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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Livingston, R v [2008] EWCA Crim 789 (03 March 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/789.html Cite as: [2008] EWCA Crim 789, [2008] 2 Cr App R (S) 96, [2008] 2 Cr App Rep (S) 96

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3rd March 2008

1. LORD JUSTICE THOMAS: At about 4.00 a.m. on 7th September 2007 the appellant was driving a lorry on the M5 between junctions 5 and 6. This was a lorry which could carry 44 tonnes. It was articulated and it had a load of stone which the appellant was going to deliver in Bristol. He was stopped by the police for the purpose of a routine tachograph check. He was asked to produce the tachograph chart. That was found to be blank. There were no journey details recorded on it. The last completed tachograph chart in this possession showed his location as Perth in Scotland. There was no chart to explain how he had got from there to Worcester. The officer also found that one of the charts in his possession, one from the previous Sunday, was in his father's name and the officer was suspicious. There were also documents in the vehicle which suggested that on at least one occasion the appellant had completed a journey in the course of a day which was, by the nature of its length, not one that could be lawfully completed in a single day.
2. He was arrested. The arresting officer then moved the lorry to a safe location. The officer became aware when moving it that the tachograph was not operating, nor was the speed limiter on the vehicle which is connected to the tachograph measuring device. The vehicle was examined. It was found there was a broken fuse inserted which had the effect of preventing power reaching the tachograph recording device. In the result, there was no record of the speed, distance, or hours driven during the period when that broken fuse was in place.
3. There can be no doubt that this was an extremely serious offence of its kind. Given the size of the lorry, the journey undertaken and the load it contained, there was a serious risk of people being killed by his conduct.
4. It was for that reason that on 9th November 2007 the South Worcestershire Magistrates committed the appellant to the Crown Court for sentence on his plea of guilty to seven offences of falsifying records under the relevant provisions of the Transport Act 1968 and regulations made thereunder. He was then sentenced by His Honour Judge Geddes at Worcester Crown Court to a period of six months, suspended for 18 months, with various requirements of community work and an order that £350 be paid towards the prosecution costs.
5. The judge said in passing sentence:

"You did [falsify the tachograph record] by deliberately interfering with the tachograph in order to enable you drive outside the legal hours and, also, it would appear, at a speed which is illegal because you removed -- not that you are charged with that, but it seems to be part of what you did -- you removed the governor of the speed of the lorry. The reason ... why those are serious offences is, as you well know as a heavy goods vehicle driver, that if you breached the permitted hours regulations, you are liable to be tired and to make mistakes and that can be fatal. That is why it is so important that lorry drivers comply with the, law not only as to the hours, but also as to keeping accurate records of the driving times that they have been in the lorry."

6. The learned judge then went on to say:

"You have heard counsel for the prosecution refer to a Court of Appeal decision in which the Court of Appeal said that, normally, prison sentences are appropriate in these circumstances in order to deter other people in a similar position who might be tempted to do what you did. Since that decision was given in 1999 or thereabouts, there have been other Court of Appeal decisions, not requiring, but advising judges to consider very carefully before imposing periods of immediate imprisonment because of the overcrowded nature of our jails, that only in those cases where it is really necessary to send someone to immediate prison should that be done."

7. In the circumstances, because of the overcrowded jails, it appears that this appellant escaped what he should have received, which was a sentence of immediate imprisonment. This was an offence so serious that there could be few circumstances that would not justify the immediate imposition of a custodial sentence and not a suspended sentence. It is necessary to impose an immediate custodial sentence because it is very easy to interfere with tachographs and other devices on lorries; those who do so must appreciate that in view of the potential fatal consequences of doing so, an immediate custodial sentence is one that will be passed. It is for that reason that there is no appeal, nor could there possibly be, against the lenient sentence passed in this case.
8. However, it is said that as that was the punishment he received, and as he automatically had his heavy goods vehicle driving licence taken away, he has been punished enough; he should not have the period of three years' disqualification imposed upon him in addition. It seems to us, having regard to the fact that he has been punished by the sentence of imprisonment passed upon him (suspended though it was), and because he will, in any event, lose his HGV licence, that it would be a punishment that is greater than necessary, having regard, first, to the Practice Directions in respect of drivers' conduct made by the Traffic Commissioners on 25th April 2005 and, second, in the general interest of enabling this person, who lives in a suburb of Aberdeen, to be able to work rather than live off the state, that a period of disqualification should be reduced to one of 12 months and not the three years imposed. To that extent this appeal is allowed.