Neutral Citation Number:  [2012] UKUT 369 (AAC) Appeal No. T/2012/34

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Kevin Rooney Deputy Traffic Commissioner

for the West Midland Traffic Area

Dated 30 May 2012

 

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Patricia Steel,   Member of the Upper Tribunal

David Yeomans,   Member of the Upper Tribunal

 

 

 

Appellant:

MARTIN JOSEPH FORMBY t/a G & G TRANSPORT

 

 

 

 

Attendances:

For the Appellant: The Appellant appeared in person.

 

 

Heard at: Victory House

Date of hearing: 5 October 2012

Date of decision: 17 October 20he

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

SUBJECT MATTER: Good Repute

 

CASES REFERRED TO: Aspey Trucks, 2010/49

JC Stephenson & TE Turner (Trading as J&T Transport) & Thomas McHugh and the Department of the Environment, Transport and the Regions, Appeals 9/2000 & 10/2000

Thames Materials Ltd, Appeal 40/2002

REASONS FOR DECISION

 

 

1.          This is an appeal from the decision of the Deputy Traffic Commissioner for the West Midland Traffic Area to refuse the Appellant’s application for a standard national goods vehicle operator’s licence.

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

               (i)             On 18 February 2012 the Appellant applied for a standard national goods vehicle operator’s licence authorising 1 vehicle and 1 trailer.  In answer to a question at Section 13(b) on the application form he declared the fact that he had been adjudicated bankrupt.  Other evidence shows that he was discharged from bankruptcy on 30 July 2004.  In answer to the question at Section 15(a) on the application form he declared that on 19 December 2002 he had been convicted of conspiracy to supply Class A drugs and conspiracy to supply Class B drugs and that he had been sentenced to a total of 14 years imprisonment.

              (ii)             In a letter dated 19 February 2012 the Appellant gave more information about his response following the convictions for conspiracy.  He said that he had been released in December 2009 halfway through his sentence, subject to a requirement to visit his Probation Officer at regular intervals.  While in prison he said that he took many courses on rehabilitation and life skills and that he had time to evaluate his life and to learn a valuable lesson about taking responsibility for his own actions.  As a result he was determined not to get on the wrong side of the law again.  He said that since his release he had worked constantly as a truck driver pulling containers off the docks at Felixstowe and that his hope was to obtain an operator’s licence so that he could continue such work via his own business.  He added that he fully intended to work within the law and that he was serious about making a success of the business.  He set out the various steps that he had taken to meet his obligations should an operator’s licence be granted. 

            (iii)             On 5 March 2012 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant to request further information, including information about the circumstances of the bankruptcy and the conviction.

            (iv)             On 10 March 2012 the Appellant replied providing the documents and other details that had been requested.  In relation to the bankruptcy he explained that it arose when he took on the lease of a public house, having been assured that no nightclub would be licenced in the area, only to lose a very high proportion of his clientele when a night club was licensed three months later.  When debts mounted he took advice and declared himself bankrupt.  In relation to the conviction he said that he was found guilty, (in fact we understand that he pleaded guilty), together with four others after a Police surveillance operation.  He said that his part was the ‘fixer’ who brought the others together.  He repeated other matters, which we have already summarised.

             (v)             On 3 April 2012 the OTC wrote to the Appellant to notify him that the Traffic Commissioner intended to hold a Public Inquiry to consider whether or not the Appellant met the requirements for holding an operator’s licence and, in particular that the requirement to be of good repute.

            (vi)             The Public Inquiry took place before the Deputy Traffic Commissioner on 4 May 2012.  Mr Formby appeared in person and the proposed Transport Manager, Mr Foster, was also present.  Very early in the proceedings the Deputy Traffic Commissioner indicated that he was satisfied that the Appellant was of appropriate financial standing, so that there was no need for further evidence on that topic.  The Deputy Traffic Commissioner then went through the application with the Appellant, who stressed that he had no wish to do international work.  He satisfied the Deputy Traffic Commissioner that his proposal to have his operating centre in Bromsgrove while his work and the maintenance of the vehicles was based on Felixstowe was a sensible and workable arrangement.  In the course of discussion about the proposed Transport Manager the Appellant indicated that it was his intention, once he had been able to save enough to take two weeks off, to take the CPC course, with a view to becoming his own Transport Manager.

