Neutral Citation Number: [2015] UKUT 148 (AAC)

Appeal No.  T/2014/72

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Beverley Bell TRAFFIC COMMISSIONER for the North West of England

Dated 26 September 2014

 

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

IAN RUSSELL NICHOLAS t/a WIGAN CONTAINER SERVICES

 

and

Respondent:

The SECRETARY of STATE for TRANSPORT

 

 

 

Attendances:

For the Appellant: Mr Nicholas appeared in person

For the Respondent: The Respondent provided representations in writing but did not appear and was not represented.

 

 

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

Date of hearing: 5 February 2015

Date of decision: 24 March 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal against the revocation of the operator’s licence held by the Appellant be DISMISSED and that the appeal against the order disqualifying the Appellant be ALLOWED to the extent that the period of disqualification is reduced from 5 years to 3 years.  The revocation of the licence and the commencement of the disqualification will take effect at 2359 on 22 April 2015.

 

SUBJECT MATTER:- Good Repute; Professional Competence; discretionary revocation; bias; Disqualification.

 

 

CASES REFERRED TO:- Locabail (UK) Ltd v Bayfield Properties Ltd & another [2000] QB 451

Magill v Porter [2001] UKHL 67

2004/426 EA Scaffolding

2009/225 Priority Freight

Susan Tattersall [2013] UKUT 409 (AAC)

T/2013/47 Dundee Plant Company Ltd

T/2014/09 Hunterstrong Engineering

T/2014/50 Andrew Harris t/a Harris of Leicester

 

 

 

REASONS FOR DECISION

 

 

1.         This is an appeal from the decision of the Traffic Commissioner for the North West of England to revoke the standard national goods vehicle operator’s licence held by the Appellant and to disqualify the Appellant from holding or obtaining an operator’s licence in any traffic area for a period of 5 years.

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 goods vehicle operator’s licence authorising 2 vehicles and 2 trailers, with an operating centre at John Mason International Moves, Wilson Road, Liverpool.

(ii)              The Appellant is the son of Roy Nicholas, (“RN”) and the brother of Louise Nicholas, (“LN”).  RN held a standard national goods vehicle operator’s licence authorising 3 vehicles and 3 trailers, which was revoked in June 2011.

(iii)             The Appellant’s licence was granted on 22 June 2011 following a Public Inquiry to which RN was also called.  The general conditions attached to the licence required the Appellant, amongst other things, to inform the Traffic Commissioner, within 21 days of its occurrence, of any event (a) affecting the good repute of the licence holder and transport manager, if any or (b) affecting the professional competence of the licence holder and/or transport manager.  Two additional conditions were attached to the licence, the second of which provided that if the Appellant employed RN as a driver he would ensure that RN took no part whatsoever in the “running and/or management of the business”.  The usual general undertakings were taken from the Appellant.  These included an undertaking that the rules on drivers’ hours and tachographs would be observed and that proper records would be kept and that vehicles would operate within speed limits.

(iv)            On 23 June 2011 the Appellant wrote to the Traffic Commissioner.  In the second paragraph he said: “Thank you for granting me the licence and giving me the chance to operate my own business.  I have learnt valuable lessons from my father’s failings and intend to fully comply with the conditions of my licence”.

(v)             On 14 September 2011 RN appeared before the South Sefton Magistrates Court.  He was disqualified from driving for 6 months.

(vi)            On 19 November 2011 RN was stopped by an officer of Merseyside Police while driving an HGV.  The vehicle was examined for possible tachograph offences and 3 graduated fixed penalty notices were issued.  The officer recovered a number of tachographs from the vehicle including one dated 14 September 2011.  Analysis of that tachograph showed that RN stopped driving at 20:22 hours that evening, in other words after the disqualification had been imposed.

(vii)           On 26 January 2012, at 11:55 hours, RN was stopped within the Port of Liverpool.  At the time he was stopped he was driving a Scania towing unit, T117 ARM, towing a semi trailer loaded with a container, which was travelling towards the Crosby Road exit gate.  He was asked to produce his driving licence but stated that he did not have it with him.  His status was checked, which revealed that he was disqualified from driving.  Assistance was then requested from a Vehicle Examiner.  RN was charged with Driving Whilst Disqualified, No Insurance, Knowingly making a False Record or Entry, (as a result of disabling a tachograph), Interfering with a Speed Limiter on an HGV and Having an Unauthorised Device present on his vehicle.  During a formal interview under caution he admitted having two switches fitted to the dashboard of the vehicle, one controlling the speed limiter and the other turning the tachograph off while the vehicle was still in use.  He said that the switches had been fitted just after he had been disqualified from driving.  He accepted that he drove on the dates recorded on the 66 tachograph charts found in the vehicle, and he accepted that the tachographs were his.  His driving licence, previously reported lost or stolen, was found during a further search.

(viii)          On the same date Stuart Clarke, a Vehicle Examiner, (“SC”) attended to assist the Port of Liverpool Police.  On arrival at the Port he was told that RN had been arrested for driving whilst disqualified and that tachograph charts found in the vehicle had been seized.  In particular he was shown a chart dated 25 January 2012 in the name of LN.  An examination of this chart showed that no movement of the vehicle had been recorded since 04:31 hours on 26 January, despite the fact that the vehicle had been seen moving towards the exit gate at 11:55 hours the same day.  In addition the name on the chart, LN, did not match that of the driver, RN. SC suspected that a device of some kind had been used to suppress the signal to the tachograph head.  He checked the gearbox but found no evidence of the use of a magnet.  He then removed the speedometer binnacle and found that an unauthorised wire went into the speedometer casing, which was traced to a standard Scania rocker switch on the left hand side of the steering wheel in the instrument panel.

(ix)            At this point SC asked to speak to RN, who was then in custody, under arrest.  He told RN that he had found the speed-limiter switch and he asked him where the tachograph interrupter switch was.  RN immediately pointed it out next to the cigarette lighter.  SC was then able to trace the wires from the switch to the armoured cable below the fuse box.  He found that this cable had been cut so that wires were exposed.  The switches and wiring enabled the signal from the gearbox to be disabled so that the tachograph was ‘fooled’ into operating as if the vehicle was stationary.

(x)             The Appellant and LN arrived and SC explained the circumstances relating to the vehicle and RN.  A decision was taken to seize all the tachograph charts and other information relating to both the vehicles authorised under the Appellant’s operator’s licence.  After being cautioned the Appellant was requested to meet SC or a colleague at the operating centre with the keys of the second vehicle, FX51SVW.  The Appellant replied saying: “No, not tonight”.  SC then suggested that someone should meet the Appellant at his home to collect the tachographs and other information.  The Appellant replied: “No, not a lot I can do tonight.  I can get them to you tomorrow”.  Both conversations were recorded in SC’s pocketbook, which the Appellant signed.  SC requested that the Appellant deliver the required information to him at Simonswood Goods Vehicle Testing Station, at 08:30 the following morning.

(xi)            SC seized 32 tachograph charts in the name of LN and 4 charts in the name of Mark Yates.  All these charts had been found by the Port of Liverpool Police in the vehicle T117 ARM.  Following receipt of these charts SC began an investigation to establish whether or not the Appellant, as an operator, was observing the rules on drivers’ hours.

(xii)            On 26 January 2012 LN entered the operating centre at 16:37 and left at 16.44.  On the same day the Appellant entered the operating centre at 20:46 and left at 20:55.

(xiii)          On 27 January 2012, at 09:05, SC attempted to contact the Appellant on the telephone number listed for him on the Operator Licensing System.  There was no reply and no facility for leaving a message.

(xiv)         At 11:00 on 27 January 2012 SC attended the operating centre to observe and examine the second authorised vehicle FX51 SVW.  A number of mechanical defects were found.  At 11:25 SC was given the Appellant’s mobile phone number and made contact with him.  As a result the Appellant came to the operating centre.  On arrival he told SC that the tachographs charts and the other information for FX51 SVW had been stolen from his car.  He provided SC with a crime number for this theft.

(xv)          At 12:50 on 27 January 2012 SC cautioned the Appellant and asked when he had visited FX51 SVW.  The Appellant replied: “After you had dealt with the other vehicle at the Port”.  SC asked who else had visited the vehicle the previous night.  The Appellant replied: “Louise had visited the vehicle and had removed the charts”.  SC then checked the integrity of the tachograph system on FX51 SVW.  He found that the armoured cable on this vehicle had been cut in exactly the same place and had been repaired with insulating tape.  The vehicle was issued with a prohibition notice for an improperly fitted tachograph.  The Appellant declined to be interviewed and said that he wished to obtain legal advice.

(xvi)         On 30 January 2012 the prohibition issued on 27 January 2012 was cleared after the armoured cable had been replaced at an authorised tachograph centre.

(xvii)        In the course of the investigation by SC it became clear that a large number of offences had been committed.  In the case of RN 74 charts were examined and 31 offences were found.  In the case of LN 32 charts were examined and 19 offences were found.  By far the most frequent of the various offences disclosed were 35 offences of Knowingly Making a False Record.  By cross referencing tachograph charts and timed data provide by the Port of Liverpool Police it became apparent that the interrupter device fitted to T117 ARM had been used on many occasions on which either RN or LN drove that vehicle.  The loss of the tachograph charts for FX51 SVW meant that it was impossible to establish whether or not the identical interference with the armoured cable had led to the use of an interrupter switch on that vehicle.  Given the number of offences disclosed SC concluded that there was a lack of systems on the part of the Appellant to ensure compliance with the rules on drivers’ hours and tachographs.

(xviii)       On 14 March 2012 RN appeared before Liverpool Crown Court.  For an offence of driving whilst disqualified he was sentenced to 3 months imprisonment suspended for two years, together with a supervision requirement for 12 months, an activity requirement for 1 day and an unpaid work requirement of 200 hours, in addition he was disqualified for 12 months.  No separate penalty was imposed for uninsured use of the motor vehicle.  For offences of making a false record/entry required to be kept under Community recording equipment regulations and altering the seal on recording equipment with intent to deceive he was sentenced to 8 months imprisonment suspended for 2 years together with a supervision requirement for 12 months, an activity requirement for 1 day and an unpaid work requirement of 200 hours.

(xix)         On 19 April 2012 the Port of Liverpool Police requested that SC should examine FX51 SVW and 52 tachograph charts found in the vehicle.  No evidence of any offences was found and there was no evidence of any tampering with the tachograph equipment.  The seals were all intact.

(xx)          On 14 May 2012 LN was interviewed under caution, with her Solicitor present.  She agreed that between 2 December 2011 and 26 January 2012 she had driven T117 ARM.  She said that she was employed, full-time, as a driver by Wigan Container Services.  She was asked: “Who gives you your instructions on a day to day basis?”  She replied: “My Dad, Roy Nicholas”.  The next question was: “How did he give you your instructions?”  She replied: “He filled in the paperwork the majority of the time”.  She was then shown a number of tachograph charts.  She agreed that they were hers but denied, when asked about discrepancies, that she knew of the interrupter switch.  However she added in relation to a chart dated 12 December 2011 that she had mentioned to her father that on that occasion the speedometer was not working.

(xxi)         On 22 May 2012 Mark Yates was interviewed under caution.  He said that he had never driven T117 ARM nor had he ever driven for Wigan Container Services.  He stated that on the dates on the cards bearing his name he was attending for physiotherapy following knee surgery.  Evidence provided by the Port of Liverpool Police indicated that both RN and LN drove T117 ARM at times when a chart in the name of Mark Yates had been inserted into the tachograph.

(xxii)        On 7 November 2012 the Appellant was requested by VOSA to attend for interview.

(xxiii)       On 7 November 2012 the nominated transport manager, Mr Stobbs, was requested by VOSA to attend for interview.  On 19 November Mr Stobbs replied that following a telephone conversation with the Appellant, in which the Appellant admitted what had been going on, he had resigned as transport manager.

(xxiv)       On 3 December 2012 the Office of the Traffic Commissioner, (“OTC”) wrote to the Appellant to inform him that the Traffic Commissioner had been made aware that Jeffrey Stobbs was no longer in the Appellant’s employment.  The Appellant was reminded that one of the conditions on his operator’s licence was that he was required to notify the Traffic Commissioner of any changes in the circumstances prevailing at the time the licence was granted.  The letter went on to point out that if the licence was to remain in force the Appellant had to remain professionally competent, either by holding the required qualifications personally or by employing a suitably qualified person as transport manager.  The letter required details of a replacement transport manager to be provided by 17 December 2012.

(xxv)        On 10 December 2012 the Appellant replied saying that he was in the process of appointing a new transport manager.  He asked for a period of grace in which to complete the process.

