Scottish Court of Session Decisions

This is an appeal against the decision of the Transport Tribunal dated 28 May 1997 dismissing the appellants' appeal against a decision of the deputy traffic commissioner dated 9 December 1996 in which he revoked their standard licence in exercise of the power contained in Section 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995. The appellants operate goods vehicles which are used, inter alia for the carrying of bulk materials to and from construction sites.

Section 26(1) provides that the traffic commissioner by whom an operator's licence has been issued may direct that it be revoked, suspended or curtailed on any of a number of stated grounds. In the present case the decision of the traffic commissioner was based on the following grounds as stated in the subsection.

The first was the conviction of the licence-holder of an offence such as is mentioned in any of sub-paras (a) to (i) of para. 5 of Schedule 2 to the Act within the period of five years ending with the date of the direction (Section 26(1)(c)(i)). It may be noted that, as provided in Section 13(1) and (3) and para. 1 of Schedule 3, such offences are relevant to the question of whether an applicant for a licence meets the requirement of being of good repute.

The second was the prohibition of the licence-holder under Sections 69 or 70 of the Road Traffic Act 1988 within the same five year period (Section 26(1)(c)(iii)). Section 69 empowers a goods vehicle examiner to prohibit the driving of a goods vehicle which, owing to any defects in it, is or is likely to become unfit for service. Such a notice may provide for immediate or delayed prohibition. In practice it may be marked 'S' to indicate a significant failure in the operator's maintenance. There is an informal procedure for complaint about such a notice, and a formal right of appeal if clearance of the prohibition is refused. Section 70 empowers various persons to prohibit the driving of overloaded goods vehicles.

The third was the failure to carry out an undertaking recorded in the licence (Section 26(1)(f)). In this connection it may be noted that sub-section (5) of Section 13 sets out a number of matters which require to be satisfied in connection with an application for a licence. For this purpose the traffic commissioner may, under sub-section (8), take into account any undertaking given by the applicant. In the present case the licence was subject to a number of standard conditions, including the following:

In his decision the deputy traffic commissioner had regard to (i) sixteen convictions of the appellants and nine convictions of their drivers over the previous five years, relating to contraventions of the law relating to tachographs, dangerous and insecure loads, vehicle overloading and drivers' hours; (ii) a considerable number of prohibitions during the five year period, and in particular six marked 'S' issued between 8 July 1995 and 7 August 1996; and (iii) what he regarded as the appellants' failure to fulfil the undertakings to which we have referred above.

The present case has a long history. On three previous occasions the licensing authority (the predecessor of the traffic commissioner) instituted proceedings against the appellants under Section 69 of the Transport Act 1968, which was the predecessor of Section 26 of the 1995 Act. In each case a public inquiry was held in accordance with the requirements of the statute. On 4 June 1992 the appellants' licence was prematurely terminated. On 16 November 1993 they were given a final warning in regard to maintenance standards, and their licence was renewed for one year only, restricted to fifty vehicles and eighteen trailers, on the basis of a statement of intent that all their vehicles would be inspected every two weeks. On 12 May 1995 the licensing authority revoked their licence. Their appeal was dismissed by the Transport Tribunal in a decision dated 17 October 1995. However, their further appeal to the Court of Session was successful on 29 May 1996 when the First Division allowed it and remitted the case to the licensing authority to re-hear and determine the matter afresh in the light of their Opinion. At the hearing of that appeal there was no contradictor to the appellants' submissions.

In due course the deputy traffic commissioner made the decision, upheld by the Transport Tribunal, with which the present appeal is concerned. The respondent was represented before the Transport Tribunal on this occasion, as a result of the tribunal seeking his assistance under para. 12(1) of Schedule 4 to the Transport Act 1985. The respondent was likewise represented before this Court. Mr Macdonald who appeared as senior counsel on his behalf, pointed out that the respondent was not partisan, but sought to ensure that the law was clearly and correctly stated.

The main controversy in this appeal arises from a passage in the Opinion of the First Division dated 29 May 1996, which was delivered by Lord Clyde. It was to this passage in particular that the Court directed the attention of the licensing authority. Having referred to a number of prohibitions which had been taken into account by the licensing authority in his decision dated 12 May 1995, the Court stated:

At a later stage in their Opinion the Court stated:

Since the soundness of the general approach taken by the Court had been questioned by the respondent, it was ordered that the present appeal should be heard by a Court of five judges.