           (vii)             The Deputy Traffic Commissioner then turned to the circumstances of the conviction.  The Appellant began by explaining how he had lost money on the public house venture and that, as a result, he returned to driving HGVs.  He said that he mixed with the wrong people and that one thing led to another until he ‘put people together’ and became involved in the conspiracy to supply cannabis and then, as a last ditch attempt to solve problems following the seizure of some cannabis, the conspiracy to supply cocaine.  He made the point that once he had become involved it was easier to remain involved than it was to extricate himself.  Following his arrest he admitted his guilt because it was obvious that the Police had all the evidence they needed.  He said that the sentences ranged from 18 years down to 7 years and that his sentence was the second highest.  He said that for three months following his release he visited his probation officer weekly, then it dropped to fortnightly, and later monthly.  He said that at the date of the Public Inquiry he was reporting every two months and that his expectation was that by the end of the year it would drop to every six months, or ‘get in touch if you have an issue’.  He said that he had done every course that he could, that he had attended every hearing and never missed an appointment.

         (viii)             After a brief adjournment the Deputy Traffic Commissioner returned to ask the Appellant for independent verification of two points.  One concerned the proposed Transport Manager, the other concerned the details of the offence, giving as much detail as possible.  He then indicated that he would adjourn until he got those two pieces of evidence.  In the course of discussion about possible sources of this information the Deputy Traffic Commissioner said that his concern arose from the fact that the Appellant had been given a 14 year sentence.  The Appellant indicated that the Judge’s starting point had been 18 years, which he had then reduced to reflect the plea of guilty.

            (ix)             On 8 May 2012 the OTC wrote to the Appellant.  The Appellant was asked to provide a written response as to whether or not an article relating to his conviction, which the Deputy Traffic Commissioner had found on the BBC News website, was accurate.  A copy of the article was enclosed.  The Appellant was, effectively, given the choice between having the matter dealt with on paper, once his explanation was received, or reconvening the Public Inquiry.

              (x)             At first the Appellant made it clear, in telephone calls to the OTC, that he was unwilling to comment on the article. Then, in a letter dated 16 May 2012, he accepted that the article was ‘quite accurate’ as to his role, though inaccurate in suggesting that innocent people were duped.

            (xi)             The Public Inquiry reconvened on 29 May 2012.  The Appellant began by putting forward a different Transport Manager.  It appears that after a short discussion the Deputy Traffic Commissioner was satisfied that he met the relevant criteria. 

           (xii)             The Deputy Traffic Commissioner then turned to his request for the Defendant to provide independent evidence of the his part in the conspiracy, to which the Appellant had not responded.  The Deputy Traffic Commissioner indicated that after the first hearing he had made an internet search which had revealed a BBC News item about the conviction.  He went on to make it clear that this report had been sent to the Appellant and that, as he understood it, the Appellant had confirmed that it was broadly correct.  He indicated that this left him with a problem because the report suggested that the conspiracies involved the use of commercial vehicles and the operators of commercial vehicles.  The Appellant said that at no point did he arrange transport as part of the conspiracy.  He went on to explain that he knew that one of the other defendants had contacts in Spain, from whom to source the drugs, and that he knew that another defendant wanted to earn money by moving the drugs around so he put the two of them together.  He said that the second person also sourced all the transport.  He added that before applying for an operator’s licence he had rung VOSA to ask whether the conviction would prevent him getting an operator’s licence.  He said that he was told that it was something that he would have to declare but that it would not prevent him being granted and operator’s licence.  At this point the Deputy Traffic Commissioner set out the legal position, to which we will return in due course.  He agreed with the Appellant’s suggestion that the essential question was: “at what point do we decide that I have been rehabilitated”?  The Appellant repeated the favourable matters which we have already summarised, pointing out that the offence was 10 years old, that he had been out of prison for two and a half years and that the Probation Service assessed him as being in the lowest risk category for re-offending, adding: “what do I have to do to prove to yourself that I’m of good repute”?  A little later the Deputy Traffic Commissioner indicated that, in his view, it was unlikely, until 14 years had passed from the start of the sentence, that a Traffic Commissioner would be prepared to give the Appellant a licence.

