England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Transport Tribunal Road Haulage Appeal

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st January 2003

Lord Justice Kennedy :

1. This is an operator's appeal from a decision of the Transport Tribunal Road Haulage Appeals, sitting in London, which on 13^th May 2002 dismissed the operator's appeal from a decision of the Traffic Commissioner for the North Western Traffic Area who, on 26^th November 2001, had revoked the operator's operating licence on the basis that he was no longer of good repute for the purposes of section 27 of the Goods Vehicles (Licensing of Operators) Act 1995.

Statutory Provisions

2. Section 27(1) of the 1995 Act provides –

"The traffic commissioners by whom a standard licence was issued shall direct that it be revoked if at any time it appears to him that the licence-holder is no longer –

(a) of good repute,

(b) of the appropriate financial standing, or

(c) professionally competent;

and the traffic commissioner shall determine whether or not that is the case in accordance with schedule 3. "

Schedule 3 deals with qualifications for standard licence, and paragraph 1 of that schedule deals with good repute. So far as material that paragraph provides –

"(1) In determining whether an individual is of good repute, a traffic commissioner may have regard to any matter but shall, in particular, have regard to –

(a) any relevant convictions of the individual or of his servants or agents; and

(b) any other information in his possession which appears to him to relate to the individual's fitness to hold a licence.

(2) In determining whether a company is of good repute, a traffic commissioner shall have regard to all the material evidence including, in particular –

(a) any relevant convictions of the company or any of its officers, servants or agents; and

(b) any other information in his possession as to the previous conduct of –

(i) any of the company's officers, servants or agents, or

(ii) any of its directors, in whatever capacity,

if that conduct appears to him to relate to the company's fitness to hold a licence."

3. Sub-paragraph (3), read together with later provisions, identifies convictions which are relevant, and paragraph 2 reads –

"Without prejudice to the generality of a traffic commissioner's power under paragraph 1 to determine that a person is not of good repute, a commissioner shall determine that an individual is not of good repute if that individual has –

(a) more than one conviction of a serious offence; or

(b) been convicted of road traffic offences."

The Issue

4. The issue which arises in this appeal is whether loutish and intimidating behaviour by an operator of good character at the end of a public inquiry before a Deputy Traffic Commissioner could properly be regarded by the Commissioner as depriving the operator of his good repute, having regard to not only what happened at the time, but also to what occurred up to the time at which the commissioner gave her decision.

The Facts

5. The appellant, David Crompton, traded as David Crompton Haulage from an address near Ormskirk in Lancashire. He held a licence from 1994 and does not seem to have had any problems with the authorities until 1^st February 2001 when he was called to a public inquiry to consider action against his licence as a result of a report from a Traffic Examiner Miss Farr, who had discovered that in August 1999 the appellant's brother, Gordon Crompton, who worked for the appellant as a driver, had been falsifying tachograph records. The police were involved. Gordon Crompton and others, but not the appellant, were prosecuted, convicted and sentenced. On behalf of Gordon Crompton it was said in mitigation that at the time of the offending he was concerned for the welfare of his partner who was in hospital and who had recently miscarried.
6. When the matter came before the Deputy Traffic Commissioner, Mr Hinchliffe on 1^st February 2001 the same mitigation was advanced, but he was sceptical, because there was reason to believe that the lady in question was safely delivered of a child on 9^th April 2000. The case was adjourned to enable the appellant and his brother to produce medical evidence. It was due to continue on 18^th April 2001, but the solicitor then instructed was unavailable, so there was a further adjournment to 27^th June 2001. On that day the brothers were represented by a different solicitor, Mr Chant. No medical report was produced but the mitigation was maintained. By that time Gordon Crompton had ceased to be employed by the appellant, having been dismissed on 5^th May 2001.
7. The Deputy Traffic Commissioner found that the mitigation was untrue. He found that the appellant was complicit in the original course of conduct (i.e. the tachograph offences) and that the motivation was commercial gain and financial greed. He also found that the appellant was "complicit in the deceit" (that is to say was actively involved in the presenting the mitigation, which he knew to be false). The Deputy Traffic Commissioner therefore held that the appellant lost his good repute, with the result that his operator's licence was revoked with immediate effect. Mr Gordon Crompton's vocational LGV driver's licence was suspended for a period of 12 months.
8. Following the hearing on 1^st February 2001 there had been some publicity in the "Commercial Motor" and on 27^th June 2001 Mr Gordon Crompton, in particular, was concerned about further publicity, and wanted the Deputy Traffic Commissioner to exclude the press, represented by Mr Jewell, but the Deputy Traffic Commissioner refused to take that course.

