Neutral Citation Number: [2014] UKUT 483 (AAC)

Appeal No.  T/2014/50

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Richard Turfitt TRAFFIC COMMISSIONER for the East of England

Dated 6 June 2014

 

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

 

 

 

Appellant:

ANDREW HARRIS t/a HARRIS of LEICESTER

 

 

 

 

Attendances:

For the Appellant:  The Appellant did not appear and was not represented.

 

 

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 26 September 2014

Date of decision: 27 October 2014

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED to the extent that the order disqualifying Andrew Harris from acting as a Transport Manager for an indefinite period is quashed and a disqualification from acting as a Transport Manager for a period of 4 years is substituted.

 

 

 

 

SUBJECT MATTER:-   Disqualification (a) from holding or obtaining an operator’s licence and (b) from acting as a Transport Manager.

 

 

CASES REFERRED TO:- 2000/9 & 10 Stevenson & Turner and McHugh v. DETR

T/2012/17 NCF Leicester

T/2012/71 Silvertree Transport Ltd

T/2014/25 & 26 H. Sivyer (Transport) Ltd (Operator) & Simon Sivyer (Transport Manager)

T/2014/42 Brian Robert Cutmore

 

 

REASONS FOR DECISION

 

1.         This is an appeal from the decision of the Traffic Commissioner for the East of England to revoke the public service vehicle operator’s licence held by the Appellant, to disqualify the Appellant from holding or obtaining an operator’s licence for a period of four years and to disqualify him from acting as a Transport Manager for an indefinite period.

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

(i)               The Appellant is the holder of a standard national public service vehicle operator’s licence authorising one vehicle.  The licence commenced on 27 September 2012.

(ii)              On 11 June 2013 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant asking for confirmation that the Appellant had been charged with offences of Theft and Fraud and for notification of the trial date or details of the Court’s decision.

(iii)             On 2 August 2013 the OTC sent a reminder letter asking for a response in 7 days.  The letter warned that any failure to respond would result in the matter being referred, immediately, to the Traffic Commissioner.

(iv)            On 4 August 2013 the Appellant replied.  He explained that the original letter had been lost by the Royal Mail.  He confirmed that he had been charged with offences of dishonesty.  He said that it was a messy story and went on to set out his role with another company where he was eventually put in charge of receiving and counting the daily takings.  He explained that once he started to perform this task it became clear that the daughter of the owner of the business had been stealing money, which put him in a very difficult position.  He said that he did this job for about 3 months after which it was taken off him.  A few days later it was announced that a large sum of money was missing.  The Police were called and he and the owner’s daughter were arrested.  The Appellant added that: “I admitted that I’d altered the waybills to balance the spreadsheets but that I hadn’t stolen a penny.  And I would never steal”.  He went on to say that he was due in Court on 19 August 2013.  He repeated that he was only guilty of altering the waybills for a short period adding: “theft is incorporated into the charge because of the alterations of the waybills”.

(v)             On 21 October 2013 the Appellant emailed the OTC to give an update on his situation.  He said: “I’ve sadly now got two convictions to my name”.  He added that he had already taken steps to add a new nominated transport manager and that it was essential that he keep his operator’s licence.  On the same day the Appellant provided formal confirmation, in a letter to the OTC, that he had been convicted of two offences, Theft and False Accounting.

(vi)            On 18 October 2013 the Appellant was sentenced to 22 months imprisonment, suspended for 24 months.  A confiscation order was made in the sum of £7,300 and the Appellant was ordered to pay compensation of £7,300 out of the money ordered to be confiscated.  In addition he was ordered to perform 180 hours of unpaid work.  He had earlier pleaded guilty to offences of Theft and False Accounting.

(vii)           On 29 November 2013 the proposed new nominated transport manager wrote to the OTC to say that he wished to withdraw his nomination.

