Neutral Citation Number: [2012] UKUT 115(AAC) Appeal No.  T/2012/60

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

J.E. Perrett, Deputy Traffic Commissioner for the

North Eastern Traffic Area dated 28 August 2012

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellant:

 

 

TYNESIDE TRAVEL (2007) LIMITED

 

 

Attendances:

For the Appellant: Christopher Harris, Transport Consultant of Harris Transport and Employment Law.

 

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

Date of hearing:  8 January 2013

Date of decision: 25 February 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED and that the orders of revocation and disqualification shall come into effect at 23.59 on one month 24 March 2013

 

 

 

SUBJECT MATTER:-  Unlawful use of vehicle discs; production of documents on request; good repute; revocation; disqualification.

 

 

CASES REFERRED TO:- Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695; Hydrodan (Corby) Ltd (1994) BCC 161; Norbert Dentressangle Appeal 49/200; Appeal 2008/593 Martin John Graves; T/2010/35 Steven Alan Curtis t/a Curtis Transport and Alan Frederick Curtis; T/201029 David Finch t/a David Finch Haulage;  Appeal 2006/56 Paul Oven Transport Services Limited.

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Deputy Traffic Commissioner (“DTC”) for the North Eastern Traffic Area made on 28 August 2012 when she revoked the Appellant’s standard national public service vehicle licence and disqualified Elaine Craggs (former director) and Daniel Craggs (present director) from holding or applying for an operator’s licence for life in respect of the former and a period of 18 months for the latter, under section 17 of the Public Passenger Vehicle Act 1981 and (“the 1981 Act”) and section 28 of the Transport Act 1985.

 

2.           The factual background appears from the documents and the DTC’s decision and is as follows:

 

(i)              The Appellant was granted a standard national public service vehicle licence in August 2007 with four discs issued.  During the period covered by the VOSA investigation, the sole director was Eileen Craggs (“Mrs Craggs”) and the operating centre was situated on the Drum Industrial Estate, Chester Le Street, Durham.  Daniel Craggs, Mrs Craggs’ husband, was in charge of the day to day operations of the Appellant company whilst also being the sole director of First Choice (Stanley) Travel Limited (“First Choice”) which also held a public service vehicle operator’s licence.  The Transport Manager for both operations was Thomas Simpson. 

(ii)             By letters dated 5 July 2012, the Appellant, First Choice and Mr Simpson were called to a public inquiry.  Ultimately, the licence of First Choice was revoked as a result of adverse findings in relation to maintenance, drivers’ hours and finance.  No appeal has been lodged in respect of that order of revocation as it had been the intention of Mr Craggs to surrender the licence in any event.

(iii)            The public inquiry was convened over 14 and 15 August 2012.  By that stage, Mrs Craggs had resigned as a director of the Appellant and did not attend.  A letter regarding her health was handed in.  Mr Craggs did attend; he was by then the sole director of both the Appellant and First Choice.  Both operators were represented by Miss Landin of Counsel and Mr Simpson was represented by Mr Sean Doherty of Harris Transport and Employment Law. 

(iv)           Traffic Examiner (“TE”) Bainbridge presented the main part of the VOSA evidence.  She had been involved in a VOSA investigation into the illegal operation of passenger service vehicles (“PSVs”) by Ralph Brown in association with David Pritchard by the use of discs issued to other operators (for background information see this Tribunal’s decisions in 2008/688 & 2008/745 David Pritchard and Brian Smith and T/2010/29 David Pritchard).  Ralph Brown was known to provide coaches for supporters of Newcastle United football club for away matches.  Up to 13 January 2011 (when two vehicles believed to belong to him were impounded), Mr Brown was contacting Northumbria Police Football Liaison Officers notifying them of the number of coaches he would be operating for each away match.  He operated those coaches in association with Amanda Robinson of “Shambles Travel” who booked the transport for the football supporters.

(v)             Two of the vehicles associated with Mr Brown and Mr Pritchard were ALZ 7313 and PIL 5272.  Since 2008, they were MOT tested at a testing station on the Meadowfield Industrial Estate in Durham, where Mr Brown operated a vehicle repair business (Edwardson Road).  During the course of observations in November and December 2010, the only location where the vehicles were seen to be parked was Mr Brown’s premises.  The vehicles had been checked or seen by VOSA officers on three occasions in November 2010 when they were operating and carrying Newcastle supporters (one of the checks took place at the Arsenal football ground).  The vehicles were being driven by either Mr Brown or Mr Pritchard and the vehicles were displaying a licence disc belonging to Colin Franks trading as Franks Coaches.  Mr Franks when questioned stated that he would not provide coaches for any football supporters beyond Birmingham as the journeys were not cost effective as they required two drivers and he claimed that the disc displayed by the vehicles had been stolen.

(vi)           At 05.26 on 8 January 2011, TE Bainbridge was on duty with Vehicle Examiner (“VE”) Nicholson at Edwardson Road, outside Mr Brown’s premises.  The two vehicles were parked inside the yard.  At 07.03, a male arrived and was then seen to drive ALZ 7313 from the premises. It was too dark to identify the driver.  At 07.30 TE Bainbridge and VE Nicolson located the vehicle at Washington Services on the A1 northbound.  It was carrying passengers. At 07.50, the vehicle was parked outside Shearers Bar, St James Park (the stadium of Newcastle United football club). Passengers were waiting to board. The officers approached on foot at which point the driver was instructed by Amanda Robinson to turn the bus around, which he did.  The vehicle then stopped and David Pritchard got out.  VE Nicholson observed the name “Chubby” displayed externally on the offside of the vehicle.  Mr Pritchard was aggressive, loud and abusive towards the VOSA officers and continued to be so once the officers had identified themselves.  Amanda Robinson joined in.  Mr Pritchard refused to provide his name to the officers and Amanda Robinson demanded to know the identity of their informant.  Due to their aggressive and intimidating behaviour, the officers withdrew. 

(vii)          Mr Pritchard then drove the vehicle to Stevenage for a Newcastle United fixture.  The kick off time was 17.30.  At 15.45, the vehicle was parked up in Stevenage.  VE Milburn spoke to Mr Pritchard who stated that he was employed by First Choice.  However, the vehicle was displaying a licence disc in the name of the Appellant.  A laminated card was also displayed in the cab of the coach which stated: “Vehicle on hire to Tyneside Travel (2007) Ltd ...”.  When questioned about this, Mr Pritchard said that the Appellant was a subsidiary of First Choice.

(viii)         Mr Pritchard’s tachograph record for that day started at 08.30, followed by a single journey of about 4 hours with no breaks.  Mr Pritchard stated that his girlfriend had taken him to Durham services where he had taken the vehicle over from another driver who had then been driven home by Mr Pritchard’s girlfriend.  TE Milburn seized the licence disc from the vehicle and posted it to TE Bainbridge.  The disc serial number was PB040774 and that remained in her possession to the date of the public inquiry.  TE Milburn did not seize the tachograph record.

(ix)           The tachograph record produced to TE Milburn by Mr Pritchard on 8 January 2011 could not have been a true record of Mr Pritchard’s driving in view of the confrontation between Mr Pritchard and the officers at St James Park at 07.50.  TE Bainbridge concluded that in fact, Mr Pritchard started driving at about 07.03 that day when the vehicle left Edwardson Road.

(x)             A vehicle record check revealed that Colin Franks was the registered keeper of ALZ 7313 although Mr Franks had denied being the user or owner of the vehicle when he had been interviewed in December 2010.  However, subsequently, on 1 February 2011, Mr Pritchard became the registered keeper, the registration having been back dated to 27 December 2010.  The registration address was that of Ralph Brown.

(xi)           On 11 January 2011, TE Bainbridge wrote to the Appellant requesting an interview with Mrs Craggs.  TE Bainbridge asked that she or her solicitor contact her by 18 January 2011.

(xii)          On 13 January 2011, VOSA officers and uniformed police officers attended Edwardson Road and impounded vehicles ALZ 7313 and PIL 5272.  Mr Pritchard was also arrested for the theft of a licence disc from Colin Franks.  Ralph Brown and his partner, Anne Stidwell then arrived and they denied that the vehicles had been used unlawfully but rather that they had been “hired out”.  They also denied the theft of the licence disc, asserting that Mr Franks had given them the disc. 

(xiii)         Mr Pritchard had in his possession a tachograph chart box.  The tachographs for the journeys of 8 January 2011 were missing and the only two charts in his possession which had been used were for vehicle LUI 9295 dated 28 December 2010 and for vehicle ALZ 7313 dated 2 January 2011.

(xiv)        During the course of the impounding process, Mr Pritchard had again become aggressive and at one stage he was handcuffed.  He also threatened VE Nicholson.

(xv)          On 18 January 2011, TE Bainbridge was contacted by Mr Harris (Transport Consultant) who stated that he was representing Mr Craggs, director of the Appellant (although Mr Craggs did not in fact become a director until March 2011).  TE Bainbridge had already been informed by Mr Craggs that Mr Harris was going to represent him and that he was sure that Mr Harris was a solicitor.  During the telephone call, Mr Harris stated that Mrs Craggs was too ill to be interviewed and that it was Mr Craggs who should be interviewed.  TE Bainbridge informed Mr Harris that Mr Craggs would not be an adequate substitute for the sole director of the company.  Mr Harris insisted that Mr Craggs should be interviewed and that he would represent his interests in that interview.  TE Bainbridge asked Mr Harris whether he was a solicitor and he said that he was.  When TE Bainbridge informed Mr Harris that she had been in contact with the Law Society and that she had been informed that Mr Harris was not on their register (or rolls), he replied that he was an ex-solicitor and became quite abusive in response to TE Bainbridge’s insistence that Mrs Craggs be interviewed and that her rights should be protected by a solicitor (in a written statement, Mr Harris has since asserted that he had in fact said that he was a former trainee solicitor and that it was TE Bainbridge who was confrontational).

(xvi)        Be that as it may, an interview with Mrs Craggs took place on 3 February 2011.  Mr Liam O’Brien of counsel represented her interests.  The interview took place at GVTS Gosforth.  Mrs Craggs stated that whilst she was the sole director of the Appellant, her main job was to answer the telephone and to take bookings.  Mr Craggs was responsible for the day to day running of the company.  The operating centre on the Drum Industrial Estate was only used to park the vehicles.  The company had some school contracts, a daily swimming baths run, contract work for Nexus and Durham County Council and some private hire.  On occasion, vehicles would be hired in from other operators including First Choice, although it then later became apparent that what she meant was that she would sub-contract work out to other operators.  Mr Pritchard was one of a number of employees, working 16 hours per week.  The wages were dealt with by the book keeper and a paper trail existed including time sheets.  Mr Craggs allocated the work and was responsible for drivers’ hours.  Both Mr and Mrs Craggs kept diaries of the bookings and Mr Simpson checked the tachographs and ensured that the business was running correctly. 