In this appeal the appellants maintain that the deputy traffic commissioner failed to follow the approach as set out by the Court, namely that in determining whether a direction, and, if so, what direction should be made under Section 26, he should assess the degree of culpability on the part of the operator in relation to each prohibition and conviction. The first question which requires to be considered is whether the approach of the Court in the opinion quoted was correct.

For the respondent, it was submitted that the jurisdiction of the traffic commissioner under Section 26 was not penal, punitive or disciplinary, though a direction might have disadvantageous consequences. Accordingly he was not entitled to have in mind the object of punishment in any direct sense. He was required to ascertain whether the requirements of the licence were being observed and, where appropriate, to control its exercise with a view to the protection of the public. It was important to note that the direction applied to the licence rather than to the operator. For this purpose culpability and the degree of culpability were not relevant. Since he was not concerned with punishment it was not for him to "teach the operator a lesson". Further he was not concerned with sending out a message to deter others from courting a similar fate.

It was further submitted on behalf of the respondent that the traffic commissioner was not bound as a matter of course to determine to what extent each prohibition was due to the fault of the operator. The Court had been wrong in holding that he was. Counsel emphasised that the inquiry before the traffic commissioner was intended to be summary in nature. It was also submitted that, although it was obviously necessary for him to have regard to the content and nature of the prohibitions, the Court had been wrong in holding that it was necessary for him to distinguish between the fault of the employee and the fault of the operator. The operator took responsibility for the conduct of his employees and those to whom he entrusted the maintenance of his vehicles, and accordingly could not escape from that responsibility by blaming them. The Court had also been wrong in holding that fault on the part of the operator could not be inferred from the number and significance of the prohibitions. The paramount consideration was that of safety, and not culpability, although culpability would be one of a number of factors available for the traffic commissioner to take into account in the light of the evidence led. It would always be open to the operator to seek to demonstrate that the prohibitions did not reflect on him as badly as they appeared to do. Other possible factors included the competence of the operator and the steps which he had taken to put matters right by dismissing or retraining employees. The effect of a direction on employment would also be a relevant consideration, but if public safety considerations were sufficiently strong there would be no warrant to withhold a direction. The exercise of the traffic commissioner's discretion involved a balancing of considerations and a broad judgement.

For the appellants, it was submitted that, while it was unnecessary to decide whether the power conferred by Section 26(1) was wholly or partly penal, it normally would involve a disciplinary element. This could be seen most clearly in the exercise of the discretion to impose a limited curtailment or a suspension. It was this disciplinary element which made culpability relevant in the normal case. There could be exceptional cases in which there was no question of fault and accordingly no element of discipline. It was further submitted on behalf of the appellants that, in accordance with the approach taken by the Court, the degree of culpability should be assessed in every case. However, senior counsel for the appellants qualified this by saying that he did not maintain, as the Court had held, that culpability was paramount. Counsel submitted that in any event the degree of fault was a relevant consideration, although it might not be necessary to examine each prohibition for the purposes of assessing it. In carrying out that exercise it was for the traffic commissioner to do the best he could. The point of the exercise was to assess the gravity of any deficiency in the conduct of the operator's system. A distinction should be drawn between the fault of the operator and that of his employee, although the operator would often be at fault if his system was inadequate to identify employee error. The point of the distinction was not to show that the operator was free of fault, but to show the degree of his fault. While certain duties were owed by the operator, it was relevant to consider the extent to which he, as distinct from his employee or other persons acting for him, had been at fault. This was relevant to mitigation. Overall the traffic commissioner had to strike the correct balance between consideration of public safety on the one hand and fairness to the operator on the other.