(viii)          On 7 April 2014 the OTC sent two letters to the Appellant, one in his capacity as the holder of an operator’s licence, the other in his capacity as Transport Manager for that operator’s licence.  These letters called the Appellant to a Public Inquiry to be held on 9 May 2014.  The letters set out the grounds for taking action, the evidence in support of those grounds and the possible consequences for the Appellant both as the holder of the licence and as the nominated Transport Manager for the business.  In brief, good repute, financial standing and professional competence were all put in issue, as were breaches of conditions attached to the licence, the issue of prohibitions and the fact that there had been a material change in circumstances.  Reference was made to the convictions, set out in the previous sub-paragraph.  The Appellant was warned, as the holder of an operator’s licence that, if the licence was revoked, he could be disqualified from holding or obtaining an operator’s licence and, as Transport Manager, that following a finding that he had lost his good repute or professional competence as transport manager the Traffic Commissioner would be required to disqualify him from acting as a transport manager.

(ix)            On 25 April 2014 the OTC wrote to the Appellant enclosing a copy of the Brief for the Public Inquiry.  The letter went on to point out that the financial information requested in the call-up letter had not been received.  The Appellant was asked to ensure that it was submitted by 2 May 2014.

(x)             On 26 April 2014 the Appellant replied setting out various difficulties which he faced in responding to the letter from the OTC and questioning why some of the information requested was needed.

(xi)            The Public Inquiry commenced before the Traffic Commissioner on 9 May 2014.  The Appellant appeared in person.  On the day of the Public Inquiry the Appellant provided the Traffic Commissioner with a witness statement, several references, confirmation that he had completed 120 hours of unpaid work, a Mini Bank Statement, several invoices for money due and the Pre-Sentence report put before the Judge when he was sentenced.

(xii)           It is clear from the Pre-Sentence report that the Appellant admitted to the Probation Officer who prepared it, that he had stolen about £30,000 overall over a 2 year period, beginning with amounts of £10-£20 per week and increasing to £50-£60 per week. (These admissions do not appear to be consistent).  The report details the medical condition for which the money was to be used.

(xiii)          The Traffic Commissioner began the Public Inquiry by outlining the matters in issue.  He confirmed that the Appellant was aware of the powers available to him.  He indicated that he had received the documents produced by the Appellant.

(xiv)          The Traffic Commissioner then came straight to the Appellant’s conviction and the Appellant agreed that he had been convicted of two offences, one of theft from his employer and the other of false accounting, in relation to waybills in order to cover up the theft.  The Appellant stressed the difficulty of his position saying, in effect, that having discovered that the daughter of his boss was stealing he could not go to her father and tell him what she was doing.  The Traffic Commissioner pointed out that Pre-Sentence Report made it clear that the Appellant’s offences were quite separate to those committed by the boss’s daughter.  The Traffic Commissioner confirmed with the Appellant the details of the sentence, which he received, (as set out at paragraph 2(vi) above), and the Appellant said that arrangements had been made for payment of the compensation.  A little later the Traffic Commissioner quoted a number of things that the Appellant had said in a statement to the OTC, (see paragraph 2(iv) above), including that he admitted altering waybills but he hadn’t stolen a penny.  The Traffic Commissioner suggested that it was fair to say that this did not seem to be consistent with his plea of guilty or the basis on which he was sentenced.  The Appellant agreed.  A little later, after the Appellant had sought to explain that the money going into his account came from wages the Traffic Commissioner intervened to suggest that the Judge must have been satisfied that he had gained at least £7,300 dishonestly, (because of the compensation order), the Appellant accepted that that was the case.  The Traffic Commissioner then referred to a report, included in the appeal bundle, which quotes the sentencing remarks of the Judge, including the fact that he was satisfied that the Appellant had stolen £30,000.  The Appellant agreed that he had been sentenced on the basis of stealing £30,000.  The Traffic Commissioner then pointed out that nowhere in the correspondence between the Appellant and the OTC did he admit to stealing, let alone the theft of £30,000.  When asked why he replied: “I can’t really answer that.  At the time that was my, obviously when I was writing the letter at the time, it was all still up in the air”.  He added that he was really sorry for not doing so.

(xv)           When the Traffic Commissioner asked about the maintenance provider it became apparent that there had been a change.  The Appellant then accepted that he had in fact changed maintenance contractor twice without notifying the OTC.  There followed detailed questions about preventative maintenance, which led the Traffic Commissioner to express concern as to whether the Appellant was complying with undertakings recorded on his licence.