(xvii)       As for the use of vehicle ALZ 7313 on 8 January 2011, Mrs Craggs stated that the company had needed an extra vehicle for the Newcastle game and had hired in the vehicle from Mr Pritchard who then drove it.  She was not sure whether or not the need to hire the vehicle arose because another one of the Appellant’s vehicles was off the road.  She produced an original company invoice with the number 0344 and dated 8 January 2011.  It was addressed to Amanda Robinson c/o Shearer’s Bar, NUFC Supporters, Newcastle Upon Tyne.  It read: “Sat 8^th Jan 11 Hire to Stevenage!”  The invoice total was for £900 and was signed by Mr Craggs “with thanks”.  Mrs Craggs thought that her husband had signed the invoice because he was in the office when Miss Robinson had paid the invoice.  She stated that a record of the hiring in of the vehicle would be in her diary.  She had not bought that to the interview.  It would be available at a later date.  She thought that Mr Pritchard’s driving for 8 January 2011 would have been included in his 16 hours per week despite it being over a weekend.  She did not know whether there had been a second driver employed on the Stevenage run.  Mr Pritchard may have taken the bus over at Durham.  His charts would have been handed in to the office upon his return.  The hiring in on 8 January 2011, was the only time that Mrs Craggs had used Mr Pritchard and his vehicle together.  There would have been a first use vehicle check and the vehicle would have started from the Appellant’s operating centre. She did not know how it got there or when.  If another driver had driven the vehicle as well, then that would be shown on a time sheet .  Mrs Craggs could not comment on whether Mr Pritchard’s tachograph chart produced to TE Milburn was false.  Mr O’Brien then terminated the interview because he had not realised that the interview would also cover the issue of drivers’ hours compliance for the Stevenage journey.  He advised Mrs Craggs to take legal advice and it was agreed that a second  interview would take place when all the relevant documentation could be produced.  No further interview did in fact take place despite requests made by TE Bainbridge.

(xviii)      It then came to the attention of TE Bainbridge that vehicle K530 EHE, in the Appellant’s livery, had been stopped at the Fulham Football ground on 2 February 2011 by TE Huntley (TE Bainbridge read her report into the record).  The vehicle was being driven by Mr Pritchard and Adam Carr.  The vehicle displayed a vehicle excise licence disc that had expired on 31 December 2010.  As TE Huntley was checking this, she was confronted by Amanda Robinson who was loud and confrontational.  TE Huntley was given two tachographs to check.  She did not know whether they had come from the tachograph head.  The charts did not reflect the journey time or change over times of the drivers as the drivers stated them to be.  The explanation for the discrepancies was that Mr Carr who was an inexperienced driver in private hire work had placed the charts into the tachograph head the wrong way round (something that is quite difficult to do).  When interviewed by TE Huntley, both drivers stated that Mr Craggs was “the boss”.

(xix)        There then followed numerous written and verbal requests by TE Bainbridge for documents and tachographs made to Mr and Mrs Craggs.  Visits were made to their home and to the operating centre.  Nothing came of either the written or verbal requests.

(xx)          In particular, on 8 February 2011, when Mr Craggs was handed a production letter, he asked “where the investigation was going”.  TE White informed Mr Craggs that there might be evidence of an attempt to pervert the course of justice and a verbal altercation then took place between TE White and Mr Craggs who asked the officer to “step outside”.  On that occasion, Mr Craggs was asked to produce the invoice book out of which invoice 0344 had come.  Mr Craggs stated that the invoice book was with the book keeper.  TE Bainbridge requested a meeting with Mr and Mrs Craggs, the book keeper and Mr Simpson so that all the relevant documentation could be produced.  Mr Craggs agreed and stated that he would arrange such a meeting.  He did not do so.

(xxi)        On 12 February 2011, VOSA officers were on surveillance duties at Durham services.  Vehicle K503 EHE was seen by TE Bainbridge at the services at 08.49.  The vehicle was later stopped in Blackburn by TE Parker accompanied by Intelligence Officer (“IO”) Vosper (TE Bainbridge later read their reports into the record).  The vehicle was being driven by Mr Pritchard who stated that he was employed by the Appellant.  He produced the chart for that day but stated that he was unable to produce previous charts because they had been seized by VOSA officers, including the chart for the return journey from Fulham on 2 February 2011.  That statement was untrue.  Whilst TE Parker was interviewing Mr Pritchard, IO Vosper was approached by Mr Craggs.  He asked what was going on, stating that the vehicle belonged to himself and his wife.  He said that he was being investigated and that he was unhappy about the way he was being treated.  He also said that Brian Baxter, the Newcastle United police liaison officer was “spitting feathers” about it.  IO Vosper asked Mr Craggs to get Mr Baxter to contact him.  No contact was made by Mr Baxter.  Mr Craggs said that he and his wife owned the Appellant company and that he owned First Choice.  Mr Craggs then embarked onto the vehicle where TE Parker and Mr Pritchard were.  Mr Pritchard said that he did not have a problem with VOSA “going after” him but that they should leave Mr Craggs out of it.  He said that he was working for Mr Craggs that day.  Amanda Robinson then arrived.  She was rude and unpleasant to the VOSA officers.  Mr Pritchard then produced a large number of £20 notes and handed some of them to Miss Robinson and Mr Craggs then produced a large number of £20 notes and money was passed between Mr Craggs and Mr Pritchard.  Mr Pritchard was advised by IO Vosper to apply for an operator’s licence, a suggestion which was dismissed by Mr Pritchard because he had, he said,  previously been disqualified by DTC Mr Hinchliffe (as he then was). 

(xxii)       On 14 February 2011, Mr Craggs wrote to VOSA complaining of the conduct of TE Bainbridge and TE White and asserting that his vehicles were being “targeted” and that he and his wife were willing to assist VOSA.

(xxiii)      Further letters were written to Mr and Mrs Craggs requesting documentation and tachographs by certain dates.  The requests were not complied with.

(xxiv)     On 1 March 2011, TE Bainbridge and TE White attended the operating centre.  Mr Pritchard was spoken to by TE Bainbridge.  He  maintained that all of his charts between the dates 8 January and 2 February 2011 had been seized by VOSA officers save for a chart for his return journey on 2 February 2011 which was not available because he had run out of charts by that stage and had therefore been unable to use one for his return journey. He indicated that he would not attend an interview if one was arranged. 

(xxv)       During the same visit, Mr Craggs was informed that it was VOSA’s view that the chart produced by Mr Pritchard on 8 January 2011 to TE Milburn was false and that Mr Craggs must produce that chart and a chart for Mr Pritchard’s return journey on 2 February 2011.  Mr Craggs stated he would produce the charts along with all the documentation previously requested, later that day.  Mr Craggs was also asked about the expired tax disc displayed on vehicle K530 EHE on 2 February 2011.  He informed TE Bainbridge that he had spoken to Billy Baxter, the Northumbria football liaison officer who had said that it was “okay” to operate the vehicle without the disc (later investigations ascertained that this was not the case). 

(xxvi)     Some documents were produced later that day by Mr Craggs.  They consisted of some vehicle registered keeper details, pay slips for various drivers, including three for Mr Pritchard, a certificate of insurance and five tachographs relating to vehicle W10 CAT.  No other tachographs were produced; neither was the invoice book or any documentation in support of the purported “hiring in” of vehicle ALZ 7313 on 8 January 2011.  For the sake of completeness it should be noted that Mr Craggs also handed in a letter stating that as at 3 March 2011, First Choice had ceased trading and its operator licence had been surrendered.  He also informed TE Bainbridge that he had become a director of the Appellant company.  He confirmed that Mr Pritchard and Mr Carr had handed in tachgraph charts for the return journey of 2 February 2011 and on 11 March 2011, he produced two charts representing that journey. 

(xxvii)    Mr Pritchard did attend an interview on 11 March 2011. He was represented by Mr O’Brien who produced a prepared statement which stated that the Appellant had hired ALZ 7313 from him on 8 January 2011; Adam, an employee of the Appellant had driven the bus to Newcastle and Mr Pritchard had accompanied him.  They picked up fans at St James Park and as they embarked, Adam alighted from the bus to have a cigarette and so Mr Pritchard decided to sit in the driver’s seat.  He had then moved the bus because of traffic congestion.  He had an unpleasant conversation with VOSA officials and then Adam had driven the coach to Durham.  Adam was then picked up by Mr Pritchard’s partner and Mr Pritchard then drove the coach to Stevenage.  He accepted that he had told an untruth to TE Milburn when he said that he had been dropped off by his partner at Durham to take over the vehicle.  As for 2 February 2011, it had been Adam’s responsibility to put their tachograph charts in the head and it was only at Leicester services that Adam had told him that he had had a problem locating the charts into the head.  He had failed to produce the tachograph for the return journey of the 2 February when asked for his charts on 12 February because he had forgotten to take it with him on that journey.  He was stressed by all of the events of that year and he was feeling persecuted. 

(xxviii)   In the interview itself, Mr Pritchard maintained that on 8 January 2011, his tachograph had been placed into the head at Durham services; Adam Carr had picked the coach up from Meadowfields Industrial Estate.  Mr Pritchard made no comment to questions about  how both he and Mr Carr had got to the industrial estate or when they had left.  He denied that he had produced a false chart and refused to answer any further questions thereafter.

(xxix)     On 19 March 2011, at about 06.15, TE Bainbridge observed vehicle G904 YBE in the livery of Tyneside Travel parked at Edwardson Road.  TE Barratt, who was carrying out observations at St James Park, firstly observed, at 0735, vehicle K530 EHE taking on passengers who were carrying carrier bags and boxes containing alcohol (which is prohibited  on vehicles carrying football supporters).  She then observed G904 YBE arrive at 07.38.  Passengers embarked also carrying bags and boxes of alcohol.  Photographs were taken of the passengers as they embarked onto both vehicles.  TE Barratt was then able to see the passengers on both vehicles drinking alcohol.

(xxx)       The vehicles were travelling to the Stoke City Football Ground.  At the ground, vehicles YCZ 8701, W10 CAT, G904 YBE and K530 EHE were the subject of VOSA checks by TE Pendrous, TE Raynor and TE Youd (their reports were read into the record).  These vehicles were being operated by the Appellant.  Vehicle W10 CAT was being driven by Mr Craggs.  The vehicle was not displaying a licence disc.  Instead, a notice was displayed stating “Operators Licence-PB1072188. Disc was lost from this vehicle on Friday 18/03/11.  VOSA at Leeds notified, awaiting replacement”.  When asked about the absence of a disc, Mr Craggs stated that the licence disc that had been displayed in the vehicle had “blown out of the window” and had been lost.

(xxxi)     On 21 March 2011, Mr Craggs sent an email to the Central Licensing Unity (CLU)  alleging that the Appellant was missing a licence disc which had been lost.  A replacement disc was issued.

