Neutral Citation Number: [2010] UKUT 146 (AAC)

 

Appeal No. T/2009/530

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF

A.    LESTER MADDRELL, DEPUTY TRAFFIC COMMISSIONER for the

NORTH WESTERN TRAFFIC AREA Dated 21 November 2009

 

 

 

Before:

Judge Beech

Leslie Milliken

David Yeomans

 

 

Appellant: BOOMERANG TRAVEL LIMITED

 

 

 

 

Attendances:

For the Appellant: None but request made for the Tribunal to determine appeal in the Appellant’s absence

 

 

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 23 March 2010

Date of decision: 12 April 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be ALLOWED and that the matter be remitted to the Deputy Traffic Commissioner for further consideration of financial standing.

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.               This was an appeal from the decision of the Deputy Traffic Commissioner for the North Western Traffic Area made on 21 November 2009 when he refused to grant the Appellant a PSV operator’s licence under s.14(1)(a)&(b) of the Public Passenger Vehicles Act 1981 (“the Act”).

 

2.               The factual background to the appeal appears from the documents, the transcript and the Traffic Commissioner’s written decision and is as follows:

 

 

(i)              The Appellant is a limited company incorporated on 26 March 2009. The sole director of the company is Alan Pilkington (“Mr Pilkington”) and the company secretary is Vanessa Griffiths (“Ms Griffiths”).

 

(ii)             On 6 January 1997, Mr Pilkington was sentenced to 12 months imprisonment for three offences of assault occasioning actual bodily harm. Those convictions would have become been “spent” within the meaning of the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) on 5 January 2007.

 

(iii)            On 2 May 2001, Mr Pilkington was granted a PSV licence authorising two vehicles.

 

(iv)           On 18 February 2004, Mr Pilkington pleaded guilty to an offence of common assault for which he was sentenced to four months imprisonment. That conviction becomes spent on 17 February 2011. Mr Pilkington failed to notify the Traffic Commissioner of this conviction.

 

(v)             By a decision letter dated 21 June 2004, the Traffic Commissioner revoked Mr Pilkington’s PSV licence with effect from 23 July 2004 upon the grounds that he had lost his good repute, that he was no longer professionally competent and could not meet the requirements of financial standing. The Traffic Commissioner reached her decision upon the basis of prohibitions issued, a failure to comply with statements of intent and undertakings (one of which related to the notification of further convictions to the Traffic Commissioner) and the convictions recorded against Mr Pilkington. Although his PCV driving entitlement was also considered at the public inquiry, no action was taken in respect of that.

 

(vi)           On 27 May 2009, the Appellant made an application for a PSV licence authorising two vehicles. The nominated Transport Manager was Mr Pilkington.

 

(vii)          On 13 November 2009, a public inquiry was held by the Deputy Traffic Commissioner. Mr Pilkington and Ms Griffiths attended. Having been satisfied with the evidence concerning the Appellant’s proposed arrangements and systems, the sole issue left for the Deputy Traffic Commissioner to determine was whether Mr Pilkington was of good repute by reason of his previous convictions.

 

(viii)         Mr Pilkington gave evidence. He told the Deputy Traffic Commissioner that the 1997 convictions arose out of problems that his then partner (now ex-partner) and her family were having with neighbours who were abusive and threatening. On the evening of the offences, Mr Pilkington received a telephone call from his partner concerning an incident during which two of the house windows had been smashed. Mr Pilkington and his brother attended to try and calm things down but matters escalated and had ended up in a fight during which three of the neighbours sustained injuries as a result of the actions of Mr Pilkington. The court had taken a particularly serious view of the incident because someone had brandished a hammer (although not Mr Pilkington). The second incident in 2004 had involved the same ex-partner and arose out of an acrimonious separation which had resulted in the involvement of the Child Support Agency and Mr Pilkington encountering difficulties gaining access to his children. He was at a very low ebb at the time. On the date of the incident, Mr Pilkington’s ex-partner had driven to his place of work and had then tried to run him over. There was a scuffle which resulted in Mr Pilkington pulling his ex-partner’s hair causing her head to hit the steering wheel of her vehicle. Mr Pilkington confirmed that this was an offence of common assault and the Deputy Traffic Commissioner accepted that to be the position.

 

(ix)           Mr Pilkington told the Deputy Traffic Commissioner that he had matured since both incidents and that he had learnt by his mistakes. He had continued to work as a PSV driver and had had to deal with many difficult incidents involving drunken passengers without losing his composure. After he had lost his operator’s licence in 2004 he had continued to work in the family business repairing, buying and selling commercial vehicles, driving PSV vehicles and undertaking some route planning until 2007 when he went to work for a scaffolding company and then for Preston Bus. He had now returned to dealing in commercial vehicles. He described his present partner, Ms Griffiths, as “a rock”. She had encouraged him and had made him feel secure. He had full contact with his children from his former relationship for three evenings a week and he was looking forward to starting a business and planning for the future. He had worked hard to put his business plan together and to identify the many opportunities there were in the area. He appreciated the responsibilities of holding an operator’s licence and welcomed the challenge. There was also evidence before the Traffic Commissioner that the Appellant had received support from the Hyndburn Enterprise Trust.