After the Hearing on 27^th June 2001

9. I come now to the incident which took place in the court building immediately after the Deputy Traffic Commissioner had given his decision and retired, and it is that incident which gave rise to the proceedings before the Commissioner which are the subject matter of this appeal. The incident involved the appellant and his brother, the Clerk to the Inquiry, David Clegg, Miss Farr and Mr Jewell and the police were informed. The appellant was later visited by a police officer and advised as to his conduct, but he was not formally cautioned.
10. Before I turn to the detail of what happened it is relevant to note that the appellant appealed to the Transport Tribunal against the finding of the Deputy Traffic Commissioner and on 13^th December 2001 that appeal was successful. So his conduct does have to be considered against the background that the Deputy Traffic Commissioner had wrongly found that the appellant had lost his good repute.
11. After the incident statements were obtained from Mr Clegg, Miss Farr and Mr Jewell and on 11^th November 2001 they were served on the appellant with a letter advising him that on 26^th November 2001 the Traffic Commissioner, Mrs Bell, would conduct a public inquiry to consider whether as a result of the incident which took place after the Deputy Traffic Commissioner had retired on 27^th June 2001 action should be taken against the appellant's licence. The letter made it clear that none of those who gave statements would attend unless requested to do so, and on behalf of the appellant, who was represented by a solicitor, no request was made.

Application to go to a different Commissioner

12. The solicitor acting for the appellant did however by letter invite the Commissioner to consider whether, as the conduct complained of had taken place within the overall jurisdiction of the Traffic Commissioner, the matter should go to another Traffic Area to be dealt with by another Traffic Commissioner. The Traffic Commissioner took the view that as she had not taken any part in the inquiry conducted by Mr Hinchliffe there was no need to recuse herself, but at the beginning of the inquiry held on 26^th November 2001 she told the solicitor representing the appellant that if he wished to renew the application for the matter to be dealt with by another Traffic Commissioner she would hear his application. The solicitor then chose not to pursue the application. Accordingly there can be no complaint about the decision of the Traffic Commissioner to deal with the matter herself.

Case against appellant re 27^th June 2001

13. Unfortunately although Mr Clegg, Miss Farr and Mr Jewell had not been asked to attend it emerged from the evidence given by the appellant on 26^th November 2001 that in a number of material respects the account given by the others who had been present on the earlier occasion was not agreed. They said–

"(1) that after the Deputy Traffic Commissioner left the courtroom the appellant and his brother went up to the journalist, Mr Jewell, in a threatening and intimidating manner, inquiring of him if he was going to publish anything about the Deputy Traffic Commissioner disbelieving their claim that Gordon Crompton's partner had miscarried at the beginning of August 1999. Mr Jewell's response was that is was a matter for his editor, and according to him they became abusive and threatening and Gordon Crompton threatened to throw his laptop out of the window. At that stage their solicitor, Mr Chant, persuaded them to leave, but then –

(2) As they were leaving the appellant threatened Miss Farr. He stopped very close to her, waved his finger in her face and shouted 'and you, you big fat fucking trollop I will get you for this'. Mr Jewell thought that the appellant was going to grab Miss Farr by the throat. The court clerk kept telling the brothers to leave the courtroom, and they did so, but –

(3) As they left Gordon Crompton made it clear that he knew the Deputy Traffic Commissioner's car registration number, and said that from now on he had 'better sleep with one eye open'."

The appellant's case

14. The appellant's case was that after the hearing his brother went on his own to ask Mr Jewell what he would be reporting, to which Mr Jewell replied "You'll just have to wait and see". His brother then lost his temper, and the appellant intervened to pull him off. The appellant was also upset, and as they left he saw Miss Farr and asked her if she was satisfied now. He called her a big fat trollop, adding "you might think this is over but I can tell you now its not. I will get my own back." By that he meant no more than that he proposed to appeal. A few days later he telephoned Miss Farr to apologise, and he said he was sorry if she was upset. He then wrote a letter to her on 10^th July 2001 which was in these terms –

"I am writing to you to apologise for my outburst at the hearing in Leeds on 27^th June, 2001.

I realise that I was completely out of order, but I was very distressed at the decision of the Deputy Traffic Commissioner in taking away my Operators Licence without any time limit, bearing in mind that this was the first time I had been called before a Commissioner.

