ABSTRACT
The appellant company, its managing director and transport manager, who were convicted of aiding and abetting offences under the Transport Act 1968. The court found that they had been aware that drivers employed by the company had been making false entries on tachograph records contrary to s 99(5) of the 1968 Act, and had not intervened to prevent the practice. Their appeals against conviction were allowed, on the basis that there was insufficient evidence of mens rea to be accomplices. Kennedy LJ, however, considered the extent to which failure to act could amount to giving positive encouragement:
... 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 ... [Counsel for the appellant] submitted that in [previous cases, such as Tuck v Robson and Du Cros v Lambourne [1907] 1 KB 40] 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 ... 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 ... [T]hus 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.
