Neutral Citation Number: [2010] UKUT 470 (AAC).

 

Appeal No: T/2010/63

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF MISS J ELIZABETH PERRETT,

DEPUTY TRAFFIC COMMISSIONER for the NORTH WESTERNTRAFFIC AREA,

DATED 11 AUGUST 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President (HESC); Judge of the Upper Tribunal.

 

Leslie Milliken

Member of the Upper Tribunal

 

Stuart James

Member of the Upper Tribunal

 

Appellants:

 

Cornelius Pryde Hart and Abigail Hart, t/a Zulu’s Minibus

 

Attendance:

 

For the Appellants: Mr B. Bowling

 

Appeals heard at: Victory House on 29 November 2010

 

Date of decision: 16 December 2010

 

DECISIONS OF THE UPPER TRIBUNAL:

 

The appeals are dismissed

 

Subject Matter:

 

Repute

Breach of undertaking regarding driver’s hours and tachographs

Dishonestly making false tachograph records

 

Cases referred to:

 

R v Saunders, Hocking and Williams (Times Law Report, 21 02 2001)

Martin John Graves 2008/593

Thomas Muir (Haulage) Ltd v. Secretary of State for the Environment, Transport and the Regions [1999] SC 86

 

REASONS FOR DECISIONS:

 

1)    This was an appeal from the decision of the Deputy Traffic Commissioner for the North Western Traffic Area made on 11 August 2010 when she revoked the Restricted Public Service Operator’s Licence held by Mr & Mrs Hart under Section 17(3)(aa) and (d) of the Public Passenger Vehicles Act 1981 (as amended).

 

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

(i)    The Appellant is the holder of a Restricted PSV operator’s licence authorising one vehicle. The licence was granted on 23 January 2003 and one of the undertakings given by Mr and Mrs Hart, and recorded in the licence, was that the rules on driver’s hours and tachographs would be observed and proper records would be kept.

(ii)   A public inquiry was held on 30 January 2004 as a consequence of prohibitions, apparent failure to fulfil statements of expectation and undertakings, and concerns regarding financial standing. By coincidence, that public inquiry was also presided over by Miss Perrett, Deputy Traffic Commissioner for the North Western Traffic Area. A Formal Warning was issued, and undertakings were accepted, including an undertaking to attend a new operators’ seminar.

(iii)  On 20 November 2009 Mr Steven Mckay, a VOSA Traffic Examiner, attended a PSV check at Kingfisher School, Chadderton. The Traffic Examiner undertook a compliance check for driver’s hours on a Ford Transit 16 seater minibus registration number BF03OLX. The vehicle was displaying a Restricted PSV Operator's Licence disc bearing the name of Cornelius and Abigail Hart, but the vehicle was liveried “Motown Taxis” on the side. A two-way radio was fitted. The vehicle had been used that morning to convey schoolchildren and their escort to the school premises. Mr Hart said, when questioned, that he only used the vehicle for his school contract and had no tachographs to produce. Mr Hart denied that he also worked for Motown Taxis but he said that he intended to start private hire work for Motown Taxis the following week.

(iv) On 23 November 2009, the Traffic Examiner visited Motown Taxis, and spoke to the proprietor, a Mr Ahmed, who said that he had been using Mr Hart’s services for around 18 months. Mr Ahmed produced a number of job sheets relating to work undertaken by Mr Hart.

(v)   On 20 January 2010 the Traffic Examiner visited Mr Hart’s home address. When shown the evidence, Mr Hart admitted that he had been working for Motown Taxis and provided a number of tachographs relating to BF03OLX. Several tachographs showed the driver’s name as D. Walker or David Walker, but the Traffic Examiner noticed that the handwriting in the centrefields was the same as those completed by Mr Hart – at which point Mr Hart admitted that he had, in fact, driven the vehicle under the name of D. Walker.

(vi) The charts indicated that Mr Hart had driven under a false name on at least 14 occasions between 24 May 2009 and 15 November 2009 and, by doing so, had attempted to hide excessive driving, and conceal daily and weekly rest offences. There were occasions when Mr Hart removed the chart bearing his own name and immediately inserted a chart bearing the name Mr Walker’s name, and he then continued to drive.

(vii)          On 25 June 2010 at Rochdale Magistrates Court Mr Hart was convicted of 14 counts of knowingly making a false tachograph record between 2 October 2009 and 15 November 2009. Mr Hart was fined £300 on each count and ordered to pay costs of £400.