Further I have never had a prohibition notice and complied with all defect notices. Indeed I have never had any proceedings taken against me previously so you will appreciate that I was shocked and upset with the decision.

Once again I apologise unreservedly for my actions and trust it is accepted."

To that letter there was no reply. He did not send any apology to either Mr Clegg or Mr Jewell, but he did express his apologies again to the Traffic Commissioner at the hearing on 26^th November 2001.

The Decision of the Traffic Commissioner

15. The Traffic Commissioner accepted the account of Mr Clegg, Miss Farr and Mr Jewell in preference to the evidence given by the appellant. He was satisfied that the appellant was not just being abusive to Miss Farr, he was also threatening her. As to his conduct towards Mr Jewell he was attempting to inhibit the freedom of the press, and subjecting an innocent bystander to unacceptable abuse. The Traffic Commissioner concluded that on 27^th June 2001 the appellant was not fit to hold a licence, having by his behaviour lost his repute. She further concluded that despite the letter of 10^th July 2001 the position was still the same on 26^th November 2001 because the appellant had yet to recognise the gravity of his conduct. His operator's licence was therefore revoked with effect from 31^st December 2001.

The Appeal to the Transport Tribunal

16. On 14^th December 2001 the appellant gave notice of appeal to the Transport Tribunal against the decision of the Commissioner on two grounds-

"(1) The decision of the Commissioner not to transfer the hearing before her to another Traffic Area.

(2) The decision to revoke the licence was unreasonable and unjustified in the circumstances, including the fact that the appellant's licence had been revoked for 2½ months pursuant to the order of the Deputy Traffic Commissioner on 27^th June 2001 until 13^th September 2001 when his appeal was allowed."

17. The appeal to the Transport Tribunal was heard on 25^th April 2001 when the appellant was again represented by the solicitor who had represented him before the Traffic Commissioner. Nothing need be said about the first ground of appeal because it was hopeless, for the reasons to which I have referred earlier in this judgment. As to the second ground of appeal, the solicitor submitted that on the facts as found the Traffic Commissioner should not have concluded that there was a loss of good repute. The Tribunal rejected that submission, saying that although the decision of the Traffic Commissioner may be viewed as harsh it was not plainly wrong. However the Tribunal delayed the implementation of the order of revocation for three months to allow the appellant to make a fresh application for a licence. We have been told that that application was granted.

Grounds of Appeal to this Court

18. On 11^th June 2002 the appellant gave notice of appeal to this court. His right of appeal is to be found in paragraph 14 of schedule 4 to the Transport Act 1985. It is clear from that paragraph, as Mrs Outhwaite for the appellant conceded, that there is no appeal from the Tribunal on a question of fact. The Appellant's Notice attacks the decision of the Transport Tribunal by reference to the European Convention on Human Rights, which does not seem to have been canvassed at all before the Tribunal. There are seven grounds of appeal but they can be summarised as follows –

"(1) That in construing the meaning of 'good repute' in section 27(1) of the 1995 Act, and the apparently mandatory requirement that a licence be revoked if it appears to the Traffic Commissioner that the licence holder is no longer of good repute, the Transport Tribunal failed to have regard to the aims of the legislation, and the fact that an existing licence is, for the purposes of Article 1 of the First Protocol to the Convention a possession of which the appellant should not be deprived except in certain limited circumstances (see grounds 1 to 4).

(2) That the facts as found could not properly have led the Traffic Commissioner to conclude that the appellant was no longer of good repute (grounds 5 and 7). In spite of this ground of appeal assertions of fact are made in ground 7 of the Appellant's Notice for which there is no evidence.

(3) That the Tribunal erred in law in subjecting the appellant to a large number of hearings which interfered with his right of privacy and the enjoyment of a good reputation. As can be seen from the history outlined above this is a ground of appeal for which there is no foundation whatsoever."

The proper approach in law

19. (1) Mrs Outhwaite points out, rightly, that both the Traffic Commissioner and the Transport Tribunal are public authorities for the purposes of section 6 of the Human Rights Act 1998. They must therefore act in ways compatible with Convention Rights, and so far as possible, read and give effect to domestic legislation in a manner which is compatible with Convention Rights (see section 3(1) of the 1998 Act).

