Vehicle Inspectorate v Nuttall [1999] 1 WLR 629

The owner of a coach company failed to check tachograph charts, thereby missing repeated drivers’ hours breaches. The House of Lords held that “permitting” includes failing to take reasonable steps, such as periodic checks, but remitted the case for retrial instead of ordering conviction.

Facts

The appellant, Mr Nuttall, operated a coach business, Redline Coaches, with around fifteen vehicles and a team of drivers. All vehicles were fitted with tachographs, which recorded drivers’ hours, journeys and rest breaks. Drivers completed tachograph charts and returned them to Mr Nuttall.

The Vehicle Inspectorate, acting for the Secretary of State for Transport, brought seventeen charges against Mr Nuttall under section 96(11A) of the Transport Act 1968 and the applicable Community rules (Council Regulations (EEC) 3820/85 and 3821/85). The first charge was abandoned; sixteen remained, covering incidents between 31 May and 30 July 1995, involving seven different drivers and various breaches of drivers’ hours limitations and rest requirements under Articles 6, 7 and 8 of Regulation 3820/85.

The justices at Leyland accepted that tachograph records showed the drivers had committed numerous contraventions and that, had Mr Nuttall examined the charts, he would have realised the breaches. However, they accepted his evidence that he had not in fact checked the charts during the relevant period.

They acquitted him on all sixteen charges, holding that knowledge was required to be guilty of “permitting” the offences and that failure to check the charts alone, without being on notice that offences might be committed, did not amount to the necessary mental element.

Issues

1. Meaning of “permitted” in section 96(11A)

The central issue was how to construe “permitted” in section 96(11A) of the Transport Act 1968, which provides that an employer who:

“caused or permitted the contravention shall be liable”

commits an offence where there is a contravention of the applicable Community rules on drivers’ hours.

The question was whether “permitted” required proof that the employer actually knew, or wilfully shut his eyes to, particular breaches, or whether it extended to failing to take reasonable steps (such as periodic tachograph checks) to prevent contraventions.

2. Mental element (mens rea)

The House had to determine what mental element was required for the employer’s offence, and whether recklessness could be inferred from a decision not to check tachograph records over a period of time.

The Divisional Court had certified the point of public importance:

“Whether knowledge in offences of permitting “drivers’ hours offences” is to be implied on the basis of the failure by the employer to check the very drivers’ hours records which would have revealed the drivers’ hours offences.”

3. Correctness of the justices’ and Divisional Court’s approaches

The House had to assess whether the justices had misdirected themselves in law by ruling that failure to check tachograph charts could not, by itself, amount to “permitting” the drivers’ offences, and whether the Divisional Court was correct to quash the acquittals and then go further by directing the justices to convict.

Judgment

Construction of “permitted” and the actus reus

Lord Steyn held that in the context of section 96(11A) and the Community rules, “permitting” bears a wider meaning:

“Depending on the context the word “permit” is capable of bearing, on the one hand, a narrow meaning of assenting to or agreeing to or, on the other hand, a wider meaning of not taking reasonable steps to prevent something in one’s power. But I am persuaded that the second or wider meaning best matches the context.”

The purpose of the Community rules, particularly Regulation 3820/85 and Regulation 3821/85, is to place responsibility on employers to use tachograph records to prevent contraventions and enhance road safety. The Court emphasised Article 15 of Regulation 3820/85:

“Article 15.1 The transport undertaking shall organise drivers’ work in such a way that drivers are able to comply with the relevant provisions of this Regulation and of Regulation (EEC) No. 3821/85.

Article 15.2 The undertaking shall make periodic checks to ensure that the provisions of these two Regulations have been complied with. If breaches are found to have occurred, the undertaking shall take appropriate steps to prevent their repetition.”

Lord Steyn concluded that “permitting” in section 96(11A) means failing to take reasonable steps to prevent contraventions by drivers. An employer’s actus reus is the omission to take such reasonable preventive steps, including periodic tachograph checks.

Lord Hobhouse agreed, stating:

“In the context of this legislation and the Regulations, it means, in my judgment, fail to take reasonable steps to prevent. It is used in the section in addition to the word “cause” and has a wider meaning.”

He described the offence as:

“a crime of omission which arises from the duty to act and involves the failure to perform that duty.”

The employer’s conduct must also have a causal relationship to the driver’s breach: the failure to act must be capable of having permitted that specific contravention.

Mental element (mens rea)

Lord Steyn held that the offence under section 96(11A) is not one of strict liability. A mental element of at least recklessness is required, although in practice recklessness would generally be the relevant mens rea:

“It is not an offence of strict or absolute liability. Nothing less than wilfulness or recklessness will be sufficient. In practice recklessness will be the relevant mens rea.”