(xxvi)       On 21 December 2012 the Appellant was informed that he could operate without a replacement transport manager until 19 May 2013.

(xxvii)      On 3 June 2013 the Appellant was called to a Public Inquiry, which was to be held on 8 July 2013.  The letter warned the Appellant that the Traffic Commissioner was considering action under both s. 26(1) and s. 27(1) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  Just above the middle of page two the Appellant was informed that if the Traffic Commissioner decided to revoke his operator’s licence she would also consider whether to disqualify him from obtaining or holding an operator’s licence either indefinitely or for a specific period.

(xxviii)     The letter of 3 June 2013 then set out the grounds for taking action in greater detail.  In relation to s. 26 of the 1995 Act it referred to the fact that prohibitions had been issued and that undertakings recorded on the licence had not been fulfilled.  These required that (a) the rules on drivers’ hours and tachographs would be observed and proper records kept and (b) that vehicles and trailers would be kept fit and serviceable.  In relation to s. 27 of the 1995 Act it raised questions as to whether the Appellant still satisfied the requirements to be of good repute, to be professionally competent and to have a transport manager who satisfied the statutory requirements.  The letter went on to summarise the evidence that the Traffic Commissioner intended to consider in the course of the Public Inquiry.  Copies of the statements and documents were annexed to the letter.

(xxix)       On 3 June 2013 Jeffrey Stobbs, who had been the nominated transport manager for the Appellant was called to the same Public Inquiry.  He was warned that the Traffic Commissioner would consider taking action in relation to his good repute and professional competence.  The letter went on to summarise those parts of the evidence relating to the Appellant, which were relevant in his case.

(xxx)        On 10 June 2013 the Appellant wrote to the OTC to advise that he would not be attending the Public Inquiry on 8 July 2013.  He said that having obtained legal advice he did not feel that it was appropriate to attend because he was a potential witness in the criminal prosecution of his sister LN.  He added that he would be willing to attend a Public Inquiry, if required, once the prosecution of his sister was concluded.  On 20 June 2013 the Appellant was informed that the Traffic Commissioner had decided to adjourn the Public Inquiry to a date to be fixed later.

(xxxi)       On 8 July 2013 LN wrote to the Traffic Commissioner to make a formal complaint against SC, which she asked the Traffic Commissioner to investigate.  At about the same time the Appellant made a similar complaint against SC.  He also requested that the Traffic Commissioner investigate the complaint.

(xxxii)      On 17 July 2013 the Traffic Commissioner replied to LN and on 19 July 2013 she replied to the Appellant.  In both letters she explained that SC was an employee of VOSA and that any complaint about his conduct should be referred to them.  She indicated that copies of each letter had been sent to a named individual at VOSA, whose contact details were provided.

(xxxiii)     On 27 August 2013 the OTC wrote to the Appellant and separately to Mr Stobbs to notify them that the Public Inquiry would take place on 28 October 2013.

(xxxiv)    On 29 August 2013 the Appellant wrote to the OTC to advise that he would not be able to attend the Public Inquiry because of the on-going prosecution of one of his drivers.

(xxxv)     On 6 September 2013 Mr Stobbs wrote to the Traffic Commissioner.  He explained his involvement as transport manager for the Appellant.  He described the checks that he made on tachographs and said that he reported mode switch issues and missing centrefield details to the Appellant.  He described a conversation with the Appellant during which he said that he learnt for the first time about the interference with the tachograph and speed-limiter.  He said that, as a result he had resigned.

(xxxvi)    On 9 September 2013 the OTC wrote to the Appellant strongly advising him to attend the Public Inquiry and making the point that the outstanding prosecutions were not the responsibility of the Traffic Commissioner or VOSA.

(xxxvii)   On 8 October 2013 LN wrote to the OTC saying that her criminal trial had been adjourned until 3 February 2014.  She added that she did not feel it appropriate, in those circumstances, to attend the Public Inquiry.  On 16 October 2013 the OTC replied saying that the Traffic Commissioner strongly advised her to attend the Public Inquiry.

(xxxviii)  On 11 October 2013 JMW Solicitors, who had just been instructed to represent the Appellant wrote to the OTC asking for the Public Inquiry to be adjourned.  On 16 October 2013 the OTC replied stating that the Traffic Commissioner had considered this request but had refused it.  The letter indicated that it was open to the Appellant to renew the application on the morning of the Public Inquiry.

(xxxix)    On 28 October 2013 the Public Inquiry commenced before the Traffic Commissioner.  The Appellant was present and represented by Ms Hadzik.  LN was also present together with Mr Stobbs, SC and a Senior Traffic Examiner.

(xl)            After the initial introduction the Traffic Commissioner said this: “Mr Nicholas I remember you but I do not remember the detail, if I am blunt, because we have not been able to locate the file.  The staffs at Leeds have not been able to locate the file from the 2011 Public Inquiry.  However, I do remember giving you a chance – (the Appellant intervened to say: “You did, madam”) – which you appear to have blown, but we will talk about that later. …”. 

(xli)           After some further preliminary discussion SC gave evidence in accordance with his statement, which has been summarised above. 

(xlii)          LN gave evidence that she had pleaded Not Guilty to a total of 19 charges.  She insisted, in answer to a question from the Traffic Commissioner that she had not: “fiddled her tachographs”.  Having heard from LN the Traffic Commissioner adjourned her ‘driver conduct hearing’ until the conclusion of her trial.

(xliii)         SC was recalled to give further evidence.  He explained that a decision had been taken that there would be no further prosecution of RN over and above the matters set out in paragraph 2(xviii) above.  He added that his investigation had disclosed further offences including 17 offences of making false records.  He said that RN had declined to be interviewed in relation to these matters.  The Traffic Commissioner decided to adjourn the driver conduct hearing in relation to RN to enable further evidence to be given.

(xliv)        When the Public Inquiry turned to deal with the matters concerning the Appellant Ms Hadzik indicated that she did not intend to proceed with a further application for an adjournment.  In answer to the Traffic Commissioner Ms Hadzik said that the evidence of SC was accepted in the main, subject to a couple of points on which she wished to question him.  She said that no prosecution had been brought against the Appellant.

(xlv)         The Traffic Commissioner asked whether Ms Hadzik was aware that a complaint had been made against SC.  She replied that she was aware that there had been “conversations” but that she was not aware of a formal complaint.  The Traffic Commissioner went on to say: “My question for you Ms Hadzik, is: is your client, Ian Nicholas, pursuing his complaint regarding Mr Clarke?” Mr Nicholas replied: “No madam”.  The Traffic Commissioner confirmed that he meant “No” and then asked when he decided not to pursue the complaint.  Mr Nicholas explained that on the basis of the reply that he received it did not appear that anyone was interested.  He said that he was told that VOSA had done a full investigation, though it appeared that they had not spoken to a crucial witness.  As a result he said that he had concluded that it was futile to pursue the matter.

(xlvi)        SC was then asked whether he had had a conversation with Mark Yates, (who appears to have been the crucial witness to whom the Appellant was referring), regarding the Public Inquiry and the prosecution.  In answer to the question he replied: “No madam” but he went on the say that Mark Yates had contacted him twice and that he had explained that VOSA’s Solicitor wanted to speak to him about a supplementary witness statement.  By way of clarification the Traffic Commissioner asked whether he had told Mark Yates the publicly known facts about the progress of the prosecution.  He agreed that this is what he had done.

(xlvii)       SC was also asked about the conversation on 26 January 2012, (see paragraph 2(x) above).  He said that he was not aware of the Appellant saying that he was happy to meet him at the vehicle but that as LN had left he had no means of getting to the place where he could pick up the keys to FX51 SVW nor would he be able to get to the vehicle.  A little later he said that it was not his recollection that the Appellant did not decline, outright, to go to the vehicle but explained that he was unable to obtain transport to get there.

(xlviii)      The Appellant then gave evidence.  He said that on 26 January 2012 SC asked him to come to the Port of Liverpool having explained what he had found, (see paragraph 2(viii) & (ix) above).  He said that LN gave him a lift but that having taken him to the Port of Liverpool she had to go back.  He added that before she left SC had asked for all the records so he had asked LN to call at the yard and pick up all the tachographs from the cab of FX51 SVW and take them home, by which he meant his father’s house, where he was using a room to store records.  He went on to explain that it had been intended that he would drive T117 ARM out of the dock but that it was found that he had had insufficient daily rest since his last shift so he was not permitted to drive.  As a result he was left with no means of returning home.  He added that when SC said that he wanted to see the remaining records he assumed that he would travel with SC only to be told that he could not travel with him because SC had a business vehicle that was not insured to cover members of the public.  The Appellant then said that he telephoned a friend, who agreed to pick him up when he finished work at 7.00 p.m. and that he suggested to SC that he should then follow him back but that SC declined that offer.  The Traffic Commissioner commented that this had not been put to SC.

(xlix)        The Appellant then described how he collected all the records, (i.e. tachograph charts, defect sheets and service sheets), from his father’s address, put them in his laptop bag, went to the house of a friend and left them in the bag in his car only to find when he returned that someone had broken into the car and stolen the bag and its contents.  He added that he tried to report the theft that evening but the Police Station was closed so he reported it the next morning.  He said that he received a letter from the Police a few weeks later saying that nothing has been found. 

(l)               The Appellant explained that the two vehicles specified on the licence had been acquired from RN after RN’s licence was revoked and his own licence was granted.  When asked about the wires fitted to both vehicles he said that he: “put it down to my dad” and that: “it could have been from when he owned it”.  He said that in January 2012 he, together with Mr Stobbs checked tachographs and that they were stored at RN’s house.  He went on to say that he and Mr Stobbs had seen the charts found in T117 ARM.

(li)              The Appellant was asked about the fact that LN had said that RN gave her instructions, (see paragraph 2(xx) above).  He replied: “Basically just training.  She’s told him that she was given instructions by my dad but that was just, like, if they were, say, going to Skem or something, you know, ‘well, we get on this motorway’.  It wasn’t anything to do with the running of the business”.  He was asked how the work for the two vehicles was allocated and distributed.  He said that T117 ARM, (the vehicle usually driven by RN and LN), was working for Container Movements.  He was asked how the work was allocated to the vehicle.  He replied that: “Basically he, (in context it must mean RN), would phone Anthony, (the contact at Container Movements), and ask him what job he’d got for him the next day, and then it was between them to decide whether he was capable of doing that job or whether, you know, he could start in time to do that job.  If not, it’s down to the driver, basically, to say ‘I can’t start in time’ and then they rearrange the jobs”.

(lii)             The Appellant said that Mark Yates had never driven for him and that he had not seen the charts in the name of Mark Yates because they were within the 28 days period during which a driver must have tachograph charts available for immediate inspection.

(liii)            The Appellant said that since the incident on 26 January 2012 tachograph charts were sent quarterly to Tachodisc to be analysed although he continued to check them, together with the transport manager.  He said that he and Mr Stobbs had not really picked up on anything on the cards, adding: “because of the use of the wire there was nothing untoward on the cards”.  He added that in addition to sending charts for analysis he had fitted a tracker to the vehicle so that cards could be cross-referenced to tracker reports.

(liv)           SC was recalled to deal with the matter set out at the end of paragraph 2(xlviii) above.  He was asked whether the Appellant had suggested that he should follow him home when the Appellant’s friend collected him.  SC drew attention to his pocketbook saying that he had recorded the conversation, which did not include the suggestion referred to, in his pocketbook and that the Appellant had signed the entries to confirm that they were correct.

(lv)            The Appellant then returned to the witness box to give further evidence on this point.  He agreed that he had signed SC’s pocketbook.  Shortly afterwards the following exchanges took place, with the Traffic Commissioner asking the questions:

“Q: Mr. Nicholas, I would venture to suggest that you are trying to wriggle out of it.  You did not want to produce those charts to him that night did you?  Why not say, ‘It is all right Stu, I have sent my sister to get them?

A: That’s what I did I sent her to get my records.

Q: Why are you saying that?  Why sign the pocketbook that says-

A: Well, the thing is Stuart only writes down in his pocketbook what he wants basically”.

A little later the Appellant said that he had never really read the pocketbook he had just signed it: “assuming that our conversation had been sort of put down in the pocketbook.  I never actually read it”.

(lvi)           The Traffic Commissioner then moved on to ask questions about the contents of the Appellant’s laptop bag.  The Appellant said that the laptop was in it together with some discs and programs for the computer and “stuff like that”.  He was asked how many tachograph charts had been put in the bag.  He replied that there were “seven months worth” for two vehicles, operating five days per week.  The Traffic Commissioner, having done some calculations suggested a figure of 280 charts, with which the Appellant agreed.  In addition the Appellant agreed that there would have been 56 defect reports and about 8 service sheets.  The Traffic Commissioner suggested, in effect, that it looked, from where she was sitting, as if it would not have been possible to fit it all in to a laptop bag.  The Appellant replied: “I can appreciate that.  Yeah, madam”.  The Appellant said that he had left the laptop bag behind the seat in the back of his car and that with it being dark he didn’t think anyone would see it.