(2) An operator's licence is a possession for the purposes of Article 1 of the First Protocol, so the appellant was not to be deprived of it –

".. except in the public interest and subject to the conditions provided for by law, and by the general principles of International law"

The Article goes on to say that those provisions shall not –

".. in any way impair the right of a state to enforce such law as it deems necessary to control the use of property in accordance with the general interest …."

(3) In Traktorer Aktiebolag v Sweden [1989] 13 EHRR 309 it was said by the European Court of Human Rights at paragraph 59 that a licence such as this (in that case a restaurant liquor licence) can be revoked lawfully in pursuit of a legitimate aim, but the action must be proportionate. That case is also authority for the proposition that when balancing the interests of the community against individual freedoms the state has a wide margin of appreciation (see paragraph 62). The observations were an echo of what had previously been said in Sporrong and Lonnroth v Sweden [1982] 5 EHRR 35 at paragraph 69.

(4) The amended wording of the domestic statute, the 1995 Act, is based on European Council Directive 96/26/EC as amended by Directive 98/76/EC. The 1996 Directive on the admission to the occupation of road haulage operator was itself a consolidating directive, and it is clear from the recitals that there was a perceived need for Member States to provide rules for road haulage operators dealing with good repute, financial standing and professional competence. The Directive envisaged certain minimum requirements, and provided for inter-state recognition. Part of Article 3, as amended, reads –

"1. Undertakings wishing to engage in the occupation of road transport operator shall:

(a) be of good repute;….

2. Member States shall determine the conditions which must be fulfilled by undertakings established within their territory in order to satisfy the good repute requirement. They shall provide that this requirement is not satisfied, or is no longer satisfied, if the natural person or persons who are deemed to satisfy this condition under paragraph 1:

(a) have been convicted of serious criminal offences, including offences of a commercial nature,

(b) have been declared unfit to pursue the occupation of road transport operator under any rules in force,

(c) have been convicted of serious offences against the rules in force concerning:

- the pay and employment conditions in the profession, or

-road haulage or road passenger transport, as appropriate, in particular the rules relating to drivers' driving and rest periods, the weights and dimensions of commercial vehicles, road safety and vehicle safety, the protection of the environment and the other rules concerning professional liability."

It is clear from the first sentence of Article 3 paragraph 2, and from the cross-border recognition provisions in Article 8 to which our attention has helpfully been drawn by the skeleton argument provided by Mr Sheldon on behalf of the Secretary of State, that provided the minimum requirements are met individual states can decide for themselves what is necessary to be of good repute. There is no definition to be found in the Directive and its provisions are not exhaustive, as Mrs Outhwaite now accepts.

(5) That brings us back to the 1995 Act, which also contains no definition of good repute, but it is noticeable that in schedule 3 the opening words of paragraph 1(2) dealing with a company are more restrictive than the opening words of paragraph 1(1) dealing with an individual. When a traffic commissioner is considering if an individual is of good repute he can have regard to "any matter", but if he is considering a company he must confine himself to "all the material evidence". The difference in wording is a little surprising, but Parliament cannot have intended a traffic commissioner ever to have regard to immaterial evidence, so the conclusion must surely be that the schedule requires the traffic commissioner when considering alleged loss of repute to focus on matters relevant to the individual's fitness to hold a licence, bearing in mind –

"(a) that an existing licence is a possession safeguarded by Article 1 of the First Protocol, and -

(b) that if loss of repute is found the inevitable sanction is revocation, possibly followed by an application for a fresh licence which may or not be granted. There must therefore be a relationship of proportionality between the finding and the sanction, and that relationship has a direct bearing on the approach to be adopted in any set of circumstances to the question of whether or not the individual has lost his repute."

All of that seems to me to be in the end non-contentious.

The approach of the Commissioner and the Tribunal

20. What is contentious is whether the Commissioner and the Tribunal adopted that approach. Mrs Outhwaite submits that they did not, and I turn therefore to the decision of the Commissioner. Having summarised the evidence and referred to the submissions and to Schedule 3 the Commissioner said at 62C –

"I have asked myself the question, does the information in my possession regarding Mr David Crompton's behaviour after the Public Inquiry relate to his fitness to hold a licence? The answer to that question is yes; I think that it does."

She then referred to the nature of the inquiry conducted by the Deputy Traffic Commissioner, to the fact that operators are business men who should know how to behave, and to the function of the legislation, before saying –

"In dealing with this operator's conduct and his repute I remind myself that his conduct becomes relevant because it is how he was dealing with the enforcement of that legislation and the enforcement of those aims and purposes via a Commissioner sitting in a quasi judicial function. The conduct itself, in my view, does not simply have to relate to the aims and purposes of the legislation, but here does relate to the Tribunal sitting and exercising their functions of enforcement …… all of that means that I do feel it appropriate to take account of this operator's conduct as a licence holder with regard to what happened after the Inquiry."

