Neutral Citation Number: [2014] UKUT 0254 (AAC)                                      Appeal No: T/2014/08

 

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF JOAN AITKEN,

TRAFFIC COMMISSIONER for the SCOTTISH TRAFFIC AREA,

DATED 23 DECEMBER 2013

 

 

Before:

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

Mr G Inch, Member of the Upper Tribunal.

Mr M Farmer, Member of the Upper Tribunal.

 

 

 

Appellants:

DUNCAN MCKEE (OPERATOR)

 

and

 

MARY MCKEE (TRANSPORT MANAGER)

 

 

 

Attendance:

For the Appellants:      Mr G Miller, Solicitor.

 

Appeals heard at:     The Eagle Building, Bothwell Street, Glasgow

Date of hearing:        21 May 2014

Date of decision:       4 June 2014

 

 

 

DECISIONS OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeals be dismissed.

 

 

Subject matter:        

Period of Grace – need for some tangible evidence, beyond mere hope and aspiration, that granting a period of grace will be worthwhile, and that there are reasonable prospects for a good outcome.

 

Cases referred to:

Michael Charles Taylor [2014] UKUT 0192 (AAC)

 

 

 

 

REASONS FOR DECISIONS:

 

1)    This was an appeal from the decisions of the Traffic Commissioner for the Scottish Traffic Area made on 23/12/2013 when she revoked Mr McKee’s goods vehicles operator’s licence under Sections 26(1)(c)(f)(h) and Section 27(1) of the Goods Vehicles (Licensing of Operators) Act (“the Act”), disqualified Mr McKee from holding or obtaining an operator’s licence for one year under Section 28(1) and (4) of the Act, found that Mrs McKee was no longer of good repute or professional competence under Schedule 3 of the Act, directed that Mrs McKee be disqualified as a Transport Manager for one year, and stipulated that the rehabilitation measure for the purpose of Paragraph 17(2) of Schedule 3 will be 35 hours of relevant course work.

 

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

(i)    Mr Duncan McKee (Snr) was the holder of a standard national goods vehicles operator’s licence. There were five vehicles in possession. The nominated transport manager was Mrs Mary McKee. They are husband and wife, and have a son, Duncan McKee (Jnr).

(ii)   Mr McKee was granted a standard national operator’s licence on 9/7/2004, after a public inquiry - when the licence was granted for a reduced authority of 10 vehicles and 15 trailers.

(iii)  In addition to the 2004 public inquiry, this operator has appeared at further hearings. There was a public inquiry in 2005 when authorisation was curtailed from 10 vehicles to 5 vehicles for two weeks, and again in 2008, the licence was curtailed from 10 vehicles and 15 trailers, to 5 vehicles at 10 trailers for eight weeks.

(iv) A maintenance investigation carried out on 24/4/2009 was found to be unsatisfactory with regard to prohibition history.

(v)  On 1/2/2011, a maintenance investigation was graded as unsatisfactory following the issue of an “S” marked prohibition (denoting evidence of a significant failure in the maintenance system). During this investigation it was observed that inspection and maintenance records were not being fully completed, and mileage was not being recorded on inspection records. The operator was advised accordingly and a warning letter was issued.

(vi) On 10/9/2012 a maintenance investigation was graded as unsatisfactory following the issue of two “S” marked prohibitions - the brake test section of inspection records was not being fully completed, drivers defect reports were not always endorsed to record repairs, only three months of drivers defect reports were available, and there was an MOT failure rate of 70% over the previous two years. The “S” marked prohibitions had been issued for a steer axle tyre tread worn beyond legal limit, and serious brake defects. The brake defects were long-standing and should have been previously detected and repaired.

(vii) In fact, there is a poor prohibition history going back many years. Between 18/12/2008 and 28/3/2013 VOSA records show 10 immediate prohibitions (three of which were the “S” marked prohibitions referred to above) together with a further 17 delayed prohibitions and five refusals to clear prohibitions once issued, sometimes with variation of the prohibitions. The prohibitions included a number of service brake defects in 2009, further repeated service brake and parking brake defects in 2010 together with a worn tyre, numerous service brake defects in 2011 together with parking brake defect, stop lamp and direction indicators inoperative, and further brake defects in 2012.