(xvi)          The Traffic Commissioner then dealt with financial evidence in private.  He pointed out that although the Appellant had arranged for the bank to endorse the mini statement, which the Appellant had produced, it only covered one month and at no stage did it exceed the amount required to demonstrate appropriate financial standing.  The Appellant said that there was money outstanding to him but the Traffic Commissioner explained that this could not be taken into account because it was not under the Appellant’s control.  At this point the Traffic Commissioner prompted the Appellant to ask for more time to produce further evidence once his accountant had returned from holiday.  He explained that the average credit balance, over three months, needed to meet or exceed the required sum.

(xvii)         Before closing the Public Inquiry the Traffic Commissioner gave the Appellant an opportunity to explain the impact of the action open to him.  The Appellant replied that from the point of view of his livelihood suspension or revocation would “finish me employment wise” and put a heavy strain on paying household bills etc.  He also stressed the impact on the school, with which he had built up a good relationship.

(xviii)        On 20 May 2014 the Appellant wrote to the OTC enclosing bank statements for the business for the previous three months.  In addition he enclosed bank statements for his personal account for the same period.  The Appellant accepted that the average credit balance was insufficient to meet the requirement to be of appropriate financial standing.  He explained that the main reason was his purchase of another double-decker bus to provide him with a spare vehicle, having lost a lot of work when his sole vehicle broke down and was off the road.  He pointed out that the acquisition of this vehicle had added to his running costs.  He invited the Traffic Commissioner to take into account the combined value of the two vehicles, which he put at £9,000.  He indicated that a completed form for a successor as transport manager would be sent to the OTC.

(xix)          The Traffic Commissioner gave a written decision dated 6 June 2014.  He set out the background, the issues and the evidence, all of which we have summarised above.

(xx)           In assessing the evidence in relation to financial standing the Traffic Commissioner pointed out that the average balance over three months, taking the two accounts together, was nowhere near sufficient to cover the amount required.  The Traffic Commissioner went on to reject the request to take the value of the vehicles into account.  He relied on the decision in T/2012/17 NCF Leicester, where the Tribunal explained that the value of assets used to earn money for the business was not ‘available for the purpose of meeting the requirement to be of appropriate financial standing.

(xxi)          In assessing the evidence of professional competence the Traffic Commissioner said that the Appellant clearly recognised by about September 2013 that he was likely to need another transport manager.  The relevant form was signed in mid October and the proposed new transport manager gave evidence at the Public Inquiry.  The Traffic Commissioner explained why he was unimpressed with this individual and made it clear that he would not be minded to  accept him as an alternative transport manager.

(xxii)         In assessing the question of good repute the Traffic Commissioner highlighted the discrepancy between what the Appellant had said to the OTC and the basis on which he had been sentenced.  He was clearly unimpressed by the Appellant’s lack of frankness.

(xxiii)        The Traffic Commissioner came to the conclusion that he was required to take action as a result of the Appellant’s lack of appropriate financial standing.  In relation to good repute the Traffic Commissioner weighed up all the relevant factors, including the fact that, by then the Appellant had completed the unpaid work requirement of the suspended sentence.  However he pointed out that the sentence would not be spent for four years and that the Appellant had compounded the offences by his obvious failure to be frank and honest in relation to his operator’s licence.  He concluded that the Appellant was not an operator who could be relied on in the future to operate compliantly, nor was it possible to rely on him as a transport manager.  He also concluded that it was appropriate to put the Appellant out of business because he had lost his good repute as an operator.  In short the Traffic Commissioner revoked the Appellant’s operator’s licence for lack of good repute, lack of financial standing and lack of professional competence.

(xxiv)       The Traffic Commissioner then turned to the question of disqualification.  Given that the Appellant’s conviction would not be spent for four years the Traffic Commissioner concluded that it was appropriate to disqualify him from holding or obtaining an operator’s licence for a period of four years.  On page one of the written decision, under the heading ‘decision’, the Traffic Commissioner said that having found that the Appellant, in his capacity as transport manager, no longer satisfied the requirement to be of good repute he was disqualified from acting as a transport manager for an indefinite period.  At the end of paragraph 24 of the written decision the Traffic Commissioner simply said this: “Mr Harris will therefore be disqualified … from relying on his certificate of professional competence for an indefinite period with immediate effect.  He may apply to vary that order but only after a similar period of four years has expired”.