This appeal requires us to consider the underlying purpose for which the power given by Section 26(1) is provided. That section forms part of a system for the regulation of the operation of goods vehicles, by means of the control exercised over the licences without which that operation could not lawfully take place. Section 13 requires that an applicant for a licence is to be of good repute, of the appropriate financial standing and professionally competent, in accordance with Schedule 3. Under Section 27 revocation of the licence is mandatory if he ceases to fulfil any of these requirements. The applicant also has to show that the various requirements set out in sub-section (5) of Section 13 are met. These relate, for example, to drivers' hours, the avoidance of overloading of vehicles, the maintenance of vehicles in a fit and serviceable condition, and the availability, suitability and sufficiency of the operating centre. Section 26(1) contains a wide range of grounds for a direction apart from those with which the present appeal is concerned. It may be noted that in Section 178 of the Road Traffic Act 1960, which was a predecessor of Section 26, it was stated in sub-section (4) that a direction should not be given on the ground of a conviction or a prohibition unless the licensing authority was satisfied "that owing to the frequency of such convictions or prohibitions as are referred to in that paragraph, or the wilfulness of the act or omission leading to the conviction of prohibition in question, or the danger to the public involved in that act or omission, such a direction should be given". No such qualification appears in Section 26(1).

In the light of that background it is clear that the underlying purpose of a direction under Section 26(1) can only be stated in very broad terms, namely that it is intended to be used, so far as may be appropriate, to achieve the objectives of the system. The proper question is whether in that context the direction is appropriate in the public interest. The objectives of the system plainly include the operator's adherence to the various requirements of section 13(5). In the case of prohibitions and convictions it is plain that the protection of the public is a very important consideration.

During the course of the discussion our attention was drawn to the fact that in a number of their past decisions the Transport Tribunal referred to a direction by a licensing authority under a predecessor of Section 26 as a "penalty" and expressed the need to ensure that the "penalty" was effective.

We can see no justification for treating the direction under Section 26(1) in the same way as if it were a punishment administered by a criminal court and hence arrived at by reference to the full range of considerations which such a court would take into account. This appears to us to involve a confusion in roles. When Parliament intends to invoke the criminal law, it does so expressly by enacting provisions which define the offence and its penal consequences.

On the other hand, it does not follow that a traffic commissioner is prevented from taking into account, where appropriate, some considerations of a disciplinary nature and doing so in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation. However, taking such considerations into account would not be for the purpose of punishment per se, but in order to assist in the achievement of the purpose of the legislation. This is in addition to the obvious consideration that a direction may be used to provide direct protection to the public against dangers arising from the failure to comply with the basis on which the licence was granted. Whether or not such disciplinary considerations come into play must depend upon the circumstances of the individual case.

During the course of the discussion our attention was drawn to the decision of the Court of Appeal in In re R. Hampton & Sons [1966] 1 Q.B. 135, which was concerned with the revocation and suspension of licences under Section 178 of the 1960 Act. In that case the operators accepted that the Transport Tribunal was a disciplinary body, but maintained that, having been punished for certain offences in a criminal court, they had been made to suffer double punishment. The court dismissed their appeal on the ground that Section 178(1) conferred a power to take disciplinary measures, even though they might operate as a second punishment. In his Opinion Lord Denning M.R. at page 144 drew a parallel with the actions which may be taken by professional bodies by way of discipline over their members. In general we agree that a similar parallel can be drawn in the present case although it is important to remember that the discipline is exercised in the interests of the public rather than in the interests of members. In Robinson v Secretary of State for Environment [1973] 1 W.L.R. 1139 the Queen's Bench Division were concerned with Section 127 of the 1960 Act, under which a PSV licence might be revoked or suspended if it appeared to the traffic commissioners that the licence holder was not a fit person to hold such a licence. It was held in that case that Section 127 did not empower them to suspend or revoke the licence as a penalty for past conduct, but that it required to be related to the question of whether the holder of a licence was at the material time a fit person to hold that licence. We do not consider that that case is of any particular assistance having regard to the very different wording of Section 26 of the 1995 Act and its predecessors.

How then is the question of possible direction under Section 26(1) to be approached in the present type of case? It is important to bear in mind that the grounds with which we are concerned state that it is the conviction, the prohibition or the non-fulfilment of the undertaking which forms the basis for the direction. In other words, it is in envisaged by the section that each of these by itself should be sufficient to justify the making of the direction. The section does not require the traffic commissioner, either expressly or by necessary implication, to determine "the degree of culpability" in order to enable him to act on any of these grounds. Whether the past conduct of the operator is blameworthy is not the determining or critical factor. We are unable to agree with the First Division's view that without assessing the degree of culpability the traffic commissioner cannot form a sound decision as to whether any, and, if so, which direction should be given. Likewise, we cannot agree with their observation that fault on the part of the operator is not simply to be inferred from the existence of a prohibition, since this is to seek the answer to the wrong question. Further we disagree with the implication which they drew from the legislation that the licensing authority could not reach a proper determination without distinguishing between fault on the part of the driver and fault on the part of the operator. This appears to suggest that the operator is not responsible when the driver is at fault. It is important, in our view, to observe a clear distinction between questions of responsibility and questions of culpability. It was correctly maintained on behalf of the respondent that the operator cannot avoid responsibility for a conviction for prohibition by seeking to lay the blame on the driver or on those by whom his vehicles have been maintained. Doing so would provide no answer to proceedings taken in respect of them. A prohibition qualifies as a prohibition for the purposes of Section 26(1) whether it arises from the fault of the operator or from that of someone else for whom the operator is responsible.