(viii)       So far as non-maintenance matters are concerned, the history between 2008 and 2012 includes: exceed 4½ hours driving without a break, insufficient daily rest, insufficient weekly rest, failing to make proper records, drivers failing to produce tachograph sheets or driver card, faulty or defective tachograph equipment, no periodic inspection of tachograph recording equipment, and trailer test disc ministry plate missing. Evidence from VOSA (now DVSA) identified numerous offences and many of the above irregularities were repeated. In addition, in comparatively recent VOSA encounters, a vehicle was being used with no vehicle excise licence (26/2/2013), and an employee was driving a heavy goods vehicle without the necessary vocational driving licence entitlement.

(ix) . In April 2013 Traffic Examiner Sweetin spoke with Mrs McKee who said that she had applied for a new digital card prior to the Traffic Examiner’s visit but it had never been received from the DVLA. Mrs McKee also said that the vehicle showing the expired tax disc had, in fact, previously been taxed - and the DVLA had accepted the cheque, so there was no problem.

(x)  However, a check of the DVLA showed that a digital card issued in 2007 had expired in January 2012 and, despite a reminder letter being sent in 2011, no renewal had been sought and no replacement digital card had been issued. Moreover, DVLA records showed that the untaxed vehicle was only taxed online after it had been stopped on 26/2/2013 - using a credit card to complete the transaction.

(xi) On 25/6/2013, in a further encounter with VOSA on the A96, records showed that the driver had failed to take appropriate breaks after 4½ hours and had exceeded the 10 hours daily driving limit.

(xii)On 30/8/2013 a call up letter was sent to Mr McKee as operator and to Mrs McKee as Transport Manager. The letter to the operator set out the concerns arising with regard to maintenance and prohibitions, and specifically referred to the prohibition history including the three “S” marked prohibitions. The call-up letter referred to the previous public inquiries in 2002, 2005 and 2008, and to the unsatisfactory maintenance investigations. With regard to driver’s hours and tachograph compliance, the call-up letter set out details of the allegations, including the numerous offences identified during VOSA encounters.

(xiii)       Under the heading “ACTION YOU NEED TO TAKE NOW” the call-up letter set out key passages relating to the requirement to demonstrate financial standing:

“The Commissioner requires that you demonstrate that you have readily available the sum of £43,200. In order to satisfy the Traffic Commissioner of the financial standing requirement you must provide all relevant up-to-date financial information, which should include the following documents:

·         original bank statements for the last three months;

·         details of any associated overdraft facility or other loan arrangement.

The above documents must be provided by 27/9/2013 in order to allow time for the inquiry clerk to carry out an analysis of that information. Please note that the Traffic Commissioner will not accept cash as evidence of readily available finance. It is imperative that evidence of adequate finance is produced as requested.”

(xiv)       The public inquiry took place in Edinburgh on 25/11/2013. Mr and Mrs McKee attended, and were represented by their solicitor, Mr Miller.

(xv)        Mr Miller told the Traffic Commissioner that no financial evidence had been submitted and he confirmed that no financial evidence had been brought to the public inquiry. Mr Miller said that there had been a sequestration order in the Airdrie Sheriff Court, which had been erroneously attributed to Mr McKee (Snr) when, in fact, the debt related to Mr McKee (Jnr). Mr Miller said that, against the background of the current financial situation and the fact that the sequestration was erroneous, his intention was to seek a six-month period of grace to demonstrate adequate financial standing.

(xvi)       The Traffic Commissioner replied:

“I think it highly significant that they have not brought any evidence to this public inquiry because 4th November (a date linked to the sequestration order) is neither here nor there. They have had bank statements before 4^th November”.

(xvii)      Mr Miller repeated that the sequestration was erroneous even though, at the moment, Mr McKee (Snr) stood sequestrated. This was why a period of grace was needed to sort the matter out.

(xviii)     The Traffic Commissioner responded:

“Well, I cannot think that any Traffic Commissioner under the sun would grant a period of grace without there being some evidence of financial standing, without there being some production of bank statements or whatever … you do not get a period of grace on the basis of nothing …”

(xix)       The Traffic Commissioner then indicated that even if financial standing had been satisfied, there were two adverse VOSA reports (from a Vehicle Examiner and a Traffic Examiner) that revealed matters of sufficient significance such that it was appropriate to deal with them at the public inquiry without delay. The Traffic Commissioner then received the evidence of maintenance and tachograph/driver's hours irregularities, and of the operator’s regulatory history.