(xxv)        On 19 June 2014 Solicitors then acting for the Appellant filed a Notice of Appeal on his behalf.  The grounds of appeal are set out in a series of ‘bullet points’.  The main focus of the appeal was to challenge the length of the four year disqualification from holding or obtaining an operator’s licence and the indefinite disqualification from acting as a transport manager.  The revocation of the Appellant’s licence was not challenged.

3.         In advance of the hearing the Tribunal requested revised grounds of appeal in numbered paragraphs together with a skeleton argument.  Toby Sasse, of Counsel, was instructed to respond to this request and did so promptly, with the result that the Tribunal received both documents before the date of the hearing.  We are grateful to him for the succinct and realistic way in which his submissions were set out.

4.         In a letter dated 23 September 2014, (also sent by email) the Solicitors acting for the Appellant informed the Tribunal that they were not instructed to represent the Appellant at the hearing, nor was Counsel instructed to do so.  They added that, as they understood it, the Appellant would not attend and they invited the Tribunal to hear and determine the appeal in his absence.

5.         Having had an opportunity to consider the appeal file with the benefit of the skeleton argument it seems to us that the concessions made by Counsel are rightly made and that every arguable point has been advanced.  It seems to us the decision that Counsel and his Instructing Solicitors would not attend the hearing was a sensible one because we doubt whether oral argument would have added anything to the points made in the skeleton argument.  Though it might have assisted in relation to some of the other points which arise.

6.         Before coming to the matters raised by the skeleton argument it is important to make one general point.  The grounds of appeal originally took the form of 19 separate ‘bullet points’.  We accept that there is no specific requirement in the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended, for grounds of appeal to be set out in numbered paragraphs.  However in our experience it is the almost invariable practice in this and other jurisdictions.  By setting out grounds of appeal in numbered paragraphs all concerned can quickly ensure that everyone is talking about the same point.  By contrast bullet points are liable to cause delay and confusion while everyone ensures that they are looking at the same ground of appeal.  In addition when it comes to drafting a decision they are likely to make the identification of individual grounds of appeal more difficult and more long-winded.  For these reasons we urge anyone drafting grounds of appeal to use numbered paragraphs.  Where this is not done Appellants must understand that the Tribunal is likely to require it unless there are only a very small number of grounds of appeal.

7.         The first concession made by Mr Sasse was that this was a case where loss of good repute, both as an operator and as a transport manager, was inevitable.  The Appellant pleaded Guilty to two offences, namely theft of money from his employers and false accounting, namely altering documents to conceal what he had done.  In paragraph 4 of the numbered grounds of appeal there is a suggestion that the Appellant pleaded guilty to an offence of ‘Theft by False Accounting’, suggesting that there was only one offence.  This is not correct.  There is no such offence as ‘Theft by False Accounting’.  Instead the Appellant pleaded Guilty to two offences, albeit they were linked offences.  He received a sentence of 22 months imprisonment, on each count, which was suspended for 24 months.  In addition he was required to complete 180 hours of unpaid work in the community.

8.         In our view Mr Sasse was correct in conceding that loss of good repute was inevitable.  Paragraph 1(3) of Schedule 3 to the Public Passenger Vehicles Act 1981, (“the 1981 Act”) provides that: “A Traffic Commissioner shall determine that an individual is not of good repute if he has – (a) more than one conviction of a serious offence”.  The underlining of ‘shall’ is ours to stress that the provision is mandatory.  Paragraph 1(4) goes on to define the expression ‘serious offence’.  The part of the definition relevant to the present case is: “an offence under the law in force in any part of the United Kingdom for which a sentence of imprisonment for a term exceeding three months … was imposed”.  This gives rise to two questions.  The first is whether or not ‘more than one conviction’ means that the convictions must occur on separate occasions.  The second is whether a suspended sentence is or is not a sentence of imprisonment.

