AG -v- Brocken and Fitzpatrick Ltd and Others [2014] JRC 183 (26 September 2014)

JUDGMENT THE DEPUTY BAILIFF: 1. The Indictment laid against Brocken and Fitzpatrick Limited, Mr O'Hara, Mr Rossiter and Mr Rejak concerns breaches of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 in respect of three vehicles and those breaches were identified on the 2 nd and 3 rd December last year. Some of the breaches are more serious than others. There seems to us there would have been a strong case for bringing a prosecution not under the Motor Vehicle (Construction and Use) Order but under the Health and Safety at Work legislation because in essence what was happening here was that employees were being provided with an unsafe system of work through the vehicles which they were required to drive and indeed as a result of the way those vehicles were loaded the employees themselves were put at risk and also at risk were members of the public. We would suggest that the Crown gives consideration, if this unfortunate type of case were to be repeated, to charges under different legislation. But that is not what we are dealing with here, we have to deal with the case as we have it. 2. The Court treats these offences as very serious. Vehicles in very poor condition and a danger to employees and the public were on the public road and there seems to have been what was, frankly, a cavalier approach to the loading of those vehicles. They were heavily over-laden and that, of course, adds to the danger to the public. 3. We take the view that it is right to impose a fine on Mr Rossiter and Mr Rejak who were the drivers of the vehicles in question. We recognise that they were in a difficult position because they were given instructions to drive these very unfit vehicles but it is the responsibility of an employee placed in that position to stand up to his employer where necessary and simply refuse to put himself and members of the public at risk, and that is what should have been done. 4. Nonetheless we recognise the mitigation which is available to both employees and which has been set out by Advocate Marks for Mr Rossiter and by Advocate Bell for Mr Rejak. They are fined a total of £400 in the case of Mr Rossiter and £200 in the case of Mr Rejak and there will be a default prison sentence of 21 days in respect of Mr Rossiter and 12 days in respect of Mr Rejak. Mr Rossiter has 8 weeks to pay and Mr Rejak has 4 weeks in which to pay. 5. The fines are to be imposed as follows:-in the case of Mr Rossiter the fines in respect of Counts 10 and 11 on the bodywork and the wiper are not imposed, there will be no separate penalty on those two charges and so there will be £200 on Count 9 and £200 on Count 12 in each case with 21 days in lieu as default. 6. In the case of Mr Rejak there will be no separate penalty on Counts 24, and 28 through to 33 and so there will be a fine of £125 on Count 25, £50 on Count 26 and £25 on Count 27 with 12 days imprisonment in default. 7. We turn to the offences committed by the company and by Mr O'Hara. In the circumstances of Mr O'Hara's offending the position is that he has accepted, through his counsel, that he had the responsibility for the maintenance or acquisition of the vehicles and certainly for loading. We think it is to his credit that he emphasised through his counsel that the employees were in a difficult position as a result of the instructions he gave and the regret which has been expressed on his behalf and on behalf of the company, and was rightly expressed, is noted and has been taken into account. 8. For the purposes of this sentencing we accept that he did not tell Mr Rossiter that he would be dismissed if he did not drive the vehicle but we also accept from Mr Rossiter's perspective that he may have thought that was the position. 9. As I said at the outset what we are left with is some vehicles that were in extremely poor condition, were a danger to the employees and to the public and a cavalier approach taken to their loading. We think that the overall fines which have been moved for by the Crown are right and we have therefore gone on to consider whether, in the light of the financial circumstances facing the company and the defendant, it would be right to reduce them. One of the reasons that we take the view the fines are in the right territory is the previous convictions which exist for both the company and Mr O'Hara in relation to similar offences. 10. The difficulty that we have with the financial information is that it is simply inadequate. The company accounts have been drawn to the 31 st January, 2013. They have not been completed, the accountants have not signed them off; even the directors have not signed them off. They are not fully comprehensible and the figures do not, on the face of it, seem to make sense and that is a serious difficulty. In connection with Mr O'Hara's affidavit he does not say within it that he has no other assets, although he does say he has no other bank accounts, and he makes an offer of £20 per week which in the circumstances looks derisory particularly having regard to the fact that the outgoings, for example, from him and his wife from their accounts or on Barclaycard for August this year, appear to be quite substantial. So we have some doubt about the figures that have been put before us. 11. If a defendant wishes to persuade the Court that what would otherwise be an appropriate fine ought to be reduced because of financial inability to pay, then it behoves that defendant to put forward some material which is reliable upon which the Court can proceed, confident that it is arriving at a result which is capable of being justified both to the defendant and to the public through the Crown, and we regret to say that in this case we just simply do not find ourselves in that position. In those circumstances we think the Crown's conclusions should be granted and we do so in accordance with the schedule which has been provided and is attached to the conclusions. 12. Therefore the company is fined a total of £24,500 and Mr O'Hara is fined a total of £5,425 and the breakdown is in accordance with the schedule. 13. In the case of Mr O'Hara there will be a default prison sentence of 6 months' imprisonment and insofar as time to pay is concerned, I have already indicated the Court has found difficulty in accepting the financial information that has been put before us. We are going to grant 12 months to pay to both the company and to Mr O'Hara and we think that will enable them to put their financial affairs in such a state that these fines can be paid. We emphasise that there is liberty to apply in relation to the time to pay and so if that were to be the result there will have to be some much better financial information put before us. Authorities Motor Vehicle (Construction and Use)(Jersey) Order 1998. Road traffic (Lightening)(Jersey) Order 1998. AG-v-Holiday Tours Limited [2007] JRC 244 . AG-v-Holiday Tours Limited [2011] JRC 036 . Magistrates Court Guidelines. Page Last Updated: 23 Sep 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII