Neutral Citation Number: [2012] UKUT 251 (AAC) Appeal No: T/2012/20

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF JOHN BAKER,

DEPUTY TRAFFIC COMMISSIONER for the

SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA,

DATED 28 MARCH 2012

 

 

Before:

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

David Yeomans, Member of the Upper Tribunal.

George Inch, Member of the Upper Tribunal.

 

 

Appellant:

 

A+ LOGISTICS LTD

 

 

Attendance:

 

For the Appellant: Mr G Hussain, instructed by Messrs Cripps Harries Hall, Solicitors

 

Appeal heard at: Victory House, Kingsway, London

Date of hearing: 13 July 2012

Date of decision: 27 July 2012

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed. The revocation and disqualification will come into effect 28 days from the date of this decision.

 

 

Subject Matter:

Conviction for perverting course of justice. Unauthorised use of operating centre. Non-compliance with drivers’ hours and tachograph requirements. Maintenance failings.

 

Cases referred to:

Bradley Fold Travel Ltd & Peter Wright -v- S.o.S. for Transport [2010] EWCA Civ 695

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made on 28 March 2012 when he revoked the Appellant’s operator’s licence under Section 26(1)(a), (b), (c), (e), (f) and (h), and under Section 27 of the Goods Vehicles (Licensing of Operators) Act 1995. He also disqualified Mr David King, as Director, from holding or obtaining an operator’s license in any traffic area for a period of two years, and made consequential orders.

 

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)     A+ Logistics Ltd, the appellant, is the holder of a standard international goods vehicles operator’s licence, authorising 5 vehicles and 5 trailers. The licence was granted on 16/3/2009 following receipt of an application form dated 21/1/2009 naming Mr King as the company’s sole director, and specifying East Quay, Beach Road, Newhaven as the nominated operating centre.

(ii)    Companies House records show that Mr King resigned as a director on 27/2/2009 and was replaced by Mr Jeremy Marfleet. Mr King was re-appointed as a director on 15/4/2010, alongside Mr Marfleet.

(iii)  Mr King was convicted at Lewes Crown Court on 23/10/2009 of perverting the course of justice. A press report dated 24/11/2009 states that Mr King, having activated a speed camera in a 30 m.p.h. zone, was prosecuted. As part of his defence, he had produced to the court a letter from a third party that purported to give Mr King, or the vehicle, an alibi, but which (following analysis of Mr King’s handwriting) turned out to have been forged by Mr King. He was sentenced to 26 weeks imprisonment, suspended for 18 months, and ordered to undertake 260 hours of unpaid work. He was also fined for the original speeding offence, had his licence endorsed, and was ordered to pay costs. The judge had, apparently said in sentencing: “You are not an honest man – your only mitigation is your plea of guilty”.

(iv)  One of the appellant’s drivers, Mr Craig Hunter, was stopped by VOSA on 21/5/2010 and was prohibited from driving for 11 hours and issued with a fixed penalty of £200 for an insufficient daily rest offence.

(v)   VOSA then received information that an unauthorised operating centre was being used and, in February 2011, commenced an investigation. On 23/2/2011 VOSA wrote to the company advising of the allegation and seeking a response. A letter dated 4/4/2011 was received from A+ Logistics on 10.3.2011 which stated:

“One of the companies that is also owned by the same directors has a workshop on site, which repairs our vehicles. The vehicles have been on site for repair and maintenance.”

(vi)  On 2/8/2011 Traffic Examiner Rittman spoke to two security personnel at East Quay, Newhaven and was told that: “Mr King had been evicted a few years ago as he did not pay his rent”. TE Rittman then made enquiries of Mr Reed, the Port Authority Financial Controller. Mr Reed said that he had asked Mr King to leave the site in 2008 due to continual non-payment and, in due course, Mr Reed made a written Criminal Justice Act statement in which he explained that, in November 2007, rent was due in relation to a parking area, but this had not been not paid. Consequently, after a while, he decided to terminate the tenancy. He added:

“It took about three or four months for Mr King to fully vacate the port after a final request, when I said that anything left behind would be taken for scrap. I invoiced Mr King for a final time in February 2009 for unpaid rent, but the invoice was not paid and I decided in the end to write off the amount due.

(vii) TE Rittman met with Mr King on 31/8/2011. In response to a request, Mr King produced a number of drivers and tachograph records. In relation to a driver called Jasper, 46 tachograph charts were examined and 16 offences were detected. In relation to another four drivers, a further 12 offences were detected. These offences included exceeding driving hours, insufficient daily rest, failing to ensure proper use of a tachograph and knowingly making a false record. Safety inspection sheets were examined and discrepancies between the records and the tachograph charts were also noted.