9.         The first question was considered by the Tribunal in appeal: 2000/9 & 10 Stevenson & Turner and McHugh v. DETR.  When considering this case it is important to remember that the Department was represented so that the Tribunal had the benefit of argument on both sides.  At paragraph 8 the Tribunal said this:

“The words ‘more than one conviction’ mean what they say.  They do not require different incidents or different days of commission or of hearing in court.  If, for example, two convictions result in a sentence on each count of 2 months’ imprisonment concurrent, imposed on the same day, neither conviction would qualify as ‘serious’ within para. 3(ii).  If, on the other hand, as with Mr Stephenson and Mr Turner, the sentence was 4 months’ imprisonment on each count concurrent, then each conviction qualifies under para. 3 and the combination of two or more qualifies under para. 2(a).  We think it immaterial that the convictions were on the same day at the same court.  On any view the second conviction makes the breach of the law the more serious, since the additional conviction indicates a repetition of wrong-doing which properly affects the issue of general good repute”.

It follows that the fact that the Appellant was convicted of two offences on the same occasion does not prevent the combination of those offences, each of which attracted more than three months imprisonment, from coming within the definition of ‘serious offence’.

10.      It is submitted in paragraphs 11-14 of the Grounds of Appeal that a suspended sentence is not a custodial sentence, that it attracts a different rehabilitation period and that by imposing a suspended sentence the Court: “clearly did not consider Mr Harris’s conduct to be serious enough to result in loss of liberty”.  Mr Sasse, rightly refrained from relying on any of these points.  Putting it bluntly they are all wrong.  In particular it is clear that a suspended sentence is a ‘sentence of imprisonment’.  It follows that the Appellant came within the terms of paragraph 1(3) of Schedule 3 to the 1981 Act because he received a sentence of more than three months imprisonment on each of the two offences and therefore had more than one conviction for a serious offence.

11.      Since the question of whether or not a suspended sentence is a sentence of imprisonment may well arise in the future it may be helpful if we set out the relevant statutory provisions.  Part V of the Powers of Criminal Courts (Sentencing) Act 2000, (“the 2000 Act”), is headed ‘Custodial Sentences’.  The first section in Part V is s. 76, which at subsection (1)(a) provides that: “In this Act ‘custodial sentence’ means (a) a sentence of imprisonment”, other forms of custodial sentence are then listed.  In Paragraph 7C(6) of Schedule 3 to the 1981 Act “a sentence of imprisonment” is defined as including “any form of custodial sentence or order”, (subject to excluding orders made under enactments relating to mental health).  In our view the form of words used in this definition relates back to the definition in s. 76(1)(a) of the 2000 Act.  Chapter V of Part V of the 2000 Act is headed ‘Suspended sentences of imprisonment’.  The first section under that heading is s. 118.  Subsection (1) of s. 118 provides that:

“A court which passes a sentence of imprisonment for a term of not more than two years for an offence may (subject to subsection (4) below) order that the sentence shall not take effect unless, during a period specified in the order, the offender commits in Great Britain another offence punishable with imprisonment and thereafter a court having power to do so orders under section 119 below that the original sentence shall take effect”.

In our view these provisions make it quite clear that a suspended sentence is a sentence of imprisonment, albeit the offender does not go, immediately, to prison and may avoid imprisonment altogether.  In addition the terms of s. 118(4)(a) make it clear that before passing a suspended sentence the Court must be of the opinion that a sentence of imprisonment would have been appropriate had there been no power to suspend the sentence.

12.      Given that this was a case of mandatory loss of good repute, both as an operator and as transport manager, and that there was insufficient money available to satisfy the requirement to be of appropriate financial standing there is rightly no challenge to the revocation of the licence.  The revocation of the licence gave the Traffic Commissioner the right to consider disqualification from holding or obtaining an operator’s licence.  Mandatory loss of good repute as a transport manager meant that the Traffic Commissioner was required by paragraph 7B(2) of Schedule 3 to the 1981 Act to order that the Appellant be disqualified from acting as a transport manger “either indefinitely or for such period as the commissioner thinks fit”.