He drew on Devlin J’s classification in Roper v. Taylor’s Central Garages (Exeter) Ltd. of three degrees of knowledge, including actual knowledge and “shutting eyes to an obvious means of knowledge”, and rejected the submission that the prosecution must prove knowledge that contraventions were likely. Taking into account the protective purpose of the regime, he indicated that where an employer knows there is a possibility of breaches, but fails to take reasonable steps such as checking tachographs, recklessness will generally be established.

Lord Nicholls agreed that “permitted” includes failure to take reasonable steps to prevent, and articulated the offence in terms of a duty and an objective standard of a responsible employer. He stated that under the wider meaning:

“the offence consists of an omission (“failed to take reasonable steps to prevent”). Thus, in section 96(11A) failure to take reasonable steps to prevent a contravention by the driver is prescribing a standard of conduct an employer is required to attain. The effect is to impose on the employer a duty. The prescribed standard is the objective standard of a responsible employer.”

He added that the mental element is satisfied if the employer’s failure to act as a responsible employer is deliberate (in the sense that the omission is deliberate, not an honest mistake or accident) and causally linked to the contravention. Beyond that deliberate omission, there is little practical scope for any further subjective foresight requirement.

Lord Hobhouse similarly considered that, in practice, the case turned not on a complex mental state but on the employer’s deliberate failure to perform a known duty. The employer chooses whether or not to check; if his conduct objectively falls short of reasonable steps, the actus reus and, effectively, the mens rea are both satisfied, absent accident or innocent mistake.

Failure to check tachographs as prima facie recklessness

Lord Steyn explained why a failure to examine tachograph records over a period can constitute a prima facie case of the employer committing the offence. He noted the notorious pressures on drivers and the risk of breaches, the road safety purpose of the regulations, and the widely known obligation under Article 15 to make periodic checks. He stated that, in the absence of contrary evidence, justices may assume a licensed operator is aware of this obligation, and that:

“if apart from proof of a series of contraventions by drivers the only evidence is an explanation by the employer that he did not examine the records over the relevant period of time, the case is capable of amounting to a prima facie case of the employer failing to take reasonable steps to prevent contraventions in the state of mind of not caring whether contraventions take place or not.”

However, he emphasised that this is only a prima facie case, capable of rebuttal – for example, by evidence that other reasonable precautions were taken.

Error of the justices and the Divisional Court

The justices had held that Mr Nuttall could not have the necessary knowledge “solely by his failure to check the tachograph charts” and that he had “no reason to examine closely the record charts”. Lord Steyn found this to be a misdirection:

“I am quite satisfied that the justices erred in concluding that the defendant had no reason to examine the tachograph charts. The defendant was obliged to perform periodic checks of the charts. Subject to a contrary explanation, one is entitled to infer that he was aware of this obligation. His disregard of this obligation shifts the evidential burden to him to explain why he did not comply with the obligation. Contrary to the view of the justices, the defendant’s failure to examine the tachograph charts was capable of creating a prima facie case of recklessness in the required sense.”

Thus, the decision of the justices was “fundamentally flawed” and had to be quashed.

However, the House held that the Divisional Court went too far in directing the justices to convict. It was for the justices, on a proper legal direction, to assess whether the evidence (including any reliance on vehicle scheduling or other precautions) rebutted the prima facie case of recklessness for each count. Lord Steyn therefore held that the direction to convict must be set aside and the matter remitted for retrial.

Lord Hobhouse agreed that both the magistrates and the Divisional Court had erred: the former by failing to appreciate the employer’s duty and the nature of the offence, the latter by removing from the magistrates their proper fact-finding role on whether the actus reus and causation were made out for each individual offence.

Implications

This decision clarifies that, in the context of drivers’ hours offences, an employer “permits” contraventions not only by actively agreeing to them but also by failing to take reasonable preventive steps, especially periodic examination of tachograph records as required by Community law.

The case establishes that:

• The employer’s duty is objective and derived from the Community regulations and licensing framework. The standard is that of a responsible employer.
• Deliberate failure to perform that duty, in circumstances where there is a recognised risk of breaches, will generally amount to recklessness.
• Failure to check tachographs over a relevant period, combined with proven driver breaches, can provide a prima facie basis for conviction under section 96(11A), shifting an evidential burden to the employer to justify his conduct.
• Nonetheless, liability is not strict: the court must consider any evidence of other reasonable precautions, and each charge must be assessed individually, particularly where earlier breaches might or might not have alerted the employer.

More broadly, the case reinforces that statutory duties to supervise or monitor compliance can found criminal liability where an employer deliberately omits to act, and that mens rea may in practice be satisfied by a deliberate decision not to perform known compliance obligations.

Verdict: Appeal allowed; the Divisional Court’s direction to convict was set aside and the case was remitted to the justices for retrial, with no order as to costs.

Source: Vehicle Inspectorate v Nuttall [1999] 1 WLR 629