UK Offence Report

Downloading and retaining data: offences

regulation 6E(2) of The Passenger and Goods Vehicles (Recording Equipment) (Downloading and Retention of Data) Regulations (Northern Ireland) 2010

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

2 A transport undertaking commits an offence if, without reasonable excuse, it fails to comply with any requirement imposed by Article

10 of the Community Drivers’ Hours Regulation in respect of the retention of data downloaded in accordance with regulation 6B to 6D.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
failing to comply with a notice or direction
Fault element
Mixed — some elements strict, some not
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove the conduct, and - for those elements the provision qualifies - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: the offence itself carries no fault word, but a duty it criminalises by cross-reference uses has reason to believe; which element that governs was not determined; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

2 A transport undertaking commits an offence if, without reasonable excuse, it fails to comply with any requirement imposed by Article 10 of the Community Drivers’ Hours Regulation in respect of the retention of data downloaded in accordance with regulation 6B to 6D.

What would breach regulation 6E(2)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Being served with a notice under the Passenger and Goods Vehicles (Recording Equipment) (Downloading and Retention of Data) Regulations (Northern Ireland) 2010 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£2,500
Standard scale
Level 4
Maximum prison (summary)
Not determined

in Northern Ireland a reference to a level is construed as referring to the standard scale as it currently stands (Fines and Penalties (NI) Order 1984 art.5(3)), not as it stood when the instrument was made.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
28 January 2010
In force from
30 April 2010
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement certain provisions of Regulation (EC) 561/2006 (OJ No L102, 11.4.2006, p.1) of the European Parliament and of the Council of 15 March 2006 (on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85) which have not previously been implemented. The subject matter of the European Community legislation is drivers’ hours and the equipment to be used for recording drivers’ activity. Article 15(7) of Regulation 3821/85, as amended by Article 26(4) of Regulation 561/2006, requires a driver to produce to an enforcement officer hard copies of his driving record made during the current day and the previous 28 days. Regulation 6 inserts the new regulation 6A in to the Passenger and Goods Vehicles (Recording Equipment) Regulations (Northern Ireland) 1996 (the 1996 Regulations), requiring drivers to return paper records held by them to the transport undertaking (or undertakings) for which they have been working within 42 days of the records having been created. Regulation 6 also implements Article 10(5)(a) of Regulation 561/2006 by inserting new provisions into the 1996 Regulations, as follows— new regulations 6B and 6C require transport undertakings to download data held electronically on a vehicle unit and a driver card whenever that is necessary to ensure that the data is not overwritten or otherwise lost to the undertaking and in any event before the expiration of specific periods according to the data concerned, namely— in the case of data stored on the vehicle unit other than detailed speed data, a period of 56 days computed in accordance with regulation 6B(3); in the case of data stored on the driver card, a period of 28 days computed in accordance with regulation 6C(3); new regulation 6D requires transport undertakings to download any data held electronically on a vehicle unit or driver card where an enforcement officer has reason to believe that an offence under the Road Traffic (Northern Ireland) Order 1981 has been committed; new regulations 6E and 6F create offences of failing to download or to retain data and provide for the making of data which has been downloaded accessible to enforcement officers. Regulation 7 inserts new regulations 10F and 10G into the 1996 Regulations which make provision in respect of— criminal proceedings against transport undertakings which are unincorporated bodies; offences committed by a corporate or unincorporated body with the consent or connivance of a director or other officer of that body. Regulation 8 implements article 20(3) of Regulation 561/2006 by making it an offence if a driver who works for two or more undertakings fails to provide each of them with sufficient information to enable them to discharge their obligations in relation to the drivers’ hours. Regulation 9 inserts into the Road Traffic Offenders (Northern Ireland) Order 1996 the penalty for the offence of contravention of requirement imposed by Chapter 2 of Regulation (EC) No 561/2006 (crews, driving times, breaks and rest periods). A partial Regulatory Impact Assessment of the effect this instrument will have on costs for the business and voluntary sectors has been produced and is available from Road Safety Policy Branch, Clarence Court, 10-18 Adelaide Street, Belfast BT2 8GB. A Transposition Note has been prepared and is available from the above address. A copy of Council Regulation (EC) 561/2006 may be obtained from the Office of Public Sector Information at http://www.opsi.gov.uk. The Official Journal of the EU may be accessed via the website of the European Union at http://europa.eu.int/eur-lex .

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person “commits an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source