(lvii)          When asked about the interrupter switches the Appellant said that he did not know about them.  He added that they were just normal switches on the dashboard.  The Traffic Commissioner suggested that the Appellant must have known from the tachographs that an interrupter was being used.  The Appellant replied that there was nothing.  The Traffic Commissioner suggested that the Appellant must have known, from the nature of the work and the hours that he and his father were working and from a cursory look at the charts that: “something was mightily wrong”.  The Appellant replied that basically the charts didn’t show anything untoward.  He added that when he and Mr Stobbs checked the charts the only thing they saw was minor infringements.  He went on to state that it was his business and he was running it.  He said that he paid his father weekly on the basis of an invoice submitted by his father and continued to maintain that he did not know what his father was up to.

(lviii)         The Traffic Commissioner then asked the Appellant about LN’s answer that she got her instructions from RN.  He replied: “She gets her instructions from me”.  The Appellant appeared to suggest that she meant that she actually received her instructions from RN but that they had actually come from him.  The Traffic Commissioner suggested that he was trying to: “wriggle out of it”.  The Appellant denied that suggestion and added: “Basically Stuart’s just twisted what she said as …”, at which point the Traffic Commissioner intervened.  As a result the Appellant said that he was not blaming anyone and that ultimately he was responsible.

(lix)           A little later the Traffic Commissioner required the Appellant to produce a number of documents including tachograph charts for the previous 3 months.  The Appellant agreed to bring the charts to the Traffic Commissioner’s office the following day.  The Public Inquiry was then adjourned.

(lx)            On 29 October 2013 the Appellant delivered tachograph charts for the previous 4 months to the Traffic Commissioner’s office.  He also provided charts for 1/10/12-31/3/13, being the latest set of charts to have been analysed, together with a copy of the recorded infringements.

(lxi)           On 31 December 2013 the Traffic Commissioner issued a written decision. This summarised the factual background, set out above.  She went on to explain that as she had not heard from LN, because of her pending prosecution, it was difficult to deal with the remainder of the evidence in isolation.  As a result and because of the need to avoid the risk of compromising the prosecution of LN she concluded that it was necessary to adjourn the Public Inquiry in relation to the Appellant until after the conclusion of the trial.  In addition the driver conduct hearing in relation to LN was adjourned until the conclusion of her trial.  The driver conduct hearing against RN was also adjourned.  His vocational entitlement was suspended pending his attendance before the Traffic Commissioner.  The Appellant was required to produce a number of specified records and documents by 28 February 2014.  The matter was re-listed for Directions on 27 February 2014, with a view to setting a date on which the Public Inquiry would reconvene.  This date was later changed to 13 March 2014.

(lxii)          On 27 January 2014 PC Dutton was informed that it was possible that the vocational entitlement of a driver of T117 ARM had been revoked.  At 12:00 that day he stopped this vehicle, which was being driven by RN.  When questioned RN agreed that the HGV part of his licence had been revoked.  The officer told RN that he was committing the offences of driving otherwise than in accordance with a licence and uninsured use.  RN replied: “I only need the car bit as I’m just shunting.  I don’t leave the docks”.  RN was told that he would be reported for these offences and might receive a summons.

(lxiii)         On 3 February 2014, the date of her trial, LN pleaded guilty to a single count of conspiring, with RN to make false entries on drivers’ record sheets between 1 December 2011 and 26 January 2012.  The matter was adjourned for reports to be prepared before the Appellant was sentenced on 28 February 2014.  The sentence was 5 months imprisonment suspended for 24 months and an unpaid work order of 240 hours. 

(lxiv)        In outlining the prosecution case against LN counsel for the prosecution said that the prime objects of the rules on drivers’ hours are: “to promote road safety; to control social working conditions of drivers and to ensure fair competition between operators”.  Counsel went on to make the point that the need to promote road safety took account of the very substantial harm that HGV’s are capable of causing if poorly driven, because: “a tired driver is a less attentive and so less safe driver”.  He said that the importance of controlling social working conditions was to remove the pressure on drivers to drive for long and anti-social hours in order to maximise profit.  Finally he said in relation to fair competition: “If one operator complies with the rules but others flout them then those prepared to drive excessively will gain a significant competitive advantage over the compliant.  This will increase pressure on compliant employers and drivers themselves to break the rules or go out of business in a very competitive high cost and low margin industry”.  He also made the point that the proper installation and proper use of tachographs is essential to the enforcement of the rules on drivers’ hours.  He said that the prosecution case was that the primary object of the falsification to which LN was a party was to produce false documentary records for later production, if necessary, which concealed illegal and excessive driving by RN and/or LN, with the underlying motive of making a profit.  Counsel then went on to describe how there were many instances when the timing on entry and exits logs at the docks and/or CCTV evidence showing the identity of the driver was not consistent with the information recorded on the relevant tachograph chart.

(lxv)         On 13 March 2014 the Public Inquiry resumed before the Traffic Commissioner.  She began by considering whether it was possible to conclude the driver conduct hearings in relation to LN and RN.  After considerable discussion she decided to do so.  She revoked LN’s vocational entitlement and disqualified her from driving LGV’s of more than 3.5 tonnes for 3 years.  In the case of RN she also revoked his vocational entitlement and made a disqualification order for 3 years.  In his case, due to his age, the disqualification applied to vehicles of over 7.5 tonnes. 

(lxvi)        In relation to the Appellant the Traffic Commissioner was reminded of the incident on 27 January 2014, (see paragraph 2(lxii) above) and told that there would be a ‘follow-up investigation’.  She was also told that on interrogating the system that morning it became apparent that an ‘S’ marked prohibition had been issued to FX51 SVW on 4 February 2014 in respect of a bald tyre.  The Traffic Commissioner was told that issuing an ‘S’ marked prohibition would trigger an investigation.  In the case of the Appellant the Public Inquiry was adjourned to 1 April 2014 and the Traffic Commissioner gave a number of directions as to the evidence to be produced on that occasion.

(lxvii)       On 17 March SC began a Drivers’ Hours and Tachograph Compliance check on tachograph records for the two authorised vehicles.  The charts covered the period November 2013 to March 2014.  In general terms it became clear that the odometer readings entered in the centrefield of each chart probably recorded the distance actually covered by the vehicle during the period in question.  That is because the end reading on one chart was consistently the same as the start reading on the next chart.  On the other hand analysis of the distance trace recorded on each chart showed, on occasions, a disparity between the distance recorded in the centrefield and the distance recorded by the tachograph on the distance trace.  In those instances the distance trace recorded a shorter distance indicating that the vehicle had been driven when the tachograph was not recording.

(lxviii)      On 19 March 2014 Robert Kirk, a Vehicle Examiner, conducted a maintenance examination, which was completed on 24 March 2014.  The Vehicle Examiner had informed the Appellant the night before that a maintenance examination would take place.  He asked if the transport manager could attend but was told that she worked elsewhere during school hours.  There were two vehicles at the operating centre.  One of them was checked and issued with an inspection notice.  The other had been removed from the licence and was subject to a Statutory off Road Notification.  The maintenance systems and records were checked.  On 24 March 2014 the Vehicle Examiner completed the examination when he interviewed the transport manager, Debra Hales, at her home.  The Appellant and his legal adviser were also present.  During the interview the Vehicle Examiner informed the Appellant and the transport manager of the shortcomings he had found and he gave advice on matters relating to maintenance and facilities.  He explained, in writing, that the outcome was unsatisfactory: (i) because maintenance was now being carried out ‘in house’ by the Appellant, (a ‘time served’ fitter), but the Traffic Commissioner had not been informed of the change, (as to the last point the Appellant produced a letter dated 10 March 2013 to the Traffic Commissioner informing her that he would be carrying out his own PMI checks), (ii) no calibrated torque wrench was available to secure wheel nuts, (iii) there were no undercover inspection facilities, (iv) an ‘S’ marked prohibition had been issued, (it related to a tyre, worn below the legal limit, which should have been noticed at the walk-round check), and (v) a delayed roadworthiness prohibition had been issued.  In the period between June 2011 and March 2014 two immediate prohibitions were issued as well as one delayed prohibition and one delayed ‘S’ marked prohibition.  The Vehicle Examiner’s overall conclusion was that the Appellant was not complying with the statement of intent in relation to maintenance undertakings.

(lxix)        On 27 March 2014 the Appellant emailed the Vehicle Examiner to say that he had “taken on board the valid points” that he had made.  He said that he had ordered a torque wrench and that he would carry out quarterly brake tests at Morparts UK.  In relation to the ‘S’ marked prohibition he said that it was a bald spot rather than a bald tyre but he accepted that it should have been spotted but was not.  He said that he would be more vigilant in future.

(lxx)         On 2 May 2014 SC interviewed the Appellant under caution.  The Appellant agreed that he operated as a sole trader with Debra Hales as his transport manager.  He was asked: “Who books the jobs in for the vehicles”.  He replied, initially: “I suppose me really”.  He was asked whether he always did so and replied: “It just depends which, like, which vehicle it is.  Obviously if I’ve got my own I sort my job out, but when I had the other vehicle that was on, like, that was on sort of contract to Container Movements.  So the driver would just ring the office and he’d sort out with the, guy in the office what, you know, what there was to do, what he could do, what he couldn’t do.  Basically there was no point in him ringing me to ask me does he want this job. ‘I haven’t got the hours to do that’, to ring him back.  It was easier for them to sort it out with the” -.  The next answer made it clear that the driver of T117 ARM would contact Container Movements to arrange which jobs he would do.  He was asked how he discharged his responsibility, as operator, to ensure that drivers did not exceed permitted hours.  He replied that it was down to the driver himself because the driver was punishable for any offences.  He said that tachograph charts were handed in at the end of each week and that he and Debra Hales checked them before they were sent to Tachodisc for analysis.

(lxxi)        The Appellant was then questioned about a number of tachograph charts recording his own driving.  SC pointed out that a chart dated 5 November 2013 recorded aggregated driving time of nearly 6½ hours without an acceptable break.  The Appellant replied: “obviously I’ve miscalculated somewhere”.  SC said that he would take the Appellant’s word on that one.  He showed the Appellant another example, (15/11/13), of failing to take an acceptable break.  The Appellant replied that if he had gone over it was “fair do’s”.  SC pointed out that it appeared that the chart had been removed between 16:12 and 16:15.  The Appellant said that his guess was that it was to check his driving time.  SC turned to the chart for 13 December 2013 as another example of a chart being removed.  The Appellant gave the same explanation.  He was then asked why the vehicle had moved about 1 kilometre while the chart was out of the tachograph.  He replied that he would have to check.  SC showed the Appellant the chart for 15 January 2014.  He asked why the manual record ended at 17:30 when the vehicle had been driven into the operating centre at 18:17.  The Appellant replied that without checking he could not say.  He was asked why he had not recorded the time taken to drive to his home in a car.  He replied that he did not know that this had to be recorded.  In relation to the chart for 26 February 2014 SC pointed out that having started work at 04:27 and finished at 19.48 the Appellant had exceed the maximum permitted daily duty, of 15 hours, by about 21 minutes, meaning that he would have insufficient daily rest.  SC suggested that the Appellant had made a manual record because he knew that he had gone over permitted hours and that he had either discarded another card or not used another in the first place.  The Appellant replied that he would need to check.  When asked if there was anything else he wished to add the Appellant replied that he had been given to understand by a VOSA employee that, as long as there was no missing mileage, he was allowed to open the head of the tachograph.  SC replied that VOSA would normally expect to see a note on the back of the chart to explain why the head had been opened.  The Appellant agreed.  SC pointed out that that the requirement of the legislation was that once entered into the recording device the chart should not be removed until the end of duty and that any unauthorised removal had to be documented on the reverse of the chart.

(lxxii)       On 16 June 2014 the Appellant gave a written explanation in relation to a number of matters raised in the interview.  In relation to the missing kilometre on 13 December 2013 he was unable to offer any explanation.  As to the chart for 15 January 2014 he was unable to explain the discrepancy but he pointed out that he was well within his daily rest periods for the day before and after so he had nothing to gain.  He explained that the discrepancy on the chart for 26 February 2014 could have arisen as a result of entering the wrong end of shift time.  He added that to avoid opening the tachograph head in the future he had bought a driver timer.  He said that in future he would record the time taken when driving from the operating centre to his home in a car.