(viii)         Mr and Mrs Hart were called up to a public inquiry by letter dated 22 June 2010. The inquiry took place on 5 August 2010. The operator had arranged to be represented by Mr Littlewood of Littlewood Legal but, very sadly, Mr Littlewood died a few days before the inquiry was due to take place. Mr Barton and Miss Easton from Littlewood Legal attended instead. The Deputy Traffic Commissioner expressed her sympathies, and asked Mr Barton and Miss Easton if they were able to carry on. They both said that they were, and Mr and Mrs Hart, who were both present, did not disagree.

(ix) The public inquiry then proceeded and, when asked why he filled in tachograph records with a false name, Mr Hart replied:

“Because I was an idiot. I didn’t understand the tachograph laws properly and I just like working. I do a lot of mileage and I didn’t realise at the time I was breaking the law and it was a stupid thing to do”.

(x)   The Deputy Traffic Commissioner explored this explanation:

DTC: Now, if you did not understand the tachograph laws properly, I can understand you perhaps exceeding your hours. What I cannot quite understand is why you should use a different name.

Mr Hart: Because I was stupid, Ma’am.

DTC: But does not the fact that you used a different name show that you knew perfectly well –

Mr Hart: No, but there was another operator who said to me, “Well, I just put someone else’s name down”. So I just did the same.

DTC: But surely you must have realised that you were putting somebody else’s name down because otherwise it might look as if you were exceeding your hours?

Mr Hart: Yes, Ma’am. I knew I was only allowed to do so many hours in a day.

(xi) The Deputy Traffic Commissioner then referred to the Traffic Commissioner’s Practice Directions relating to Falsification of Tachograph Charts. The Practice Directions are in the public domain, and can be easily found at www.dft.gov.uk/vosa

 

Falsification of Tachograph Charts

 

Tachograph recording equipment is installed in commercial vehicles to enable a record to be kept of the work undertaken by the driver of that vehicle. The recording equipment is a sophisticated device that is calibrated for accuracy and provides a reliable record to many parties including the driver’s employer as well as the Enforcement Authorities. The latter have been given the power by Parliament to examine the records produced by that equipment and to prosecute if certain offences are detected as a result of that examination. Those offences are generally breaches of EEC Regulations 561/2006 and 3821/85 (as amended) which set the limits of work which can be undertaken by such drivers and establish the ways in which drivers must comply with the recording requirements. The Traffic Commissioners take particular account of the fact that these rules are designed to ensure road safety, to protect drivers from fatigue and from exploitation from unscrupulous employers as well as to protect other road users from the consequences, which inevitably flow from tired drivers in commercial goods and passenger vehicles.

 

There are some drivers within the Industry who have either falsified the records made by that equipment or who have tampered or interfered with the equipment itself to allow a false tachograph record to be made. The result of this means that the Enforcement Agencies will in many cases be prevented from establishing whether or not the particular driver has complied with the Regulations referred to above. On many occasions the driver will have falsified the record with the express intention of hiding such breaches of the hours and tachograph regulations from the Authorities or from his employer who is also required to ensure compliance with them. In many cases the falsification itself will be an offence of dishonesty for which the driver may have been prosecuted. Traffic Commissioners will regard falsification as more serious than the offence that it may be designed to conceal. Conscientious operators regard falsifications of tachographs and interference with recording equipment as so serious as to warrant summary dismissal in many cases.

There have been a number of recent case law developments involving prosecutions for falsification of tachograph charts and Traffic Commissioners are required to take note of those in dealing with driver conduct cases. In the case of R v Saunders, Hocking and Williams (Times Law Report, 21 02 2001) the Court of Appeal stated that where offences involve safety of the public, those who commit offences of this kind must understand that there will be serious consequences if and when the matter comes to light. Accordingly, the Court dismissed appeals against sentences of eight months imprisonment for offences of making false entries on tachograph charts.

 

(xii)   Mrs Hart, when questioned, maintained that she had no idea that Mr Hart was also working for Motown Taxis:

Mrs Hart: On a Saturday night I go to Bingo with my mates.

DTC: And over the breakfast table you do not say, ‘Oh, did you have a good day yesterday, dear?’

Mrs Hart: No, because we don’t always sit at the breakfast table.

(xiii)         The Deputy Traffic Commissioner reserved her decision, and a written decision was then prepared and issued promptly. She found that the undertaking relating to drivers’ hours and tachograph rules had been breached, and that the operator no longer satisfied the requirement to be of good repute.

