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CANTABRICA COACH HOLDINGS LIMITED v. VEHICLE INSPECTORATE [2000] EWHC Admin 315 (31st March, 2000)
IN THE HIGH COURT OF JUSTICE CO/3235/1999
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London WC2A 2LL
Friday, 31st March 2000
Before:
LORD JUSTICE KENNEDY
and
MR JUSTICE BUTTERFIELD
_________________________
CANTABRICA COACH HOLDINGS LIMITED
Appellant
-v-
VEHICLE INSPECTORATE
Respondent
_________________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
_________________________
MR DAVID PHILLIPS Q.C. and MR RICHARD SERLIN (instructed by Messrs Wedlake
Saint, 14 John Street, London WC1N 2EB) appeared on behalf of the Appellant.
MR RICHARD PLENDER Q.C. (instructed by Foinette Quinn, 125-131 Queensway,
Bletchley, Milton Keynes MK2 2DH) appeared on behalf of the Respondent.
_________________________
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE BUTTERFIELD:
General
1. This is an appeal by way of case stated from a decision of Hertfordshire
Justices sitting at Dacorum on 10 May 1999 whereby the appellant was convicted
of failing to hand over to the respondent tachograph charts, contrary to
Section 99(1)(bb) of the Transport Act 1968. The case raises the question of
the proper construction of the relevant legislation. The resolution of that
issue is of considerable practical importance to transport operators and to the
Department of Transport alike.
Summary of the Facts
2. The appellant company, Cantabrica Coach Holdings Ltd, is a coach operator
and the holder of a Public Services Vehicle Operators Licence and as such
obliged to comply with Part VI of the Transport Act 1968. The respondent, the
Vehicle Inspectorate, is the executive arm of the Department of Transport
responsible for the enforcement of road transport legislation. In that
capacity the respondent carries out the examination of the records that a
transport operator is required to keep.
3. On 15 September 1998 Mr Harrison, a Senior Traffic Examiner for the
respondent and an authorised officer for the purpose of the Transport Act 1968,
visited the appellant's operating centre in Watford. He spoke to Mr Collins,
the General Manager of the appellant and explained to him that he required the
tachograph charts for the month of August for all the vehicles being used under
the appellant's Operators Licence to be handed over. His requirement was not
met and Mr Harrison informed Mr Collins that he proposed to return on a later
date. He warned Mr Collins that if the tachograph charts were not available
for collection on that occasion the appellants would be reported for the
offence of failing to hand over record sheets when requested to do so by an
authorised inspecting officer.
4. On 1 October 1998 Mr Harrison returned to the appellant's offices. He there
met with the Fleet Manager, Mr Evans, and Mr Collins. He requested permission
to remove the tachograph charts in respect of August 1998. Mr Evans refused
permission to remove the documents but indicated that the appellant company was
prepared to allow Mr Harrison to inspect the tachograph charts at the
appellant's offices. That offer was declined and the tachograph charts for
August 1998 were never produced for inspection or handed over to the Vehicle
Inspectorate.
The Information
5. Arising out of those facts an information was preferred by the respondent
against the appellant that the company on 1 October 1998 at Elton Way, Watford,
in the county of Hertfordshire, or elsewhere, when asked by an authorised
officer to hand over tachograph charts required to be kept by Article 14(2) of
the Council Regulation (EEC) 3821/85 failed to do so, contrary to section
99(1)(bb) and (4)(a) of the Transport Act 1968. The justices found the case
proved and fined the appellant £400 together with an order for costs.
The Question for the Court
6. The question for the opinion of this Court is as follows:
Whether an offence under section 99(1)(b) and 99(4)(a) of the Transport Act
1968 is committed by a refusal on the Defendant's part to hand over tachograph
records to an authorised officer of the Vehicle Inspectorate upon request in
circumstances where:
(i) records are ready and available for production to the officer;
(ii) the officer refuses to accept production (and inspection) at the
defendant's premises of the records but requires them to be handed over there
and then for the officer to take away;
(iii) the officer has no reason to believe an offence under section 99(5) of
the Act has been committed in respect of any record or document inspected by
him?
Whether the justices were right to conclude on the evidence before them that an
offence was committed under section 99(1)(bb) and 99(4)(a) of the Transport Act
1968 of failing to hand over tachograph records to be kept by Article 14(2) of
EU regulation 3821/85?