13.      The Traffic Commissioner disqualified the Appellant from holding or obtaining an operator’s licence for a period of four years.  It appears that the main reason for choosing a period of four years was that that was the rehabilitation period applicable to a suspended sentence of 22 months imprisonment.  Mr Sasse conceded that the Traffic Commissioner was correct in identifying four years as the appropriate period.  He further conceded that the earliest point at which the Appellant might be able to re-establish his good repute was after the convictions became spent.  Having made those concessions Mr Sasse sought the permission of the Tribunal to withdraw the appeal against the four year disqualification.  We give permission for that to be done.  We have referred to the point for two reasons.  First, to show the responsible way in which the Appellant’s case has been presented immediately before the hearing.  Second, to state that, in our view, it was appropriate for the Traffic Commissioner to have regard to the rehabilitation period, where loss of good repute was mandatory, in setting the term of disqualification.  We expressly leave open the question of whether or not it is appropriate to take it into account in other circumstances.

14.      It follows that the main focus of the appeal became the question of whether an indefinite disqualification as transport manager was appropriate and proportionate.  In challenging that part of the decision Mr Sasse relied on three points.  First, he submitted that no reasons were given either to justify or to explain to the Appellant, why an indefinite disqualification was appropriate.  Second, he submitted that in the absence of any justification an indeterminate disqualification was “draconian, excessive and unreasonable”.  Third, he submitted that in the absence of any requirement to complete a rehabilitation measure, in advance of an application to cancel the disqualification, an indeterminate disqualification amounted to a penalty rather than an appropriate method of ensuring compliance with the regulatory regime.

15.      In the present case it seems to us that the Traffic Commissioner’s concern, in relation to this issue, lay with the Appellant’s good repute, as a transport manager, rather than his professional competence.  Once the Traffic Commissioner concluded that the Appellant had lost his good repute as a transport manager disqualification from acting as a transport manager was mandatory, the only question being: “for how long”?  In addition the effect of paragraph 7B(3)(b) of Schedule 3 to the 1981 Act is that, for the duration of the disqualification, (but only for the duration of the disqualification), the certificate of professional competence held by the Appellant will not be valid.

16.      In deciding on the appropriate period of disqualification it is important to take into account a distinction between good repute and professional competence.  In the case of good repute it does not automatically follow that good repute is restored at the end of a disqualification.  Instead it simply means that the person concerned has an opportunity to apply to act as a transport manager, (or in the case of disqualification from holding or obtaining an operator’s licence, to apply for a licence).  It is open to a Traffic Commissioner to call in such an application to resolve any lingering doubts as to whether good repute, in either capacity, has, in fact, been restored.  By contrast at the end of a period of disqualification the effect of paragraph 7B(3)(b) of Schedule 3 to the 1981 Act ceases and the person concerned can again use their certificate of professional competence as conclusive proof that they are professionally competent.  In other words, if, after the end of a disqualification, a person satisfies the Traffic Commissioner that their good repute is restored there can be no question of any further inquiry as to professional competence once a valid certificate of professional competence is produced, (see T/2014/25 & 26 H. Sivyer (Transport) Ltd (Operator) & Simon Sivyer (Transport Manager), where the Tribunal concluded that professional competence was not something which can be lost in the same way that good repute can be lost).

17.      A further factor, which should be taken into account, is that the test for determining the good repute of an individual, (set out in Schedule 3 to the 1981 Act and in particular in paragraph 1(1) of Schedule 3), applies to transport managers and to individuals who hold an operator’s licence, or to those who aspire to be transport managers or operators.  Paragraph 1(1) provides that a Traffic Commissioner shall have regard to all the relevant evidence.  Given the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as a operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can, properly, be taken into account when assessing good repute.  In our view the point was well made by the Traffic Commissioner for Scotland, who is quoted at paragraph 2(xii) in T/2014/42 Brian Robert Cutmore as saying: “I cannot think of any rehabilitative measure which would restore the attitude of mind and fortitude towards compliance which is an essential characteristic for a transport manager”.  In our view similar considerations apply in the case of an individual who is either an operator or the directing mind of an operator.

