JF Alford Transport Ltd & Ors, R v [1997] EWCA Crim 654 (7 March 1997)

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JF ALFORD TRANSPORT LTD JAMES ALFORD PETER ALEX PAYNE, R v. [1997] EWCA Crim 654 (7th March, 1997)

1. On 4th June 1996 in the Crown Court at Southampton the appellants were convicted of eight counts of aiding and abetting the making of a false entry on a record sheet contrary to section 99(5) of the Transport Act 1968 and on 2nd September 1996 they were fined and ordered to pay certain costs. They now appeal against conviction by leave of the single judge.

The defendant company J.P. Alford Transport Limited is a transport company with a fleet of lorries and trailers operating nationwide from Nursling, Southampton, much of the trade consisting of transporting goods to and from the container terminal at Southampton docks. The defendant Mr Alford was at all material times the managing director, and his wife was the company secretary. His daughter Dawn was the company accountant. The defendant Mr Payne was the transport manager.

On 15th November 1993 police officers went to the company's premises, and seized a large number of company records. They included tachograph records and daily and weekly time sheets. The daily and weekly time sheets were used to calculate the driver's pay and it was obvious that they had been seen by Mr Payne because he had written on or signed many of them. The tachograph records were kept pursuant to EEC Road Regulations designed to limit the number of hours drivers can drive at any one time. As is widely known each heavy goods vehicle has to have a tachograph machine. A driver using that vehicle then inserts a chart when he begins his work. Thereafter if the machine is properly used it will record speed, times, distances and that information, taken together with the information which the driver records manually upon the chart as to his own identity, the identity of the vehicle, and the starting and finishing mileage, as well as any work done around the yard, provides a comprehensive record which must then be returned to the employer and retained for a prescribed period.

When the police compared the tachograph records with the daily and weekly time sheets there were widespread discrepancies. Many, if not all, of the company's drivers were driving and being paid for driving for many more hours than were shown on the tachograph records. They were actually exceeding permitted hours and cutting down on obligatory periods of rest. The drivers concerned were seen, and when 19 of them were prosecuted they pleaded guilty to specimen offences of making a false entry on a record sheet (i.e. a tachograph record) contrary to section 99(5) of the Transport Act 1968. We understand that there are 6 other drivers, out of a workforce of about 40 drivers, whose cases have still to be heard. As can be seen from admissions made in connection with the present case the way in which the drivers falsified the tachograph records varied. For example, on the occasion relevant in relation to count 1 the falsification was made by putting a second chart into the tachograph machine with the name of Mr Alford upon it, so as to suggest that he had been employed on that day as second driver. On other occasions the falsification was made by driving for a time or working for a time without any chart being in place.

The prosecuting authority then began proceedings against the three appellants. We understand that the proceedings have taken a number of different forms, but for present purposes we can begin by referring to an indictment which contained far too many counts. It was divided into three indictments, each containing eight counts. There was then a trial on the first indictment, which resulted in an acquittal. This appeal arises out of the trial on the second indictment which, as we have indicated, also contained eight counts. Save for the name of the driver and the date the counts are identical, so for present purposes we confine ourselves to count 1:

J.F. Alford Transport Limited, James Alford and Peter Alex Payne on the 14th day of October 1993 aided abetted counselled and procured Michael Thomas Collins to make an entry on a record sheet kept for the purposes of the Community Recording Regulations or section 97 of the Transport Act 1968, which they knew to be false.

It is common ground that the record sheet in question was (in each case) a tachograph chart. The prosecution case against the appellants was, in essence, that as the individual appellants were personally involved in the management of this relatively small company they must have known and accepted if not actively encouraged, what the drivers did. So, it was said, they aided and abetted, counselled or procured the commission of the offences. As they were the "brains" of the company if they or either of them were criminally liable the company must be liable too. That last proposition is accepted by Mr Hawkesworth, Q.C. for the appellants, and we need say no more about it.

The evidence at the trial consisted mainly of police evidence to prove the collection and comparison of records and evidence from Mr Washer, an officer of the Vehicle Inspectorate who, we are told, described the qualifications and duties of a transport manager. The evidence showed that the comparison between the tachograph records on the one hand and the daily and weekly timesheets on the other had been made over a period of two months, the months of September and October 1993.