(lxxiii)      On 26 June 2014 Debra Hales wrote to the Traffic Commissioner to resign as transport manager, with immediate effect.  She said that one reason for resigning was that it appeared, (from the transcripts of the earlier hearings and from the interview between the Appellant and SC), that the Appellant had not been truthful to her about the way in which he was conducting the business.  She went on to say that she had spoken to the Appellant, on several occasions, about what she had learnt and that he had kept saying that it was all down to RN and LN and that he knew nothing about it.  She added that she had only been aware of one of the authorised vehicles, FX51 SVW, she did not know that RN and LN were working for the Appellant and she had no knowledge of the switches.  Finally she said that had she been aware from the start of the investigation and the Public Inquiries she would never have agreed to become transport manager.  In relation to the Public Inquiry, which was due to resume on 10 July 2014 she said that she would not be attending because she did not want to be confronted by the Appellant or any member of his family.

(lxxiv)      On 3 July 2014 the OTC wrote to the Appellant to ask him to inform the office of his proposals for replacing Debra Hales with another transport manager.  On the same day the Appellant replied by email that he was currently looking for a new transport manager and that he would inform the Traffic Commissioner of the position when the Public Inquiry resumed on 10 July 2014.

(lxxv)       On 8 July 2014 Debra Hales emailed the OTC to say that she would not attend on 10 July 2014 because her daughter’s school was on strike and there was nobody else to look after her.

(lxxvi)      On 10 July 2014 the Public Inquiry resumed in front of the Traffic Commissioner.  After a short discussion, to ensure that the Appellant had the relevant papers, the Traffic Commissioner asked whether he had got a transport manager.  The Appellant replied that this was what he had come to ask about.  He said that RN had a CPC, that he knew he was not the ideal candidate, but that the inquiries he had made showed that because of the background people were reluctant to take up the post.  The Traffic Commissioner made it clear that while she knew that RN had a CPC he did not have any ‘repute’.  When the Appellant pressed the point the Traffic Commissioner made it clear that she would consider any formal application on its merits but that RN had a massive hurdle to clear.  She went on to point out that the absence of a transport manager left the Appellant in difficulty and that, in addition, SC had identified offending by the Appellant.  After some discussion as to what SC had found and what was being done about it the Traffic Commissioner suggested to the Appellant that he had a history of non-compliance.  The Appellant replied: “sort of”.  The Traffic Commissioner asked whether that meant “Yes or no”.  The Appellant replied: “Well yes”.  The Traffic Commissioner then asked: “Why have you not fully equated, (acquainted ?), yourself with the current rules with your history of non-compliance”.  The Appellant replied: “I don’t know madam”.  At this point the Appellant again raised the question of whether RN could be his transport manager.  The Traffic Commissioner replied: “He has got no repute.  What does it say to the legitimate industry if I let your father be the transport manager?  I am concerned that you are not actually being understanding or realistic about the seriousness of your position Mr Nicholas.  That is what I am worried about”.  The Appellant replied that he understood but that he was struggling to find anyone to do the job because of the length of the investigation.

(lxxvii)     The Appellant explained that VOSA had decided to prosecute him for five of the offences found by SC.  He said that he was due in court on 17 July 2014.  The Traffic Commissioner agreed to adjourn the Public Inquiry to 10 September 2014.  She granted the Appellant a period of grace, until that date during which he could operate without a transport manager.  She made it clear that it was highly unlikely that she would accept RN as the Appellant’s transport manager.  She went on to explain that if the Appellant could not get anyone else he would be in difficulty because he needed a transport manager.

(lxxviii)    On 21 July 2014 Tachodisc wrote to the Traffic Commissioner to explain their interpretation of ‘small head openings for which there is no handwritten explanation’.  They said that unless a customer specifies otherwise their standard policy would be not to comment on an opening lasting less than 5 minutes where the distance trace indicates that the vehicle had not moved during that time.  They added: “Should there be a number of head openings of this sort we would then raise awareness that this was a reoccurring event”.

(lxxix)      On 21 July 2014 SC wrote to the Traffic Commissioner to report the result of the Appellant’s appearance before Liverpool Magistrates Court on 17 July 2014.  He said that the Appellant had pleaded guilty to all but one of the offences.  The offence to which he pleaded Not Guilty was listed for trial on 4 September 2014.  On 5 September 2014 SC emailed the result of the hearing the previous day.  The Appellant was sentenced on five counts of failing, without reasonable excuse, to make a relevant record or entry.  He was fined £250 on one count and £150 on the remainder, with costs of £1300 and a Victim Surcharge of £20.  The offences covered the period 13 December 2013 to 26 February 2014.  In relation to the one charge in respect of which the Appellant pleaded Not Guilty the Appellant subsequently pleaded guilty on the basis that he accepted that he had worked later, at the end of the day, than the time shown on the relevant chart.  On that basis the Prosecution did not proceed with the other allegations in relation to that date.

(lxxx)       On 1 September 2014 the Appellant wrote to the Traffic Commissioner to set out his comments on the letter from Debra Hales, (see paragraph 2(lxxiii) above).  He pointed out that Debra Hales must have been aware that he was operating 2 vehicles because she attended the Public Inquiry on 13 March 2014 at which there were frequent references to two vehicles.  He said that she checked tachographs on a regular basis so she must have been aware that RN and LN worked for the Appellant.  As a result of attending the Public Inquiry he said that she must have become aware of the interrupter switches and the issues relating to RN and LN.  He added that Debra Hales did not inform him that she was resigning as transport manager.  Instead he said that he received the information in a telephone call from a third party.

(lxxxi)      On 10 September 2014 the Public Inquiry re-convened before the Traffic Commissioner.  The Appellant appeared in person.  RN was present to observe the hearing and SC and a Senior Traffic Examiner were also present.  After a reference to RN the Traffic Commissioner went on to say: “All right.  Mr Nicholas, it has been quite a long time since we last met.  This is one of a number of cases that I have got from July.  10 July was when we last met, as I understand it”.  She summarised the events in the intervening period.

(lxxxii)     The Traffic Commissioner then pointed out to the Appellant that he did not have a transport manager and that at the previous hearing he had suggested that RN should undertake the role.  She asked if the Appellant had given any more thought to the matter.  He replied: “In the meantime he’s been, like filling the role really”.  The Traffic Commissioner said: “Has he” and the Appellant continued: “Sort of just helping me out while I haven’t got one.  I have spoken to a few people and obviously, with all this going on, they’re a bit reluctant to sort of jump into the fire, so they’ve said, basically, ‘If and when it’s all sorted, come back and see me then’.  Sort of don’t want to get tied up in all this, which is understandable really”.  The Traffic Commissioner suggested that he had been operating without a transport manager and without a period of grace.  The Appellant, correctly, replied that she had granted a period of grace.

(lxxxiii)    SC gave evidence in relation to his most recent investigation the details of which were set out in a statement dated 26 June 2014.  The nature of that investigation is summarised at paragraphs 2(lxx)-(lxxii) above.  Having established the date of the statement the Traffic Commissioner asked: “What has happened since?”  SC replied: “Since then madam we’ve had a brief PI with your good self and Mr Nicholas had been reported for prosecution for five offences, which were initially heard on 17 July and then there was a second hearing – bear with me a second – which was on 4 September”.

(lxxxiv)   SC was asked to summarise his statement.  He said that he had examined 89 tachograph charts, with the benefit of material from the Port of Liverpool Police, the operating centre and Wigan Container Movements.  He said that he had found 43 alleged offences and that he had put forward 5 for prosecution.  The result of the prosecution is set out at paragraph 2(lxxix) above.  SC accepted that consideration had been given to prosecuting the Appellant for making false records but that he had been advised that it was felt that it would not be possible to prove that the offences had been committed knowingly.  SC referred to tachograph charts for 26 February 2014 and 30 January 2014.  He said that the Appellant had kept a manual record on the back of both charts but that the hours of duty recorded did not accord with timings derived from other material in his possession.  The Appellant’s explanation was that on each occasion he had run out of tachograph charts.

(lxxxv)    SC said that he had checked the system to see if there had been any recent encounters with the Appellant’s authorised vehicles but none had been found.

(lxxxvi)   The Appellant then gave evidence.  The Traffic Commissioner stressed at the outset that, while she was not prejudging the issue, it was important for the Appellant to understand that: “it does not look good”.  The Appellant explained that a lot of the 43 offences found by Traffic Commissioner resulted from opening the tachograph to check his driving time.  He added that he had now bought a timer to make this unnecessary.  As to the other offences he said that: “A lot of it boils down to stuff I just wasn’t aware of”. He went on to say: “Obviously at times I will make mistakes, but I’m trying my best not to and I think I’ve got as many systems as I can, I can possibly do: I’ve got a tracker, I’ve got analysis, you know, my servicing’s up to date.  I don’t really think I can do any more to be honest.  A lot of the problems before came up basically having … I probably didn’t keep as watchful an eye on my dad as I should have done, but there’s only me now…”. 

(lxxxvii)  The Traffic Commissioner returned to the question of who was fulfilling the role of transport manager.  The Appellant replied: “Well I’d hope to get an external one but I have been looking into getting my own…”.  He was clearly referring to getting his own CPC.  He added that he thought that the next exam in December would be too soon and that the one after that was in March.  He explained that he was waiting on the outcome of the Public Inquiry before taking the matter further.

(lxxxviii) The Appellant invited the Traffic Commissioner to accept that he was now doing everything that he could do to operate compliantly and asked her to give him a further chance.  The Traffic Commissioner indicated that she would reserve her decision and she gave the Appellant a further period of grace to operate without a transport manager until the date of her decision.

(lxxxix)   The Traffic Commissioner gave a written decision dated 26 September 2014.  She set out a full summary of the history and the background as well as the evidence she heard at the Public Inquiries.  All this material has been summarised above.  At paragraph 56 of her decision the Traffic Commissioner recorded that the majority of the facts she had set out were not in dispute and that the fact that the Appellant took issue with one of the charges against him did not materially alter her decision.

(xc)          Under the heading ‘key findings of fact and the balancing act’ the Traffic Commissioner said: “I have conducted the necessary balancing act and in doing so I have considered the relevant key facts”.  She then set them out in 14 sub-paragraphs.

(xci)         Stated very briefly the key facts found by the Traffic Commissioner were: (a) that the Appellant had been given one chance to operate compliantly, (b) that there had been a breach of condition in that RN took part in the management of the business, (c) that the letter written by the Appellant after the grant of the licence was an attempt to hoodwink the Traffic Commissioner, (d) that the Appellant permitted serious tachograph abuse on the part of RN and LN, (e) that the Appellant either knew what was going on or turned a blind eye to it and in any event he should have known what they were doing, (f) The Appellant knowingly permitted RN to drive when disqualified by the Magistrates and when ordered by the Traffic Commissioner not to drive HGVs, (g) that on 26 January 2012 the Appellant misled SC about his ability to obtain the relevant records that evening and that his evidence that the records were stolen was not believable, (h) that the transport managers employed by the Appellant did not exercise continuous and effective management and that they were actively misled by the Nicholas family, (i) that the complaint against SC was without merit and an attempt to discredit SC, (j) that the most telling evidence came from the examination of the tachograph charts produced in April 2014 that revealed serious non-compliance by the Appellant in relation to drivers’ hours and tachographs, resulting in convictions, (k) that the Appellant, when giving evidence, sought to deflect attention from his own failings by pointing to non-compliance by others, (l) that the Appellant’s failure to appreciate the seriousness of his situation was demonstrated by the fact that he put forward RN as a potential transport manager, (m) that permitting the Appellant to continue to operate would lead compliant operators to conclude that the Appellant and the Traffic Commissioner had brought themselves into disrepute and (n) that it would be an unacceptable affront to road safety and fair competition to allow the Appellant to remain an operator.  

(xcii)        In the next paragraph the Traffic Commissioner said: “I have conducted the balancing exercise and I regard all of the above as aggravating features.  I have struggled to find anything to put into the positive balance apart from the operator’s promise that he will do it right from now on”.  The Traffic Commissioner went on to conclude that having already had one chance it was not appropriate, given the serious and continuing non-compliance, to give him another.  She continued by finding that there was no prospect of the appellant complying with the operator licensing regime in the future.  She then concluded that it was right that he should be put out of business because the non-compliance was too serious to be marked by orders for suspension or curtailment.

