UK Offence Report

Transport Act 1968

regulation 5 of The Drivers' Hours and Tachographs (Amendment etc.) (EU Exit) Regulations 2019

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

Supply of recording equipment which is not type-approved 97ZB

1 A person commits an offence if the person supplies, as recording equipment which complies with the EU Tachographs Regulation or the AETR, recording equipment in respect of which no appropriate type-approval certificate is in force.

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 This is the text as originally made; later amendments are not shown here.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
selling or supplying something the instrument restricts
Fault element
Mixed — some elements strict, some not
Burden of proof
Legal burden on the defendant

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.

The provision gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no fault word in the offence-creating words, but the surrounding provision uses reasonably practicable, ought to have known - which element it governs was not determined.

The defence, as drafted

nvicted for contravention of subsection (1) of this section if the person proves to the court that the person neither knew nor ought to have known that the recording equipment had not been installed or repaired, as the case may be, in accordance with the AETR. 4 A person shall not be liable to be convicted for contravention of subsection

What would breach regulation 5?

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. Selling the goods under the Drivers' Hours and Tachographs (Amendment etc.) (EU Exit) Regulations 2019 where the instrument prohibits the sale outright.
  2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
Not determined

level 5 is unlimited in England and Wales for offences committed on or after 12 March 2015 (LASPO 2012 s.85, S.I. 2015/664).

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
4 March 2019
In force from
Not determined
Extent
E+W+S

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 make provision under section 2(2) of the European Communities Act 1972 implementing the EU Drivers’ Hours Regulation (Regulation (EC) No 561/2006) and the EU Tachographs Regulation (Regulation (EU) No 165/2014). Article 2(3) of the EU Drivers’ Hours Regulation applies the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport of 1st July 1970 (known as the “AETR”) in EU member States, requiring the implementation of the AETR in those States. The provision under section 2(2) includes provision implementing the AETR. The Regulations also make provision in exercise of the powers in section 8(1) of, and Schedule 7, paragraph 21(b) to, the European Union (Withdrawal) Act 2018 (c.16) (“the 2018 Act”) in order to address failures of retained EU law relating to drivers’ hours and tachographs to operate effectively and other deficiencies (in particular under section 8(2)(a), (b), (c) and (g), (3)(a), (5) and (6)) arising from the withdrawal of the United Kingdom from the European Union. Part 1 of the Regulations contains introductory provision. Part 2 contains the amendments made under section 2(2) of the European Communities Act 1972, which update pre-existing references to the two EU Regulations and the AETR, and include references to the EU Tachographs Regulation as amended from time to time and the AETR. The amendments in this Part also implement penalties relating to requirements on testing for security vulnerabilities and penalties relating to the prohibition of the supply of recording equipment without a type approval certificate; and provide for offences and penalties for failure to comply with requirements under AETR, in particular failing to properly install and use recording equipment; supplying recording equipment without a valid type approval certificate; and failing to notify authorities of security vulnerabilities. Chapter 1 of Part 2 amends primary legislation and Chapter 2 of Part 2 amends secondary legislation. Part 3 contains amendments under the 2018 Act to correct deficiencies in existing domestic legislation and EU retained law resulting from the withdrawal of the United Kingdom from the European Union. Chapter 1 of Part 3 amends primary legislation. Chapter 2 of Part 3 amends secondary legislation and Chapter 3 of Part 3 amends retained direct EU legislation. An impact assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sector is foreseen. An Explanatory Memorandum is published alongside this instrument on www.legislation.gov.uk.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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