One bite Ma time
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T IS one of the precepts of natural justice that a defendant must know what it is that is alleged against him, and although it is the practice often to lay alternative informations, by the time the case comes to court the prosecution usually elects to proceed on one or. the other.
In a number of recent cases, however. defendants have been asked to answer as many as three different allegations, even though the prosecution has told the courts concerned that it is only seeking conviction on one. The cases all concern tachograph charts that are missing. In such circumstances, the increasing practice is to charge the operator: first, with failing to ensure that a driver kept a tachograph record; second, with failing to preserve tachograph records; and third, with failing to produce tachograph records.
The problem for the defendant is clear. Evidence that might well clear him of one of those allegations might convict him on one of the others.
The Crown Prosecution Service argument is that charts were not produced and that is all the prosecution can say. The prosecution does not know the reason. That was something that could only be in the knowledge of the defendant. If they were to elect which charge to proceed upon at the beginning of the hearing of the case they could be destroying their own case _ That argument cannot be contradicted. But the difficulty lies in the justices often deciding to hear all the evidence before deciding which offence, if any, the operator is guilty of.
It is this procedure that defence lawyers say is oppressive. They argue that it is a rule of English law that if two offences are alleged in the alternative on one summons, then the summons is "bad" on grounds of duplicity. And if the alternative allegations are contained in separate summonses, then the defendant is entitled to have them dealt with separately because a defendant is entitled to know exactly what it Is that he faces before he has to give evidence.
Under common law. the defendant is entitled to have each offence considered individually, and have a decision on the first offence before going on to give evidence in regard to the second and third.
The only case so far dealt with to have gone to appeal was that involving coach operator Smiths Shearings, who was convicted of 138 offences by Wigan Magistrates.
Unfortunately, as the magistrates had only convicted on one of the alternatives, that of the alleged failure to produce records, the point was not considered on appeal, by His Honour Judge Brown. at Bolton Crown Court.
However, the learned Judge's decision, in allowing the appeal, is worth looking at regarding another aspect the burden of proof in cases where there is a mixture of in-scope and out of-scope operations as far as the tachograph legislation is concerned.
It was submitted on behalf of the appellant that the prosecution had to prove a number of elements. First, that the vehicle concerned was operated by the company. Second. that it was being driven by an employee of the company. Third, that the journey was one for which a tachograph record was required. Fourth, that the driver had completed a tachograph record and handed it in to the company.
The prosecution conceded that the burden of providing all but one of those elements lay with them. However, it was argued that if the appellant wished to reply on one of the exceptions to the statute requiring the use of tachographs (that is the out-of-scope operations), the burden or proof shifted to them to bring themselves within such an exception.
Judge Brown said he accepted the prosecution had to show that at the material time the vehicle was being operated by the company and driven by an employee of theirs. It seemed right and proper to draw the inference that, unless there was evidence to the contrary which would have to come from the company. its coaches performed its business and were driven by its drivers. As far as the third element was concerned, it seemed to him that a proper construction of the act required the prosecution to prove the nature of the journey at the material time. It would be wrong to infer that the journey was one for which a tachograph record was required. This element was very different in degree from the first two. There were many different journeys which were acknowledged to be Out of scope. Whereas he was prepared to assume that the exceptions to the first two elements were likely to be so rare that they could be discounted in the absence of evidence to the contrary, he was not prepared to make the same assumption In relation to the nature of the journey_ He did not accept that the fact that the prosecution had given the company many opportunities to provide explanations for gaps in the continuity of the tachograph records meant that where no explanation was forthcoming the journey was in scope.
This was not a case, in his view, where the facts were peculiarly within the knowledge of the defendant. It was open to the prosecution to use its statutory powers under the Transport Act to require information about the driver, and it was open to the prosecution to call the driver as a witness to show the nature of the journey. To require the company to offer evidence bringing the vehicle out of scope would be to reverse completely the burden of proof.
In a statute where Parliament had already shifted the burden of proof on to a defendant in many respects, he was not prepared to make a further shift of the burden. The prosecution could have used its powers to find out as much about those missing journeys as Smiths Shearings, This was the first time in the court's experience of tachograph cases where the driver had not been called to prove the primary facts. That the prosecution had failed to prove the nature of the journey for the material times was their error.
As far as the fourth element was concerned, Judge Brown said that he accepted that for the company to be convicted of failing to produce a record there must be evidence that they had it in their possession. That would apply only if the journey was one which required a tachograph to be used, and the driver had made out a tachograph record and had handed it over to the company. No evidence had been offered before the court in relation to any summons of any of those primary facts. He did not think it proper to infer that the so-called missing charts were ever in the company's possession.
What had happened here, in his view, was that the prosecution had bitten off more than it could chew and had failed to set about the nuts and bolts task of establishing the primary facts,