(xx)        The Traffic Commissioner also received the evidence that showed that Mrs McKee’s claims in relation to the company’s (expired) digital card, and the (expired) vehicle excise licence, were probably not true since they were directly contradicted by the objective evidence from the DVLA that the digital card and vehicle excise licence had both expired in 2012 and not been renewed, and a new vehicle excise licence had only been bought online immediately after the vehicle had been stopped whilst it was displaying a tax disc that had expired almost 12 months previously.

(xxi)       The Traffic Commissioner then heard evidence from Mr and Mrs McKee and she indicated that she had some questions for Mrs McKee. The Traffic Commissioner put it to Mrs McKee that the evidence of maintenance and tachograph/driver's hours failure, in the context of the lengthy history, indicated that Mrs McKee did not care.

Mrs McKee: I do care.

Traffic Commissioner: You do not bother.

Mrs McKee: Yes I do care…

Traffic Commissioner: You do not care and also you are a liar. You are prepared to mislead VOSA and you are prepared to just say sometimes what comes into your head and you just try and get away with what you try and get away with, but you are not in any shape or form running a compliant ship, a compliant operation. I mean, this is a disgrace - what has come out of these reports. Now, against your background and the chances you have been given and the status you have in the operation, what would you like to say back to me in terms of that overview?

(xxii)      Mrs McKee indicated that there did not seem to be much point in making any representations since the Traffic Commissioner had already decided that she was a liar. The Traffic Commissioner then explained:

“Mrs McKee, the reason I say these things out loud is because these are inferences that can be taken from what is in the reports, and so I say these things out loud to give you the chance to come back on me to say that that is not the interpretation I should take. If I did not say these things to you it would not be fair to you because you would not have the chance to come back on me on it. That is why I say it is not, I have summed it up, it is not my opinion, I am saying it is a view that can be taken of the evidence. This is my chance to ask you questions. Now if you choose not to reply then you are denying yourself a chance to give me your version of events and how I should perceive you … so, instead of saying that back to me, I invite you to say whatever you would like to say. If you do not want to say anything to me I will just take my view of it …”

(xxiii)     Mrs McKee then went on to say that she had learnt a big lesson, had moved forward and hoped for another chance to prove herself now that she had made drastic changes.

(xxiv)    When questioning Mr McKee the Traffic Commissioner said:

“So why, I mean, to have to adverse reports from both sides of the house, you know, the Traffic Examiner and the Vehicle Examiner, why is this happening Mr McKee? You should not be here. Give me some insight into this. Why is this happening?”

Mr McKee: I can’t.

Traffic Commissioner: You cannot explain? Right. You do not give me much to work with.

(xxv)     In private session, the Traffic Commissioner heard more about the sequestration proceedings and she, in effect, allowed Mr Miller to give evidence about documentation he said that he had perused at Airdrie Sheriff Court. Having heard from Mr Miller in relation to the detail of these proceedings the Traffic Commissioner said:

“But this does not assist me with the fact that your clients have not come here with any evidence of financial standing. I mean, they say this sequestration is nothing to do with them, but they have not produced any evidence of financial standing … I mean, do your clients have any money at all? … If somebody comes to a public inquiry with nothing, absolutely nothing … I am sorry, that imperils your licence.”

(xxvi)    In his closing submission Mr Miller again asked for a period of grace to address the financial evidence, stating:

“I think it would be very, very unfortunate and probably a little unfair for Mr McKee to lose his operator’s licence through a debt which has been wrongly attributed to him through the mistake of someone else”.

(xxvii)   Dealing with other matters Mr Miller contended that many of the prohibitions were “not that serious” and that since March 2013 Mr and Mrs McKee had installed new tachograph software to bring all sorts of administrative duties into line and ease the burden administratively including vehicle excise licences.

(xxviii)  The Traffic Commissioner reserved her decision, which was issued in writing on 23 December 2013. In her written decision the Traffic Commissioner addressed Mr Miller’s request for a six-month period of grace for financial standing to be established, so that the dispute with regard to the sequestration order could be resolved. The Traffic Commissioner noted that:

“I indicated to Mr Miller that whatever had happened on 4^th November 2013 in Airdrie Sheriff Court did not stop his client from providing evidence of financial standing”.

(xxix)    The Traffic Commissioner summarised the evidence from the Vehicle Examiner and the Traffic Examiner and found that the largely unchallenged evidence from VOSA demonstrated poor maintenance standards on the part of the operator. The Traffic Commissioner also noted:

“The operator’s Transport Manager attempted to mislead the Traffic Examiner about the holding of (a functioning digital company card) … and … attempted to mislead the Traffic Examiner as to when and how payment of duty was made, knowing full well that it was only paid by credit card on the vehicle being stopped at Beattock”.