On the other hand, it is plain that Section 26(1) calls for the exercise of a discretion, to be exercised according to the circumstances of a case. There plainly will be a number of factors to be put into the balance. An operator may seek to show that he has taken steps to avoid a repetition or that the prohibition or conviction occurred in circumstances in which there was little fault on his part. Consideration of fairness requires that the evidence as to such circumstances should be taken into account. However, the culpability of the operator has to be understood in the light of the responsibility imposed upon him under the legislation. Further each of the grounds with which we are concerned looks to the past. It follows that the traffic commissioner is entitled to make a direction even if the operator has taken steps to prevent a recurrence. Whether he makes such a direction should depend, of course, on the exercise of his discretion as applied to the facts of the particular case.

It follows that we reject the appellants' submission that the approach taken by the First Division was sound, and we overrule their decision.

For the reasons which we have given we reject the premise on which the appellants' contention was based, and accordingly that contention falls to be rejected. However, the appellants went on to submit that in any event the traffic commissioner had failed to carry out a proper analysis or assessment of the evidence which they had adduced by way of mitigation. They pointed out that, as is recorded in his decision, the Vehicle Inspectorate had expressed general satisfaction with the appellants' maintenance facilities, staff and staffing levels. Senior counsel for the appellants maintained that he had failed to address their detailed evidence as to the particular circumstances of each prohibition. This raised a number of questions as to the nature and seriousness of each defect, how long it had been present, what were its potential consequences and whether it was attributable to a failure in the appellants' maintenance system. Against a wider picture it raised questions as to the relationship of the number of prohibitions and convictions to the size of the fleet and the period over which they had occurred. What was the number of examinations in which no defect had been detected? Instead the traffic commissioner's approach had been superficial and statistical. He had invoked public safety without reference to, or assessment of, the degree of danger in the past, and without reference to the arrangements which had been made for the present and future. He did not ask if there was a real and substantial road safety problem. Senior counsel also advanced a particular criticism of a passage in para. 40 to which he made the observation that it might be that the recently revised preventative maintenance improvements would prove more effective and capable of most positive management. This was inconsistent with the revocation of the licence and suggested that it was not called for. Counsel also submitted that the deputy traffic commissioner had wrongly construed the appellants' undertaking as if it contained an absolute warranty that there would be no prohibition, whereas it raised it different considerations. He had failed to pin-point any specific defects in their arrangements. Finally he submitted that the direction given by the deputy traffic commissioner was disproportionate and unreasonable. No reason had been given for taking a different view from that expressed by the First Division.

In considering this line of argument it is important to bear in mind the limited scope of appeal to this Court from the Transport Tribunal. Under paragraph 14 of Schedule 4 to the Transport Act 1985 there is no appeal upon a question of fact, although the Court may draw whatever inferences are not inconsistent with the facts expressly found and are necessary for determining any question of law. The arguments presented by the appellants could found an appeal only on the basis that the deputy traffic commissioner failed to take into account relevant and material evidence or that he reached a conclusion or conclusions which no reasonable traffic commissioner would have done.