(xciii)       On this basis the Traffic Commissioner revoked the Appellant’s operator’s licence, with effect from 23.59 on Friday 31 October 2014.  She did so (a) in the exercise of her discretion under s. 26(1) of the 1995 Act, on the grounds that prohibitions has been issued and that there had been a breach of the undertakings in relation to drivers’ hours, tachographs, records and keeping vehicles and trailers in a fit and serviceable condition, (b) under s. 27(1) on the grounds that the Appellant no longer satisfied the requirements to be of good repute and to be professionally competent.

(xciv)       The Traffic Commissioner then went on to consider the question of disqualification.  She concluded that she would be failing in her duty if she did not disqualify the Appellant, but, as she believed that the call-up letter did not refer to the possibility of disqualification she directed that a letter should be sent to the Appellant warning him that: “In my view there will be no room in the haulage industry for him for some time. …. Accordingly I direct that Ian Nicholas be disqualified for a period of 5 years with effect from 23.59 on 31 October 2014”.  The Traffic Commissioner went on: “Ian Nicholas is to be given the opportunity to make representations within 21 days of receipt of the decision and letter with regard to the proposed direction”.

(xcv)        On 2 October 2014 the OTC sent out a decision letter.  In addition to setting out the decision to revoke the Appellant’s operator’s licence the letter went on to state that the Traffic Commissioner: “also made an order to disqualify Mr Ian Russell Nicholas for a period of 5 years with effect from 23.59 on 31 October 2014”.  It gave no opportunity for the Appellant to make representations.

(xcvi)       On 17 October 2014 the OTC wrote to the Appellant to qualify their earlier letter and to make it clear that the Appellant did have the right to make representations within the next 21 days.

(xcvii)      On 20 October 2014 the Appellant filed a Notice of Appeal.  In Section A of the Notice of Appeal the Appellant said: “I wish to appeal the whole decision of the Traffic Commissioner.  I feel it was unjust, biased and I was not allowed to put evidence forward to the court for all the issues the Traffic Commissioner has determined in her decision”.  A little later he said that DVSA had not put forward any substantial evidence sufficient to lead to the revocation of the licence.  In separate grounds of appeal the Appellant advanced 15 different points, which included further allegations of bias.  We will consider each of these 15 points in due course.

(xcviii)     In a document dated 28 October 2014 the Traffic Commissioner referred to the confusion in relation to disqualification.  In view of the fact that there was an appeal she invited the Tribunal to deal with the appeal on the basis that an order for disqualification for a period of 5 years had actually been made.

(xcix)       Immediately the Principal Judge became aware of the allegations of bias he gave the Direction that is annexed, as Annex A, to this decision.  This gave the Appellant until 21 November 2014 to file an affidavit setting out (a) full details as to why the Appellant said that the decision was biased and (b) identifying the meeting, which the Traffic Commissioner was alleged to have had with SC in the absence of the Appellant.  This was done to ensure that the Appellant complied with the approach to allegations of bias on which the Tribunal has insisted since the decision in 2004/426 EA Scaffolding.

(c)             On 17 November 2014 the Appellant filed an affidavit.  In relation to the first point he said that on 28 October 2014 the Traffic Commissioner had announced to those present: “I gave you a chance and you have blown it”.  He went on to rely on the fact that all the evidence from the DVSA was accepted while his own evidence was dismissed as “disingenuous”.  In answer to the requirement to identify the meeting he said that he was not aware of where or when it took place but that it was the meeting referred to by SC at the Public Inquiry on 10 September 2014, when SC was requested to bring everyone up to date.

(ci)            On 25 November 2014 the Traffic Commissioner granted the Appellant’s application for a stay.  She went on to submit that the Appellant’s affidavit did not provide sufficient detail to comply with the Tribunal’s direction.  In relation to what she was alleged to have said at the start of the first Public Inquiry she pointed out the relevant passage in the transcript.  In relation to the allegation that she had held a private meeting with SC she refuted the allegation and she pointed out that there was no reference to any such meeting in the transcript of SC’s evidence.

(cii)           On 5 December 2014 the Treasury Solicitor’s Department, (“TSD”), applied for and was granted permission for the Secretary of State for Transport to be added as a party to the appeal.

(ciii)          On 29 January 2015 the TSD wrote to the Tribunal.  The letter referred to the transcript on the Public Inquiry on 28 October 2012 and made the point that the Appellant had not accurately quoted what the Traffic Commissioner had said.  It referred to the fact that both the Traffic Commissioner and SC had made statements refuting the allegation that they had had a private meeting. It then pointed out that there is no reference to any such meeting in the transcript of the evidence of SC.  Finally the letter dealt with an allegation that there had been an undocumented check of the Appellant’s vehicle on 19 April 2012.  That allegation was refuted by the production of copies of the relevant entry in SC’s pocketbook.

(civ)         On 4 February 2015 the TSD provided the Tribunal with a witness statement from SC exhibiting the relevant entry from his pocketbook.  We gave permission for the material put forward by TSD to be adduced as fresh evidence.

(cv)          At the hearing of the appeal the Appellant appeared in person, accompanied by LN.  He provided us with written submissions, backed up by a number of documents, for which we are grateful.

3.         Before we come to the grounds of appeal we intend to make two general points, which will be relevant in other cases raising similar issues.  The first concerns the assessment of the gravity of breaches of the rules on drivers’ hours and tachographs.  The second concerns the message sent out to the industry as a whole by the decision in an individual case.

4.         The first part of paragraph 2(lxiv) above contains a summary and quotations from the opening speech of Prosecuting Counsel in the case against LN.  It sets out, in general terms, the reasons for and the importance of the rules on drivers’ hours and tachographs.  We agree with what Prosecuting Counsel said and we consider that Traffic Commissioners are entitled to take those factors into account: (a) when assessing the gravity of any proved breach (i) of the rules on drivers’ hours and tachographs and/or (ii) of the undertaking attached to every licence that those rules will be observed and (b) when considering whether and, if so, what effect such breaches of those rules have on the good repute of the operator in question.

5.         In paragraph 2(lxxiv) above we have quoted the Traffic Commissioner’s response to the suggestion that RN should become the designated transport manager for the Appellant.  One of the points she made was: “He has got no repute.  What does it say to the legitimate industry if I let your father be the transport manager?  We are satisfied that the Traffic Commissioner was entitled to have regard to the message sent to other operators by a decision to accept RN as transport manager.  The primary purpose of the regulatory regime is to ensure that potentially dangerous vehicles are operated safely.  That purpose is not confined to keeping vehicles in a fit and serviceable condition.  Instead it extends to ensuring, amongst other things, that drivers are properly qualified, that they are not required, or permitted, to work excessive hours and that operators comply with all the obligations of the regulatory regime and compete fairly with each other.  In T/2013/47 Dundee Plant Company Ltd the Tribunal quoted with approval the following passage from a decision on an application for a stay:

“Other operators with knowledge of this case may be tempted to say to themselves – ‘this operator appears to be getting away with it so why should we bother to incur expenditure of time, trouble and money to run a compliant operation?’ In my view, it only needs one or two other operators to adopt this approach in response to this case to lead to greater and greater numbers doing so in future. If that happens there is a real risk that the operators’ licensing system, which has made a significant contribution to road safety, will be fatally undermined.”

We would simply add that there is a real risk that if non-compliant operators appear to be allowed to thrive it will be compliant operators, who most deserve to remain in the industry, who are likely to be amongst the first to be driven out of it.  We are satisfied that that is not in the public interest and that the public interest requires that Traffic Commissioners are seen to be firm and even-handed in requiring compliance with the regulatory regime and that they are seen to send out a consistent message that compliance is a requirement of continuing to hold a licence; not something to be observed as and when the operator finds it convenient to do so.

6.         The first ground of appeal is that the decision was biased and had already been made before the start of the first Public Inquiry.  In support of that proposition the Appellant said that at the start of the Public Inquiry the Traffic Commissioner had said: “I gave you a chance and you blew it”.  In his written submission the Appellant makes a wider criticism namely that the Traffic Commissioner’s failure to identify any factors favourable to him is also indicative of bias.

7.         In their written submissions the TSD referred to the definitions of bias to be found in two recent cases.  In Magill v Porter [2001] UKHL 67 it was said in relation to ‘apparent bias’ that: “The question is what the fair-minded and informed observer would have thought, and whether his conclusion would have been that there was a real possibility of bias”.  In Locabail (UK) Ltd v Bayfield Properties Ltd & another [2000] QB 451 the Court of Appeal said that: “… a real danger of bias might well be thought to arise … if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly [1989] 167 CLR 586”. 

8.         The TSD also pointed out that in Susan Tattersall [2013] UKUT 409 (AAC) the Tribunal said this at paragraph 6:

“Public Inquiries are inquisitorial and Traffic Commissioners are entitled and, indeed, expected to test the case being made by those who come before them.  Having read the transcript with care we accept that a different Traffic Commissioner might have conducted the Public Inquiries in a different way but we are not satisfied that what we have read discloses either actual bias or the appearance of bias on the part of the Traffic Commissioner.  In our view it went no further than a healthy scepticism when testing the merits of this application”.

9.         The TSD submitted that if these decisions are applied to the evidence in this case it becomes clear that this is not a case of bias, within the legal definitions we have quoted.  Instead the initial remarks by the Traffic Commissioner and her overall approach went no further than a healthy scepticism when testing the merits of the Appellant’s case and a proper desire to alert the Appellant and his advisers to an issue which would arise in the PI.

10.      With the benefit of a full transcript it is clear that the Appellant has sought to found the first part of his argument about bias on an incomplete quotation.  The full transcript shows that the Traffic Commissioner qualified her initial remarks in two important respects.  She did not, as the Appellant has asserted, say that he had blown his chance, instead she said that he appeared to have blown it and that they would talk about it later.  In our view those two qualifications make it clear that the Traffic Commissioner still had an open mind.  What she was doing was to warn the Appellant, and, more importantly, his legal adviser, (who might not have been aware of what had happened when the licence was granted), that this was a matter of concern, which would have to be considered in the course of the Public Inquiry.  Far from being evidence of bias, it was in our view, an attempt to avoid the Appellant and his legal advisers being unaware of a matter that concerned the Traffic Commissioner.

11.      As to the wider point made by the Appellant we accept, and we will return to the point, that the Traffic Commissioner did not specifically identify all the favourable factors on which the Appellant was entitled to rely.  At the end of the day it was her responsibility to weigh up and assess the evidence.  The mere fact that she found against the Appellant cannot support an allegation of bias because the fair-minded and informed observer would have concluded that she was simply doing her job.  In our view that conclusion is reinforced by the Traffic Commissioner’s approach.  She was faced with a serious dilemma.  On the one hand the situation revealed by the events of 26 January 2012, and the results of the investigation that followed, demanded an early decision on whether or not regulatory action was justified.  On the other hand the criminal proceedings involving RN and LN were closely linked to the Public Inquiry and the Traffic Commissioner was keenly aware of the need to avoid compromising the fairness of the criminal proceedings and/or the Public Inquiry.  She resolved that dilemma by proceeding with caution and taking all possible steps to ensure fairness on all sides.  The Public Inquiry, which commenced on 28 October 2013 was adjourned on three occasions and did not conclude until 10 September 2014.  Early on the third occasion on which the Public Inquiry convened, (10 July 2014), the Traffic Commissioner asked the Appellant whether he had a transport manager.  The Appellant replied that this was what he wanted to talk about and he suggested that as RN held a CPC he could be considered as transport manager.  The Traffic Commissioner pointed out that he did not have good repute, (an essential requirement for anyone put forward as a transport manager).  In our view if the Traffic Commissioner had made up her mind to revoke the Appellant’s licence the evidence on 20 July 2014 provided an ideal opportunity to do so.  We say that because professional competence is an essential and continuing requirement imposed on anyone holding an operator’s licence.  The Appellant is not qualified to act as his own transport manager so it follows that the only way in which he could meet the requirement to be professionally competent was by employing a qualified transport manager approved by the Traffic Commissioner.  In the event instead of revoking the licence there and then on the ground that the Appellant no longer satisfied the requirement to be professionally competent the Traffic Commissioner granted the Appellant a period of grace and adjourned the Public Inquiry, thus giving the Appellant an opportunity to satisfy the requirement of professional competence.  Taking an overall view of the conduct of the Public Inquiry, spread over four separate hearings, we are satisfied that the approach of the Traffic Commissioner, while robust and revealing a healthy scepticism when testing the evidence did not stray over the borderline between a permissible approach and an apparently biased approach.  We therefore reject the first ground of appeal.

12.      Ground two asserts that the decision was biased and in favour of DVSA because the Traffic Commissioner did not mention, in her written decision any of the systems and procedures introduced by the Appellant.  We have concerns about the way in which the Traffic Commissioner conducted the balancing exercise, to which we will return.  At this stage we are satisfied that a fair-minded and informed observer would not have thought, let alone concluded, that the Traffic Commissioner’s approach to assessing the evidence gave rise to a real possibility of bias.  We therefore reject the second ground of appeal.