(xxx)     The Traffic Commissioner said that she made no finding in relation to the status of the action at Airdrie Sheriff Court, and she gave credit for the “late hour attempt to put matters right with the analysis record-keeping side”.

(xxxi)    The Traffic Commissioner also accepted that recent presentations at annual test had shown improvement, and there had been an encounter with VOSA on 30/10/2013, which showed no defects. Moreover, Mr and Mrs McKee had been distracted by the circumstances in which their son had placed himself.

(xxxii)   However the Traffic Commissioner decided that there was no reasonable basis upon which she could give a period of grace:

“… as nothing, simply nothing was put before me to show this licence has any money at all behind it. It appears to be operating in cash and no bank statements were produced or offered. I cannot recall any other case in which I have been asked to give a period of grace with such paucity of evidence in support of such a request. The granting of a period of grace is a matter to my discretion. In the absence of any finance, and being mindful that this is a fair competition jurisdiction, I consider the use of discretion in this case is not appropriate.”

(xxxiii)  The Traffic Commissioner also concluded that in the light of history and the evidence, the position appeared to be worsening. The Traffic Commissioner asked herself the necessary questions, and concluded that she did not believe that the licence undertakings would be met in the future on a sustained basis, and she did not believe that the operator was capable of maintaining the standards required. The Traffic Commissioner found that the case had not arisen as a consequence of “a temporary blip” and that, on the evidence before her, the operator deserved to be put out of business.

(xxxiv) The Traffic Commissioner also concluded that a period of disqualification was appropriate, given the gravity of the situation, the breadth of the failure and irregularity, and the lengthy previous history. However, the Traffic Commissioner decided that she would limit the disqualification to a period of one year.

(xxxv)  So far as the Transport Manager was concerned, the Traffic Commissioner found that Mrs McKee had knowingly allowed the operator to run a vehicle without holding a current digital card and without a vehicle having its excise duty paid. She had lied to the Traffic Examiner about this, and had allowed the operation to run without proper scrutiny of driver’s hours and tachograph rules, and without having responded to the lessons that should have been learned from the previous maintenance-related public inquiries. One driver, fresh out of prison, was caught driving without the necessary vocational driving entitlement.

(xxxvi) The Traffic Commissioner concluded that Mrs McKee had lost her repute and no longer had professional competence. This meant that Mrs McKee had to be disqualified as a Transport Manager and the Traffic Commissioner required her to attend courses accruing to at least 35 hours, such courses to be provided by reputable and recognised transport industry trainers and to cover the duties and responsibilities of a Transport Manager including the supervision of drivers. The Traffic Commissioner expressed the hope that 12 months would be sufficient for Mrs McKee to complete the remedial measures, and she disqualified her as a Transport Manager for this period.

(xxxvii)                The grounds of appeal in this case maintained that the Traffic Commissioner should have granted a period of grace, which was required as a result of an erroneous sequestration order against the operator when, in fact, it was attributable to his son. The grounds suggest that the Traffic Commissioner, in deciding not to grant a period of grace and in deciding to examine other areas of concern, demonstrated non-impartiality, especially when taken in conjunction with verbal remarks made by the Traffic Commissioner during the course of the public inquiry. These verbal remarks were, it was said, “clearly indicative of negative bias”. The grounds of appeal also complain that the Traffic Commissioner relied on evidence of previous public inquiries going back beyond a period of five years, which was “unfair, biased and disproportionate. These had already been dealt with and should only be relied on to a limited degree.” Mr Miller also complained that a press report of the Traffic Commissioner’s decision had been published even though the matter was subject to appeal. He submitted that, by releasing her decision to the press, the Traffic Commissioner had shown further bias.

(xxxviii)               In view of the allegations of bias, the tribunal directed the operator to file an affidavit detailing full particulars of all allegations of bias or misconduct relied upon. A lengthy affidavit was subsequently submitted setting out, in great detail, the chronology with regard to the sequestration. With regard to the Traffic Commissioner’s alleged bias, the particular comment referred to was the Traffic Commissioner putting to Mrs McKee: “you are a liar”. Moreover, referring to public inquiries more than five years before “sits outwith the five-year review period for public inquiries” and should not, therefore, be reconsidered “by virtue of the Rehabilitation of Offenders Act 1984”.