(xiv)        In reaching her decision, the Deputy Traffic Commissioner found that Mr Hart had failed to ensure that the rules on driver’s hours and tachographs were observed or that proper records were kept, and that he had also flagrantly tried to disguise the true hours worked by inventing a second driver. She considered the present case to be serious, and felt that Mr Hart had dissembled when asked about his knowledge of drivers’ hours. She concluded that Mr Hart knew full well that what he was doing was wrong, that he had devised an elaborate plan to cover up the fact he was driving in excess of permitted hours, and he only admitted this when faced with the evidence from the taxi firm involved.

(xv)          The Deputy Traffic Commissioner balanced the positive features of the case, particularly the training subsequently undertaken by Mr Hart, and the fact that no maintenance issues had arisen since 2004. The Deputy Traffic Commissioner went on to ask her self the ‘Bryan Haulage’ and ‘Priority Freight’ questions. She also referred to the observations made by the tribunal in Martin John Graves 2008/593 in which the Transport Tribunal, chaired by the President, said:

“The Thomas Muir case (Thomas Muir (Haulage) Ltd v. Secretary of State for the Environment, Transport and the Regions [1999] SC 86) expressly mentions that deterrence has its place in considering the objectives of the system and the public interest.  We have no doubt that a clear message must go out that conduct of the sort perpetrated by the Appellant (disregard of drivers’ hours rules and regulations) is wholly unacceptable.”

(xvi)        The Deputy Traffic Commissioner concluded that Mrs Hart’s claim to be ignorant of her husband undertaking work for Motown taxis was ‘bizarre’ – especially as she must have known that the vehicle was missing at times when it could not possibly be used for school contract work. In any event, the licence was in joint names, and Mrs Hart had a duty to make herself aware of what was being done in her name. The Deputy Traffic Commissioner found that revocation was necessary and proportionate. In doing so, she expressed the hope that a “clear message” would be given to others tempted to emulate Mr Hart’s actions. The Deputy Traffic Commissioner considered disqualification but said that, “Almost against my better judgement, I draw back from disqualification”.

 

3)    At the hearing of this appeal, the Appellants were represented by Mr Bowling of the Limousine and Chauffeur Association. The first point made was that the operator’s representative had died shortly before the public inquiry and the quality of representation before the Traffic Commissioner was poor. The tribunal sees no merit in this argument. The Deputy Traffic Commissioner specifically asked those appearing if they were ready to proceed, and they said that they were.

 

4)    We asked Mr Bowling what additional argument or point should have been made which could possibly have altered the outcome. Mr Bowling contended that more should have been made of the failure of VOSA and others to help Mr Hart to understand his obligations and the law. Mr Bowling said, “The whole system has let the Harts down”.

 

5)    We find this to be an extraordinary submission. The duty upon an operator who undertakes to make proper arrangements so that the rules on driver’s hours and tachographs are observed and proper records kept, is clear. It is not for VOSA or anyone else to take responsibility for advising Mr Hart that he must acquire a proper understanding of the driver’s hours rules, and that he should not make false records. In seeking to shift blame from Mr Hart, where it rightly belongs, onto the shoulders of VOSA or “the system” demonstrates that Mr Hart still has a lot to learn about his own responsibilities before he can be trusted to hold an operator’s licence. We consider that Mr Bowling’s arguments on this point did more harm than good, and that Mr and Mrs Hart’s representatives at the public inquiry were well advised to avoid making such misguided and misconceived submissions.

 

6)    From our reading of the public inquiry transcript, we find that the Harts’ representatives said all that they reasonably could in the circumstances. They covered Mr and Mrs Hart’s alleged lack of knowledge, they put forward positive points for the Deputy Traffic Commissioner to consider, and they addressed the consequences of revocation. The suggestion that Mr and Mrs Hart had no opportunity to explain the circumstances, or to offer suitable remedial action is patently incorrect.

 

7)    Mr Bowling’s only other point of substance was to stress that Mr Hart had already been punished in court. This point is also misconceived. The function of the Traffic Commissioner is not to punish again, but to regulate an industry in which the public entrust their safety and that of their children. Tired drivers are as great a menace on the roads as drunk drivers, and potentially tired drivers who then cover up their illegal activities by dishonestly making false records have absolutely no place in the public passenger-carrying industries.

 

8)    We consider that the Deputy Traffic Commissioner conducted the public inquiry with scrupulous regard for fairness, and her written decision was exemplary. Mr Hart was lucky, indeed, not to have been disqualified for a lengthy period of time. We were also impressed with the thorough investigation and the clear statements of evidence from the Traffic Examiner, Mr Mckay, upon whose testimony the Deputy Traffic Commissioner, rightly, relied. The appeal is dismissed.

 

 

Judge Mark Hinchliffe, DCP

16 December 2010