(xxxii)    On 22 March 2011, Mr Craggs made a report of theft of a licence disc to the police.  He stated that staff had reported that someone had gained access to an unlocked bus at the operating centre and had stolen the licence.  As there was no damage reported, the police did not take any action.

(xxxiii)   On 28 March 2011, Mr Craggs telephoned the CLU stating that licence disc 40774 had been stolen.  Licence disc 40774 had in fact been confiscated on 8 January 2011 and was in the possession of TE Bainbridge. 

(xxxiv)  On the same day, the application made by Mr Pritchard for the return of impounded vehicles ALZ 7313 and PIL 5272 was heard.  Mr Craggs gave evidence stating that as a result of mechanical problems the Appellant was short of a vehicle on 8 January 2011 and had used vehicle ALZ 7313.  He stated that Mr Pritchard had been employed by the Appellant from around 20 December 2010 for 16 hours per week.  He said that he thought that had paid Mr Pritchard £250  in cash for the hire.  Mr Craggs confirmed that he was not a director of the Appellant on the 8 January 2011 but that he was “running it”.  When asked why he could not use one of the vehicles from First Choice on 8 January 2011 he stated “All I’m saying is the vehicles weren’t available”.  The DTC refused Mr Pritchard’s application as she could not be satisfied that he was in fact the owner of the vehicles.

(xxxv)    On 8 April 2011, Mr Craggs called TE Bainbridge and asked for a meeting in order to discuss his situation.  It was agreed that TE Bainbridge would call him the following week when she had her diary with her.

(xxxvi)  On Sunday 10 April 2011, TE Bainbridge attended the Appellant’s locked operating centre.  Three vehicles were parked up (G904 YBE was not included).  Later that day, she saw vehicle G904 YBE at St James Park collecting passengers.  Mr Pritchard was the driver.  The vehicle was later checked at Aston Villa football ground and was found to be displaying a licence disc of the Appellant. 

(xxxvii) On 11 April 2011, TE Bainbridge spoke with Mr Craggs.  He stated that he understood the implications to the Appellant of maintaining that Mr Pritchard was employed by the Appellant on 8 January 2011 not only by reason of Mr Pritchard’s conduct as a driver but also because of the apparent false tachograph chart of that date.  He and his wife wanted to resolve their situation and continue to operate, possibly with fewer vehicles.  He was told that he and his wife needed to comply with the requests for production of documentation for the Appellant and First Choice and that they both attend for interview.  The documents were not produced.

(xxxviii)    On 10 May 2011, Mr Craggs visited TE Bainbridge and asked her for the return of disc 40774 seized on 8 January 2011.  The disc was not returned and Mr Craggs was told to produce the documentation.  Mr Craggs said he would call TE Bainbridge by the end of the working day.  He did not do so.

(xxxix)  On 27 June 2011, Mr Craggs wrote to VOSA manager Mr Rowland.  The letter complained about the retention of the disc and asserted that “to date we are not aware of any infringement in relation to the operation of the vehicle on that day.  .. To date the absence of this disc has cost the company some £9000 in lost revenue”.  He asked when they might expect the return of the disc.  Mr Rowlands replied by advising Mr Craggs to comply with the requests for the production of documentation.

(xl)           On 6 July 2011, TE Bainbridge delivered two letters to both the operating centre and the Craggs’ home address giving them until 11 July 2011 to produce the documentation.  Mr Craggs later confirmed that he had received the letter and that he had begun to collate the documents and that he would telephone TE Bainbridge in an hour.  He did not do so.

(xli)          On 11 July 2011, an envelope was delivered to the reception of GVTS.  It contained eight invoices headed with the Appellant’s logo.  They were not sequential and covered the period 8 December 2010 to 8 January 2011.  They did not corroborate invoice 0344.

(xlii)         On 13 July 2011, TE Bainbridge wrote again to Mr and Mrs Craggs.  The letter concluded:

“The VOSA investigation into the illegal PSV operation of Messrs Brown & Pritchard brought you to our attention in January 2011 and you were informed in January 2011 of the nature of our investigation.  Despite your assurances that you would fully cooperate with VOSA, the reverse appears true.”

(xliii)       On 18 July 2011, Mrs Craggs telephoned TE Bainbridge to say that documents would not be ready until 22 July 2011.  She confirmed that she would send an email confirming that the documents would be ready by that date.  Mrs Craggs also asked for a meeting to take place and this was arranged for 22 July 2011.  No email was received from Mrs Craggs; the documentation was not produced on 22 July  and the Craggs did not attend for the meeting.

(xliv)       On 4 August 2011, Mr Craggs telephoned TE Bainbridge and asked for a meeting so that he could have an “off the record discussion” before the production of documents.  It took place the following day and Mr Craggs was accompanied by Mr Weir who described himself as an associate.  Mr Weir stated that the Craggs’ had experienced marital difficulties but that they were now “back together”.  He had told Mr Craggs to produce all the documents requested and to that end Mr Craggs had “pooled” all of the First Choice documents into a box and had then placed the box into a garage which was also accessed by other PSV operators and the box had gone missing.  He was asked about the invoice book from which invoice 0344 had been taken.  TE Bainbridge advised that it was her belief that the invoice had been manufactured by Mr Craggs in order to assist Mr Pritchard and Mr Brown in Mr Pritchard’s deception of purporting to be the owner of vehicle ALZ 7313. TE Bainbridge told Mr Craggs that she must see the invoice book.  Mr Craggs was non-committal as to where the invoice book was or whether it was to be produced.

(xlv)        Mr Craggs stated that the reason for the request for the “off the record” discussion was that Mr Weir had found some documentation showing that Mr Pritchard had used Mrs Craggs’ address to fraudulently obtain insurance for vehicles.  Nothing had been done about this.  TE Bainbridge told Mr Craggs to report it to the police.  TE Bainbridge formed the view that this was “yet another stalling tactic”.  Mr Craggs was advised that a report was now going to be submitted which would detail TE Bainbridge’s investigation and the history of non-production by both Mr and Mrs Craggs.  Mr Craggs said that documents had not been produced because he had taken exception to TE White’s remarks made on 8 February 2011.  Mr Craggs also stated that Mr Harris (the Transport Consultant advising him) had advised Mr Craggs not to produce the documents.  Mr Craggs then reiterated that he had hired vehicle ALZ 7313 on 8 January 2011 from Mr Pritchard and Mr Weir agreed with TE Bainbridge that this made Mr Pritchard the operator on that day.  Mr Craggs was told that if he continued to assert that the Appellant was the operator of the vehicle, then he would have to accept responsibility for Mr Pritchard’s apparent false tachograph chart of that date.  Mr Craggs for the first time stated that he had told Mr Pritchard that when he had arrived in Stevenage, he must telephone Mr Craggs to inform him of his available driving hours so that arrangements could be made in the event that another driver was required for the return journey.  This Mr Pritchard had not done.  Mr Craggs was asked why, if that was the case, Mr Pritchard had falsified his tachograph chart at the beginning of the day? No answer was recorded by TE Bainbridge.  The meeting ended with Mr Craggs stating that the documents would be produced on 10 August 2011.  No documentation was produced on that day.

(xlvi)       On 18 August 2011, TE Bainbridge received an envelope with a handwritten note from Mrs Craggs informing her that further documentation was to follow.  Enclosed were 60 invoices spanning the period 1 February 2010 to 31 December 2010 and 8 documents concerning the Nexus contract.  From examination of the invoices produced it was clear that two invoice books were in use.  For example, invoice 0337 was dated 10 June 2010; invoice 0285 was dated 31 December 2010.  No documentation was enclosed for January 2011 to corroborate invoice 0344. Further, the invoices produced were for EC journeys which would have required tachographs.  By that stage, TE Bainbridge had only received five tachograph charts in total and they were for vehicle W10 CAT.

(xlvii)      On 26 August 2011, TE Bainbridge again wrote to Mr and Mrs Craggs pointing out that no invoices had been produced for January 2011.  She asked that they not delay in producing these invoices whilst they locate all the tachographs and other documentation. 

(xlviii)    On 19 September 2011, TE Bainbridge received an envelope from Mr Craggs.  It contained two photocopies of driving licences, one of which was Mr Craggs’; one remittance advice to First Choice from Gateshead Council; a document entitled First Choice Travel Day Books: Customer Invoices (Summary) containing various dates from 12 February to 9 September 2010; a document entitled First Choice Travel (Stanley) Payment Summary History Part 1 – by employee; a document entitled Tyneside Travel (2007) Ltd Payment Summary History Part 1 – by employee; 111 invoices headed with the First Choice logo ranging from 24 February 2010 to 1 August 2010 and 194 tachographs.  TE Bainbridge informed Mr Craggs that she was still waiting for production of the invoices for January 2011 from the Appellant and the diaries that Mrs Craggs referred to in interview.

(xlix)       TE Bainbridge analysed the tachograph charts.  Both companies had been required to produce charts for the period 12 February 2010 to 18 January 2011.  There was total of 54,217kms of missing mileage. Whilst some of this might be accounted for by the registered services operated by the companies, TE Bainbridge was unable to match invoices to tachograph charts in many instances and was also unable to match tachograph charts to invoices. 

(l)              During her analysis of the charts,TE Bainbridge identified a chart in the name of Brian Bonsall dated 8/9 January 2011.  The start and finish location was Durham.  There was 6kms missing from the chart when the distance trace was compared to the odometer readings recorded on the chart.  Further, it was clear that this chart had been used in vehicle ALZ 7313 and when handwriting was compared, it was clear that the start and finish odometer had been written by Mr Pritchard.  When comparing the traces on the both charts, it appeared that one chart had been taken out of the head and another inserted on the slip road of the A1Durham.  TE Bainbridge concluded that the chart was false and had been created to hide the true extent of Mr Pritchard’s driving on 8 and 9 January 2011.

(li)             TE Bainbridge concluded that invoice 0344 had been manufactured by Mr Craggs; alcohol had been carried onto and consumed on football supporters transport; Mr Craggs was the operator and driving force behind the Appellant, Mrs Craggs being the operator in name only; both Mr and Mrs Craggs had persistently failed to produce documentation and when they eventually did so, there were many thousands of kilometres missing from the charts which had not been accounted for.

(lii)            In cross examination, TE Bainbridge confirmed her evidence.  She did not know that Mr Pritchard had been “sacked” by Mr Craggs in June 2011 but in any event she did not consider that he had in fact been employed by the Appellant in the first place.  As for First Choice she was under the impression that at the time of Mrs Craggs’ interview in February 2011, that company was still operating vehicles.  She was of the view that the Newcastle supporters transport was organised by Amanda Robinson who had an agreement with Mr Brown and Mr Pritchard.