          (xiii)             The Deputy Traffic Commissioner gave a written decision dated 30 May 2012, which focussed on the requirement that an operator must be of ‘good repute’.  He set out the background and the results of his search for details of the offences, which we have summarised above.  He found as a fact that the Appellant’s part in the conspiracies was directly related to the use and operation of heavy goods vehicles, that he used his connections in the haulage industry to facilitate the importation of drugs.  He went on to conclude that the requirements of financial standing and professional competence were both met.

         (xiv)             The Deputy Traffic Commissioner went on to set out the positive factors, which he was taking into account, namely that the Appellant had been open about his conviction, had been a model prisoner and had met the other requirements for the grant of an operator’s licence.

           (xv)             The Deputy Traffic Commissioner then turned to the unfavourable factors and to the impact of Articles 3 and 6 of EU Regulation 1071/2009, (“Regulation 1071/2009”), and the Tribunal’s decision in the case of Aspey Trucks 2010/49.  We will return to Regulation 1071/2009 and the case of Aspey Trucks in due course. 

         (xvi)             In addition the Deputy Traffic Commissioner referred to the results of a further internet search, which revealed that the Appellant had appealed against the sentence of 14 years imprisonment.  The search revealed the judgment of the Court of Appeal (Criminal Division) dismissing that appeal.  At paragraph 35 of his decision the Deputy Traffic Commissioner quoted the summary of the facts from the Court of Appeal’s judgment.  In our view they are so important that we must set out the full quotation:-

“12  The case was concerned with two conspiracies.  The first conspiracy related to the importation of cannabis and that essentially took place, on the Crown’s case, over a period of a year between February and December 2002.  The second conspiracy related to a conspiracy to import cocaine and that conspiracy seems to have been formulated and carried out in the second half of 2002.

13.  The essence of the conspiracy relating to cannabis was that the conspirators used industrial heating units.  On eleven occasions between January and August 2002 a company owned by Nixon, (a co-defendant), called Mann Transport, assisted with the transportation of heating units, pallets and crates.  On each occasion the items were shipped abroad and then returned to the United Kingdom.  Each time they were returned to the United Kingdom by lorry they contained large amounts of cannabis.  Between February and December 2002 Mr Formby was under police surveillance.  On some occasions when the heating units were returned to the United Kingdom Mr Formby was seen to unload the lorries into a lock-up in Belvedere.  The conspiracy to import cannabis came to an end on 7 August 2002, when a lorry was intercepted by HM Customs at Coquelles and was found to contain 987 gms of cannabis resin concealed within heaters which were being transported.

14.  Between July and November 2002 covert recording devices were placed in Mr Formby’s car and boot.  A number of conversations between Mr Formby and his wife and Mr Formby and others, and a number of telephone conversations were recorded.  It seems that Mr Formby was desperate for money and so had been behind a second conspiracy to import cocaine from Holland as it would yield a high profit.  Instead of importing drugs on a dedicated lorry as had been done before so far as the cannabis was concerned, Mr Formby decided to place the cocaine in a heater but ‘on groupage’, which meant that it would simply join other loads.

15  During the course of a conversation with his wife on the 20 July 2002, Mr Formby was heard to say that Shannon, (another co-defendant), had suggested to him that they start using ‘Moley’s system’.  ‘Moley’ was the applicant Platten’s nickname, (he was another co-defendant), and Mr Formby had known Platten for a considerable time.  There is no dispute that Mr Formby did arrange, through Nixon, for the shipment to be transported to from Amsterdam by Danzas, the company where Platten (or Moley) worked.  The shipment was to be received in the Danzas office in Coventry.  It had false consignee details and a false address, the invoices indicating that the consignee was a company called Elfin International.  There is no dispute that Platten tracked the consignment for Mr Formby and that it arrived on the 18 December 2002.  When it arrived it contained cocaine”.