13.      Ground three refers to conversations with SC and the Traffic Commissioner being taken out of context, with sections of those conversations being manipulated to suit their arguments.  The Appellant was invited to be more specific as to the conversations to which he was referring.  The only conversation that he was able to identify was the request by SC, (see paragraph 2(x) above), to collect the tachographs and records for the other vehicle that evening.  It is clear that there was a dispute as to what was said.  That dispute was resolved by the Traffic Commissioner, who had the benefit of seeing and hearing the witnesses, and the benefit of knowing that the Appellant had signed SC’s pocketbook to acknowledge that the conversation had been correctly recorded.  We are satisfied that the Appellant has been unable to refer us to any conversation or other evidence that supports this ground of appeal, which we therefore reject.

14.      Ground four asserts that there was at least one meeting between DVSA and the Traffic Commissioner, which the Appellant was not invited to attend.  In answer to a request to provide the evidential basis for this assertion the Appellant said that SC had referred to this meeting in his evidence on 10 September.  We have been unable to find any passage in the evidence of SC on 10 September which supports the suggestion of a meeting between him and the Traffic Commissioner, which the Appellant did not attend.  We have quoted part of SC’s evidence at paragraph 2(lxxxiii) above, though this clearly refers to everyone meeting at the previous hearing on 10 July 2014.  Looking further afield the passage which comes closest to the words relied on by the Appellant is quoted at paragraph 2(lxxxi) above.  However this was spoken by the Traffic Commissioner not SC and it specifically refers to the hearing on 10 July 2014.  Both the Traffic Commissioner and SC have denied that any meeting took place in the absence of the Appellant.  We accept what they say on the point.  In our view the Appellant has either misunderstood something said on 10 September or failed to recollect it correctly.  Whichever it is the fact of the matter is that there is no evidence to substantiate any ‘secret meeting’.  This was a serious allegation of impropriety, which, in our view, required correspondingly clear proof.  Once the transcripts were available it should have been clear that there was simply no evidence to support it and, at that point, it ought to have been withdrawn.  We reject this ground of appeal.

15.      Ground five relates to one aspect of maintenance.  The Appellant made the point that since January 2012 his vehicles have been issued with two prohibitions, both of which were ‘delayed’.  He submitted that these were defects which could have arisen at any time after a walk round check and he pointed out that the fact that they were delayed indicates that there was no immediate threat to road safety and that on balance this was a favourable rather than an unfavourable factor.  We do not immediately reject this ground of appeal, though we must point out that one of these prohibitions was ‘S’ marked and therefore indicated a significant failure of maintenance.  Instead we will have regard to this factor at a later stage.

16.      Ground six refers to the maintenance examination conducted by VE Kirk, which we have summarised at paragraph 2(lxviii) above.  The Appellant submitted that the only failing was that he did not have a torque wrench to ensure that wheel nuts were correctly tightened.  He pointed out that he wrote to Mr Kirk shortly afterwards to confirm that he had bought a torque wrench.  It will be clear from the summary at paragraph 2(lxviii) that the Appellant’s submission is not correct and that there were other reasons why the maintenance examination was unsatisfactory.  However we should make it clear that the first reason given by Mr Kirk, namely that the Traffic Commissioner had not been notified that the Appellant was maintaining his own vehicles, is not correct because the Appellant produced a copy of the letter by which the Traffic Commissioner was informed of the change.  While we reject this ground of appeal because the failings were not limited to the absence of a torque wrench it does give rise to matters, which we will take into account at a later stage.

17.      Ground seven specifically refers to the fact that the Appellant did notify the Traffic Commissioner of the change in maintenance arrangements, contrary to the assertion made by VE Kirk in his report.  We accept that the Appellant is correct about this point.  The Appellant went on to submit that whereas vehicles failed MOT tests under the previous maintenance arrangements he achieved a 100% pass rate after he started to carry out his own maintenance.  This is borne out by the evidence to this extent, there was an initial failure rate of 50%, after he took over responsibility for maintenance with a final pass rate of 100% after rectifications made at the Test Centre.  Subject to the qualification in relation to the MOT pass rate we accept that this ground of appeal makes valid points, which must be taken into account later.

18.      The eighth ground of appeal refers to the finding that the Appellant allowed RN to drive an authorised vehicle whilst he was disqualified from driving an HGV and whilst directed not to do so by the Traffic Commissioner.  The Appellant submitted that he was relying on what he was told by a Police Officer at the Port of Liverpool, who said that RN was permitted to drive an HGV without an HGV vocational entitlement provided that the vehicle did not enter onto the public highway.  It would appear that the Appellant assumed that the public highway stopped at the gates to the Port of Liverpool.  In the event RN was arrested on 27 January 2014, (see paragraph 2(lxii) above).  His immediate response was that he only needed a car licence because he was ‘shunting’ and did not leave the docks.  He was subsequently cautioned for driving without a licence and without insurance.  Given his past record it seems to us that the most probable explanation for the decision to issue a caution is that the Police felt that they would not be able to show that there had not been a misunderstanding.  It is not clear whether the sixth bullet point in paragraph 57 of the Traffic Commissioner’s decision relates to this incident or to the events revealed in January 2012 or to both.  To the extent to which this conclusion is founded on RN’s driving in January 2014 it seems to us that little if any weight can be attached to this point.

19.      The ninth ground of appeal relates to the Traffic Commissioner’s conclusion that the Appellant deliberately misled SC when he said that he would not be able to hand over the other records on the evening of 26 January 2012.  The Appellant has repeated in this ground of appeal the evidence and the explanation given to the Traffic Commissioner.  He has repeated these matters, in some detail, in his written submissions.  The Traffic Commissioner had the advantage, which we do not share, of seeing and hearing the witnesses on this point.  The Appellant was represented at this stage of the proceedings and his legal representative cross-examined SC about the conversation with the Appellant.  The evidence on this point has been summarised at paragraph 2(xlvii-xlix) and (liv-lvi) above.  In addition to these matters the Traffic Commissioner knew that the Appellant had signed SC’s pocketbook, in which SC’s version of the conversation was recorded.  The Traffic Commissioner clearly found the Appellant’s explanation for the loss of the records and as to why he signed SC’s pocketbook unconvincing.  We are not persuaded, after considering all the evidence on paper and taking into account the Appellant’s submissions, that this was a finding that the Traffic Commissioner was not entitled to make.  Accordingly we reject this ground of appeal and this adverse finding must stand.

20.      The tenth ground of appeal concerns the complaint made against SC.  The point made by the Appellant is that he never withdrew the complaint but instead decided not to pursue it.  We have quoted the exchanges about the complaint at paragraph 2(xiv) above.  We note that the word used by the Traffic Commissioner in her initial question is ‘pursue’ and that the Appellant explained that he decided not to pursue the complaint because nobody appeared to be interested.  The Traffic Commissioner heard some evidence on the point both from the Appellant and from SC.  Given that tachographs in the name of Mark Yates were found in T117 ARM SC had good reason to speak to Mark Yates about them.  SC’s evidence was that the only additional matters, which he explained to Mark Yates, were details that were already in the public domain.  Having accepted that evidence our view is that the Traffic Commissioner was entitled to conclude that the complaint was without merit and made to deflect attention away from non-compliance by the Nicholas family and to undermine SC’s credibility.  Insofar as the Traffic Commissioner went on the say that the complaint had been withdrawn at the Public Inquiry it seems to us that the Traffic Commissioner may have overstated the position, because the word ‘withdrawn’ does not appear to have been used.  Save to that limited extent we reject ground ten.

21.      The eleventh ground of appeal concerns the undertaking, (see paragraph 2(iii) above), that RN would take no part whatsoever in the: “running and/or management of the business”.  The Traffic Commissioner said in the second bullet point in paragraph 57: “I conclude from the evidence that Roy Nicholas did take part in the management of the business as the records were apparently kept at his house and not his son’s”.  The Appellant denied that his father took any part in running the business at any time.  He offered to provide a list of customers who would say that they only ever dealt with him and not with his father.  He also asserted that he was never asked directly whether RN had any part in the running of the business and he suggested that there is no evidence to support such a proposition.

22.      While the Traffic Commissioner referred to the evidence in general, in support of her conclusion on this point she went on to rely specifically on the fact that RN was storing the business records in a room in his house.  We doubt whether it would ever be right to conclude from the mere provision of storage space that the person providing it was taking part in the running or management of a business belonging to someone living elsewhere.  It may be that if there had been additional features the provision of storage space combined with those other factors could lead to a different conclusion, but that is not the position here.

23.      However that is not the end of the matter because, in our view there are much more compelling grounds for concluding that RN was taking part in the running or management of the Appellant’s business.  In coming to that conclusion we have the advantage, which the Traffic Commissioner may not have had, that we have had the opportunity to review all the evidence, including transcripts of all the Public Inquiries.  The relevant passages are summarised, with quotations where appropriate, at paragraphs 2(xx), (li), (lviii) and (lxx) above.  While it could be argued that the evidence in relation to LN is inconclusive the same cannot be said about the various statements made by the Appellant himself.  In our view it is clear from what the Appellant said, as set out at paragraph 2(li) and (lxx) above, that the Appellant gave RN the freedom to decide, unsupervised and unchecked, what work to undertake.  By unsupervised we mean that the Appellant allowed RN to pick and choose what work he did and he failed to exercise any final say as to whether or not it was lawful or appropriate to undertake that work.  By unchecked we mean that the subsequent examination of tachograph charts was insufficient to alert the Appellant to the fact that the distance recorded by the distance trace did not match the distance shown on the centrefield once the start mileage had been deducted from the finish mileage.  The result of allowing RN to have a free hand in deciding what work to do was that by using the interrupter switch he was able to undertake additional unrecorded work in excess of permitted hours.  Given the importance of the rules on drivers’ hours and tachographs, for the reasons we have already set out, we take the view that a decision as to how much work a business can do on any given day is a decision concerning the running and/or management of that business.  There will be some transport businesses in which the operator personally takes all those decisions.  There will be others, typically larger operators, in which others below the level of the people running and/or managing the business will take such decisions.  But in a properly run transport business those responsible for the running and/or management of the business will set the policy, put in place guidelines, provide proper supervision and retain the ultimate responsibility for deciding what work can or cannot be done.  In our view by abdicating his responsibility, and by allowing RN a free hand and the final decision as to what work he could take, the Appellant allowed RN to take part in the running and/or management of the business.  That abdication of responsibility enabled RN to take advantage of the interrupter switch and to work in excess of permitted hours.  That in turn meant that the Appellant’s business was competing unfairly in a highly competitive market.

24.      While we disagree with the ground on which the Traffic Commissioner concluded that there had been a breach of undertaking we support her conclusion for the reasons set out above.  In view of the reasons we have given we believe that this was a very serious breach of the undertaking, which was compounded by the Appellant’s failure to analyse the tachograph charts with sufficient care.  We accept that a superficial glance would have shown that all appeared to be well because the finish mileage on any given day was identical to the start mileage on the following day.  However if the daily mileage recorded in the centrefield, (once the start mileage was subtracted from the finish mileage, which was seldom if ever done), had been compared with the mileage recorded by the distance trace it would have become apparent that, on occasions, the vehicle had travelled further than the distance recorded by the distance trace.  That should have led the Appellant to make inquiries and it should have enabled him to put a stop to working in excess of permitted hours.  The fact that this was not done meant that serious breaches of the rules on drivers’ hours and tachographs were allowed to persist.  It follows that he cannot absolve himself of responsibility by claiming ignorance of the interrupter switch or its use.  He ought to have discovered it by a proper analysis of tachograph charts used by RN and LN.  If he failed to do so it can only be because he failed, as an operator, to make the necessary checks or to have a proper system in place for making checks.

