Neutral Citation Number: [2015] UKUT 473 (AAC) Appeal No.  T/2015/07

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Joan Aitken, Deputy Traffic Commissioner

for London & the South East of England dated 11 December 2014

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

 

 

Appellant:

 

 

Stuart McAuliffe

 

 

Attendances:

For the Appellant: Mr McAuliffe appeared in person

 

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

Date of hearing: 4 August 2015

Date of decision:  24 August 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED and the order of disqualification has immediate effect

 

SUBJECT MATTER:-  Good repute arising out of refusals to provide completed TM1 form and deception in dealings with a Traffic Examiner

 

 

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695; T/2012/71 Silvertree Transport Ltd; T/2014/26 Simon Sivyer; T/2014/09 Hunterstrong Engineering Ltd & Others; T/2014/42 Brian Robert Cutmore

 

 

REASONS FOR DECISION

 

Introduction

 

1.            This is an appeal from the decision of the Deputy Traffic Commissioner of London & the South East of England (“DTC”) made on 11 December 2014 when she found that the Appellant (“Mr McAuliffe”), was no longer of good repute or professionally competent as a Transport Manager and disqualified Mr McAuliffe indefinitely from being a Transport Manager pursuant to paragraph 16(2) of Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).  She further ordered, pursuant to paragraph 17(2) of Schedule 3 of the Act, that Mr McAuliffe must re-sit and pass the examination for the Certificate of Professional Competence as a remedial measure before he would be entitled to apply for the disqualification to be cancelled.

 

2.            This matter previously came before the Upper Tribunal on 29 July 2013 (Stuart McAuliffe T/2013/29) and in a decision dated 12 August 2013 the appeal was allowed and the matter remitted for rehearing before a different Traffic Commissioner (“the first UT decision”).  The factual background to this second appeal is largely set out in that previous Upper Tribunal decision and should be read in conjunction with this present decision.

 

Additional Factual Background

 

3.            The additional factual background appears from the documents, the transcripts and the DTC’s written decision.  The starting point is the additional relevant information provided by TE Pope in the form of the exhibits now before the Tribunal and from his Public Inquiry Brief dated 1 October 2013 and is as follows:

 

(i)            The s.99ZA(1) letter sent by TE Pope on 3 August 2010 (referred to in paragraph 2(iv) of the first UT decision) requested amongst other things the following documents for the period 6 May 2010 to 6 August 2010: all original tachographs; copies of drivers licences held; original Felixstowe Port interchange notes for loads collected and delivered; original delivery/consignment notes for loads collected and delivered; original fuel receipts or records.  The letter further requested explanations for any failure to produce the relevant documents.  The envelope which was received on 20 August 2010 (with no indication as to who had sent it) did not include any interchange notes or delivery/consignment notes. No explanation was included for those failures.  The tachographs included in the envelope  were contained in Tachopak envelopes all stamped with “checked on 6 Aug 2010” and whilst all of the envelopes were marked with the “week commencing” details, no details were recorded under “Drivers names”. 

 

(ii)          On 4 November 2010, TE Pope sent a s.99ZA(3) letter this time requesting all tachographs for the period 3 to 31 August 2010 and for tachographs covering the missing mileage he had identified during his analysis of tachographs for the period 7 May to 2 August 2010 along with any original warning letters relating to drivers hours infringements for the period 5 May to 10 August 2010. 

 

(iii)         The telephone conversation between TE Pope and Mr McAuliffe on 17 November 2010 (referred to in paragraph 2(v) of the UT’s first decision) lasted twenty eight minutes.  Contrary to Mr McAuliffe’s assertion in the first public inquiry that TE Pope had never asked him directly about whether there had been a second driver, TE Pope’s note in his pocket book confirmed that during the course of this conversation, TE Pope advised Mr McAuliffe that timed photographs from Felixstowe docks together with print outs of driver biometric ID cards issued by the dock authority showed that driving recorded as having been undertaken by M Dhami was in fact undertaken Mr Arora.   The same applied to the missing mileage.  TE Pope advised Mr McAuliffe that it therefore appeared that there was no second driver.  Mr McAuliffe’s response was that he had encountered this same problem with a Traffic Examiner in Southampton in the past and that the difficulty had been resolved by taking the matter up with the Traffic Examiner’s Senior Manager.  Mr McAuliffe said that he had been able to discredit the photographs, timings and calibration of the port clocks on that occasion and he would be able to do the same in relation to Felixstowe.  During the same conversation, Mr McAuliffe stated that when he had first taken on Ocean Xpress, there had been “a lot of problems” with drivers’ hours infringements but he had resolved them.  TE Pope asked Mr McAuliffe to produce copies of any warning letters he had issued to the drivers. Mr McAuliffe further stated that he could not believe that TE Pope had been able to analyse all of the tachographs produced.  TE Pope’s response was that it was easy to identify the mis-matched distance traces caused by tachograph records having been removed from the tachograph head.  He further advised that a total of 3,691kms was missing from the charts in the period 7 May to 2 August 2010. 