'On 14th October 1993 driver Collins' tachograph chart shows him using vehicle DLJ 909Y between 0630 hours and 1425 hours. There is a second tachograph for that day in the name of J. Alford relating to the same vehicle and commencing at 1430 hours to 2040 hours. His weekly time sheet for this day is broken down as load one 20 feet 204 berth and a trip to Avonmouth and then a return trip to the yard. This is consistent with the recordings made on the first chart for that day in the name of Collins. On his record sheet he has then endorsed 'Tip load 2 x 40 at Tilbury Docks' and then 'Run to yard'. The recordings made on the second charge (i.e. chart) in the name of J. Alford are consistent with this run to Tilbury Docks and back to the yard'.

(3) A schedule of apparent hours offences from timesheets for the period 19th July to 29th August 1993. As that description makes clear, this schedule was produced by an analysis of timesheets, and in relation to a period prior to that covered by the indictment. There was no comparison with tachograph records, and tachograph records are the only documents referred to in the counts in the indictment.

The defence objected to the driver's pleas being proved by means of the schedule, not least because some pleas on the schedule could be related to counts of which the defendant had been acquitted, but the judge ruled that "the schedule of drivers pleas are clearly in my view relevant and admissible."

The defence also objected to the introduction of the schedule of apparent hours offences but eventually agreed that that schedule could be placed before the jury in return for a prosecution admission that it represented simply the hours claimed by the drivers and that there was no specific evidence that Mr Payne actually on any occasion checked any tachograph chart against the relevant timesheet. In fact there was no evidence that either he or Mr Alford carried out that exercise on any occasion. Mr Belben, for the respondent prosecutor, has a recollection that when giving evidence Mr Washer said that if the job of the transport manager is properly performed such a comparison should be made, but Mr Hawkesworth has no such recollection, and we have no transcript. What does seem to be clear is that no analysis of the tachograph sheets on their own would disclose any offence, so nothing can turn on the fact that until 1989 the defendant company had their tachograph charts analysed by an independent firm. Similarly therefore, so far as tachographs were concerned, not much can turn on the fact that there was no written record of any driver being disciplined for a tachograph offence.

There was no evidence of anything said by either individual defendant and at the trial no evidence was called on behalf of the defence. Mr Alford was regularly at the premises when police officers called during the course of the investigation but there was no other evidence as to his part in the management of the defendant company.

"1) that the trial judge failed fully to instruct the jury as to what they had to find proved against one or other individual defendant before they could conclude that he (and thus the defendant company) had aided, abetted, counselled or procured the making of a false entry on a tachograph chart:

Section 8 of the Accessories and Abettors Act 1861 provides that anyone who "shall aid, abet, counsel or procure" the commission of an indictable offence can be tried and sentenced as a principal offender. An offence contrary to section 99(5) of the Transport Act 1968 is an indictable offence. There was no evidence to suggest that any defendant on any occasion counselled or procured the commission of any such offence, so we can concentrate, as the trial did, on aiding and abetting.

Mr Hawkesworth accepts that the judge was right to tell the jury that aiding and abetting meant simply assisting and encouraging, and that before they could convict any of the defendants of aiding or abetting the driver's offence they must be sure that in each case :-

However, although the trial judge did identify the essential elements of the offence both when he did so and elsewhere in the summing-up he said things which detracted from that identification. At least twice in the summing-up he encouraged the jury to think that all 8 counts stood or fell together, and although he told the jury that each individual defendant was entitled to have his case treated separately, by going on to say that "there may be distinctions between (them)" he indicated that in reality such a distinction was unlikely to exist. That all tended to undermine the importance of the direction to which we have already referred, namely that before the jury could convict either individual defendant of any given count they must be satisfied that he, to use the judge's words "knew full well what the driver was doing". The direction was further undermined when the judge said at page 11C :-

"The Crown say that if the company had done its job properly, if the directing brains and will of the Company had done their job properly, they would have spotted these matters and disciplined the drivers. They must have seen what was going on and they quite deliberately did not do anything about it.”