 

(x)             Ms Griffiths told the Deputy Traffic Commissioner that she had two children with Mr Pilkington and he was keen to secure the future for all of his four children. He had worked extremely hard on the Appellant company and had matured over the previous two years whilst doing so.

 

(xi)           In his written decision dated 21 November 2009, the Deputy Traffic Commissioner commended Mr Pilkington for “his diligence in putting his business plan and associated matters in order” and confirmed that the sole issue that required determination was whether Mr Pilkington was of good repute. Whilst Mr Pilkington had been “mistakenly” under the impression that his convictions in 1997 were spent, that was not the position. The Deputy Traffic Commissioner relied upon s.6(4) of the 1974 Act stating that “the effect of which is to extend to the end of the rehabilitation period of the second conviction, the rehabilitation period of the first” and that as both sets of convictions were “serious convictions” within the meaning of Schedule 3 paragraphs 1(1)(a), 1(2)(a) and 1(4)(a) of the 1981 Act, he was required by paragraph 1(3)(a) to find that Mr Pilkington was not of good repute unless the Deputy Traffic Commissioner could exercise his discretion provided by paragraph 1(8) to disregard any offence if such time as he considered appropriate had elapsed and having regard to what Mr Pilkington had been doing since his convictions and his personal circumstances.

 

(xii)          The Deputy Traffic Commissioner considered that whilst Mr Pilkington remained polite throughout the public inquiry, he detected a characteristic that would have made him more volatile and voluble in less restrained circumstances. The Deputy Traffic Commissioner was disturbed by the fact that both sets of convictions resulted from Mr Pilkington either reacting in an attempt to protect someone who was dear to him or as a result of the breakdown of a relationship and its consequences. The first set of convictions had not prevented the second conviction. A tendency to violence did not therefore lie very far below his surface. The Deputy Traffic Commissioner was not satisfied that enough time had elapsed (six years) between the date of the second incident in 2004 and the date of the application for a licence. Once both sets of convictions were spent in 15 months time, it would be for a Traffic Commissioner to determine whether justice could be done without referring to the convictions and to give Mr Pilkington’s aspirations some consideration.

 

3.     Prior to the hearing of this appeal, the Appellant requested that we hear the appeal in its absence to which we agreed. The Grounds of Appeal drafted by Mr Pilkington extended over three pages. However, it was the supplemental Grounds of Appeal upon which the Tribunal concentrated and in particular, to the provisions of s.6 of the 1974 Act. We are satisfied that the Deputy Traffic Commissioner fell into error when determining that Mr Pilkington’s convictions recorded in 1997 were not spent because of the latter conviction in 2004. S.6(4) of the 1974 Act reads as follows:

 

Subject to subsection (5) below, where during the rehabilitation period applicable to a conviction –

 

(a)  The person is convicted of a further offence; and

(b)  No sentence excluded from rehabilitation under this Act is imposed in respect of the later conviction;

 

If the rehabilitation period applicable in accordance with this section to either of the convictions would end earlier than the period so applicable in relation to the other, the rehabilitation period which would (apart from this subsection) end the earlier shall be extended so as to end at the same time as the other rehabilitation period.

 

S.6(4) must be read in conjunction with s.6(6) which reads:

 

“For the purposes of subsection (4)(a) above there shall be disregarded –

(a)  Any conviction in England and Wales of a summary offence ..”

 

It follows that as common assault is a “summary only” offence, a conviction for common assault is to be disregarded when considering whether the period of rehabilitation for an older offence is to be extended. The Deputy Traffic Commissioner was therefore wrong to determine that at the date of the Appellant’s application, Mr Pilkington had two unspent convictions as a result of s.6(4) of the 1974 Act.

 

4.     The approach that the Deputy Traffic Commissioner should have taken was to find that Mr Pilkington had only one unspent conviction dating back to 2004, the circumstances of which were not sufficient on their own to deny Mr Pilkington his good repute. The Deputy Traffic Commissioner should then have gone on to consider the provisions of s.7(3) of the 1974 Act which allows judicial authorities to take account of spent convictions if “justice cannot be done in the case except by admitting or requiring evidence relating to the person’s spent convictions ..”. Had the Deputy Traffic Commissioner asked himself the question of whether justice could not be done save by taking account of the 1997 convictions we are satisfied that in view of Mr Pilkington’s continuing entitlement to a PCV licence which he had continued to use without incident, the time that had passed since the conviction in 2004, the evidence that he and Ms Griffiths gave concerning his changed circumstances, demeanour, attitude and maturity and the Deputy Traffic Commissioner’s own finding that Mr Pilkington had acted diligently “in putting his business plan and associated matters in order” we are of the view, that the Deputy Traffic Commissioner would not have found that there was no other way of doing justice save by taking account of Mr Pilkington’s spent convictions and that whilst he may in all likelihood have found that Mr Pilkington’s good repute was tarnished, it was not lost and that having satisfied all other statutory requirements for the grant of a licence, that is what should have resulted from the public inquiry.

 

5.     We are satisfied that this appeal should be allowed and that subject to the Deputy Traffic Commissioner considering the up to date position in relation to financial standing of the Appellant, an operator’s licence should be granted. In the circumstances, this matter is now remitted for the up to date position in relation to financial standing to be determined.

 

Her Honour Judge Beech

 

12 April 2010