7. In summary, the appellant's case is that the respondent was entitled to
inspect and copy the tachograph records at the appellant's premises but was not
entitled to remove them from those premises. Accordingly, the appellant's
refusal to hand over the documents for removal was not an offence. The
respondents, to the contrary, submit that on a proper construction of the
relevant legislation a refusal to hand over the tachograph records and thus
permit the senior traffic examiner to remove them from the appellant's premises
was a clear breach of the provisions of the Transport Act 1968.
The Legislation
8. The Transport Act 1968 has largely been superseded by subsequent
legislation. Part VI, however, survives. Section 95 spells out clearly the
purpose of that part of the Act, which is expressed to be to secure the
observance of proper hours of work by persons engaged in the carriage of
passengers or goods by road and thereby protecting the public against the risks
which arise in cases where the drivers of motor vehicles are suffering from
fatigue.
9. Section 96 lays down the permitted driving times and periods of duty for
drivers to whom Part VI applies. Section 97 provides that approved recording
equipment in working order must be installed and operated in all vehicles to
which Part VI applies, and empowers the Minister to make regulations relating
to the preservation of any records produced by means of the equipment. Section
98 permits the Minister to make regulations requiring the driver and employer
to keep appropriate books and records. Contravention of either section amounts
to a summary offence.
10. As originally enacted Section 99 provided as follows:
99(1) An officer may, on production if so required of his authority, require
any person to produce, and to permit him to inspect and copy -
(a) any book or register which that person is required by regulations under
section 98 of this Act to carry or have in his possession for the purpose of
making in it any entry required by those regulations or which is required under
those regulations to be carried on any vehicle of which that person is the
driver;
(b) any record, book or register which that person is required by regulations
under section 97 or 98 of this Act to preserve;
(c) if that person is the owner of a vehicle to which this Part of this Act
applies, any other document of that person which the officer may reasonably
require to inspect for the purpose of ascertaining whether the provisions of
this Part of this Act or of regulations made thereunder have been complied
with;
and that record, book, register or document shall, if the officer so requires
by notice in writing served on that person, be produced at the office of the
traffic commissioners or licensing authority specified in the notice within
such time (not being less than ten days) from the service of the notice as may
be so specified.
(2) An officer may, on production if so required of his authority -
(a) at any time, enter any vehicle to which this Part of the Act applies and
inspect that vehicle and any equipment installed in it for the purpose of
section 97 of this Act and inspect and copy any record on the vehicle which has
been produced by means of that equipment;
(b) at any time which is reasonable having regard to the circumstances of the
case, enter any premises on which he has reason to believe that such a vehicle
is kept or that any such records, books, registers or other documents as are
mentioned in subsection (1) of this section are found, and inspect any such
vehicle, and inspect and copy any such record, book, register or document,
which he finds there.
11. Section 99(4) creates the summary offence of failing to comply with the
requirements of Section 99(1) and (2). Section 99(5) creates the indictable
offence of falsifying records made by the recording equipment required to be
kept under Section 97 or any entry in a book or register kept for the purposes
of regulations made under Section 98. Section 99(6) empowers an officer to
seize any record or document inspected by him under Section 99 if he has reason
to believe that an offence under subsection (5) has been committed in respect
thereof, and thereafter retain the record or document for up to 6 months
without preferring any charge relating to it.
12. In this context it is relevant to note that whilst there is no finding
within the body of the case that the authorised officer had no reason to
believe that an offence under Section 99(5) of the 1968 Act had been committed,
that is the implicit assumption inherent in question 1(iii) posed by the
justices and we proceed on that basis.
13. Section 99(10) provides :
In this section references to the inspection and copying of any record
produced by means of equipment installed for the purposes of section 97 of this
Act in a vehicle include references to the application to the record of any
process for eliciting the information recorded thereby and to taking down the
information elicited from it.
The provisions enacted were thus very detailed and provided comprehensive
powers requiring production and permitting inspection and copying of all
records which an operator was obliged to keep and maintain, with criminal
sanctions for a failure to comply.
14. On 29th September 1986 Council Regulation (EEC) No 3821/85, the Community
Recording Equipment Regulation, came into force. The expressed purpose of that
Regulation was to ensure effective checking on social legislation relating to
road transport. Article 3 provides that recording equipment shall be installed
and used in vehicles registered in a Member State which are used for the
carriage of passengers or goods by road. Article 19(1) requires Member States
to adopt such laws, regulations or administrative provisions as may be
necessary for the implementation of the regulation. Such measures must cover
in particular the procedure for, and means of carrying out, checks on
compliance and the penalties to be imposed in case of breach.