Of course that is put as a prosecution contention, but that is, we regret to say, another shortcoming of this summing-up. Contentions on each side in relation to issues of law are briefly rehearsed without any clear indication of the judge's conclusion, and the jury needed his direction. At this point in the summing-up the judge seems to be accepting the prosecution contention that negligence on the part of either individual defendant would suffice in his case to prove actual knowledge, which as a matter of law is incorrect. That broad brush approach pervades the summing-up. It can be seen again when the judge referred to Mr Alford :-

Maybe, but in order to establish the offence charged the prosecution had at the end of the day to prove beyond reasonable doubt that Mr Alford knew of each tachograph falsification. And before they could invoke section 35 of the Criminal Justice and Public Order Act 1994 they had to adduce prima facie evidence of knowledge on the part of each defendant. Take count 1, where was the evidence to show that either Mr Alford, or Mr Payne knew that on 14th October 1993 driver Collins was going to produce a false tachograph record, either in the way that he did or at all? That difficulty might have been overcome if the relevant driver had been called as witnesses, or if the individual defendants had made relevant admissions, but there was no evidence of that kind. We accept that in Johnson v Youden (1950) 1KB 544 at 546 Lord Goddard C.J. said that knowledge may be inferred if a defendant shuts his eyes to the obvious but, as Gibbs C.J. pointed out in the Australian case of Giorgianni v The Queen (1985) 156 CLR 473 at 483 the dictum of Lord Goddard needs to be understood. Gibbs C.J. accepted that it would be sufficient to infer knowledge if a defendant deliberately refrained from making enquiries the results of which he did not care to have, but, he continued :-

"The failure to make such enquiries as a reasonable person would have made is not equivalent to knowledge; it is not enough to render a person liable as a secondary party that he ought to have known all the facts and would have done so if he acted with reasonable care and diligence. That is so even when the offence is one of strict liability, so that the actual perpetrator may be convicted in the absence of knowledge.”

"(1) there was no evidence from which it could even be inferred that either individual defendant had antecedent or concurrent knowledge of any of those driver's offences identified in counts 1 to 8 of the present indictment. The position was particularly stark where the offence in the indictment was the first offence shown to have been committed by that driver.

(2) even though police enquiries showed that offences by drivers were common the circumstances were not such as to suggest that the individual defendants must have known what was going on, or that if they remained ignorant that was only because they had deliberately refrained from making enquiries. Certainly it could be inferred that Mr Payne as transport manager knew from the daily and weekly time sheets that drivers were exceeding their permitted hours, but drivers could have done that without falsifying tachograph records. Falsifying the records was merely a prudent way of covering up. It protected the drivers themselves and their employers. Mr Payne may well have suspected that a sensible driver would have covered up in that way but when it could not be shown that he did any comparison between the tachograph charts and the time sheets it cannot safely be said that he "knew full well" that the tachograph charts were being falsified. Mr Alford's position is even stronger. In his case the evidence did not even show that he saw the time sheets.

Mr Hawkesworth submits that even if knowledge on the part of either individual defendant could have been proved this appeal should still succeed because the judge misled the jury as to what was capable of constituting positive encouragement. In support of that submission Mr Hawkesworth invited our attention to the well-known passage from the judgment of Hawkins J in Coney (1882) 8 QBD 534 at 557 which was cited with approval by Megaw L.J. in Clarkson (1971) 55 Cr App R 445 at 449 :-

"In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expression, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, although he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.”

Mr Hawkesworth submits that even if the individual defendants knew that drivers were altering the tachograph records the most that could be said against the defendants is that they stood by, and he further submits that the trial judge in summing-up wrongly indicated to the jury that passive acquiesence would suffice. For example, he said at page 10C that it was the prosecution case that where a person like a transport manager or the managing director of the company who had a right to control the actions of his employees deliberately refrained from exercising control, that in effect gave "positive encouragement to the drivers to perform illegal acts." The summing-up continues :-

"The defence say that passive sitting back, passive permission, is not enough. There must be some positive act of encouragement. The prosecution say that by their actions these two defendants, and therefore the company, were actively encouraging because they were failing to put any sort of control over these drivers. ”

That is another example of the judge simply putting the legal arguments and failing to assist the jury as to the approach which the law required them to adopt, but in our judgment, in the context of this case, if the prosecution could show that the individual defendants, or either of them, knew that the drivers were illegally falsifying tachograph records, and if it could be shown that the individual defendants took no steps to prevent misconduct it was open to the jury in the absence of any alternative explanation, to infer that the individual defendant whom they happened to be considering, and thus the company, was positively encouraging what was going on. In other words on the issue of what could amount to positive encouragement the prosecution approach was correct. As Professor Smith puts it at page 136 of Smith and Hogan on Criminal Law (8th Edition) :-