We do not consider there is any sound reason for thinking that either proposition is justified. The deputy traffic commissioner had before him, in addition to evidence as to the convictions to which we have referred earlier in this Opinion, details of fifty three immediate, and twenty seven delayed, prohibitions issued in the preceding five years in respect of vehicles of the appellants. Of these totals twenty and nine respectively had been imposed since the inquiry in May 1995. Six of the twenty immediate prohibitions had been marked 'S'. According to the evidence given by the Vehicle Inspectorate, in some instances drivers ought to have identified defects, while in others it was suggested that they should have been detected at previous safety inspections. The deputy traffic commissioner heard evidence from the Vehicle Inspectorate about 'S' marked prohibitions and other immediate prohibitions which had been imposed since the enquiry in November 1993. On the other hand he heard evidence from the appellants in which they advanced explanations for each prohibition, ranging from their acceptance of responsibility and errors made by drivers and fitters to erroneous categorisation of faults and misjudgements of standards by the Vehicle Inspectorate. However, he noted that the appellants had not used their opportunities to challenge the prohibitions at the time. He observed that it was difficult, if not impossible, to reassess individual defects in retrospect. He tended to prefer the evidence which had been given on behalf of the Vehicle Inspectorate about defects and the reasons for them. However, where the appellants had queried defects at the time or had given what he regarded as entirely plausible explanations for defects to the Inspectorate he considered that there might well be some element of doubt about such faults and accordingly had excluded them from his consideration. In these circumstances he discounted two prohibitions and qualified five others. In his decision he also noted that the maintenance facilities, staff and skill levels of the appellants were satisfactory and that preventive maintenance was carried out on a regular basis. Furthermore, between November 1993 and October 1996 sixty fleet or roadside checks showed that vehicles of the appellants were in a satisfactory condition. He also had evidence before him that the appellants had in operation a driver defect system; that they had made a substantial investment in new vehicles and had spent £450,000 on maintenance in the year to the end of November 1995; and had made a number of changes, which he set out in detail, in their approach to preventative maintenance. In his decision he set out a number of conclusions. These included that he had no doubt that the prohibitions which he had taken into account and which were marked 'S' were so marked properly, indicating culpability on the operator's part (para. 26). The prohibitions and convictions had provided evidence of the appellants' failure to fulfil its undertakings (para. 28(d) and (e)). He regarded it as being one of the fundamental principles on which the integrity of goods vehicle operator licensing rested that licence holders were responsible for road safety standards of vehicles and trailers lawfully used under the authority of a licence (para. 33). He observed that despite warnings about the need for change over many years it was not until recently that the appellants had made purposeful improvements to their maintenance practices. He stated in paras. 34-35:

A reading of the decision of the deputy traffic commissioner does not indicate any failure on his part to take into account any relevant or material evidence which could bear on the question whether he should make a direction, and, if so, what form that direction should take. He was not required to set out in detail all the evidence which he heard in regard to each and every prohibition and conviction, or to record in detail his conclusions in regard to each instance. He required to consider what evidence he accepted, and to weigh the significance of that evidence against the whole range of considerations which were available for him to assess. We do not see any defect in his reasoning, let alone that his conclusions were ones to which no reasonable traffic commissioner would have come.

Like the Transport Tribunal we see no merit in the assertion that he construed the undertakings given by the appellants as equivalent to their providing a guarantee that there would be no prohibition or conviction. Having reached a conclusion as to the extent to which he should accept the statement of defects as set out in the prohibitions, he was entitled to infer from their number and nature that there had been a failure on the part of the appellants to fulfil their undertakings. He did not require to have direct and detailed explanation of the relationship between the performance of the undertaking and the defects. As regards the passage in paragraph 40 of his decision, while there may be some ground for criticising the way in which it is expressed, this in our view does not affect the substance of what he decided and was entitled to decide. Accordingly in our view none of the criticisms which have been advanced by the appellants are well founded.

In view of the conclusions reached by the deputy traffic commissioner, including those relating to more recent events, we are not persuaded that his directions can be regarded as unreasonable.

Strictly speaking, in the light of our views about the opinion of the First Division, the decisions of the deputy traffic commissioner and the Transport Tribunal, proceeded upon an erroneous approach to the provisions of Section 26(1). However, it is clear to us that even if a correct approach had been taken, this would not have affected the outcome. In these circumstances we consider that the decision of the deputy traffic commissioner was sound, and that the appeal against the decision of the Transport Tribunal falls to be refused.

Mr Macdonald pointed out to us that, in terms of para. 14(4) Schedule 4 to the Transport Act 1985 it was open to this Court to order a stay in regard to the coming into effect of the decision of the deputy traffic commissioner, if it appeared appropriate to the Court to give the appellants time to wind down their operations. This case will be put out By Order so that this matter can be discussed.