(viii)         It further transpired that the nominated external contractor had not carried out any routine safety inspections or maintenance work since August 2009. Instead, according to one of the drivers, vehicles were maintained by Mr Marfleet, who was unqualified but “knew a bit about mechanics”. Mr King confirmed to TE Rittman that Mr Marfleet did do the routine maintenance and that he insisted that he had advised the Traffic Commissioner’s Office of the change in maintenance arrangements. There is no record of such a notification at the Traffic Commissioner’s Office.

(ix)  Tachographs also showed that vehicles were being parked at the Bluebell Business Estate, rather than at the nominated operating centre, when not in use at the weekends.

(x)   A ‘propose to revoke’ letter was sent to the appellant on 4/11/11. In response, a letter dated 24/11/2011 was received from the appellant’s solicitors stating that, from 9/2/2010, the Bluebell Business Estate had been used to carry out maintenance and, in due course, it became easier for drivers to leave their vehicles there. The solicitors maintained that the Office of the Traffic Commissioner had been advised by letter dated 9/2/2010 of the use of the Bluebell Business Estate for maintenance. This letter, also, appears not to have been received. The solicitors added:

“It is accepted, however, by A+ Logistics Ltd that, over time, use of the Bluebell Business Estate developed as it was easier for drivers to leave their vehicles there rather than return them to the operating centre in Newhaven”

(xi)   The solicitors’ letter went on to say that the appellant was unaware of the need to inform the Traffic Commissioner of changes to the company directors, that the change to in-house maintenance had also been notified to the Traffic Commissioner and that the conviction at Lewes Crown Court for perverting the course of justice had also been notified to the Traffic Commissioner in a letter dated 17/12/2009. This letter, also, does not appear to have been received. Finally, in relation to the driver’s hours offences, the solicitors state that, according to the appellant, these matters arose in relation to two specific incidents and that disciplinary action had been taken.

(xii) A maintenance investigation was also undertaken, and Vehicle Examiner Cole, together with a colleague, met Mr King at Bluebell Industrial Estate on 5/11/2011. The inspection sheets dating back before January 2011 were not available so a further appointment was made. Following this visit, the investigation was marked unsatisfactory because:

• virtually no defects or observations were recorded on the safety inspection sheets;
• virtually no defects or observations were recorded on driver defect reporting sheets;
• the stated external maintenance contractor was not being used;
• the operating centre had moved to an unauthorised place;
• the operator’s five year annual test first time pass rate was 29% (the national average is 70%);
• on-site maintenance facilities were poor.

(xiii)         On 24/11/11 the appellant applied to change its operating centre to the Bluebell Business Estate, stating that East Quay would be closed. Six weeks later, on 9/1/2012, the company was fined £400 for unauthorised use of an operating centre.

(xiv)         By a call-up letter dated 7/2/2012 the appellant was called up to Public Inquiry, and the Inquiry took place on 19/3/2012 before the Deputy Traffic Commissioner. Mr King and Mr Marfleet attended, together with the transport manager. The appellant was represented by Mr Hussain, and the Traffic Examiner and Vehicle Examiner also attended and gave evidence. Written submissions were made in advance, on behalf of the appellant, which included a ‘Consultancy Audit’ from the FTA, and a letter apparently from a Mr & Mrs Longstaff. The FTA audit, dated 7/3/2012, presented a mixed picture, with some improvement shown but some areas of concern remaining. The letter from Mr & Mrs Longstaff said that they had been traders at the Newhaven docks and: “We are aware that Mr King was parking at Newhaven Port until at least 2010”.

(xv)The Deputy Traffic Commissioner reserved his decision, and a written decision dated 28/3/2012 was promulgated. The Deputy Traffic Commissioner summarised all the evidence and made a number of findings. In particular, he noted that, even on Mr King’s account, an unauthorised operating centre had been used during 2010 and 2011; Mr King had been convicted of the serious offence of perverting the course of justice; changes to the directors had not been notified to the Traffic Commissioner; maintenance records appeared to be deficient, and 28 breaches in relation to drivers’ hours and tachograph compliance were apparent from the records.

(xvi)         Of particular gravity was the conviction, which involved a deliberate attempt to perpetrate a fraud on a court. On top of that, the letter referring to the use of Bluebell Business Estate, dated 10/3/11 - see (v) above - was deliberately misleading; the truth was that, by this time, the operating centre was not being used at all. Timings may be subject to some debate and uncertainty, but the Deputy Traffic Commissioner did not think it likely that Mr Reed would have been confused over the issue of unpaid rent – something that Mr King had denied at the Public Inquiry.

(xvii)        The Deputy Traffic Commissioner stated:

“Further doubt on the credibility of the operator is cast by the condition of the maintenance inspection and driver defect report sheets and the likelihood of three separate letters being sent to the Central Licensing Office with no record of receipt”

(xviii)      The Deputy Traffic Commissioner undertook a balancing exercise and noted that, on the positive side, the operator had taken some steps to ensure that improvement was made, undertakings had been offered and the FTA was prepared to complete further quarterly audits.