(liii)          The DTC asked TE Bainbridge about the Appellant’s general compliance with the rules on drivers’ hours and records.  TE Bainbridge was unable to assist because she had concentrated on the task of matching up invoices with tachographs.  In response to Mr Doherty’s questioning as to why she had not sought further interviews or documentation from the Craggs after September 2011, TE Bainbridge stated that by that stage it was clear to the Craggs what information was required and they had not produced it.

(liv)          VE Nicholson then gave evidence.  He had accompanied TE Bainbridge on 8 January 2011 and his evidence was in accordance with hers about their encounter with Amanda Robinson, Mr Pritchard and vehicle ALZ 7313.  Amanda Robinson had been confrontational and Mr Pritchard aggressive.  VE Nicholson was of the view that Mr Pritchard’s conduct was designed to prevent the VOSA officers from discovering that he was not using a tachograph chart.  He confirmed that Mr Pritchard had threatened him. 

(lv)           VE Nicholson had been one of the officers who had been on surveillance duties on 12 February 2011 along with TE Scorer.  He had written down TE Scorer’s commentary as he observed vehicle K530 EHE arrive part loaded with passengers at St James Park to pick up passengers who were carrying carrier bags and rucksacks containing alcohol.  He gave brand names.  It was Mr Pritchard who was driving.  Later that morning, VE Nicholson observed the same vehicle enter onto the slip road of the A1 southbound at Durham and stop.  It then travelled around the roundabout and returned onto the southbound carriageway of the A1. 

(lvi)          VE Nicholson also made some enquiries about MOT testing of the various vehicles.  All vehicles registered to either First Choice or the Appellant were presented for testing by Hoddy’s Recovery at Ramage testing station in Newcastle.  All vehicles associated with Mr Brown and Mr Pritchard (ALZ 7313, PIL 5272 and G904 YBE) were presented by CD Commercials at Durham testing station.  CD Commercials was believed to be the vehicle repair business operated by Mr Brown and/or Mr Pritchard. 

(lvii)         On 8 March 2011, vehicle G904 YBE was presented at the Durham testing station in the name of First Choice Travel (at the impounding hearing for vehicles ALZ 7313 and PIL 5272, Mr Craggs had said that no vehicles had been operated by First Choice since 2010).  VE Nicholson believed that Mr Brown and Mr Pritchard were in fact presenting G904 YBE for testing. On 19 March 2011, the vehicle was observed at the Edwardson Road premises with no licence disc displayed.  A DVLA check had the vehicle marked as “transferred to the motor trade”. 

(lviii)       On 19 March 2011, VE Nicholson was on duty at the A1 Durham Services.  At 07.41, a male walked passed his vehicle, carrying a JD Sports bag containing lager.  The male walked down the slip road leading onto the A1 and leaned against the crash barrier.  At 08.15, vehicle K530 EHE drove off the A1 and around the roundabout and onto the southbound slip road where it stopped for one minute.  When it drove onto the A1 again, the man with the JD Sports bag had gone.  VE Nicholson concluded that the vehicle had picked up the man, who was carrying alcohol.

(lix)          Vehicles K530 EHE and G904 YBE were then observed at the Stoke City football ground.  The driver of vehicle G904 YBE was Mr Pritchard. The vehicle was displaying a disc and the legal lettering of the Appellant.  VE Nicholson concluded that this vehicle was being operated in the same manner as vehicle ALZ 7313 on 8 January 2011. 

(lx)           Further, observations were carried out on 10 April 2011.  VE Nicholson attended the Appellant’s operating centre at 05.30.  He observed vehicles K530 EHE and W10 CAT present in the yard; vehicle G904 YBE was not.  However, at 15.30, vehicle G904 YBE was observed at the Aston Villa football ground.  It was displaying one of the Appellant’s discs and was being driven by Mr Pritchard. 

(lxi)          On 9 September 2011, a public inquiry was held into the conduct of Colin Franks trading as Franks Coaches.  This arose out of his apparent association with Messrs Brown and Pritchard and the use of one of his discs.  In the course of his evidence, Mr Franks stated “let’s be clear who’s vehicles (ALZ 7313 and PIL 5272) are, they are Brown’s and no one else’s”.  He also indicated that Mr Pritchard would drive football supporters to London single manned. 

(lxii)         In cross examination, VE Nicholson informed the DTC that he had undertaken two further checks of the DVLA database in respect of vehile G904 YBE.  The first was on 1 August 2011 and that showed that the vehicle was still registered to the motor trade.  The second check showed that there had been a backdated change to the keeper details as the database now showed that the Appellant had been the registered keeper of the vehicle between 26 February 2011 to 23 May 2012.  He had never seen vehicle G904 YBE parked at the Appellant’s operating centre.

(lxiii)       TE White confirmed TE Bainbridge’s evidence in relation to the impounding of vehicles ALZ 7313 and PIL 5272 and the attempts by TE Bainbridge to obtain documentation from the Craggs. In cross examination he informed the DTC that he was aware that since the impounding of the vehicles, that Messrs Brown and Pritchard had bought the vehicles back from VOSA but that they had not been put through the testing process.

(lxiv)       TE Scorer told the DTC that he had been one of the VOSA officers on duty on 12 February 2011 at St James Park when he had seen passengers embark onto vehicle K530 EHE with alcohol.  He also observed passengers embarking onto the same vehicle on 19 March 2011 at the A1 Washington services.  They too were carrying alcohol.  On the same day, he observed vehicle G904 YBE in the car park of the southbound services where Mr Pritchard was looking under the engine cover of the vehicle.

(lxv)        Finally, there was a report prepared by VE Douglas.  Whilst this was not read into the record, the DTC did refer to it when questioning Mr Craggs and relied on it in the course of her decision and so it should be summarised here.  VE Douglas conducted an unannounced maintenance investigation on 7 December 2011.  He noted that the Appellant had five vehicles in possession but that only four were being operated: RUI3662; S130R0; P503OUG and K756SBB.  Road side inspections over the previous 15 months indicated that four other vehicles had been operated, including vehicle ALZ 7313.  Mr Craggs told VE Douglas that one vehicle had been sold and two scrapped.  He would not comment on vehicle ALZ 7313.  The outcome of the investigation was marked unsatisfactory for the following reasons: safety inspection records were not available for two of the vehicles operated within the last 15 months but which had been scrapped; vehicles were being parked at Langley Park when not authorised to do so; there was no first use inspection record for K756 SBB; there was a 66% PG9 rate at road side encounters.  Maintenance was undertaken by Hoddy’s Recovery.  There were no maintenance records for vehicle  ALZ 7313 despite the vehicle having been the subject of a road side check.  Five vehicles had been presented for MOT test in the previous twelve months.  Four passed first time but vehicle G904 YBE passed after rectification of defects.  That represented an 80% pass rate.  On 25 March 2011, vehicle G904 YBE had been issued with an immediate PG9 for a tyre seriously under inflated as a result of a hole in tyre wall and an inoperative anti-lock brake warning light.  The PG9 was removed on 29 March 2011. 

(lxvi)       At the conclusion of the VOSA evidence which coincided with the end of the first day of the hearing, the DTC informed the parties that she wanted the Appellant to produce the PMI sheets, daily driver defect report sheets, tachographs and disciplinary documents from 7 December 2011 to the date of the hearing.

(lxvii)      Daniel Craggs gave evidence the following day.  He had been in the passenger transport industry since 1995 and had set up First Choice in about 2004.  Both he and his wife were directors initially.  First Choice had three vehicles which undertook some contract and school work and some private hire work at weekends.  The total average mileage of the vehicles was about 190 miles a day.  In about September 2010, a decision was made to transfer the contract work to the Appellant.  Durham Council approved the move.  The Appellant already had some contract work with Nexus which required two vehicles to each undertake two runs a day amounting to about 160 miles per day in total.  The vehicles also did the odd school swimming baths run and some Metro rail replacement services.

(lxviii)    Mr Craggs was responsible for all aspects of the operations of both companies.  Mr Simpson liaised with Mr and Mrs Craggs regularly and was responsible for the maintenance records, tachographs, driver defect reporting and compliance with the relevant guidelines.  Mrs Craggs was responsible for answering the telephone for both operations.  She would then call Mr Craggs.

(lxix)       Mr Craggs had known Mr Pritchard for about 25 years from when they used to clean buses together.  There was little interaction between them but then Mr Pritchard had phoned and said that he wanted a new start, a challenge, a clean break and that he had some football work to bring with him.  The Appellant was already undertaking some football work but in any event, Mr Craggs suggested that Mr Pritchard became a part time fitter for the Appellant and an occasional driver. 

(lxx)        On 8 January 2011, Mr Craggs hired Mr Pritchard’s vehicle because neither the Appellant or First Choice had an available vehicle.  One vehicle was off the road, the other had a speed limiter of 38mph and the First Choice vehicles were not insured.  Mr Craggs was not aware of the provisions of s.81 of the 1981 Act. With the benefit of hindsight and having heard the evidence at the previous public inquiries, he now believed that Colin Franks had been the operator of vehicle ALZ 7313 on 8 January 2011.

(lxxi)       Then, for the first time, an invoice was produced by Mr Craggs which purported to be from Mr Pritchard to the Appellant representing the cost of hire of the vehicle: £250.  Mr Craggs said that the invoice had been paid the following day.

(lxxii)      Mr Pritchard would have been able to undertake his duties on 8 January 2011 within the permitted drivers’ hours by taking his rest at Stevenage.  The trip was planned to leave St James Park in time to arrive for a 17.30 kick off.  It was anticipated that Mr Pritchard would have been able to take nine hours rest at that stage.  He told Mr Pritchard that if he encountered any difficulties with his hours, then he must ring Mr Craggs but he did not do so.  Rather, he rang to say that vehicle ALZ 7313 had been checked and the licence disc seized.  Mr Craggs was puzzled by the information (the Tribunal notes at this stage that it would have been impossible for Mr Pritchard to take the necessary rest whilst parked up in Stevenage).

(lxxiii)    When Mrs Craggs was interviewed about the operation of vehicle ALZ 7313, she only answered the telephone, took bookings and answered general enquiries.  TE Bainbridge should have interviewed Mr Craggs instead and he could have answered all of her questions.  Even Mr Simpson would have been preferable to Mrs Craggs. 

(lxxiv)    Whilst his wife produced the original invoice 0344 addressed to Amanda Robinson, she did not produce any other documentation corroborating that document because she wanted to receive legal advice. As further requests were made, Mr Craggs had been naive in thinking that he had in fact produced all that was necessary.  The meeting with TE Bainbridge and TE White had been the “turning point” because he and his wife felt they were being intimidated with VOSA officers “camping” outside the house.  He was disgusted by TE White’s attitude and manner and Mr Craggs felt embarrassed for TE Bainbridge.  He had a heated discussion with TE White and apologised to the DTC for asking TE White to “step outside”.  He had overacted.  Mr Craggs denied that he had been involved in a deception with Mr Brown and Mr Pritchard.