18.      Where, as here, there has been a finding of loss of good repute as transport manager, but no separate concern has been expressed about professional competence, it seems to us that indefinite disqualification should be reserved for the worst cases, of which Cutmore, (above), is an example.  In that case indefinite disqualifications, from holding or obtaining an operator’s licence and from acting as a transport manager, were upheld by the Tribunal.  Save where it appears to the Traffic Commissioner, at the conclusion of a Public Inquiry, that the person concerned should never again act as a transport manager it seems to us that a fixed period of disqualification is likely to be more appropriate.

19.      On the other hand where there has been a finding of loss of good repute as a transport manger and the evidence accepted by the Traffic Commissioner gives rise to concerns as to whether, despite holding a certificate of professional competence, the person concerned is, in fact, professionally competent, different considerations may apply.  It is important to remember that there are various ways in which a person can demonstrate professional competence as a transport manager.  One is by obtaining an ‘Acquired Rights Certificate’ commonly known as ‘grandfather’s rights’, another is by holding a CPC Exemption Certificate as a result of gaining a professional qualification before the provisions of Regulation (EC) No. 1071/2009 of the European Parliament and of the Council came into force on 4 December 2011, a third is by passing the current examination.  Some of those who qualified by grandfather’s rights or through an earlier examination have not kept up to date and lack the breadth of knowledge required to “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”.  Others, even some who have qualified by passing the latest examination, may have forgotten important points required to do the job of transport manager properly.  These are simply examples of cases in which requalification by passing the current examination for a certificate of professional competence as a transport manager would be an appropriate rehabilitation measure.  In appeal: T/2012/71 Silvertree Transport Ltd the Tribunal explained, (see paragraphs 11-16 of that decision) that an indefinite disqualification can be justified, (and may indeed be essential given the wording of the Act), where a rehabilitation measure is appropriate and the Traffic Commissioner wishes to ensure that it is completed before the person concerned returns to the role of transport manager.  That appeal was concerned with the provisions of the Goods Vehicles (Licensing of Operators) Act 1995.  Those provisions are, in all material respects, identical to the relevant provisions of the 1981 Act.

20.      Returning to the position in the present case we agree with the submission that there is no explanation for the distinction between a four year disqualification from holding or obtaining an operator’s licence and the indefinite disqualification from acting as a transport manager.  In our view the Appellant was entitled to know why there was such a marked difference between the two periods.  In particular he was entitled to know why an indefinite period of disqualification as a transport manager was needed to further compliance with the regulatory regime. 

21.      The Traffic Commissioner did not impose any rehabilitation measure in the present case so, in our view, some other justification was needed to demonstrate that indefinite disqualification from acting as a transport manger was appropriate on the facts of this case as opposed to a four year disqualification from holding or obtaining an operator’s licence.  Having considered the Appellant’s good repute as an operator, (without referring to the fact that loss of good repute was mandatory), the Traffic Commissioner said that he could not rely on him as a transport manager, with the result that he had lost his good repute in that capacity as well.  There was, in our view, ample evidence to justify this conclusion but the question is whether, on its own, and in the absence of any requirement either to re-qualify as a CPC holder or to undertake any other means of improving his knowledge and ability as a transport manager, it provides justification for an indefinite as opposed to a determinate period of disqualification.

22.      In our view it does not.  It seems to us that the main concern expressed by the Traffic Commissioner was that the Appellant could not be trusted either as an operator or as a transport manager.  If it was thought appropriate to allow him to re-apply for an operator’s licence after four years we do not understand why a very different period was selected in relation to his role as transport manager.  If the appellant applies for a fresh operator’s licence he will need to satisfy the Traffic Commissioner that he is, at that time, of good repute.  Equally if he applies to be nominated as a transport manager he will have to show that he is, then, of good repute.  If any such application is made and the Traffic Commissioner has doubts about the Appellant’s good repute, at that time, it will, of course, be open to the Traffic Commissioner to call the matter in to be considered at a Public Inquiry.

23.      For all these reasons we have come to the conclusion that the appeal must be allowed, to this extent; the order for indefinite disqualification as a transport manager is quashed and an order for disqualification as a transport manager for a period of four years is substituted.

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

27 October 2014