(xix)         The Deputy Traffic Commissioner then asked himself whether he could trust the operator in the future and he decided that he could not. Although this would put the operator out of business, which would have an impact on persons other than Mr King, he concluded that the licence had to be revoked and, since this was a particularly serious case and Mr King had the major role in running the company, he decided that Mr King should be disqualified for two years, a period which the Deputy Traffic Commissioner felt to be proportionate, in all the circumstances.

(xx)By notice of appeal dated 24/4/2012, the appellant appealed the Deputy Traffic Commissioner’s decisions. The Grounds of Appeal may be summarised as follows:

• The Deputy Traffic Commissioner failed to accord sufficient weight to the remedial measures implemented and proposed, including audit of compliance by the F.T.A., the improvement in the MOT pass rate; and the low prohibition rate;
• The conviction for perverting the course of justice was “a personal offence” and did not directly relate to Mr King’s repute. Moreover, Mr King had no other relevant convictions and had pleaded guilty;
• Insufficient weight had been given to Mr Marfleet’s good record and Mr King had offered to resign from the company to allow those not at fault to continue in business;
• Too much weight had been given to the written statement of Mr Reed, which was contradicted by the letter from Mr and Mrs Longstaff;
• The disqualification was excessive and disproportionate.

 

3)     At the hearing of this appeal, the Appellants were again represented by Mr Hussain who submitted a skeleton argument for which we were grateful.

 

4)     The first point made was that, although the conviction for perjury was a relevant consideration, and the conviction was for a “serious offence” within the meaning of the legislation, the Deputy Traffic Commissioner’s decisions failed to give appropriate weight to the relevant factors and were disproportionate. In particular, the conviction did not involve systematically using the operator’s vehicles and drivers to break the law for profit and it did not attract an immediate custodial sentence. Instead, the judge “trusted Mr King to complete 260 hours of unpaid work and not to commit any other offence”. Mr King had kept “his side of the bargain”.

 

5)     The tribunal find this argument to lack any merit. The Deputy Traffic Commissioner was entirely justified in finding this conviction to be of significant gravity. It involved a deliberate attempt to deceive a court of law and evade justice. It involved the presentation to a judicial body of a letter that was fraudulent and fake. The only evidence that the matter had subsequently been reported to the Office of the Traffic Commissioner was a copy letter from Mr King showing the date 17/12/2009 but which the Office of the Traffic Commissioner had no record of receiving. It is no small wonder that the Deputy Traffic Commissioner was sceptical that this copy letter was a genuine copy of a letter genuinely sent in 2009 – and this illustrates perfectly why such a conviction, arising from a blatant attempt to deceive a court, totally undermines the relationship of trust that must exist between the Traffic Commissioner and operators. The conviction, moreover, resulted in a sentence of imprisonment, albeit suspended. The judge was blunt and unequivocal in his sentencing remarks, as reported. The idea that an order to perform unpaid work involves trust or ‘a bargain’ is, we think, misconceived on the facts of this case. What positive points arose, such as the guilty plea and the completion of the hours of unpaid work are, we find, entirely insufficient to outweigh the adverse weight that the Deputy Traffic Commissioner, quite rightly, attached to the matter. Even taken on it’s own and without more, we find it hard to imagine how, having asked the appropriate questions about trust and the proportionality of the consequences, a Traffic Commissioner could reach any other conclusion other than that such a conviction, on such facts, destroys good repute.

 

6)     Next, Mr Hussain addressed the Deputy Traffic Commissioner’s findings in relation to the maintenance failings. These were not challenged, but it was submitted that insufficient weight had been given to the positive features, such as the improved MOT pass rate, the improvement in driver defect reporting, training given to drivers, the FTA involvement and a better system for ensuring compliance with drivers’ hours rules.

 

7)     We are unable to accept that the Deputy Traffic Commissioner fell into error in relation to his approach to this aspect of the evidence. He specifically refers to the steps taken by the operator to try and achieve some improvement in relation to compliance, he mentions the undertakings, including undertakings to undergo further training, and the FTA report. But the fact remains that the ‘improvement’ has to be seen in the context of a very low starting point, and is but one factor in a case with a number of extremely damaging features. If the case had just been about maintenance, the balance may (we put it no higher) have fallen differently. But the Deputy Traffic Commissioner’s approach, of which we approve, was to look at the case in the round, identifying the matters that he regarded as most serious.

 

8)     The next matter raised relates to the drivers’ hours and tachograph contraventions. The drivers told the Deputy Traffic Commissioner that the offences did not involve pressure or collusion by the Appellant and, again, steps had been taken to bring about improvement.