        (xvii)             The Deputy Traffic Commissioner concluded from this account that it put the Appellant at the heart of the conspiracy and showed that he was clearly involved in managing the logistics of the operation.  The Deputy Traffic Commissioner went on to conclude that the convictions were serious and relevant and that, given that the sentence of 14 years had not expired, albeit the Appellant had been released, he was unable to conclude that the Appellant’s repute was restored.  Accordingly he refused the application.

       (xviii)             On 18 May 2012 the Appellant appealed against that decision.  In his grounds of appeal the Appellant asserted his belief that he was now of good repute and that he had done everything possible towards his rehabilitation.

3.          At the hearing of the Appeal the Appellant appeared in person.  He invited us to hear evidence from a NACRO Development Officer, Jackie Sinclair.  Bearing in mind that the Appellant was appearing in person we agreed to hear this evidence on the basis that we would decide, having heard it, whether it passed the test for admitting fresh evidence set out in the case of Thames Materials Ltd Appeal 40/2002.  In addition he referred to two letters, which he had sent to the Tribunal on 16 September 2012.  The first, from the Probation Service, confirmed that the Appellant had attended regularly, had made excellent progress and was assessed as presenting a low risk.  The second, from SERCO, thanked him for his work as a ‘buddy’ assisting in the management of prisoners with a tendency to self-harm.

4.          Jackie Sinclair told us that she worked for NACRO’s resettlement and advice service and that she had been asked to attend to offer her opinion in relation to the Appellant’s rehabilitation and his suitability for employment.  She said that all the indications were that the Appellant was a model prisoner who used his time in prison in a most constructive way and that he took advantage of every opportunity to rehabilitate himself and to prepare for release by successfully completing numerous training, education and behavioural courses.  She said that this was supported by the fact that he was transferred to an open prison at the earliest opportunity.  In addition she described how the Appellant provided support to fellow prisoners as a ‘Buddy’, during the two years he spent in an open prison, for which he was thanked by the Prison Governor.  She pointed out that further support for the extent of his progress could be found in the fact that he was released on temporary licence to work in the community for the last 10 months of his sentence and in the fact that he was released on full licence at the earliest opportunity.  She explained that before his release the Probation Service would have conducted an in-depth risk assessment and that in his case he was assessed as presenting the lowest level of risk.  She added that, unusually, the Appellant’s Probation Officer had recommended that he should be granted an operator’s licence.  She stressed that the fact that the Appellant had been in work for the whole of the period of his licence, so far, was, in itself, a considerable feat and greatly to his credit.  She concluded by saying that she could see nothing to suggest that the Appellant had not restored his good repute.

5.          Making appropriate allowances for the fact that the Appellant has represented himself throughout we are just persuaded that it is appropriate to give permission to admit this fresh evidence.  However we should add that there are some passages to which we have not referred in the previous paragraph, partly because they amount to argument not evidence and partly because they refer to circumstances which did not exist at the time of the Deputy Traffic Commissioner’s decision, which means that we are not allowed to take them into account, (see paragraph 17(3) of Schedule 4 to the Transport Act 1985 as amended).

6.          Article 3 of Regulation 1071/2009 provides that ‘undertakings’ engaged in the occupation of road transport operator shall, amongst other things be of ‘good repute’.  That mandatory requirement is reflected in ss. 13 & 13A of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  By s. 13 the Traffic Commissioner must consider, on an application for a standard licence, whether, amongst other things, the requirements of s.13A are satisfied.  Those include a requirement that the Traffic Commissioner is satisfied that the applicant is of “good repute (as determined in accordance with paragraphs 1 to 5 of Schedule3)”.