She then went on to review what she described as the positive and negative features, in the course of which she said that she did not regard the operator's loss of his licence for 2½ months as a relevant feature to take into account, adding –

"Those sorts of factors are, in my judgment, relevant when looking at sanctions after a penalty has been imposed."

That is a little delphic, but for the reasons I have explained it seems to me that although the 2½ months without a licence was not directly relevant, the inevitable sanction was a critical factor when deciding whether to make a finding of loss of good repute.

21. The Traffic Commissioner then discounted the inaccuracy of the Commercial Motor Report saying that she took the view that it was not relevant for the reasons she referred to earlier. I do not know which reason she had in mind, but an inaccurate report could have some relevance as a partial explanation for the conduct which was being considered, and I would not regard it as self-evidently irrelevant, even if of relatively little weight.
22. Perhaps more significantly, the Traffic Commissioner said in relation to the submission that removal of the licence would not be appropriate or proportionate –

"Well, this, in a way, is a case of all or nothing. Loss of repute means, of course loss of licence."

That observation, which she repeated at the end of her determination, may be said to be only a statement of the obvious, but it seems to me to betray a failure to appreciate the relevance of proportionality in the context of this case.

23. The Traffic Commissioner then went on to make her findings of fact, accepting the evidence in the witness statements as to what had occurred on 27^th June 2001, and making the observations about the conduct complained of to which I have referred earlier in this judgment (see paragraph 15 above). She commented adversely at length on the operator's failure to apologise to anyone other than Miss Farr, but of course so long as the operator was maintaining that his only confrontation was with Miss Farr he could not really be expected to apologise to any one else. The Traffic Commissioner recognised that for an operator a public inquiry can be stressful, and that in the heat of the moment people do say and do things which they later regret. But, she said, some things are too serious to go by without action being taken. She recognised that the operator had been polite to her, and, having set out the background she concluded that the operator's conduct on 27^th June 2001 was such that he was not fit to hold a licence.
24. Reading the decision of the Traffic Commissioner as a whole I cannot escape the conclusion that although she did initially ask herself whether the operators behaviour related to his fitness to hold a licence she then became more concerned with the unacceptability of the behaviour, and failed to give mature consideration to the question of whether that behaviour really did demonstrate for the purposes of section 27(1) a loss of good repute, bearing in mind the inevitable consequences of such a finding, and the need for proportionality. In saying that I am not suggesting that there was any need for the Traffic Commissioner expressly to refer to proportionality, or to anything other than the domestic legislation which was directly relevant, but the inappropriateness of her approach does seem to me to be most clearly demonstrated by her refusal to accept that by writing as he did to Miss Farr, and by apologising to the Traffic Commissioner herself, the operator had done enough to demonstrate that at any rate by 26^th November 2001 he was once again a person of good repute.
25. The Transport Tribunal, having set out the facts and summarised the submissions made on behalf of the appellant, said that his solicitor "repeatedly referred to the loss of the appellant's good repute as too high a penalty or sanction, although he accepted the use of such terminology in the context of the jurisdiction and powers of Traffic Commissioners was inappropriate." The terminology may have been inappropriate, but no doubt it was used because of the approach adopted by the Traffic Commissioner, whose decision in part is reminiscent of a judgment in proceedings for contempt of court. I recognise, as did the Tribunal, that the Traffic Commissioner had the benefit of seeing the operator, but to my mind little now turns on that because the Traffic Commissioner made her conclusions clear. The Tribunal recognised that "her decision may be viewed as harsh", but does not seem to have asked itself why it should be viewed in that way. In my judgment the reason was that the approach adopted by the Traffic Commissioner faltered in the way that I have described. That was an error of law.

Conclusion.

26. I would therefore allow the appeal and set aside the decisions of the Transport Tribunal and the Traffic Commissioner, but I would not make any order as to costs. The matter was properly brought before the Traffic Commissioner for consideration, and no one appeared to oppose the representative of the appellant either before the Transport Tribunal or before us.

Lord Justice Mantell:

27. I agree.

Lord Justice Mance:

28. I also agree.
Order: Appeal allowed. There was no order regarding costs. (Order does not form part of the approved judgment)