"If a licensee of a public house stands by and watches his customers drinking after hours, he is guilty of aiding and abetting them in doing so ( Tuck v Robson [1970] 1 WLR 741). Again in Du Cros v Lambourne (1907) 1 KB 40 it was proved that D's car had been driven at a dangerous speed but it was not proved whether D or E was driving. It was held that, nevertheless, D could be convicted. If E was driving she was doing so in D's presence, with his consent and approval; for he was in control and could and ought to have prevented her from driving in a dangerous manner. D was equally liable whether he was a principal or an abettor.”

Mr Hawkesworth submitted that in each of those cases it was critical that the aider and abettor was present at the time of the commission of the principal offence. In our judgment nothing turned on actual presence. What mattered was knowledge of the principal offence, the ability to control the action of the offender, and the deliberate decision to refrain from doing so. We accept that in the context of the present case it would have to be proved that the defendant under consideration intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime, but he need not have intended that the crime be committed. As Devlin J said in NCB v Gamble (1959) 1 QB 11 at 23 :-

Thus if the management's reason for turning a blind eye was to keep the drivers happy rather than to encourage the production of false tachograph records that would afford no defence, and if it could be shown that the individual defendants knew that such a record was likely to be produced the supplying of the lorry to the driver could in some ways be compared with the selling of the gun. We therefore conclude that if knowledge could be shown on the part of one of the individual defendants in relation to any given count it would have been open to the jury to find that he positively encouraged the admission of the offence. However, there being no sufficient evidence of knowledge the appeal must succeed.

Mr Hawkesworth points out that the schedule of apparent hours which the judge allowed to go to the jury represents only hours claimed by drivers. It was not checked against tachograph charts so the charts could have been accurate, and as this case is concerned only with inaccurate tachograph charts Mr Hawkesworth contends and we accept that the schedule was irrelevant and should not have been admitted. It tended simply to prove other offences which were not charged. However, as we have already pointed out, the schedule was in the end admitted by agreement, no doubt because it gave minimal assistance to the prosecution case. The fact that drivers were exceeding their permitted hours and were short on obligatory rest was provable in relation to each of the incidents charged in the indictment, and it was hardly a matter of substance to show that it happened on other occasions as well. Because the defence agreed at trial to the admission of the schedule this ground of appeal cannot succeed.

"You have heard nothing from them at this trial. They are entitled to take that step also. They are entitled not to give evidence but you need to look at that matter. It means that you have heard absolutely nothing from their side whatsoever. Whether you draw any inferences from their not giving any evidence is a matter entirely for you. You do not have to, but you are entitled to draw such inferences as you think fit. It may be you think that they could add nothing to the case in which (event) you would not hold that against them. You may think on the other hand that had there been an answer to this matter they would have gone into the witness-box and given it, and in the absence of any answer then you can draw such inferences as you think fit about that. But you do not have to; as I say it is a matter entirely for you.”

In Cowan (1996) 1 Cr App R 1 this court dealt with the proper interpretation and implementation of section 35 of the Criminal Justice and Public Order Act 1994. In that case Lord Taylor C.J., after approving the new Judicial Studies Board specimen direction, which the trial judge did not use in the present case, continued at page 7D :-

(4) Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witness whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence.”

We therefore conclude that the direction in the present case can be said to have been inadequate in at least two of the respects contended for by Mr Hawkesworth. We attach no significance to the judge's failure to remind the jury of the burden of proof. He had dealt with that at the beginning of his short summing-up, but it was necessary to say that an inference from a failure to give evidence could not on its own prove guilt. If the case had been properly presented to the jury that would have been an important direction because, as we have attempted to indicate, there was no prima facie evidence that either individual defendant knew what the drivers were doing. Nevertheless the circumstances were highly suspicious, and the jury might have been tempted to find that an inference of knowledge could be drawn from a failure to testify.

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	England and Wales Court of Appeal (Criminal Division) Decisions
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England and Wales Court of Appeal (Criminal Division) Decisions

JF ALFORD TRANSPORT LTD JAMES ALFORD PETER ALEX PAYNE, R v. [1997] EWCA Crim 654 (7th March, 1997)