7.          In our view Traffic Commissioners must now approach the question of good repute by taking into account not only paragraphs 1-5 of Schedule 3 to the 1995 Act but also Article 6 of Regulation 1071/2009.  The starting point is Article 3.2, which enables member States to impose additional requirements, to be satisfied by undertakings wishing to engage in the occupation of road transport operator, (though any additional requirements must be proportionate and non-discriminatory).

8.          Article 6.1 of Regulation 1071/2009 begins by providing that, subject to two qualifications, (neither of which is relevant in the present case), it is left to Member States to determine the ‘conditions’ to be met by undertakings and transport managers in order to satisfy the ‘requirement’ to be of good repute.  However Article 6.1 continues by providing that:-

“In determining whether an undertaking has satisfied that requirement, Member States shall consider the conduct of the undertaking, its transport managers and any other relevant person as may be determined by the Member State.  Any reference in this Article to convictions, penalties or infringements shall include convictions, penalties or infringements of the undertaking itself, its transport managers and any other relevant person as may be determined by the Member State.

The conditions referred to in the first sub-paragraph shall include at least the following:

(a) that there be no compelling grounds for doubting the good repute of the transport manager or the transport undertaking, such as convictions or penalties for any serious infringement of national rules in force in the fields of: (six categories are then listed of which only the last is relevant),

... (vi) trafficking in human beings or drugs …”.

Article 6.3 provides that the requirement to be of good repute, laid down in Article 3.1(b):

“Shall not be satisfied until a rehabilitation measure or any other measure having an equivalent effect has been taken pursuant to the relevant provisions of national law”.

It appears that there is no definition of ‘rehabilitation measure’ or ‘other measure having an equivalent effect’.

9.          Turning to Schedule 3 to the 1995 Act Paragraph 1(1) provides that:-

“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 its 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”.

Paragraph 2 provides that:

“2. 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 transport offences”.

Paragraph 3 goes on to define the meaning of ‘serious offence’ in these terms:-

“3.-(1) A person has a conviction of a ‘serious offence’ if-

(a)    he has been convicted of any offence under the law of any part of the United Kingdom or under the law of a country or territory outside the United Kingdom and

(b)    on such conviction there was imposed on him for that offence a punishment falling within sub-paragraph (2)”.

Sub-paragraph (2) sets out a list of the relevant punishments, which include a sentence of imprisonment for a term exceeding three months.

Finally paragraph 5(2) of Schedule 3 to the 1995 Act provides that:-

“(2) For the purposes of paragraphs 1 to 4-

(a)   convictions which are spent for the purposes of the Rehabilitation of Offenders Act 1974 shall be disregarded; and

(b)   a traffic commissioner may also disregard an offence if such time as he thinks appropriate has elapsed since the date of the conviction”.

10.       In our judgment the Deputy Traffic Commissioner was required to take the Appellant’s conviction for conspiracy to supply drugs into account both because it was a ‘relevant conviction’ for the purposes of paragraph 1(1)(a) but also because it was ‘other information’ which appeared to him to relate to the Appellant’s ‘fitness to hold a licence’ for the purposes of paragraph 1(1)(b).

11.       Furthermore since the sentence on each of the conspiracy counts exceeded three months it follows that each offence was also a ‘serious offence’.  That, in turn, raises the question of whether the Deputy Traffic Commissioner was required by Schedule 3 paragraph 2(a) to determine that the Appellant was not of good repute because he had “more than one conviction of a serious offence”.  In the cases of JC Stephenson & TE Turner (Trading as J&T Transport) & Thomas McHugh and the Department of the Environment, Transport and the Regions Appeals 9/2000 & 10/2000 the Tribunal considered the meaning of this expression, with the assistance of submissions from the Department.  Part way through paragraph 8 of its decision the Tribunal said this:-

“The words ‘serious offence’ are to be construed in accordance with para. 3 of Schedule 3.  The words ‘more than one conviction’ mean what they say.  They do not require different incidents or different days of commission or of hearing in court”. 