(lxxv)     As for the football transport itself, he was unaware that his drivers were picking up supporters in locations other than St James Park.  Each driver received a running board or sheet which informed him where to pick up his passengers and where he was to stop for lunch if necessary.  The drivers were also given a copy of the Football Liaison officers’ guidelines.  Neither was he aware that alcohol was being taken onto his vehicles and consumed despite the fact that he cleaned the vehicles himself.  If he had known, he would have given the driver concerned a “good talking to”. 

(lxxvi)    Mr Craggs stated that tachographs were the responsibility of himself and Mr Simpson.  Once Mr Craggs was aware of the allegation that Mr Pritchard’s chart for 8 January 2011 had been falsified, he terminated his employment.  That was in June 2011.  By then Mr Craggs had had enough and a decision was made to contract out the maintenance work.

(lxxvii)   Turning to the missing licence disc for vehicle W10 CAT, it was discovered that the disc was missing on the Thursday before the football game in Stoke on Trent.  He could not say whether or not the disc was lost or stolen.  He notified the TAO straight away that the disc had been lost and he was advised that he must get a crime number from the police to provide the TAO along with the serial numbers of the licence discs that remained in his possession.  He did not know the number of the disc that had been seized by VOSA.  He confirmed that this was a genuine report of a missing disc. 

(lxxviii) As for missing mileage, the reason in respect of First Choice was that the vehicles carried out an average of 290 miles a day on contract work.  He did not give an explanation for the missing mileage in respect of the Appellant’s vehicles.  In future, he intended that the vehicles used tachographs even for contract work.  He had not been asked by TE Bainbridge to explain the missing mileage so had not produced a schedule.  He had taken on board all of the observations of VE Douglas resulting in the MOT first time test rate had improved to 100% and steps had been taken to ensure that no vehicle was operated without being taxed.  There was now a system in place for scheduling tachographs and journeys to enable missing mileage to be accounted for. 

(lxxix)    Revocation of the Appellant’s licence would have horrendous consequences for the Craggs family.  They had three contracts with Durham Council and they had purchased two newer vehicles, one being on finance.  The Appellant could just manage if its licence was curtailed to three vehicles.  The effects of a suspension would depend on whether it fell in a school term and for how long. 

(lxxx)     In answer to questions asked by the DTC, Mr Craggs gave explanations for the inadequacy of record keeping in relation to maintenance as identified by VE Douglas.  He accepted that the Appellant had been using the operating centre of First Choice in Langley Park without authorisation.  He had applied to add it as an additional operating centre in the licence renewal application. 

(lxxxi)    As for the failure to undertake a first use safety inspection in respect of vehicle ALZ 7313 before 8 January 2011, Mr Craggs had not felt the need for one because Mr Pritchard was an exceptional fitter.  Neither had he asked to see the previous PMI sheets as Mr Pritchard had told him that vehicle ALZ 7313 had been standing in his yard whilst he had hoped to sell it.  As for his disinclination to comment upon the vehicle when asked about it by VE Douglas, Mr Craggs thought that it would not have been appropriate. 

(lxxxii)   As for vehicle G904 YBE, he had always been the vehicle’s keeper having acquired it at the end of February 2011.  It was not registered to the motor trade when he was using it.  It was kept in the Brown/Pritchard yard because Mr Pritchard lived “over there” and the vehicle would be driven to the yard so that he could operate the football runs from there. 

(lxxxiii) When Mr Craggs had first employed Mr Pritchard he did not give him any training as to drivers’ hours because he thought that Mr Pritchard knew the rules.  Mr Craggs had produced three payslips for Mr Pritchard although there were others.  Mr Pritchard did some fitting work, undertook the football runs and the occasional private hire.  Mr Craggs accepted that at the impounding hearing, he had told the DTC that Mr Pritchard had only driven on football work.  Contrary to Mr Pritchard’s assertion, Mr Craggs denied that Mr Pritchard had ever driven on school contracts because he did not have CRB clearance.  There were no time sheets for Mr Pritchard because whatever work he did, he was paid for 16 hours regardless  and was paid in cash.  The reason for his payslips being devoid of references to national insurance and tax was because his income was below the minimum wage but if there was a liability for tax or national insurance the Craggs would pay that at the end of the financial year.

(lxxxiv) Mr Craggs could not explain why his wife had failed to produce the invoice for the hire of the coach from Mr Pritchard when she was interviewed.  TE Bainbridge had only asked to see sales invoices.  He did not know why the invoice did not include the registration number of the vehicle. Neither was it marked as paid.  The book keeper would have to be asked if anything appeared in the accounts to show the payment to Mr Pritchard.  Mr Pritchard had received £900 from Amanda Robinson and he had then given Mr Craggs £650.  He confirmed that he should be able to produce something to the DTC to confirm the financial position (he did not do so). 

(lxxxv)  Mr Craggs did not see Mr Pritchard’s chart for 8 January 2011 immediately after the journey because Mr Pritchard kept it for 28 days.  He had no recollection of Brian Bonsall handing in a chart dated 8/9 January 2011.  As for the journey on 2 February 2011, he had not instructed Adam Carr in the correct use of a tachograph head because he had worked with previous operators.  The incorrect insertion of the charts on that day was a mistake. 

(lxxxvi) There was nothing in the Appellant’s hiring agreements for vehicles supplied for football work which prohibited the consumption of alcohol on the vehicles and the agreements had not been subsequently amended.  He had previously had a banner which had been displayed in all football coaches stating “no alcohol to be consumed on board this vehicle” but it had fallen into disuse.  The banner had been reinstated the weekend before the public inquiry.

(lxxxvii)    As for invoice 0344 he was not in a position to show the DTC the invoice pad from which it had been taken.  Neither had he produced the pad nor indeed other documentation to TE Bainbridge firstly, because of TE White’s attitude but also because he was taking advice from Mr Harris.  The DTC having observed that there had been comprehensive production of documents in relation to First Choice and that there was nothing similar in relation to the Appellant,  Mr Craggs accepted that he should have co-operated.  The positives features of the Appellant’s operation was that the company had repeat bookings, the vehicles were well turned out and clean, the Craggs “come across alright” and were personable, including the staff but not Mr Pritchard.

(lxxxviii)  The DTC asked to see Mr Craggs’ working diary.  This was produced from Mr Simpson’s car.  The DTC commented on the annotations in the diary indicating where invoices were required for particular journeys.  Mr Craggs stated that in fact all of the football work was “cash” and not invoiced.  Further, references to “Browns” and the number of coaches were references to Mr Pritchard whose nickname is Chubby Brown. 

(lxxxix) Mr Craggs was then asked about missing licence discs.  He stated that he was missing only one disc which was the one seized by VOSA.  He denied that he stated to VOSA officers that he was driving vehicle W10 CAT on 19 March 2011 without a licence disc because it had blown out of the window and had been lost.  He did not know where that explanation had come from.  However, he had applied for a replacement disc and had received one.  He denied stating to the TAO that a disc had been stolen from an unlocked vehicle overnight.  He had reported the disc lost or stolen to the police because he was asked by the TAO to provide a crime number. 

(xc)         During the course of the morning, VE Nicholson had been able to review the maintenance documents that had been produced by Mr Craggs as requested by the DTC.  Driver defect reporting was satisfactory as were the PMI sheets save in respect of two vehicles.  The absence of records was significant in the case of vehicle G904 YBE.  An immediate PG9 had been issued in respect of the vehicle on 25 March 2011 when it was purportedly being operated by the Appellant (and driven by Mr Pritchard).  At that stage the odometer reading was 409360kms.  The first document in the vehicle file was a VOR (vehicle off the road) notice dated 24 May 2011 with no mileage recorded on it.  The next documents chronologically were three driver defect reports dated between 9 and 17 January 2012 indicating that the vehicle had travelled 321kms over those dates.  The first PMI was dated 17 January 2012, seven months after the VOR.  The mileage at that stage was 418830kms (an increase of 9470kms from 25 March 2011).  There then followed five four weekly PMI’s.  If G904 YBE had been purchased on 25 February 2011, there should have been three or four PMI’s before the VOR in May 2011 (and we observe, a first use inspection record).

(xci)        Mr Craggs interjected at this stage, maintaining that the documents had been in existence at the time of VE Douglas’ visit and VE Douglas  had seen them but he had not mentioned the paperwork in his statement.  He maintained that he had definitely bought the vehicle in February 2011 and had a receipt in the office for £6,000.  He had bought the vehicle on ebay.  The vehicle was VOR’d because of engine problems.  He could not explain why the vehicle did not have an inspection before it went back on the road. 

(xcii)       VE Nicoholson concluded by stating that in general, the records were completed and signed off.

(xciii)     TE Bainbridge was then recalled to comment upon the diary that Mr Craggs had produced.  It did not assist her in working out whether or not there had been compliance with drivers’ hours rules or whether the rules were considered when the scheduling of drivers duties took place  because the diary did not state which drivers were driving which vehicle on any day.  Of the tachographs that had been produced, no corresponding analysis had been produced to show whether or not breaches were being picked up.  From a cursory examination, TE Bainbridge was able to say that the tachograph in vehicle K756 SBB had been defective for the period between 4 January and 21 March 2012.  Mr Craggs then stated that he did not realise that the defect had been present and Mr Simpson had not brought it to his attention.

(xciv)     Thomas Simpson then gave evidence.  He complained about the poor service provided by the maintenance contractor prior to the investigation conducted by VE Douglas.  The maintenance contractor had since been changed. 

(xcv)      As Transport Manager for the Appellant he audited the driver defect reports and his firm “Fleet Services North East” was responsible for analysing the tachographs.  He did not do it personally because he considered that there might be a conflict of roles if he were to do so.  The maintenance records were his responsibility and he had mistakenly disposed of records for the vehicles and the absence of a first use inspection for one vehicle (not ALZ 7313) was because it had been MOT’d the day before.  He had forgotten to inform the Traffic Commissioner of the use of an additional operating centre (Langley Park).  He noted that the PG9 issued for vehicle G904 YBE was not “S” marked.

(xcvi)     As for football work, Mr Simpson was aware of the guidelines and obligations in relation to alcohol.  There had been no complaints by Northumbria police about the transport they provided.  Mr Simpson was not aware of the provisions of s.81 of the 1981 Act and had taken guidance from the Guide to Operators in relation to the hiring in of vehicles.  In fact, whilst Mr Simpson was aware that Mr Pritchard was going to be driving on 8 January 2011, he was not aware that Mr Pritchard owned vehicle ALZ 7313.  He had not had any dealings with either Mr Pritchard or Brian Bonsall up to that stage.  He had seen some of Mr Pritchard’s tachographs and they were alright. 