 

9)     The Deputy Traffic Commissioner noted that five drivers were shown to have breached the relevant regulations on a total of 28 occasions. Two drivers were prosecuted and the level of default was accepted by the operator. The submission that remedial action had been taken (namely becoming a member of the FTA) is clearly noted in the Deputy Traffic Commissioner’s decision. However, in his findings and analysis, the Deputy Traffic Commissioner was unable to overlook the total number of breaches in relation to drivers’ hours and records that were detected by TE Rittman. The tribunal considers that the Deputy Traffic Commissioner was right to take a serious view. This was not one maverick driver, this was not just a handful of minor transgressions. The totality of the breaches amount to, at best, an institutional disregard for compliance and for safety. The Deputy Traffic Commissioner could have been forgiven for characterising the systems for monitoring and dealing with compliance as largely aspirational, and the belated remedial steps as too late. We find that no criticism can be sustained in relation to the Deputy Traffic Commissioner’s view of the seriousness of the drivers’ hours offences, looked at in the round. He did not, in our view, attach improper weight to this aspect of the case.

 

10) Turning now to the appellant’s contentions in relation to the unauthorised use of an operating centre, and the seemingly misleading statements made in correspondence to VOSA and the Traffic Commissioner’s Office, the argument was put to us that the written evidence of Mr Reed was in conflict with the written evidence of Mr and Mrs Longstaff and the oral evidence of Mr King. Accordingly, the Deputy Traffic Commissioner was wrong to disbelieve Mr King to the degree that he did.

 

11) We find nothing of substance to indicate to us that the Deputy Traffic Commissioner erred in his approach. Charitably, he drew back from making firm findings as to the exactness of Mr Reed’s recollection. But he found, unsurprisingly, that much detail of Mr Reed’s witness statement was likely to be true and he found, in particular, that the Bluebell Business Estate had been used as an unauthorised operating centre during 2010 and 2011 and that, by some point in 2010 at the latest, Newhaven was no longer available. On these facts, the letter from the appellant dated 10/3/2011 that merely stated that the vehicles had been on the Bluebell site for repair and maintenance was manifestly misleading in terms of what, quite deliberately, it did not say. Indeed, even the solicitors’ letter dated 24/11/2011 fails to explain clearly that Newhaven had, by then, long ceased to be available as an operating centre. Instead, the opaque assertion was made that, over time, the use of the Bluebell Business Estate developed “as it was easier for drivers to leave their vehicles there rather than return them to the operating centre in Newhaven”. The truth was that Newhaven was not available. We consider that the Deputy Traffic Commissioner was right to find that the appellant and Mr King had little credibility, and that the unauthorised use had continued for a substantial period of time, with the matter aggravated by a lack of openness even after VOSA, and in due course the Traffic Commissioner, had begun to make enquiries.

 

12) At the hearing before us Mr Hussain maintained that the negative features did not outweigh “all the improvements and money spent and undertakings given”. The conviction had to be seen “in context” and, although the records did not show it, the vehicles were being maintained – as evidenced by invoices etc. At the time of the Public Inquiry, “checks and balances  were in place” and the Deputy Traffic Commissioner would not have come to the decisions he did if he had conducted a proper balancing exercise.

 

13) Despite the eloquence of Mr Hussain’s submission, we were unable to agree with it. The balancing exercise was properly undertaken and no compelling factors were overlooked. We are mindful of our role as confirmed by the Court of Appeal in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695, and we remind ourselves that we are not to interfere with the judgement of the first instance judicial decision-maker unless we conclude on objective grounds that that a different view from that taken by the (Deputy) Traffic Commissioner is required or, to put it another way, that reason and the law impel us to take a different view.

 

14) Applying this test, we find that this appeal must fail. In essence, this appeal was little more than a challenge to, and disagreement with, the conclusions reached by the Deputy Traffic Commissioner after he had heard and weighed the evidence and conducted his balancing exercise. He concluded, with some justification, that Mr King was the driving force and principle mind behind the appellant company and that Mr Marfleet gave the impression of being a mere employee. Without Mr King, there would be no management infrastructure. The “improvements” such as they were, had all been initiated after the event. The Deputy Traffic Commissioner did not trust Mr King and the consequences of his decision for the business and for those involved in it, including Mr King, were considered and found to be necessary and proportionate.

 

15) For our part, we share the view that this was a bad case of prolonged non-compliance, and that non-compliance was a feature across the board – operating centre, drivers’ hours, and maintenance – with a man at the helm who was convicted of a calculated offence of serious dishonesty intended to strike at the heart of the administration of justice, and that was based on facts which, in our view, more than justified the Deputy Traffic Commissioner’s concerns for the future. There was ample basis for the revocation and the disqualification, and the appeal s dismissed.

 

 

Judge Mark Hinchliffe, DCP

27 July 2012