15. Article 14 of the Regulation provides as follows:
(1) The employer shall issue a sufficient number of record sheets to drivers,
bearing in mind the fact that these sheets are personal in character, the
length of the period of service and the possible obligation to replace sheets
which are damaged, or have been taken by an authorised inspecting
officer......
(2) The undertaking shall keep the record sheets in good order for at least a
year after their use and shall give copies to the drivers concerned who request
them. The sheets shall be produced or handed over [my emphasis] at
the request of any authorised inspecting officer.
The circumstances in which the records must be produced or handed over are not
specified in the Regulation.
16. Article 15(7) of the Regulation provides:
Whenever requested by an authorised inspecting officer to do so, the driver
must be able to produce record sheets for the current week, and in any case for
the last day of the previous week on which he drove.
17. In accordance with the obligation imposed by Article 19(1) regulation
3821/85 was implemented in domestic law by amendments to Part VI of the
Transport Act 1968. Section 99 as amended reads, so far as relevant:
99(1) An officer may, on production if so required of his authority, require
any person to produce, and permit him to inspect and copy -
(bb) any record sheet which that person is required by Article 14(2) of the
Community Recording Equipment Regulation to retain or by Article 15(7) of that
Regulation to be able to produce;
and that record sheet ......... shall, if the officer so requires by notice in
writing served on that person, be produced at the office of the traffic
commissioner specified in the notice within such time (not being less than 10
days) from the service of the notice as may be so specified.
(4) Any person who -
(a) fails to comply with any requirement under subsection (1) of this section
....
shall be liable on summary conviction to a fine not exceeding level 3 on the
standard scale.
18. There is further relevant Community legislation in Council Directive
88/599/ECC of 23rd November 1988, a directive designed to introduce minimum
requirements to check compliance with the relevant provisions. Article 2
provides that Member States shall organise a system for appropriate and regular
checks, both at the road side and at premises of undertakings covering each
year a large and representative cross-section of drivers falling within the
scope of Regulations (EEC) No 3820/85 and 3821/85. Not less than 15% of those
checks are to be made at the roadside and not less than 25% at the premises of
undertakings.
19. Article 4(3) provides:
For the purposes laid down in this Article, checks carried out at the premises
of the competent authorities, on the basis of relevant documents handed over by
undertakings at the request of the said authorities, shall have the same status
as checks carried out at the premises of undertakings.
The words "premises of the competent authorities" plainly includes the office
of the traffic commissioner.
20. The appellant further relies on the terms of a document agreed between the
Confederation of Passenger Transport UK (of which the appellant is a member)
and the Vehicle Inspectorate. The appellant describes the document as a Code
of Practice; the respondent as a briefing sheet. It is in effect a protocol.
Whilst on its face that document gives support to the appellant's submissions
in my judgement it has no force in law and is of no assistance in interpreting
the relevant legislation. The document, however it should properly be
described, contains a disclaimer stating that it is for general guidance only
and not intended to provide legal advice. The content of it has been the
subject of dispute between the Vehicle Inspectorate and the Confederation. In
the circumstances it should play no part in the determination of the issues
which arise.
The conclusions of the justices
21. The justices in their conclusions were of the opinion that there is no
express power granted under Section 99 of the Transport Act 1968 to the
authorised officer to remove from the appellant's office any of the tachograph
record sheets. However, they concluded that Article 14 contained a clear and
unconditional requirement that on request the documents should be "handed
over". In the opinion of the justices those words denoted the transfer of
physical possession of any document to which the words applied. The justices
concluded that the Transport Act 1968 had been "amended" as a result of
European legislation (Regulation 3821/85) and includes in Section 99(1)(bb)
references to Article 14(2). In consequence the Justices interpreted Section
99(1)(bb) in conjunction with that regulation.
22. In my judgement the justices were clearly correct in their conclusion that
there is no express power requiring the appellant to hand over the tachograph
record sheets to the respondent. Indeed, on one reading of the section the
obligation on the operator is simply to produce the records in the sense of
offering them for inspection and examination by the respondent there and then.
Only in circumstances where the respondent has reason to believe that the
records have been falsified is there an express power to take possession of
them.
The competing arguments
23. The appellant does not seek to advance that only in such circumstances is
the respondent entitled to take possession of the records. Both the respondent
and the appellant accept that the words used in Section 99(1) carry with them
the requirement, in certain circumstances, for the operator to hand over the
records to the authorised officer for him to retain for a reasonable time to
conduct proper inspection and checking of the records. The issue between them
is in what circumstances that requirement exists.