 

(iv)         The envelope which was subsequently received on 18 November 2010 enclosing tachographs for the period 4 August to 5 September 2010 were in Tachopak envelopes identifying Mr Arora as the driver along with one dated 27/28 August 2010 in the name of “Dhami M”.

 

(v)          On 10 January 2012, TE Pope was on duty undertaking routine checks when he observed Mr Arora’s vehicle (KX06 CPN) on the A14 heading towards Felixstowe laden with a forty foot container.  Mr Arora was escorted to the check site.  He produced twenty five tachograph charts for the period 5 December 2011 to 10 January 2012.  Analysis of the charts revealed apparent drivers’ hours offences including a current daily rest offence of only six hours and 31 minutes even allowing for a permissible reduction to nine hours.  A nine hour prohibition order was issued.  Mr Arora made no comment when interviewed under caution.  Detailed analysis of his charts revealed five offences of failing to take sufficient daily rest, five offences of exceeding the ten hour driving maximum and one offence of making a false record.  During the encounter it was noted that Mr Arora was writing on that day’s tachograph chart.  When he was challenged and asked to explain what he was doing, he responded “this is not the same as when the other driver was driving, because he no longer drives”. Mr Arora was not prosecuted for these offences because he was already serving the sentence of eight months imprisonment imposed for the 2010 tachograph offences by the time the prosecution file was finalised.  TE Pope concluded that Mr Arora had continued to commit drivers’ hours offences despite the on-going investigation.  He further noted that Mr McAuliffe remained in place as the nominated Transport Manager during this period and that the offences contradicted Mr McAuliffe’s assertion to TC Denton at the first public inquiry that he did not feel the necessity to resign as Transport Manager because after 2 August 2010, Mr Arora had become a compliant driver.  That clearly was not the case;

 

(vi)         In relation to the road traffic accident referred to in paragraph 2(xv) & (xx) of the first UT decision and which was the catalyst for Mr Arora no longer driving his vehicle, the accident in fact took place on 16 May 2012 (some nine months prior to the first public inquiry).  The accident took place on the A14 and was caused by Mr Arora driving into the rear of a Vauxhall Corsa which was being towed by a recovery vehicle.  Carmen Bucur, the driver of the Vauxhall was killed.  Investigations revealed that Mr Arora had sent and received text messages as he travelled between the dock spur at Felixstowe and the point of the collision.  Mr Arora was subsequently convicted of causing death by dangerous driving after a trial and was sentenced to three and a half years imprisonment in August 2013.  We note at this stage, that it is surprising to say the least that the details of this accident were not brought to the attention of TC Denton during the course of the first public inquiry.  Whilst we appreciate that at that date, Mr Arora had not been convicted of the offence, the seriousness of the allegations should have been made known to the Traffic Commissioner.

 

The lead up to the remitted public inquiry

 

4.            By a letter dated 4 September 2013, Mr McAuliffe was advised that the remitted public inquiry was scheduled to take place on 15 November 2013 before Miss Aitken who had previously granted Mr McAuliffe a stay of TC Denton’s decision.  Mr McAuliffe responded by letter in the following terms: “.. I am rejecting your choice of Traffic Commissioner to rehear the case.  Your current choice has prior knowledge of the case and therefore would be tainted before she even heard the case”.  Mr McAuliffe complained that the Office of the Traffic Commissioner (“OTC”) had released information to Commercial Motor concerning TC Denton’s earlier decision without reference to the stay which had been granted or the appeal that had been lodged.  He questioned the impartiality of the remitted public inquiry irrespective of the choice of Traffic Commissioner. 