(xcvii)    In answer to questions put by the DTC, Mr Simpson stated that in future driver training would be undertaken for all new drivers.  There had been some basic induction training in the past.  As for Mr Pritchard, Mr Simpson had not been aware that Mr Pritchard was employed by the Appellant until 9 January 2011, even though he had apparently been employed since December 2010.  He was made aware on 7 January 2011 that a vehicle was to be hired in for the following day, but he did not know which one.  He had advised Mr Craggs to make sure that a driver defect report was completed before the vehicle was used.  He gave this advice even though he did not know the history of the vehicle and did not recall actually seeing a driver defect report for the vehicle for 8 January 2011. 

(xcviii)  Mr Simpson became aware of the vehicle check and licence disc seizure on 10 January 2011.  Discussions took place and then not long after that he saw Mr Pritchard’s invoice.  He only saw the Amanda Robinson invoice immediately prior to the document being produced to TE Bainbridge on 4 February 2011.  He might have taken the Pritchard invoice to the interview  and he may have passed it to Mr O’Brien or it might have been left in Mr Simpson’s car (Mr Simpson having attended the interview with Mrs Craggs and had then sat outside the interview room).  He did not ask whether or not the invoice had been produced to TE Bainbridge because Mrs Craggs was so upset. 

(xcix)     When the letters to produce documents were sent, Mr Simpson advised Mrs Craggs to produce everything  and he reminded Mr Craggs to do so.  Mr Simpson was aware that Mr Craggs was being advised by Mr Harris not to produce anything.  That was odd advice and he advised Mr Craggs of the financial penalty for non-production.  He suggested that Mr Craggs reconsider the advice that had been given to him.  Mr Simpson was aware that he could get drawn into this problem but he did not think of either putting his advice into writing or resigning.  Neither did he advise Mr Craggs to sack Mr Pritchard because Mr Simpson was still trying to get to the bottom of what had happened and Mr Pritchard was still a part time fitter. 

(c)            He spoke to Adam Carr about the double manned journey on 2 February 2011 and the inserting of tachographs charts into the tachograph head the wrong way round.  He did not speak to Mr Pritchard because the latter only worked at weekends.

(ci)           As for alcohol on football transport, he accepted that the invoice to Amanda Robinson failed to comply with the guidelines with regard to the warnings to be given about the prohibition of alcohol but Mr Simpson thought that Mr Craggs would have told her about the prohibition.  He accepted that documents should have been given to customers to draw their attention to the prohibition and he was not aware that the banner had fallen into disuse.  Now, the documentation did refer to the prohibition and he accepted that a verbal warning was insufficient.  He would however, have expected the drivers to supervise the boarding of the passengers but he accepted that the drivers could be distracted.  There was no driver’s handbook but one would be created.  They had stopped working with Amanda Robinson.

(cii)          He was unsure whether or not he had seen the false chart in the name of Brian Bonsall and did not know that the tachograph clock on 2 February 2011 was twelve hours out.  It was Mr Craggs’ responsibility to familiarise Mr Carr to the use of the tachograph head. The possibility of drivers hours offences were minimised by the use of different drivers at weekends to those used during the week. 

(ciii)        He agreed with the DTC that the Appellant did have day sheets in the format produced by First Choice.  These were easy to follow.  They had not been produced and he did not think to bring them and he had not been involved in the collation of documents that had been produced.  He was too busy.  The day sheets could be produced at a later date (they were not).

(civ)        He was asked about his qualities as a Transport Manager.  He considered the Appellant’s maintenance regime to be good, although he could not explain why VE Douglas did not see any documents relating to vehicle G904 YBE in December 2011 and he had no explanation for the back dated registered keeper details for the vehicle.  That was Mr Craggs responsibility. He had not been made aware that the vehicle had even been purchased and in fact could not recall whether he had seen any documents relating to that vehicle himself. His other positive qualities were that the drivers were aware of their responsibilities and he visited the operating centre regularly. 

(cv)         At the conclusion of the evidence, there was insufficient time for the DTC to hear oral submissions.  They were later submitted in writing. 

(cvi)        Miss Landin submitted that VOSA had not made out a case in respect of the Appellant, there being no evidence that either Mr Craggs or Mr Simpson believed they were doing anything other than hiring in a vehicle, in accordance with guidance given.  The wage slips of Mr Pritchard supported the Appellant’s case that he was a part time employee and the invoices supported the hiring in of the vehicle and the contract with Amanda Robinson.  The fact that the Appellant did not feature in the long standing investigation into Mr Brown and Mr Pritchard until January 2011 and then at a time when Mr Pritchard was an employee added weight to the Appellant’s case. 

(cvii)       If the Appellant had been acting unlawfully, Mr Craggs would not have drawn attention to the Appellant by contacting Mr Baxter to inform him of the vehicles that were being used for away matches.  As to the weight to be attached to the documents that were produced, Mr Craggs evidence established that they were genuine documents and that any delay in production of them was the result of naivety on the part of Mr Craggs.  The documents corroborate one another and Mr Craggs did not have the sophistication to produce documents that were not genuine. 

(cviii)     As for alcohol carried on board football transport, there was no evidence that the Appellant knowingly caused or permitted that to take place.  The observation evidence was in any event unreliable.  If the DTC considered that alcohol may have been carried onto the vehicles, then the evidence was that Mr Craggs had given instructions to the drivers and there was no reason to suspect that the guidance and instructions were not being followed.

(cix)        In relation to missing mileage, Miss Landin submitted that the Appellant’s record keeping (notes of journeys in the diary of Mr Craggs) in relation to journeys which did not require the use of a tachograph chart was a sufficient record for compliance purposes.  Further the evidence of the use of A1 slip roads to pick up and set down passengers was weak.  Only one observation had taken place and VE Nicholson was unable to say definitely that a passenger had been picked up.  It was the Appellant’s belief that the vehicle had stopped on the slip road so that the (professional) driver could check directions or deal with a query from a passenger which was quickly resolved (the Tribunal observes that there was no evidence put before the DTC to support the Appellant’s purported belief in this regard).

(cx)         Miss Landin adopted the submissions made on behalf of Mr Simpson in relation to maintenance and transport manager issues and submitted that a finding that Mr Craggs was a shadow director was precluded by reason of the case of Hydrodan (Corby) Ltd (1994) BCC 161.  In conclusion, Miss Landin drew the DTC’s attention to Norbert Dentressangle Appeal 49/2001 without setting out how that decision might assist the DTC.  She submitted that whilst the Appellant could have acted with additional diligence, safeguards were now in place to prevent any further negative involvement of VOSA.  The Appellant had investigated Mr Pritchard and had dismissed him as well as disassociating itself from Amanda Robinson.  The company had a blemish free record until 2011; Mr Craggs had a blemish free history for 20 years.  The Appellant had been the victim of a rogue driver and that whilst its good repute might have “taken a blow” it was not lost. 

(cxi)        Finally, disqualification would be disproportionate in view of the positive connections the Appellant had with Mr Baxter and the fact that the Appellant worked in the pressured environment of football transport.  The effect of revocation would be catastrophic and an alternative course of undertakings and a limited reduction in the fleet was proposed.

(cxii)       Written submissions were also submitted by Mr Doherty on behalf of Mr Simpson.  As Mr Simpson did not have any regulatory action taken against him and as a result has not appealed the DTC’s decision, a summary of Mr Doherty’s submissions does not feature in this decision.

(cxiii)     The DTC produced a lengthy decision.  She concluded that the VOSA evidence had survived virtually intact following cross examination and that she did not find either Mr Craggs or Mr Simpson to be satisfactory witnesses.  She concluded that there was much that she had not been told.  She started with an analysis of the evidence concerning the purported hiring of vehicle ALZ 7313 by Mr Pritchard to the Appellant.  She found invoice 3044 to be a false document.  The invoices either side of the invoice had not been produced despite repeated requests to establish that it was in truth issued on 8 January 2011.  From those which had been produced, the DTC noted that for the invoice to be genuine, the Appellant would have had to have issued 59 invoices between 1 January and 8 January 2011 whereas only 16 invoices had been issued between 8 and 31 December 2010.  She concluded that the failure to produce the invoice pad was a deliberate attempt to keep the true position from her.  In coming to this conclusion, she further relied upon Mr Craggs’ evidence that no invoices (or indeed hire agreements) were issued for the hire of coaches to football supporters.  The purported issue of an invoice for 8 January 2011 when Amanda Robinson had not asked for one against this background, pointed to the invoice being false.  Further, no bank statements, day sheets or accounts had been produced to show that the sum of £900 had been received.

(cxiv)     She next turned to the document produced on the second day of the inquiry, which purported to be an invoice from Mr Pritchard for the hiring of vehicle ALZ 7313 to the Appellant.  It bore the address of Mr Brown and Miss Stidwell and was dated 8 January 2011 and was for the invoice sum of £250.  No explanation had been given as to why this was produced eighteen months after the first request for documentation supporting the purported hire was made; it was not receipted; it did not give the registration number of the vehicle hired; no hire agreement was attached or connected to the invoice; no accounts were produced to show that the sum of £250 was paid out to Mr Pritchard; there was no entry in the diary of Mr Craggs for 8 January 2011 stating “hire in” as there were for other dates; no first use safety inspection had been undertaken by the Appellant as is required if a vehicle is hired in; when asked about safety inspections for this vehicle in December 2011 when the maintenance investigation was conducted by VE Douglas, Mr Craggs refused to comment upon the vehicle at all.  The failure to explain that the use of vehicle ALZ 7313 was a “one off” hiring in by Mr Craggs and the failure of Mr Simpson, who was present, to refer VE Douglas to page 18 of the VOSA Guide to Roadworthiness as Mr Simpson had done in evidence to demonstrate the legitimacy of the arrangement, caused the DTC to conclude that again, something was being hidden.  The DTC concluded that the purported hire agreement was not genuine.

(cxv)      The DTC then considered whether the purported employment of Mr Pritchard was genuine.  She found that it was not, relying upon: the fact that other drivers who undertook football supporters work were employed ad hoc; that no tax or national insurance was deducted from Mr Pritchard’s earnings; that Mr Craggs stated that it would be the Appellant who would pay such amounts if due at the end of the financial year which was odd; that Mr Simpson did not know that Mr Pritchard was employed by the Appellant until 8 January 2011; that even after 2 February 2011 Mr Simpson had not managed “to catch” Mr Pritchard to give him some training on drivers’ hours and records; that Mr Pritchard maintained in his letter of 7 August 2012 that he undertook school runs as part of his employment, a matter denied by Mr Craggs because Mr Pritchard did not have CRB clearance; that when spoken to by TE Milburn, Mr Pritchard said that he was employed by First Choice (a company which had apparently stopped trading some months before).