24. The appellant maintains that the obligation to hand over the records only
arises where the authorised officer has given 10 days notice to the operator to
produce the records at the offices of the traffic commissioner. The respondent
submits that the obligation arises not only in those circumstances but in any
situation in which the authorised officer is lawfully entitled to inspect
documents to which Section 99 refers.
The appellant's submissions
25. Mr Phillips QC on behalf of the appellant maintains that it is proper when
considering the legislation to balance the competing interests of the
inspectorate on the one hand, who are required to secure observance of the
tachograph legislation, and the transport operators on the other hand, who are
entitled to carry on their businesses with no more interference than is
reasonably necessary to enable the inspectorate to discharge its duties. There
is, he says, plainly a tension between those interests which can be effectively
resolved by interpreting the legislation purposively.
26. He submits that Section 99 is, contrary to the opinion of the justices,
consistent with the purpose of Article 14(2) of EEC Regulation 3821/85 without
the need to imply any amendment. There is no need for the interpretative
process conducted by the justices. The purpose of Article 14(2) is to enable
the enforcement of the tachograph legislation by requiring that records be
"produced or handed over". That has already been achieved in Section 99 by
the creation of a graduated and proportionate code that provides for both the
production and the handing over of records to the respondent. Whether records
are to be produced for inspection, handed over subsequently or subject to
seizure forthwith depends upon the circumstances of the case.
27. The argument runs thus. The appellant submits that the words "produced or
handed over" in article 14(2) of Regulation 3821/85 should be construed
disjunctively. The obligation to produce records at the request of an
authorised inspecting officer is separate to the obligation to hand over those
records. Section 99 confers on the inspectorate three separate powers in
respect of the examination of records which an operator is required to keep.
28. First, under Section 99(1), the inspectorate has the power to inspect and
copy records and to enter a transport operator's premises for the purpose of
doing so by virtue of Section 99(2). The operator has an obligation to
produce the records that he should have in his possession as required by
Article 14(2) of EEC Regulation 3821/85 whether in fact he has those records or
not. (See Murfitts Transport Ltd v DoT [1998] RTR 229) The
operator must permit the authorised officer to inspect and take copies of the
documents at the premises, but the operator is not required to hand over those
documents to the officer. Such a power, it is said, enables the Respondent to
check whether in fact the operator has the records he is obliged to retain in
his possession and to perform a routine examination of those records.
29. Second, again by virtue of the provisions of Section 99(1) the respondents
may by written notice to the operator, require the operator to produce at the
Traffic Commissioner's office the records the operator is required to keep.
This requirement to produce, it is said, in contradistinction to the
requirement in the opening words of Section 99(1), carries with it an implicit
requirement to hand over the documents to an authorised officer and to permit
the officer to retain the documents for a reasonable time to allow for
inspection and copying of them.
30. There is finally the power of an authorised officer to seize any document
which he has inspected in the exercise of his powers under Section 99(1) and
which he has reason to believe has been falsified.
31. Before the justices and in the appellant's skeleton argument it was argued
that the respondent's power to require records to be handed over at the office
of the traffic commissioner arises only after such records as the transport
operator actually has have first been produced at the transport operator's
premises. That part of the appellant's case is no longer maintained, and in my
judgement rightly so. It cannot have been the intention of the legislature that
if the respondent wished to conduct a detailed examination of the original
records of an operator it was required first to visit the operator's premises,
and there inspect the documents, and thereafter give notice that it required
production of the documents at the offices of the Traffic Commissioners not
less than 10 days later. That would be to impose a bureaucratic burden which
has no possible purpose other than to cause maximum inconvenience to as many
people as possible. In any event, such a result is not achieved on a proper
construction of the sub-section.
The respondent's submissions
32. On behalf of the respondent Mr Plender QC submits that even if the words of
Section 99(1) are to be construed without any reference to EC law and Article
14(2) they are capable of meaning and do in fact mean that the officer may
require a person to produce a document and thereafter permit the officer to
take that document away for the purpose of inspecting it. In essence, the
respondent says that there has been no proper production of a record or
permission to inspect and copy that record when having regard to the nature of
the record and the type of examination required the person producing it refuses
to allow the officer to take the document away so that he may inspect it with
the thoroughness and resources required to effect any meaningful inspection.