Having set out examples of how that principle operated in that particular case, the Tribunal went on:-

“We think it immaterial that the convictions were on the same day at the same court.  On any view the second conviction indicates a repetition of wrong-doing which properly affects the issue of general good repute”.

12.       It follows, in our judgment, that the Deputy Traffic Commissioner was required by the terms of Schedule 3 paragraph 2(a) to determine that the Appellant was not of good repute, unless, applying the terms of Schedule 3 paragraph 5(2)(b) he felt able to disregard the convictions because of the period of time which had elapsed since the date of the conviction.  The Appellant, forcefully, made the point that a considerable period had elapsed, during which he had done everything in his power to put his past behind him and that, as a result, he had demonstrated that he was successfully rehabilitated.  The Deputy Traffic Commissioner was concerned, on the other hand, that the Appellant was only part-way through the second half of his sentence, albeit he was serving it in the community.  Similar considerations apply when we turn to the provisions of Article 6 of Regulation 1071/2009.  We will deal with these considerations later.

13.       The main focus of the Deputy Traffic Commissioner’s attention was on Article 6 and, in particular Article 6.1.(a) which provides that: there be no compelling grounds for doubting the good repute of the transport manager or the transport undertaking, such as convictions or penalties for any serious infringement of national rules in force in the fields of:

... (vi) trafficking in human beings or drugs …”.

The Deputy Traffic Commissioner correctly concluded that these convictions involved trafficking in drugs, with the result that there were compelling grounds for doubting the Appellant’s good repute.

14.       In our view the Deputy Traffic Commissioner was then required to consider the terms of Article 6.3, which provides that the requirement to be of good repute:-

“Shall not be satisfied until a rehabilitation measure or any other measure having an equivalent effect has been taken pursuant to the relevant provisions of national law”.

There does not appear to be any explanation of the circumstances in which a ‘rehabilitation measure’ etc is required to be imposed, nor, as we have pointed out, is there any definition of rehabilitation measures or measures having equivalent effect.  Given that the main focus of Article 6 is on ‘convictions, penalties or infringements’ it seems to us that a rehabilitation measure or measure having equivalent effect means a measure designed or intended to ensure that there is no repetition of the conviction, penalty or infringement.

15.       While the main purpose of a sentence of imprisonment, (reflected in the time spent in custody), is punishment it seems to us that there are, in addition, two secondary purposes.  One of these is deterrence, because an offender released part-way through a sentence, who offends again, can be ordered to serve the outstanding balance of the original sentence.  The other, which is significant for the present case, is rehabilitation through the opportunity to attend courses and the requirement to attend the Probation Service at appropriate intervals after release.  Indeed one of the main arguments advanced by the Appellant in answer to his own question: “at what point do we decide that I have been rehabilitated”? is that he has successfully done all that has been required of him and all that he could have been expected to do in order to rehabilitate himself.

16.       The Deputy Traffic Commissioner correctly pointed out that the Rehabilitation of Offenders Act 1974 does not apply in the present case because of the length of the sentences imposed on the Appellant.  He went on to explain that it is therefore for a Traffic Commissioner to determine as a question of fact, depending on the circumstances of each individual case, whether or not the commission of a particular offence remains a bar to the grant of an operator’s licence.  Dealing with this particular case he decided, on the evidence, that the Appellant was at the heart of the conspiracy, he pointed out that the Appellant was still serving the 14 year sentence, albeit now on licence and he concluded that in those circumstances his repute was not yet restored.