(cxvi)     The next issue considered by the DTC was the failure of the Craggs to respond promptly to requests for the production of information and documents or to be re-interviewed.  She described TE Bainbridge as having “gone the extra mile” in order to obtain disclosure of documents whereas Mr Craggs took exception to her approach.  The DTC gained the strong impression that Mr Craggs thought that compliance was optional.  He appeared unaware of the risk of prosecution for non-production of documents although Mr Simpson’s evidence was that he was so aware and had urged Mr Craggs to comply.  The two diaries kept by the Craggs were not produced to TE Bainbridge.  One was produced late in the day during the public inquiry.  There were references to “Browns” in the diary and the number of coaches and when asked about that, Mr Craggs had said that Mr Pritchard was known as “Chubby Brown”.  The DTC concluded that as Ralph Brown was contacting the Northumbria Police Football Liaison officers informing them of the number of vehicles he was planning to use for each away match, such contact being up to 13 January 2011 when the two vehicles were impounded, that the references to “Browns” in the diary were references to Ralph Brown.  However, the diary did not record which vehicles or drivers were being used to provide that transport.  The DTC considered Mr Craggs statement to TE Bainbridge that he had been advised by Mr Harris not to produce documents.  The DTC found it difficult to believe that a reputable transport consultant would give such advice.  But even if that were the case, it was open to Mr Craggs to obtain a second opinion and he had access to a barrister.  She therefore discounted Mr Craggs’ evidence on this point.  She concluded that it was the worst case of an operator failing to co-operate that she had come across.

(cxvii)    As an aside, the DTC found that she was satisfied that alcohol had been consumed on football coaches.  She accepted that drivers were put in a difficult position but that if police officers could see alcohol being taken onto and being consumed on coaches, then the drivers would have also known.  The banner that Mr Craggs used to display on football coaches warning “no alcohol” had fallen into disuse although he maintained that the drivers were given verbal instructions to that effect.  Mr Craggs had himself been present when Amanda Robinson had been visibly intoxicated and had had an altercation with her.  The DTC formed the impression that Mr Simpson had not given the subject any thought and did not see it as part of his duties.  He had belatedly decided to create a drivers handbook.  The DTC found that that taking of alcohol onto the coaches was another example of the Appellant not keeping a firm control on what was being done in its name. 

(cxviii)  The DTC then turned to the issue of compliance with drivers’ hours and records legislation. She made critical observations about the two tachographs that were taken from Mr Pritchard on 13 January 2011.  Of course, having found that she was satisfied that the Appellant did not employ Mr Pritchard, those comments are not relevant for the purposes of this decision.

(cxix)     Of relevance however, were the tachographs of 8 January 2011. The DTC did not accept Mr Craggs evidence that he had planned Mr Pritchard’s journey in advance to ensure that he had nine hours rest.  No running sheet was produced to demonstrate that this was possible.  As for the tachograph in the name of Brian Bonsall,with no registration number recorded on it, this tied in with the tachograph of Mr Pritchard.  The Bonsall chart had been analysed by Fleet Services, Mr Simpson’s company.  The DTC considered that a reputable analysis company would have queried which vehicle the disc related to and she would have expected the Transport Manager to investigate which vehicle Mr Bonsall had driven and what other work he had done.  This was not done.  This begged the question as to the amount of information Fleet Services was provided with when analysing charts.  How could the service check for missing mileage if it was not provided with the details of vehicles used and drivers deployed or with the details of the work undertaken by those drivers who were employed ad hoc, in order to check hours?  The DTC was not shown any evidence of infringements identified and disciplinary action taken despite Mr Simpson stating that this had taken place.

(cxx)      As for missing mileage generally, the DTC was critical of Mr Doherty’s cross examination of TE Bainbridge in relation to her failure to interview the Craggs and ask for an explanation of missing mileage once documentation had been produced.  The DTC described disclosure in this case as being in “dribs and drabs” with the final batch being made available in September 2011.  She understood TE Bainbridge’s position in light of the way that her past requests had been received.  There was nothing to prevent Mr Craggs and Mr Simpson from undertaking the necessary analysis with supporting documentation to explain the missing mileage.  They had not done so. Finally, on this subject, the DTC was not prepared to accept that the double manned charts of 2 February 2011 were “mistakenly” inserted into the head by Adam Carr.  She did not however state what her findings were in relation to those charts.

(cxxi)     The next issue dealt with by the DTC was the use and acquisition of vehicle G904 YBE which caused her disquiet.  She went through the chronology of this vehicle appearing in the paperwork, from it being presented by Mr Pritchard at the Durham testing station for an MOT test in the name of First Choice on 8 March 2011 (and we observe when First Choice had apparently seized trading) to VE Douglas’ investigation in December 2011.  She was impressed by the absence of any reference to this vehicle during the course of the investigation and the absence of a file containing maintenance records and other documentation (such as log books which are usually kept in the vehicle file) for this vehicle.  She repeated the evidence given by VE Nicholson on the second day of the hearing and the evidence about the history of registered keeper details including the back dating of those details to show that the Appellant had been the keeper of this vehicle during the relevant period.  She found both aspects of the evidence to be odd.  The absence of so much documentation for a vehicle which had been purchased would have been obvious to a transport manager checking the paperwork as regularly as Mr Simpson purported to do.  The unanswered questions included: why all the MOT tests for the Appellant’s vehicles were undertaken at either Ramage Transport or Darlington GVTS but that this vehicle was submitted to Durham testing station and presented by Mr Pritchard in the name of a company that had not operated since the end of 2010?  The DTC was satisfied that she was not being told the whole story and that there had been some deliberate attempts to mislead her in connection with the ownership of the vehicle.  Documents which could have been produced to clarify the situation had not been produced.

(cxxii)    The final issue concerned licence discs being either lost or stolen.  The DTC found the evidence extremely confusing.  However, there was no doubt that licence disc 040774 was in the possession of TE Bainbridge.  On 23 February 2011, Mr Craggs called the Central Licensing Office (“CLO”) to inform them that he had lost a disc (a memo was included in the public inquiry brief).  He was advised that he could not use a PSV on the road without a valid disc being displayed on the windscreen.  Then on 19 March 2011, Mr Craggs was driving vehicle W10 CAT at the Britannia Stadium, Stoke on Trent with the note displayed where a licence disc should be.  Mr Craggs denied telling TE Pendrous that the disc that should have been displayed had “blown out of the window” and that he had contacted the TAO and had been advised that the use of the vehicle was lawful.  The DTC viewed the denial with scepticism.  The next note made by a member of VOSA staff was on 21 March 2011 which reads “email receive informing VOSA of a lost vehicle identity disc.  Responded to the operator asking FEP to issue a replacement”.  The next entry was 28 March 2011 which reads “40774 disc voided, stolen.  Police crime number id Dham ...”.  The police report states “alleged theft was reported on 22/3/11 at 1006hrs by a Mr Craggs ... Details: Staff reporting that sometime through the night on Thursday unknown person’s have entered the site and gained access to an unlocked service bus and stolen the operator’s licence from inside.  Nothing seen or heard”. 

(cxxiii)  The DTC was satisfied that the report of a stolen disc constituted a waste of police time and was false.  She did not accept that Mr Craggs was advised to report a theft when all the VOSA employee had been told was that the disc had been lost.  The DTC asked for a check on the system to see if any further references existed to the complaint of a lost or stolen disc by Mr Craggs.  There was an entry on 31 May 2012 stating “Call from Daniel Craggs with disc numbers, states has 44493, 43989, 40773 and 40775.  Disc 39647 replaced.  Whilst this conversation took place in 2012, the DTC concluded that “there was no getting away from the fact that in 2011 the computer phone notes record that it is disc 40774 which was said to have been stolen”.  The disc seized by TE Milburn (and in the possession of TE Bainbridge).

(cxxiv)  The DTC found that the Appellant had kept vehicles at an operating centre which was not authorised; vehicles had not been kept fit and serviceable and records had not been kept for 15 months; the rules on drivers’ hours had not been observed and records kept; good repute was lost.  In respect of Mr Simpson, she found that his repute hung on the finest of threads.

(cxxv)   In making the finding of loss of repute, the DTC noted the relatively low number of PG9’s issued with no “S” marks.  The MOT rate was improving.  The maintenance records for the six months leading up to the public inquiry appeared in good order and were being checked. The DTC questioned the analysis of tachograph charts and the information made available to the analysis provider.  The Brian Bonsall chart of 8/9 January 2011 did give her cause for concern, as did the absence of any attempt by Mr Craggs or Mr Simpson to analyse the missing mileage found by TE Bainbridge.  It was incumbent upon them to explain the missing mileage; they did not.  As for the charts produced for the six month period leading up to the public inquiry, they were produced without any analysis of the charts although TE Bainbridge was able to observe that a mode trace had not been working for a considerable period of time in one tachograph head and infringements on the charts were present.  However, the DTC would not have taken any serious regulatory action based upon drivers’ hours and records alone or indeed as a result of her findings that alcohol was consumed on the Appellant’s football transport. 

(cxxvi)  The DTC was prepared to accept that Mr Craggs and Mr Simpson were not aware of the provisions of s.81 of the Act and she would have been prepared to understand the use of vehicle ALZ 7313 if a prompt admission had been made along with a concession that it was an unfortunate error of judgement.  However, if an operator hires a vehicle, then the responsibility to ensure its roadworthiness lay with them and the act of hiring it in should be properly documented and the driver given clear instructions and training.  None of those steps were taken by the Appellant.  Rather, Mr and Mrs Craggs embarked on a web of deceit, lies and procrastination involving the production of false invoices intended to mislead.  Mrs Craggs knew little about the running of the licence and had a limited concept of the undertakings she gave when applying for the licence.

(cxxvii) The majority of the documents requested by TE Bainbridge could have been produced by March 2011 at the latest.  Rather, calls were not returned, meetings were not kept and documents were not disclosed when promised. 

(cxxviii)   The DTC struggled to find a plausible explanation for Mr Craggs’ behaviour in relation to Mr Pritchard.  The only rational explanation was that Mr Craggs was a willing participant in the game being played by Messrs. Brown and Pritchard to try and operate PSV’s without a licence.

(cxxix)  In considering the cases of 2009/217 Bryan Haulage No.2 and 2009/225 Priority Freight Limited & Paul Williams the DTC concluded that Mr Craggs had not been candid with her and that there were issues left in the air.  She could not be satisfied that Mr Craggs understood what was required of him.  She could therefore not be satisfied that he would comply with the licensing regime in the future.  She also had in mind that deterrence had its place in considering the objectives of the system and the public interest (referring to T/2008/593 Martin John Graves and T/2010/35 Steven Alan Curtis t/a Curtis Transport and Alan Frederick Curtis). The licensing system had no place for those who did not do their utmost to ensure compliance.  It was beholden on operators to co-operate and Mr Craggs had failed to do so over many months.  In the circumstances, the DTC was satisfied that revocation was necessary and proportionate.