33. As a matter of common-sense, Mr Plender points out, handing over documents
will enable officers to subject them to checking which may be difficult or
impossible at the operator's premises. Where the volume of data is large its
examination may take a considerable time. The records may need to be
subjected to scanning with equipment not available at the operator's premises.
Section 99(10) gives added weight to this interpretation, clearly recognising
that specialist processes may have to be employed in the course of such
inspections, which procedures could not sensibly be carried out at the
operator's premises. For those and other obvious practical reasons the
construction of Section 99 contended for by the appellant would tend to
frustrate its objective.
34. For my part I think the argument of the Respondent on this point is
powerful and highly persuasive. But it is in my judgement in the event
unnecessary to reach a concluded view on the issue. Mr Plender further submits
that even if Section 99(1) does not on its face give to an authorised officer
the power to require a person to produce a document and allow him to take it
away for the purpose of inspecting it, the underlying rules of EC law are
conclusive in the respondent's favour.
35. The respondent points out that it is well established that national
legislation must, where possible, be construed so as to bring it in to
conformity with the United Kingdom's obligations. That much is certainly not
in dispute between the parties. Section 99 of the Transport Act 1968 is to be
read together with Article 14(2) of the Community Recording Equipment
Regulations. By its explicit language Article 14(2) requires that the record
sheets shall be produced or handed over at the request of any authorised
inspecting officer. Whilst the Article is silent on the circumstances in which
such a requirement arises, the purpose is clearly to ensure proper enforcement
of the tachograph provisions.
Construction of the legislation
36. In my judgement the construction placed on Section 99(1) by the appellant
is flawed. I conclude that the operator is required to produce and hand over
tachograph record sheets on demand at the operator's premises if such a request
is made of him. It is clear that in requiring the production of the document or
the handing over of the records the Community legislature took account of the
need to ensure effective checking. On the interpretation of Section 99 as I
would hold, it is within the discretion of the authorised officer whether he
chooses to inspect the tachograph sheets at the operator's premises (which he
might be content to do if the volume of documentation was small and if he had
no real concern about it) or take the sheets away for more thorough and
detailed analysis (which he might wish to do if, for example, he had concerns
about the documentation or if his preliminary inspection suggested to him that
all was not as it should be or if the volume of it was such that it was
difficult or impossible effectively to inspect at the premises). Alternatively
he might require production and handing over of the records at the office of
the Traffic Commissioner.
37. There is nothing surprising about such concurrent powers. By Council
Directive 88/599/ECC the inspectorate is required to make not less than 25% of
their checks at the premises of operators. If as a matter of pure routine the
authorised officer simply wishes to ensure that an operator is keeping proper
records and has no prior concern in general terms about the way that operator's
business is being conducted he might well avoid the administrative burden to
the respondent and the potential embarrassment to an operator of a visit to the
operator's business premises by simply calling for the production and handing
over of the documents at the office of the Traffic Commissioners. If there were
concerns about the way in which an operator was complying with his obligations
under the Act it might be thought more appropriate to visit the premises of the
operator and make use of the powers under Section 99(2).
38. Suppose in the course of such a visit, an authorised officer inspected
records and found from his inspection that there was reason to believe that the
drivers hours requirements were being breached. That in itself might give him
cause to be concerned about the way in which the operator was complying with
the regulations. On the appellant's construction of the Section he would not be
entitled to seize the documents, for he would have no reasonable belief that
the records had been falsified. His only power, if the appellant is correct,
would be to take copies of such documents as were produced to him and require
production of the original charts not sooner than 10 days hence, with the
obvious potential for the operator to take advantage improperly in some way of
the intervening period. What he would not be able to do would be to require the
operator to hand over the original records for him to conduct a proper,
detailed and scientific investigation of them. For my part I find such an
interpretation contrary to the plain purpose of both the section and the
regulations.
39. Moreover, as I have already observed, it should be noted that the words in
Section 99(1) do not refer to any requirement to hand over the record sheets.
Production of the documents at the office of the traffic commissioner no more
confers, on its face, an obligation to hand over the documents at that stage in
the process in the sense of surrendering them to the respondent than production
of the documents at the operator's business premises. On the appellant's
construction of Section 99(1) the word "produce" in the first part of the
section carries with it no implication that the document is to be handed over,
whereas the word "produced" used in the same subsection does carry such an
implication. A construction which requires a different interpretation of
essentially the same word used in the same subsection is strained and
artificial indeed.
