Significant case re tachograph chart checks
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• This month I am dealing with two topics and for the first I must remind readers that most of the operational offences such as overloading, driving excessive hours, or using a defective vehicle, derive from a section in the Road Traffic Act which allows the prosecution to choose between the offences of "using", "causing", or "permitting". Remember, too, that the offence of using is absolute and, for that reason, is the favourite weapon of the prosecution.
Some offences, however, do not allow the prosecution that luxury. In particular, tachograph offences committed by the driver are such that he, and only he, can be charged with using. The employer must be charged with either causing or permitting.
That is the background to the following. Some time ago the Divisional Court, in the case of the Metropolitan Licensing Authority v Coggms, confirmed that the prosecution was required to prove the commission of the offence. The prosecution could not simply say that, for instance, certain drivers had exceeded their hours and that the employer must therefore have permitted the offence. The court said that the prosecution must show that the system of the employer was inadequate to a sufficient degree as to make the commission of the offence probable.
This was, of course, a very important decision and provided a much needed opportunity to defend this type of case. The importance increases with the increasing determination of the prosecuting authorities to collect and check large numbers of tachograph charts.
On 28 April, in the case of Redhead Freight v Shulman, a strong Divisional Court, in considering Section 97 of the Transport Act 1968, appears to have gone further.
In that case a driver failed on numerous occasions to hand in his tachograph chart. The company, and I quote from the report, "knew or at least deliberately shut its eyes through its transport manager to the fact that one of its employees was not filling in the records except on isolated occasions."
Taking the Coggins case as a guide, it would seem that the prosecution was able to show that the system of the employer was so defective as to make the offence probable. In the Redhead Freight case, the court said that, as the driver did from time to time comply with the law, it was not inevitable that the offence would be committed, and that therefore while there might in effect be permission, it 'fell short of a positive mandate or any other sufficient act required for the offence as charged".
This would appear to mean that, until the law is changed, where there has been some compliance with the law it will be difficult, if not impossible, for the prosecution to succeed in this type of case.
As it happens a bundle of summonses alleging that a company has "caused and permitted" some tachograph offences arrived on my desk this morning so I shall be able to give the case a run... I will let you know, I want, as a second topic, to return to Europe.
In a recent poll that phrase has really become part of our language it was found that 80% of Europeans were aware of the implications of 1992, whereas in the UK only 5% shared that awareness.
You may yourself have asked why, given the excitement of 1972, we should be talking about 1992. The answer is that in 1992 the dream of 1972 towards which we have all been working, is to become a reality.
In case you should detect some slight cynicism in that, I will take the matter a little further. The intention is that standardisation will be largely achieved in all matters that affect the European Community as a whole. We will have a European passport; we will have harmonised standards for, say, electrical goods; there will be no tariff barriers; and, of course, should you wish to establish a business in France you will be free to do so.
The hope, and belief, is that the Single European Market will create a greater market place which will enable there to be greater production, mobility, and employment. Whether or not you share that hope and belief, it will happen and it will constitute an imposed challenge to almost all our commercial activities. I, for instance, may well have to contend with the UK offices of French, German, or Italian lawyers. You, in my view, will have to contend with European hauliers who have established bases in the UK.
Can I add, as there is a great deal of misunderstanding about some aspects of the European Community, that we will not suddenly have to conduct our business against the codified provisions of the French Legal system. Our law of contract, tort, and general commercial matters will remain the same. It will, however, be critically important to ensure that, if you are dealing with a company based in another part of the Community that there is a clear agreement as to whose law should prevail.
That, in a sense, is a diversion from the main thread of this article but is something of which we should all, I think, be aware.
One of the occurrences that prompted me to return to the EEC as topic was a disci ission that I had about the productivity of the market gardening areas of the Lancashire Plain.
My recollection is that, when I did A-level geography, I was taught that the Lancashire Plain had the highest production of any comparable area in Europe. I now find that Dutch, and no doubt other European growers, can get their produce to the English markets at the same time as the English growers and at competitive prices.
I am certain that we should be learning urgently to think in European terms. With some notable exceptions such as TNT, industry in this country seems to be reluctant to move into the new market place, Language is undoubtedly a problem; we have, I suspect, taken 0. 44 somex.urious national pride in our celebrated inability to speak other languages. That must change. Language courses of all sorts are readily available and we should be there. It is time to consider merger or movement with or into Europe. European companies are interested in association with UK operations; it is simply a question of getting into the market and announcing interest. My message for this month is to Think EEC.
Au revoir mes vieux Copins • by Jonathan Lawton