(cxxx)   Having considered the Tribunal case of T/2010/29 David Finch t/a David Finch Haulage , the DTC determined that this was a serious case with Mr Craggs acting in association with Mr Pritchard for six months. An appalling amount of time had been spent by VOSA in an attempt to obtain disclosure of documents at significant cost.  The DTC was satisfied that it was necessary to make disqualification orders.  Mrs Craggs had no real concept of what was required of her as an operator and as a result, the DTC disqualified her for life.  As for Mr Craggs and the Appellant company (which in effect was Mr Craggs in another name), the DTC considered that at some stage in the future, Mr Craggs might appreciate his wider duties as an operator and as a result, the DTC could see a “glimmer of light”.  If Mr Craggs wished to re-enter the profession, he would need to demonstrate a full grasp of what is required of a compliant operator.  That would not be in the near future.  Having regard to the deterrent effect of disqualification, the DTC made orders of disqualification of 18 months.

3.           At the hearing of this appeal, the Appellant was represented by Mr Harris, Transport Consultant.  At the outset of the hearing, the Tribunal enquired of Mr Harris whether he was content to represent the Appellant and Mr Craggs on the appeal bearing in mind that the uncontested evidence before the DTC from TE Bainbridge was that Mr Craggs had told her that he was following the advice from Mr Harris when he failed to disclose documents; that  Mr Craggs had told the DTC that he had been advised by Mr Harris not to disclose documents and that Mr Simpson had told the DTC that he was aware that Mr Harris had advised Mr Craggs not to disclose any documents.  The Tribunal queried whether Mr Harris was satisfied that he was not professionally embarrassed as a result of the evidence before the DTC.  Mr Harris confirmed that he did not have any difficulty with representing the Appellant or Mr Craggs as his advice to Mr Craggs had been that all relevant documents should be produced and that Mr Craggs should comply with the letters requesting production.  The Tribunal observes that the inference to be drawn from Mr Harris’ position is that both Mr Craggs and Mr Simpson gave misleading or untruthful evidence to the DTC.

4.           Mr Harris produced a skeleton argument for which we were grateful.  His first ground of appeal concerned the “hiring in” of vehicle ALZ 7313.  He submitted that it was a legitimate course for Mr Craggs to take on 8 January 2011bearing in mind that there were no other vehicles available to the Appellant.  When asked by the Tribunal why one of the vehicles which had been operated on the First Choice licence could not have been added to the Appellant’s insurance policy, no explanation was forthcoming as to why that course of action had not been taken.

5.           Mr Harris referred the Tribunal to the guidance set out in the Public Service Vehicle Operators Licensing Guide.  He submitted that the hiring in of the vehicle was permitted within the guidelines.  There appeared to be a contradiction between the Guide and s.81 of the Act in that the former advises that if an operator hires in a vehicle then the operator is the employer of the driver whereas s.81 states that where the driver of the vehicle also owns the vehicle, then he will be the operator.  The difficulty in this case was that Mr Pritchard was in the employment of the Appellant working 16 hours a week whilst also being the owner of the vehicle.  Mr Harris submitted that there was no evidence that the Appellant was linked with either Mr Brown or Mr Pritchard and he relied on the concession made by TE Bainbridge that there was no evidence of association between Mr Craggs and either Mr Brown or Mr Pritchard prior to 8 January 2011.  Mr Harris submitted that there had been no evidence upon which TE Milburn could legitimately have seized the licence disc.  As for the evidence supporting the legitimacy of the arrangement between the Appellant and Mr Pritchard, there was the hire invoice from Mr Pritchard, the invoice purportedly issued to Amanda Robinson and the three payslips evidencing Mr Pritchard’s employment with the Appellant. 

6.           The second ground of appeal concerned the DTC’s findings in relation the lost licence disc.  Mr Harris submitted that there was no evidence that Mr Craggs’ complaint to the police that there had been a theft of a licence disc at the operating centre, was a waste of police time.  He simply followed the instructions given to him by CLU and the inference that Mr Craggs was lying to the police in order replace the seized licence disc was unfounded.

7.           Mr Harris’ next point was that Mr Craggs had in fact complied with the requests for the production of documents that TE Bainbridge could legitimately make.  His skeleton argument set out the provisions of Article 14(2) of Council Regulation (EEC) 3821/85 and s.88ZA(1) of the Transport Act 1968.  He submitted that the only documents that TE Bainbridge could legitimately request were timed documents which were capable of corroborating a tachograph record or printout.  The invoices surrounding invoice 0344 could not fall within that category of document and it therefore followed that she had no entitlement to seek production of the invoice pad from which invoice 0344 emanated.  In his oral submissions, Mr Harris submitted that the Appellant had complied with all requests made.  The Tribunal referred Mr Harris to one of many instances where TE Bainbridge had asked for the invoice book and the reasons for the request.  Mr Harris eventually stated “I do not know why the invoice pad was not handed over”. 

8.           Mr Harris pointed the Tribunal to what he described as the positive findings made by the DTC relating to tachographs, drivers’ hours and maintenance.  He concluded by submitting that there was no evidence of dishonesty on the part of Mr Craggs.  The Tribunal asked Mr Harris whether he had any instructions as to vehicle G904 YBE, he replied that he did not, the use of the vehicle being “after these events”.  It follows that the DTC’s findings in relation to the operation of this vehicle are not challenged.

9.           In his oral submissions, Mr Harris did not maintain his position as set out in his skeleton argument in relation to the burden of proof in public inquiries.  For the avoidance of doubt, the Tribunal is satisfied that the DTC’s approach to the burden of proof was entirely correct and that her consideration of principles set out in the case of Appeal 2006/56 Paul Oven Transport Services Limited cannot be faulted.

10.        Our starting point with this appeal is the operation of vehicle ALZ 7313.  The DTC did not make any finding that Mr Pritchard was the owner of the vehicle (indeed her previous finding in the impounding hearing in respect of the vehicle was that Mr Pritchard was not the owner).  She was however satisfied that this vehicle was a vehicle being operated by Mr Pritchard in association with Mr Brown.  S.81 of the Act does not therefore fall to be considered.  If the use of vehicle ALZ 7313 on 8 January 2011, was a genuine hiring in, then the Appellant was entirely responsible for the first use inspection and the scheduling of the journey to ensure compliance with the drivers hours rules.  We are satisfied that the failure to undertake these important steps demonstrates that Mr Craggs had no genuine belief that he was hiring the vehicle in but rather lending a licence disc to an associate in order to enable him to operate an otherwise unlicensed PSV.

11.        The DTC’s analysis of the invoices purporting to be genuine documents to support the contention that the vehicle was hired in could not be faulted.  The background circumstances and the timing of production of those documents along with the evidence about them, leads to an irresistible conclusion that they were not genuine documents.  Mr Harris’ submission that TE Bainbridge had no legitimate entitlement to request the production of the invoice pad from which invoice 0344 was issued in order to verify the authenticity of that invoice is misconceived.  It would appear that Mr Harris is of the opinion that the powers of Traffic Examiners to request production of documents stem solely from s.99ZA(1) of the Transport Act 1968 and are limited to timed documents that might assist in evaluating the integrity of drivers hours records but that is not the case.  It is the role of VOSA staff to enforce legislation relating to the operation of commercial vehicles including the investigation of the unlawful use of licence discs.  To that end, Traffic Examiners are entitled to ask for documentation which might corroborate the purported legitimate use of a vehicle by a licensed operator.  In this case, Mr Craggs was associated with Mr Pritchard who was linked to the use of licence discs belonging to other operators in order to continue to operate PSVs along with Mr Brown when they had no entitlement to do so.  Not only was TE Bainbridge entitled to ask to see in the invoice pad but the absence of pad despite repeated requests could only have led the DTC to conclude that the invoice was not genuine.  The very late production of the Pritchard invoice, on the second day of the hearing, could only have led to the same conclusion. We are satisfied that the DTC’s conclusion that the Craggs had been assisting Mr Pritchard and Mr Brown in the operation of PSVs they were otherwise not entitled to operate was irresistible in the circumstances. 

12.        We do not agree that Mr Craggs produced all the documentation that was required of him.  There was a gross failure to comply with requests for production which were legitimately made.  When documents were finally produced, there were many thousands of missing kilometres from the tachograph charts with no attempt having been made by Mr Craggs or Mr Simpson to account for them.  There was of course, the missing invoice pad.  The piecemeal production of the documentation that was produced was lamentable and the final position being wholly unsatisfactory bearing in mind Mr Simpson’s evidence that the comprehensive documentation which was eventually produced by First Choice would also have been available for the Appellant. This Tribunal as presently constituted has not previously encountered such a bad case of non-disclosure and lack of co-operation with VOSA officials by an operator.

13.        Turning now to the DTC’s findings that Mr Craggs had wasted police time by the false report of a stolen licence disc, we do not agree with Mr Harris’ submissions.  The telephone records referred to by the DTC make the position clear.  Mr Craggs reported a “missing” disc.  He then followed up that call by providing a crime number, having informed the police that the disc had been “stolen”.  It appears that in fact it was the only item reported as stolen in a burglary of the operating centre.  Mr Craggs himself accepted that that he could not say whether the disc had been stolen or not.  In reporting the loss of a disc as a crime, resulting in an officer attending the operating centre can reasonably categorised as “wasting police time”.  There is no reference in the telephone logs to advice given to Mr Craggs that he must provide a crime number for a missing disc and we endorse the DTC’s findings that such advice would not have been given in respect of a report of a lost disc.

14.        However, what is also clear is that Mr Craggs had reported to VOSA staff  that disc 40774 had been stolen when that disc was in fact in the possession of TE Bainbridge.  That report to VOSA staff was a false report and it was open to the DTC to find that it had been made to circumvent the VOSA seizure of a disc that had been seized because of it being found in the possession of a vehicle operator who had no legitimate entitlement to use it.  For the sake of completeness we observe that TE Milburn had every reason to seize the disc in circumstances in which Mr Pritchard and his vehicle had been under surveillance and when there was every reason to believe that Mr Pritchard was operating a vehicle using the same modus operandi as he had previously utilised that is, by borrowing discs from licensed operators. 

15.        In all the circumstances, we are satisfied that the DTC’s findings were well made out on the evidence on every point and were plainly right.  Revocation and disqualification were inevitable upon the facts of this very serious case and we observe that an order of disqualification of only eighteen months for Mr Craggs was an act of mercy on the part of DTC.  We endorse the DTC’s findings in relation to the role that Mrs Craggs played in the operation of the Appellant company and those, together with her complete failure to engage with the VOSA officers (apart from an incomplete interview) justified an order of disqualification for life.  We cannot find that reason and law impell us to take a different view from that of the DTC on any issue (as per the test enunciated by the Court of Appeal in the case of Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695. 

16.        In the result, the appeal is dismissed and the orders of revocation and disqualification shall take effect at 23.59 on 24 March 2013.

 

 

 

 

 

Her Honour Judge J Beech

25 February 2013