25.      The twelfth ground of appeal refers to the Appellant’s convictions at Liverpool Magistrates Court on 4 September 2015, (see paragraph 2(lxxix) above).  The first point made by the Appellant is that he pleaded guilty to offences of ‘failing without reasonable excuse to make a record or entry on a tachograph chart’ and not to ‘falsifying a tachograph chart’, which is something that he has strongly denied.  It may be that there is a misunderstanding in relation to this point.  Our understanding is that the Appellant drove home from the operating centre but that he failed to record the length of time this took thus ‘falsifying’ his driving period for the day in question.  His second point is that while he was prosecuted for five offences the Traffic Commissioner took into account other offences disclosed by SC’s investigation.  On this point he says (i) that there are differences between the schedule of offences which was given to him and the schedule given to the Solicitors who are representing him in the Driver Conduct proceedings, (ii) that the only evidence, in addition to the schedule, which clearly identifies that offences have been committed, relates to the offences for which he was prosecuted (iii) that the level of culpability for all the offences is very low, and (iv) that the Traffic Commissioner’s suspicion that he was opening the tachograph head to “tip off card” should be rejected because of the difficulty in concealing such an activity.  The Appellant provided a number of letters in support of these points.  Although dated after the Public Inquiry they relate to the investigation of matters in evidence at the Public Inquiry.  We give permission for these letters to be adduced as fresh evidence.  It is unnecessary to comment on the first three points because they speak for themselves.  As to the fourth point the Appellant says that it would be difficult to conceal ‘tipping off card’ by simply opening the tachograph head and then closing it at a later stage.  His argument is that it would be necessary to close the head precisely 10, 20, 30 etc kms later otherwise there would be a gap in the distance trace.  He also points out that whether or not the head remained open until the tachograph was removed there would be missing mileage.

26.      In the tenth bullet point in paragraph 57 the Traffic Commissioner said this: “I conclude that the most telling part of all the hearings was the final evidence given by TE Clarke and Ian Nicholas.  I wanted to ascertain compliance with drivers’ hours and tachograph regulations and vehicle maintenance at the time of the inquiry, which was why I asked the operator to produce his tachographs charts in April 2014.  I was concerned that matters were becoming so old as a result of the prosecutions that I felt that it was essential that TE Clarke ascertained the current picture.  That current picture is quite one of serious non-compliance by Ian Nicholas – drivers’ hours and tachograph offences as evidenced by the convictions at Liverpool Magistrates Court and a lack of proper vehicle maintenance as evidenced by the blank safety inspection sheets and driver defect reports”.  We have quoted the passage in full but we will deal with the question of maintenance separately.

27.      In deciding whether or not the Traffic Commissioner’s conclusion in relation to tachographs is justified we bear in mind the evidence summarised at paragraph 2(lxxi), (lxxvi) and (lxxxvi) above.  The first of these passages summarised the Appellant’ interview under caution on 2 May 2014 when he was questioned about a number of his own tachograph charts.  He accepted that there were occasions on which he had exceeded permitted hours.  He was informed of the requirement to record on the reverse of the chart the timing of any car journey from the operating centre to his home.  He was also informed that once inserted the law requires that a tachograph chart should remain in place until work on the day in question has come to an end.  At the Public Inquiry on 10 July 2014 the Traffic Commissioner asked the Appellant why he was not fully acquainted with the current rules on drivers’ hours and tachographs.  He replied: “I don’t know”.  At the Public Inquiry on 10 September, when he was questioned about the findings in SC’s most recent investigation the Appellant said that: “A lot of it boils down to stuff that I was not aware of”.  In our view, when one takes account of the overall picture presented by the evidence, the Traffic Commissioner was entitled to conclude that the current picture was one of serious non-compliance.  In our view she could have added that following a number of ‘wake-up’ calls, (the events of 26 January 2012, the prosecutions of RN and particularly LN and the interview on 2 May 2014), the Appellant’s continuing failure to get to grips with the obligations imposed by the rules on drivers hours and tachographs was an additional and serious failing.  While it may be that some of the additional offences relied on by the Traffic Commissioner disclosed a low level of culpability our view is that on the evidence this did not apply to all these offences nor does it excuse his apparent failure to understand the details of the obligations imposed by these rules.  For these reasons we reject ground 12.

28.      The thirteenth ground of appeal asserts that SC conducted an undocumented check on one of the authorised vehicles, FX51 SVW, on 19 April 2012 and this was not mentioned in the Public Inquiry.  We are satisfied that the Appellant is wrong on both these points.  One of the documents exhibited by SC in the statement put forward by TSD is a copy of his pocketbook for the day in question.  The entry, which has, quite properly, been redacted to obscure material relating to others, shows that, at the request of the Port of Liverpool Police, SC searched the vehicle in question.  The evidence available at the Public Inquiry has been summarised at paragraph 2(xix) above.  In short nothing adverse was found, which may explain why this incident did not attract much attention at the Public Inquiry.  In ground thirteen the Appellant went on to make allegations about the tachograph head being left open, without any explanation on the card and about a SatNav being damaged.  Since neither of these allegations featured in the evidence at the Public Inquiry we are not in a position to comment on them.  In our view there is nothing in this ground of appeal, which is, accordingly, rejected.

29.      The fourteenth ground of appeal asserts that the Appellant has been driving HGV’s for 12 years, that his tachographs have been checked by DVSA on numerous occasions without any problem being disclosed or infringement found.  He submitted that the Traffic Commissioner did not take any of this into account.  He also points out that he has now been called to a driver conduct hearing.

30.      We accept that there is no evidence of any tachograph infringement on the part of the Appellant being found when he was the subject of a roadside stop.  However that does not alter the fact that infringements were found in the course of SC’s investigation, that the Appellant pleaded guilty to five offences as a result and that it became apparent in the course of the hearings on 10 July 2015 and 10 September 2015 that the Appellant had failed to make himself aware of the full extent of the obligations imposed by the rules on drivers’ hours and tachographs.  Giving full weight to the points advanced by the Appellant, as set out in paragraph 24, we are satisfied that the Appellant’s failings are serious and that the Traffic Commissioner was right not to overlook them.

31.      The fifteenth ground of appeal asserts that: “this is a case of persecution”.  The Appellant sought to justify that proposition by adding that his previous good character, the fact that he complied fully with every request made by the Traffic Commissioner and the DVSA and the fact that the DVSA opened the case against him in the Magistrates Court on the basis that he has been compliant and co-operative throughout the investigation were not taken into account by the Traffic Commissioner in reaching her decision.

32.      We are quite satisfied that this was not a case of persecution.  The events of 26 January 2012 raised serious issues going to the heart of compliance with and respect for the regulatory regime.  The DVSA would have been failing in their public duty if they had failed to investigate these issues and if they had failed to bring them to the attention of the Traffic Commissioner.  The Traffic Commissioner, in turn, would have been failing in her public duty if she had not investigated the matter at a Public Inquiry.  In addition any failure to hold a Public Inquiry would have tended to undermine respect for the regulatory regime by compliant operators, who felt threatened by unfair competition.  In our view the Traffic Commissioner was right to adjourn the Public Inquiry on a number of occasions in order not to risk prejudicing the prosecutions against RN, LN and the Appellant.  Given the length of the delay we consider that the Traffic Commissioner was right to order the further investigation, begun by SC in March 2014 so that she could conclude the Public Inquiry on the basis of up to date information.  Finally it is important to remember that from 26 June 2014, when Debra Hales resigned, the Appellant was operating without a transport manager.  For much of that period he did so with the benefit of a period of grace, granted to enable him to find a replacement transport manager.  By the date of the final hearing on 10 September 2014 the Appellant had been unable to find a replacement transport manager, save for the suggestion made on 10 July 2014 that his father could be considered.

33.      While the Traffic Commissioner accepted that RN was qualified, in the sense that he holds a CPC, she indicated that, in her view, he could not fulfil the requirement to be of good repute.  In his written submissions the Appellant said that his father: “has never had his repute taken away from him”.  In addition he submitted that he had served his sentence and was a rehabilitated member of society.  Although the issue does not specifically arise under any of the grounds of appeal it is of fundamental importance to the question of whether or not the Appellant can satisfy the requirement to be professionally competent.  Given that the Appellant appeared in person we take the view that we have a duty to stand back and consider whether there are any other matters in the appeal file that give rise to arguable grounds of appeal.

34.      The starting point, when considering RN’s good repute is the sentence passed on 14 March 2012.  The full details have been set out at paragraph 2(xviii) above.  For the purposes of considering whether or not RN is of good repute it is sufficient to repeat that he was sentenced to 8 months imprisonment suspended for 2 years on some charges and he was ordered to do 200 hours of unpaid work in the community.

35.      Schedule 3 to the 1995 Act contains provisions as to the qualifications for holding a standard licence.  One of those requirements is that an operator must be ‘professionally competent’.  Since the Appellant does not hold a Certificate of Professional Competence, (”CPC”), paragraph 9 provides that he can satisfy the requirement: “if and so long as he has as the transport manager of the transport undertaking which he carries on an individual who is – (a) of good repute and (b) professionally competent”.  Paragraph 12 goes on to provide that paragraphs 1-5 of Schedule 3, (which concern the good repute of operators) have effect to determine whether or not a transport manager is of good repute.  There is an exception in relation to a reference to servants or agents but it is not relevant to the position in this case.

36.      Paragraph 2 of Schedule 3 provides that a Traffic Commissioner: “shall determine that an individual is not of good repute if that individual has – (a) more than one conviction of a serious offence or (b) has been convicted of road transport offences”.  Paragraph 3 then defines the circumstances in which an individual has been convicted of a ‘serious offence’.

37.      The critical factor in determining whether an offence is a serious offence is the punishment imposed as set out in paragraph 3(2) of Schedule 3.  For the purposes of this appeal the relevant provisions are: “(a) a sentence of imprisonment for a term of 12 months or more or, before the commencement of s. 181 of the Criminal Justice Act 2003, a term exceeding 3 months”, and “(c) a community order requiring him to perform unpaid work for more than 60 hours”.  It is clear that RN was convicted of more than one offence.  As far as we have been able to establish s. 181 of the Criminal Justice Act 2003 has not been brought into force.  It follows that RN was sentenced to imprisonment for a term exceeding 3 months for more than one offence.  The fact that the sentences were suspended is irrelevant because they remain sentences of imprisonment for the reasons given in T/2014/50 Andrew Harris t/a Harris of Leicester (paragraphs 10 & 11).  In addition to mandatory loss of good repute because of the length of the sentences of imprisonment RN was also ordered to perform more than 60 hours unpaid work in relation to each of the charges so that RN suffered mandatory loss of good repute on that ground as well.

38.      ‘Road transport offence’ is defined in paragraph 4 of Schedule 3 as: “an offence under the law of any part of the United Kingdom relating to road transport”.  The paragraph then goes on to make particular reference to, amongst other things, offences relating to drivers’ hours of work and rest periods and road or vehicle safety.  We are satisfied that the offences of which RN was convicted come within this definition and that they too have resulted in mandatory loss of RN’s good repute.

39.      The Appellant submitted that RN has served his sentence and is a rehabilitated member of society.  In effect he would appear to be saying that, as a result, RN should no longer be subject to mandatory loss of good repute.  While we are prepared to accept that RN has served his sentence we cannot accept that sufficient time has passed for him to be considered rehabilitated.  When sentence was passed on 14 March 2012 the rehabilitation period for a sentence exceeding 6 months but not exceeding 30 months was a period of 10 years.  On that basis RN could not claim the benefit of the Rehabilitation of Offenders Act 1974 until 14 March 2022.  However new provisions came into force on 10 March 2014, though it is unclear whether they apply to sentences passed before that date or only to sentences passed from then on.  If those provisions do apply to this case RN will be able to claim the benefit of the 1974 Act 4 years and 8 months after 14 March 2012.  For the purposes of this appeal it makes no difference which of these provisions is applicable because either way it is clear that RN remains subject to mandatory loss of good repute and hence cannot qualify to be the Appellant’s transport manager.

40.      There are two other aspect of this case which, in our view, give rise to arguable grounds of appeal.  The first is the decision of the Traffic Commissioner to combine, under one heading, the tasks of making findings of fact and conducting a balancing exercise.  The second is the way in which she conducted the balancing exercise.  While these two matters are linked we will consider them separately.

41.      We have already explained in paragraph 2(xc) that under the heading: ‘key findings of fact and the balancing act’ the Traffic Commissioner said: “I have conducted the necessary balancing act and in doing so I have considered the relevant key facts”.  In paragraph 2(xci) we have set out, in brief terms the findings that she made.  In our view it is unsatisfactory and potentially unfair to combine the tasks of setting out findings of fact and conducting a balancing exercise.  It is unsatisfactory because the two tasks involve different considerations.  In our view they should be approached separately, with findings of fact being made first and the balancing exercise being undertaken after the facts have been found.  It is potentially unfair because findings of fact, particularly where the evidence is disputed, will more often than not, be unfavourable to the operator.  That was certainly the case here as the Traffic Commissioner expressly acknowledged in the next paragraph, (paragraph 58), where she said: “I regard all of the above as aggravating features”.  To the extent that we have not disagreed with them we would accept that description.