17.       The question which we have to decide is whether the Traffic Commissioner was plainly wrong in reaching that conclusion.  We accept that the Appellant has done all in his power to turn his life around and that he has been far more successful than many others would have been when faced with a similar sentence and similar challenges.  If these were the only considerations which we were required to take into account the Appellant would be able to put forward a strong case.  However our judgment is that these are not the only relevant considerations.  We must bear in mind that operator licencing is based on trust.  Traffic Commissioners must be able to trust those to whom they grant operator’s licences to operate in compliance with the regulatory regime.  The public and other operators must also be able to trust operators to comply with the regulatory regime.  We must also bear in mind the passage from the Tribunal’s decision in Aspey Trucks Ltd 2010/49 on which the Deputy Traffic Commissioner relied.  At paragraph 10 of its decision the Tribunal said this:-

“In a case such as this, the Deputy Traffic Commissioner was not looking at putting someone out if business. Rather, he was deciding whether or not to give his official seal of approval to a person seeking to join an industry where those licensed to operate on a Standard National or Standard International basis must, by virtue of S.13(3), prove upon entry to it that they are of good repute. In this respect, Traffic Commissioners are the gatekeepers to the industry - and the public, other operators, and customers and competitors alike, all expect that those permitted to join the industry will not blemish or undermine its good name, or abuse the privileges that it bestows. What does “Repute” mean if it does not refer to the reasonable opinions of other properly interested right-thinking people, be they members of the public or law-abiding participants in the industry”?

We agree with these views and consider that the Deputy Traffic Commissioner was correct to take them into account.  In our judgment the reasonable opinion of right-thinking people, whether members of the public or law-abiding participants in the industry, would be that it is still too soon to grant the Appellant an operator’s licence.  We agree with the Deputy Traffic Commissioner that it was not possible to disregard these offences under paragraph 5(2)(b) of Schedule 3 to the 1995 Act.  Nor would it have been right for the Deputy Traffic Commissioner to conclude that a rehabilitation measure or other measure having similar effect had been taken, pursuant to Article 6.3, at a time when the Appellant is still serving the 14 year sentence.  It seems to us that the rehabilitation measure or other measure having similar effect can only be said to have been ‘taken’ once a sentence has been served in its entirety or the measure has been completed in some other way.  It follows that we agree with the Deputy Traffic Commissioner that the Appellant cannot, for the time being, demonstrate that he is of ‘good repute’ for the purpose of obtaining an operator’s licence.  Whether or not he can do so in the future depends on maintaining the considerable progress he has made but also depends on the circumstances at the time of any further application.

18.       We consider that it would be appropriate to refer to two other aspects of this case.  First, the Deputy Traffic Commissioner very sensibly asked for independent evidence about the Appellant’s part in the conspiracies.  It was only when it became clear that this would not be forthcoming that he started to do his own research.  In our view he was correct to wait to see what the Appellant would produce but cannot be criticised for making his own inquiries when compelled to do so by the absence of any material from the Appellant.  Inquiries such as those made by the Deputy Traffic Commissioner should be regarded as a last resort rather than a routine step.  Having obtained a media report of the case the Deputy Traffic Commissioner correctly appreciated that fairness dictated that the Appellant should be given an opportunity to comment about it and that he should be entitled to have the Public Inquiry reopened so that he could explain his position, in person, to the Deputy Traffic Commissioner.  Had these steps not been taken it might have been difficult to avoid the conclusion that the Appeal had to be remitted for re-hearing.

19.       The second aspect is that after the resumed Public Inquiry the Deputy Traffic Commissioner made a further inquiry that led him to the transcript of the decision of the Court of Appeal (Criminal Division) on the appeal by a number of the conspirators, including the Appellant.  It would appear that on this occasion the Deputy Traffic Commissioner did not give the Appellant any opportunity to comment before acting on the information.  In our view it would probably have been better had he done so, though having said that it is difficult to see what the Appellant would have been able to do if he disagreed with what was said in the judgment.  This is because the Court of Appeal would have had access to all the papers in the case, including, in particular, a transcript of the sentencing remarks, which are likely to have set out the Trial Judge’s view of the involvement of each Defendant.  In our judgment, in this particular case, it would serve no useful purpose to remit the matter, on this ground, because in our view the end result would be the same.

20.       For all these reasons the appeal is dismissed.

 

 

 

 

Michael Brodrick, Judge of the Upper Tribunal, Principal Judge for Traffic Commissioner appeals, President of the Transport Tribunal.

17 October 2012