40. Mr Phillips further submits that the power to require the production to the
office of the traffic commissioner of records on notice and the power to seize
falsified records would be unnecessary if Section 99(1)(bb) conferred a power
to require records to be handed over at the operator's premises. The first
part of this submission is, in my judgement, based upon a misconstruction of
Section 99(1). The subsection envisages that an officer may require the
production of records either at a roadside check or on a visit to the
operator's premises or by not less than 10 days notice. In my judgement these
are complementary powers. The existence of one power does not make the other
otiose. As to the power conferred by Section 99(6), that governs the seizure
of records which an officer suspects to have been falsified and the power to
retain those seized records for up to 6 months. Seizure and retention for
that length of time is self-evidently a more draconian power than an obligation
to produce or hand over documents.
Doubtful penalisation
41. The appellant further relies on the principle against doubtful
penalisation. If there is any uncertainty about the interpretation of the
legislation, the appellants submit, since the section creates a criminal
offence the principle against doubtful penalisation should be applied to
militate against any construction that would penalise a person except under
clear law. For my part I accept that a person is not to be penalised save on
the basis of clear law, but in my judgement Section 99(1)(bb) of the Transport
Act 1968 is clear when read in context.
An excessive power?
42. The powers granted by Section 99 to authorised officers of the respondent
are extensive, whether the contentions of the appellant or the respondent are
correct. The appellant argues that the grant to them of the power to require
records to be handed over forthwith is a step too far. It is a power which if
exercised oppressively or capriciously could cause grave commercial
difficulties to a transport operator. This factor, it is said, is a matter we
should take into consideration when considering the legislation.
43. In my judgement it must be implicit in the powers granted to the respondent
that the authorised officer should permit the operator to take copies of any
record he proposes to take away from the operator's premises before the record
is removed if the operator wishes to do so. The rules of natural justice
require nothing less, save in circumstances where, for example, the operator is
obstructive or uncooperative or for some other reason it is not reasonably
practicable to permit the taking of copies before removing the records.
44. In the course of the hearing before us, we were told that some operators
use the tachograph sheets for their own internal accounting purposes,
particularly for calculating drivers' hours. If copies of the sheets to be
removed are retained by the operator that difficulty is met. No doubt operators
who do use the records for that purpose would take copies of the sheets before
providing them to the office of the traffic commissioner if that was the
requirement made of them. The additional burden on operators imposed by the
construction I would place on Section 99 over that imposed by the construction
contended for by the appellant is modest. That additional burden is, in my
judgement, properly proportional to the need for effective checking, and is not
unduly oppressive.
The application of the Convention on Human Rights
45. As a final alternative Mr Phillips relies on the provisions of Article 8 of
the European Convention on Human Rights and argues that a power to require the
appellants to hand over records without first inspecting them to see if there
was good reason for requiring them to be handed over would be an interference
with the appellant's right to privacy that was greater than necessary. However,
this argument, which first must surmount the hurdle of whether a limited
liability company has a right to privacy of the sort invoked here, is
emasculated as soon as the appellant abandons the proposition that prior
inspection is required before the documents can be handed over. It was pursued
but faintly before us, and in my judgement has no substance.
46. Accepting for the purpose of the argument the proposition that Article 8
and the right to respect for private life could apply to a limited liability
company operating a transport business, as to which I express no opinion, the
interference here would plainly be justified under paragraph 2 of Article 8 if
it was "in accordance with the law" and "necessary in a democratic society in
the interests of .....public safety." Both those conditions are fulfilled. The
requirement to hand over the tachograph sheets has a basis in domestic and
indeed European Community law. It is necessary in a democratic society in the
interests of public safety for the protection of passengers and road-users who
may be endangered by breaches of the obligations that the records are designed
to prevent. As to the question of proportionality, there is nothing to suggest
that the powers here conferred on the inspectorate could be characterised by
shortcomings "so serious that the execution of the order can, in the
circumstances of the case, be regarded as disproportionate to the legitimate
aim pursued" : see Chappell ECHR 30th March 1989, where the Court
was considering the use of an Anton Pillar order obtained against the
claimant.
Conclusions
47. For those reasons I conclude that the authorised officer of the respondent
was entitled under Section 99 to request the appellant to hand over to him the
tachograph records which the appellant was required to produce. The refusal to
hand over the documents amounted to an offence under Section 99(4) and the
justices were correct in so concluding.
48. I would answer each question in the affirmative and dismiss the appeal.
LORD JUSTICE KENNEDY: I agree.
© 2000 Crown Copyright
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