42.      The Tribunal has stated on several occasions that simply stating that: “I have conducted the necessary balancing act” will not do.  The Appellant is entitled to know and, if there is an appeal, the Tribunal must be able to see, what factors have or have not been taken into account.  In addition both the Appellant and the Tribunal are entitled to know, in general terms, why one set of factors outweighed the other.  We accept at once that this is not something that can be done with mathematical precision but it is something which must be done in general terms.  In some cases it may involve stating the obvious, in others the factors will be more evenly balanced, in which case the task of explaining why one outweighs the other is all the more important.

43.      In the present case having set out the aggravating factors in some detail the Traffic Commissioner went on to say: “I have struggled to find anything to put into the positive balance apart from the operator’s promise that he will do it right from now on”.  The Appellant has pointed to a number of matters, which could and in our view should have been mentioned.  He makes the point that after the events of January 2012 he responded to every requirement made by the Traffic Commissioner or by DVSA.  For example he replied to letters, he provided further information when requested or of his own accord, he provided tachographs charts when requested and added an additional months charts for good measure and he bought a torque wrench when told that he ought to have one.  In addition he arranged for tachograph charts to be analysed by Tachodisc and he fitted a tracker, to confirm that the information on tachograph charts was complete, and bought a timer to solve the problem of opening the tachograph head to ascertain how many hours he had worked.  In relation to maintenance there was an improvement in the MOT pass rate after he began to do his own maintenance.

44.      It may be that the Traffic Commissioner felt that many of these factors were not favourable factors because they simply involved the Appellant doing what he was required to do in order to comply with the regulatory regime.  If this accurately reflects the Traffic Commissioner’s thinking we question whether it is the correct approach.  We do so for two reasons.  First, the extent to which the Appellant was capable of operating compliantly was clearly relevant to what is often called the Priority Freight question, namely: “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”  (See: 2009/225 Priority Freight.)  Second these, in our view, were matters that were relevant to the questions of whether to disqualify the Appellant and, if so, for how long.  In our view these were relevant factors and they ought to have been taken into account.  The fact that they simply demonstrated compliant operation is something that can be taken into account in deciding how much weight they should be given.

45.      It follows that in addition to our concerns about the balancing exercise we have found in the Appellant’s favour on a number of the grounds of appeal.  That raises the question of what we should do.  Under paragraph 17(1) of Schedule 4 to the Transport Act 1985 the Tribunal is given: “full jurisdiction to hear and determine all matters (whether of law or fact) for the purposes of the exercise of any of their functions under an enactment relating to transport”.  Paragraph 17(2) gives the Tribunal power, in a case such as this: “(a) to make such order as it thinks fit; or (b) to remit the matter” either to the Traffic Commissioner who made the original order or to another Traffic Commissioner, for rehearing and determination: “in any case where the tribunal considers it appropriate”.  In our view it is neither appropriate nor necessary to remit this appeal for rehearing.  We have a wealth of material in the appeal file, (which runs to more than 2,000 pages) and we are dealing with a case which was initiated by the events of 26 January 2012, resulted in a Public Inquiry spread over four hearings so that the matter is now over three years old.  In our view the correct course is for the Tribunal to re-consider the balancing exercise in the light of the findings we have made.

46.      Save to the extent that we have expressly disagreed with the Traffic Commissioner’s conclusions all the matters summarised at paragraph 2(xci) above are unfavourable features of the case.  We attach significant weight to the findings arising out of the events of 26 January 2012 because these disclosed serious breaches of the rules on drivers’ hours and tachographs.  In our view the seriousness of these breaches is increased by the fact that the Appellant breached the undertaking not to allow RN to take any part whatsoever in the “running and/or management of the business”.  We agree with the finding made by the Traffic Commissioner that the Appellant either knew what was going on or turned a blind eye to it and that, in any event, (for the reasons given in paragraph 23 above), he ought to have known what was going on.  The Traffic Commissioner found that the Appellant deliberately misled SC about getting the records on the evening of 26 January 2012.  She went on to conclude that the records were not stolen.  In our view these were important findings, which the Traffic Commissioner was entitled to make having seen and heard the evidence.  They reflect, adversely, on the question of whether the Appellant can be trusted to operate compliantly.  The Appellant has said, in effect, that these events are now over 3 years old and that the position has changed for the better.  We are unable to attach much weight to this submission.  First, we have seen no clear indication that the Appellant appreciates either the gravity of what happened or his ultimate responsibility as operator.  One reason for coming to this conclusion is that that Appellant thought fit to put forward his father as a possible transport manager for the business.  Second, we are not satisfied that the Appellant has even now ‘got to grips’ with the obligations imposed on operators or the importance of compliant operation, see, for example paragraph 27 above.  We accept that the matters disclosed by the investigations in 2014 were by no means as serious as those disclosed earlier.  However in assessing what weight they should be given we bear in mind that these matters arose after the ‘wake up’ call of the earlier investigation and after the Appellant had been called to a Public Inquiry.  While they are undoubtedly at a lower level the point made by the Traffic Commissioner, which we accept, was that they went significantly beyond what she would have expected from long experience, namely the occasional failure to take a rest break or the occasional blank drivers defect or inspection sheet.  In addition to these matters it is clear that the Traffic Commissioner was justified in concluding that neither of the transport managers employed by the Appellant performed that important role adequately.  While this may, in part, have been due to the fact that they were misled by the Appellant it also indicates that the Appellant lacked the knowledge required to ensure that they did the job properly.

47.      We have listed favourable factors at paragraph 43 above.  In addition we have indicated that there are matters referred to in paragraphs 15, 16 and 17, which we would take into account at this stage. 

48.      In our view there is some evidence that the Appellant is capable of operating compliantly but it is not sufficient to overturn the finding made by the Traffic Commissioner in answering the question: ‘how likely is it that the Appellant will operate compliantly in the future?’  At the present moment we conclude that the answer is that it is unlikely.  Our main reason for reaching that conclusion is that the evidence indicates that the Appellant still does not appreciate his responsibility, as operator, for the non-compliant operation of his business, nor, even now, has he made himself fully aware of the extent of the responsibilities that fall on an operator.

49.      In our view that Traffic Commissioner’s conclusion that the Appellant ought to be put out of business remains the correct conclusion on the evidence.  The unfavourable factors clearly outweigh the favourable factors.  In addition allowing the Appellant to remain in business would send a disastrous message to other operators who would regard that result as a clear indication that serious breaches of the rules on drivers hours and tachographs and a serious breach of an undertaking, specifically given to ensure that RN would not play any part whatsoever in the running or management of the business, were matters which carried little weight and which could be lightly disregarded.  In our view the finding that the Appellant had lost his good repute remains justified.

50.      In addition there is effectively no appeal against the finding that the Appellant no longer satisfied the requirement to be professionally competent.  We have explained why the Traffic Commissioner correctly concluded that RN was not of good repute and that it followed that he was not qualified to perform the roll of transport manager.

51.      The result of the findings that the Appellant no longer satisfies the requirements of good repute or professionally competence is that revocation of the licence is mandatory.  For these reasons the appeal against revocation of the licence must be dismissed.

52.      In addition to revoking the licence the Traffic Commissioner intended to give the Appellant an opportunity to make representations as to why he should not be disqualified from holding an operator’s licence for a period of 5 years.  She took that course because her impression was that the call-up letter had not warned the Appellant that he was at risk of disqualification.  It seems to us that this impression was mistaken and that the call-up letter did contain the normal warning to the effect that if the licence was revoked the Traffic Commissioner had power to order disqualification, (see paragraph 2(xxvii) above).  In any event the form of words used by the Traffic Commissioner was interpreted by her office as an order for disqualification for a period of 5 years with effect from 23.59 on 31 October 2014.  In deciding that a term of 5 years was appropriate in a case of serious non-compliance the Traffic Commissioner referred to T/2014/09 Hunterstrong Engineering. 

53.      We agree with the Traffic Commissioner that the present case also involves serious non-compliance.  However that is not the only consideration that we must take into account.  In reaching the conclusion that 5 years was the appropriate period of disqualification the Traffic Commissioner will have taken into account her conclusion that she: “struggled to find anything to put into the positive balance apart from the operator’s promise that he will do it right from now on”.  For the reasons we have already given this underestimates the extent of the favourable factors, which ought to have been taken into account in assessing the length of the disqualification.  In particular given that the Appellant had shown that he was capable, at least to some, (though not to a sufficient), extent to operate compliantly we do not consider that a five year disqualification was either necessary or proportionate.  In our view the correct term was one of three years.  The appeal is allowed to that extent.

54.      The Appellant applied for and was granted a stay by the Traffic Commissioner.  It follows that we must set a date for the revocation of the licence to take effect and for the three year period of disqualification to commence.  We take the view that the date for both these events should be ??? (28 days from the date of the decision).

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

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

24^th March 2015

Annex A

 

 

 

 

 

Appeal No.  T/2014/72

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

Appellant:

IAN RUSSELL NICHOLAS t/a WIGAN CONTAINER SERVICE

 

 

Rule 5(3)(d) of the The Tribunal Procedure (Upper Tribunal) Rules 2008

 

BACKGROUND

1. On 26 September 2014 the Senior Traffic Commissioner revoked the standard national goods vehicle operator’s licence held by the Appellant.  She did so under s. 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] because of prohibitions and failure to comply with undertakings and under s. 27(1) of the 1995 Act because the Appellant no longer satisfied the requirements to be of good repute and professionally competent.
2. On 20 October 2014 the Appellant filed a Notice of Appeal against that decision.
3. In Section A of the Notice of Appeal the Appellant has said of the Traffic Commissioner’s decision: “I feel that it was unjust, biased and I was not allowed to put evidence forward…”.  At the start of Section D of the Notice of Appeal the Appellant has said: “I feel the decision was biased and was already made by the Traffic Commissioner before I attended the Public Inquiry”.  A little later he said: “The decision made by the TC is biased and is all in favour of DVSA”.  In paragraph 4 of Section D he refers to: at least one meeting between DVSA and the Traffic Commissioner: “to which I was not invited to attend, nor do I know what was discussed”.
4. An allegation of bias is a serious matter.  It is not an allegation that should be made lightly and if made it needs to be clearly proved.  It is for that reason that in appeal 2004/426 EA Scaffolding the Tribunal stated that when allegations of bias are made the Tribunal would follow the procedure set out in the 2004 Practice Direction of the Employment Appeal Tribunal.  That means that an allegation of bias must (a) be set out in detail, so that everyone knows what it is that the Appellant seeks to prove and (b) should be supported by an affidavit, so that the Appellant is committed, on oath, to the detailed allegation.
5. In the present case the allegations made by the Appellant fall into two distinct categories.  The first category consists of the three occasions on which the Appellant has used the word “bias” to describe the Traffic Commissioner’s decision.  The second category is the allegation that on at least one occasion the Traffic Commissioner had a meeting with DVSA to which the Appellant was not invited.
6. In relation to the first category the Appellant needs to reflect on whether he is simply alleging that the Traffic Commissioner came to the wrong conclusion because she failed to assess the evidence properly or refused to allow him to put forward relevant evidence or whether he is going further and saying that her decision was motivated by prejudice against him or a predisposition to find against him, irrespective of the evidence.  If it is the former then the allegations of bias add nothing to the points that he seeks to make and they ought to be withdrawn.  If it is the latter then the Appellant must provide details of the matters on which he relies to show that the Traffic Commissioner was prejudiced and/or predisposed to find against him irrespective of the evidence.  Those details must be set out in an affidavit so that the Traffic Commissioner and anyone else who can give relevant evidence can then reply.
7. In relation to the second category it is essential that the Appellant identifies the meeting, either by giving a date or in some other way which enables the matter to be properly investigated.  While I accept that Appellant cannot be expected to say what happened at a meeting at which he was not present it will be important to establish when and where the meeting took place so that those present can be contacted and invited to give an account of what happened.  Again evidence that identifies the meeting must be set out in an affidavit sworn by the Appellant.

DIRECTION

8. To resolve this issue I now issue the following Direction under Rule 5(3)(d) of the The Tribunal Procedure (Upper Tribunal) Rules 2008:
9. “The Appellant is directed to file an affidavit with the Tribunal, no later than 4.00 p.m. on Friday 21^st November 2014, setting out (a) full details as to why the Appellant says that the decision was biased, in the sense described above, and (b) identifying the meeting referred to at paragraph 3 above”.
10. Failure to comply with this direction, within the specified time limit, will result in the allegations of bias, in both categories, being struck out under Rule 8(3)(a) & (b) of the The Tribunal Procedure (Upper Tribunal) Rules 2008.  For the avoidance of doubt I should make it clear that the Tribunal will still consider all the other grounds put forward in the Notice of Appeal.

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal, Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

6 November 2014.