(xxxix) In response, the Traffic Commissioner in her affidavit stated that she accepted that she had been sharp with Mr Miller as she was grappling with the paucity of evidence, and the significance and seriousness of the failure to bring any evidence of finance to the public inquiry. The Traffic Commissioner noted that she, in her decision, had made no adverse findings in relation to the sequestration, and her decision to revoke the licence on financial standing grounds did not flow from any finding that the operator was a sequestrated individual.

(xl) So far as the Traffic Commissioner’s exchange with Mrs McKee was concerned, the Traffic Commissioner stated that putting to Mrs McKee that she was a liar referred to the evidence in relation to vehicle excise duty and digital card. However:

“ … having read the transcript and Mr McKee’s affidavit, it may be that I did not appreciate that Mr McKee, hearing those questions, did not realise I was referring to the Traffic Examiner’s evidence. However, that does not amount to bias on my part, but at worst a failure to appreciate how Mr McKee at the inquiry might hear that line of questioning. Mrs McKee had not been straightforward with the Traffic Examiner in relation to matters and I had to consider that”.

 

3)    At the hearing of this appeal, the Appellants were represented by Mr Miller.

 

4)    The tribunal initially raised with Mr Miller the fact that a Notice of Appeal had been submitted by Mr McKee, as operator – but there was no Notice of Appeal from Mrs McKee as Transport Manager. Mr Miller submitted that the Notice of Appeal related to the entirety of the Traffic Commissioner’s decision, but the tribunal indicated (as the Traffic Commissioner had previously made clear) that the Transport Manager was subject to separate consideration. We said that there could not be an appeal from Mrs McKee without an appropriate Notice of Appeal. At the tribunal’s suggestion, Mr Miller then sought permission to add Mrs McKee as an appellant in her own right, out of time - and the tribunal agreed to permit this. No additional grounds of appeal were necessary.

 

5)    Mr Miller’s first point was that, as a matter of fairness, the Traffic Commissioner had been wrong not to grant a period of grace to allow the error regarding the sequestration to be resolved. It was because of the sequestration that no financial evidence had been provided at the hearing, and yet it was now very clear that the sequestration had been issued against the wrong man. Relying upon the tribunal’s decision of Michael Charles Taylor [2014] UKUT 0192 (AAC), Mr Miller submitted that had the Traffic Commissioner known that the sequestration had been entered in error, she might have made a different decision.

 

6)    The tribunal considers the sequestration to be little more than a red herring, and a wholly insufficient explanation for the complete failure by the operator to produce any financial evidence of any sort. The call-up letter could not be clearer in its terms. There was no attempt to show to the Traffic Commissioner how the operator would establish financial standing if and when the sequestration was recalled or set aside. In our view, the Traffic Commissioner was right to make the position clear at an early stage – and after she had done so, no suggestion was made that the required evidence of available finance could be produced quickly. Although she gave an early indication that the total absence of any financial information was a serious impediment to the granting of any period of grace, the Traffic Commissioner subsequently permitted Mr Miller to make his request for a period of grace both in private session, and in final submissions. The request was for a period of grace for six months.

 

7)    In our view, when considering whether or not to grant a period of grace, Traffic Commissioners will need some tangible evidence, beyond mere hope and aspiration, that granting a period of grace will be worthwhile, and that there are reasonable prospects for a good outcome. Some sort of analysis along these lines will be necessary because, amongst other reasons, Traffic Commissioners have to decide how long to grant. Moreover, as with a stay, there is no point in granting a period of grace if the likely effect is just to put off the evil day when regulatory action will have to be taken. In this case, the Traffic Commissioner said, in terms, that her decision was not based upon the sequestration, about which she made no adverse finding, but upon the total absence of any financial evidence. We do not see the relevance of the tribunal decision in Taylor to the facts of this case. We consider that the Traffic Commissioner was entitled to refuse to exercise her discretion in these circumstances, and we judge that that refusal was not plainly wrong. Nor was it indicative of bias, prejudice or pre-judgment. The Traffic Commissioner was also right to proceed to consider the other serious issues raised by VOSA. This ground of appeal therefore fails.

 

8)    Mr Miller next submitted that the Traffic Commissioner attached disproportionate weight to the regulatory history, especially insofar as some matters went back more than five years.

