place and ensure the safety of persons, the vehicle or its load. The first condition was satisfied because the claimant had moved from an unsafe or unavailable stopping place.
3. The written-record requirement in Article 12 is mandatory. The driver must record manually, at the latest on arrival at the suitable stopping place, the nature and reason for the departure. The clear language of the provision and its legislative purpose require contemporaneous evidence capable of later inspection.
4. The court rejected the submission that the requirement could be treated as merely clerical where the driver’s explanation was later accepted as truthful. The record-keeping obligation facilitates both road safety and enforcement, including inspection of records months after the event. Case C-235/94, Bird [1995] ECR I-03933 supported treating the road-safety and record-keeping requirements as linked.
5. Neither dishonesty nor improper conduct was required for liability. The claimant’s honest and justified reason for moving the vehicle did not remove the separate contravention caused by failing to make the required record. The conviction and its consequential effects followed from that failure. The appeal was dismissed and an order for costs of £2,565.38 was made.

• High Court (Administrative Court): on 10 March 2010, the Divisional Court dismissed the appeal by case stated from the justices for the County of Essex.
• Justices for the County of Essex: convicted the claimant of contravening Article 8(2) and rejected reliance on Article 12 because no written record had been made.