 

9)    The tribunal is not aware of any ‘five-year rule’ relating to previous public inquiries or regulatory action, and we consider that reference to the Rehabilitation of Offenders Act 1984 is misconceived. This is a civil commercial jurisdiction with a strong emphasis on firm and consistent regulation, public protection, and fair competition. One key question that routinely arises in cases such as this is whether or not the Traffic Commissioner can trust an operator to be compliant in the future. In our view, especially with a pattern of ongoing and apparently continuous non-compliance in the past, Traffic Commissioners are entitled to go back as far as they need to, in order to properly answer this question (subject to the permitted statutory framework which, of course, does impose some time limits in relation to some aspects). In this case, however, we consider that the Traffic Commissioner took a balanced and measured account of the previous regulatory history, which we think was a perfectly sensible thing to do. Indeed, it was necessary in order to have the complete picture. This ground of appeal fails.

 

10) Mr Miller submitted that the release of the Traffic Commissioner’s judgment to the press showed bias, and was inappropriate given that the decisions made were the subject of an appeal. We find no merit in this submission. The inquiry was a public inquiry, and the Traffic Commissioner’s decision should be available to the public. Indeed, all decisions are published in short form in ‘Applications and Decisions’ and the public and the industry are entitled to know the Traffic Commissioner’s reasons, which may well assist in encouraging compliance in others. The existence of an appeal does not displace the importance of open and transparent judicial decision-making. Decisions of this tribunal are also made available on a public website, notwithstanding the possibility of further challenge.

 

11) We turn, finally, to the Traffic Commissioner’s questioning of Mrs McKee, which we have set out in some detail above. The precise words were not set out in the Notice or Grounds of Appeal. However, we recognise that Mrs McKee appears to have been taken aback by the questioning at the time, and we accept (as the Traffic Commissioner did) that Mr McKee may have misinterpreted it. We also consider it axiomatic that, although public inquiries inevitably involve a dialogue between the Traffic Commissioner and others (especially since the proceedings are an inquiry with no advocate acting on behalf of the State), that dialogue should not descend into a prosecution, and all Traffic Commissioners must attempt to choose their words carefully, even when putting damaging evidence to a witness for comment. The inevitable ‘rough and tumble’ of a public inquiry is no excuse for an approach that lacks the essential hallmarks of a fair and judicial process, namely courtesy, impartiality, fairness of process and procedure, and an obviously open mind until the final decision is made at the conclusion of the evidence and submissions. There is a line that separates robust but fair judicial examination, and partisan cross-examination.

 

12) We consider that the Traffic Commissioner came very close indeed to crossing the line, but we have concluded that she did not do so given the context of her questioning, and the explanation that she promptly gave to Mrs McKee. It is easy, with hindsight, to opine that the Traffic Commissioner might more wisely have said something like: “Given that your explanations to the Traffic Examiner about have a digital card, and about buying a tax disc with a cheque before the vehicle was stopped, are directly contradicted by the information from the DVLA, what would you say if it was put to you that you care nothing for compliance and that you have deliberately lied?”

 

13) Having read the entire transcript, and recognising that it was incumbent upon the Traffic Commissioner to somehow put the ‘liar’ point if this was to be a finding in her written decision (which it was), we draw back from concluding that her very direct line of approach showed real, or apparent bias. A dispassionate and informed observer, fully appraised of all the evidence, and hearing the subsequent explanation (which appeared to reassure Mrs McKee at the time) would not, we think, consider that the Traffic Commissioner was prejudiced or biased, or was impervious to any further explanation or contrary evidence, had it been put to her. We also note that Mr Miller made no objection at the time, and made no reference to the matter in his subsequent oral submissions to the Traffic Commissioner. This ground of appeal fails.

 

14) Although we have the reservation that we have expressed above about the handling of one aspect of the public inquiry, we do not consider that this reservation undermines the cogency and correctness of the Traffic Commissioner’s final decisions. On the evidence taken as a whole, we consider that the outcome was more than justified, both in relation to the operator and in relation to the Transport Manager. The prohibitions, including many which were immediate (although not all “S” marked) were serious and placed the public at plain risk, as did the disregard of tachograph and driver’s hours regulations.

 

15) The Traffic Commissioner’s written decision is, we consider, an impressive piece of work, and it is clear that such limited positive features as there were have been properly considered, and are reflected in the comparatively short periods of disqualification - which, given the number and range of transgressions, and the history, could well have been significantly longer than the periods of disqualification that were, in fact, ultimately imposed.

 

16) The appeals are dismissed.

 

Judge Mark Hinchliffe, DCP

4 June 2014