 

5.            By a letter dated 18 September 2013, Mr McAuliffe was advised that Miss Aitken rejected the allegation of bias and he was reminded that it was she who had in fact granted him a stay.  Mr McAuliffe nevertheless continued with his objections and on 19 September 2013 he complained that he was not being given sufficient time to prepare for the hearing when “taking into consideration my medical condition”. He made reference to the “DDA” and that the DTC was “duty bound by law to comply with all reasonable requests made to facilitate those who have a disability”.  Mr McAuliffe was advised by letter dated 26 September 2013 that his application for additional time to prepare his case had to be supported by medical certification.  In the circumstances, his application was refused.

 

6.            On 2 October 2013, Mr McAuliffe made a request for the full details supporting Miss Aitken’s decision for not providing him with reasonable adjustments under s.29(7) of the Equalities Act 2010 and warned that he would make a formal complaint if the information was not provided.  He requested sixty days for the preparation of his case.  By a letter dated 3 October 2013, Mr McAuliffe was advised that his request had been considered at Senior Management level.  He was advised that reasonable adjustments would be made for him but that on the evidence available, sixty days for the preparation of his case was unreasonable.  Mr McAuliffe responded by email: “It seems very much at this point that you are deliberately trying to avoid your legal responsibility on this matter and that by doing so you are in contravention of Article 6 of the human rights act (sic), which is the right to a fair trial”.   He made a formal complaint about his treatment.

 

7.            A detailed call up letter and brief were sent to Mr McAuliffe on 9 October 2013 confirming the hearing date of 15 November 2013 and by a letter dated 16 October 2013, Mr McAuliffe’s formal complaint was rejected.  Then on 30 October 2013, Mr McAuliffe wrote to complain that he had not received the public inquiry brief and as a result, he had not been given a minimum twenty eight days in order to prepare his case.  He advised that he would be out of the country for the following ten days and would only have limited access to email.  The OTC’s response was sent on 31 October 2013.  Mr McAuliffe was informed that Miss Aitken would not adjourn the hearing as she had been advised that the public inquiry brief sent to Mr McAuliffe  had been returned marked “not called for”.  As Mr McAuliffe had been on notice that the papers were to be delivered, it was incumbent upon him to call for any items and be co-operative in the receipt of documentation.  Further, Mr McAuliffe’s reference to his “recognised disability” was insufficient reason to adjourn the hearing. 

 

8.            It was not until 13 November 2013 that Mr McAuliffe provided information as to the nature of his medical condition by way of a GP certificate.  The certificate did not however, go on to explain how it might affect Mr McAuliffe’s ability to either prepare his case or participate in the public inquiry process.  Nevertheless, by a letter dated 14 November 2013, Mr McAuliffe was advised that Miss Aitken had formed the view that he was “unlikely to engage in the merits of the case tomorrow and thus there is a high risk that the time of the public official witnesses .. will be wasted”.  Miss Aitken further wished to ensure that there would be no further frustration of the process in dealing with the merits of the case, which were serious.  The hearing was adjourned to 28 January 2014 and Mr McAuliffe was requested to provide a written statement of the evidence he was to give before the DTC and a list of questions he wished answered or clarified by the witnesses.  Mr McAuliffe declined to assist the DTC, requesting instead, a list of questions the DTC was proposing to ask the witnesses.  He further requested “full written information on why (the DTC) declined my request for reasonable adjustments .. It is clear .. that the adjournment was not made because of my request but on other grounds, as such under the current law if my requests for reasonable adjustment have been refused then a full explanation as to why is required ... THIS MUST HAPPEN PRIOR TO THE HEARING”.  It is of note at this stage, that apart from seeking time in order to prepare his case (which he was ultimately granted), Mr McAuliffe had not asked for any specific reasonable adjustment.

 

The public inquiry

 

9.            The public inquiry hearing took place on 28 January 2014.  TE Pope and Paul Hartley, Senior Team Leader within the Central Licensing Office in Leeds attended to give evidence as did Mr McAuliffe. 

 

10.         Mr Hartley was called first of all to deal with Mr McAuliffe’s failure to return a completed TM1 form in 2011/2012.  He informed the hearing that EU Regulation 1071/2009 required member states to write to holders of standard operator’s licences to ensure that they were aware of the new regulations and that they were compliant with them.  Sixty thousand letters were sent out to operators.  In some instances (4 to 5%) it transpired that no Transport Manager was in place and in others that Transport Managers were nominated on too many licences and needed time to regularise their position and in others, the operator had ceased trading.  In those instances where no response was received from the operator, propose to revoke letters were sent out.  The process took about a year and it resulted in a “clean up”. 

 

11.         In relation to Ocean Xpress, no response was received and so a propose to revoke letter was sent out.  However, whilst the revocation of the licence was being dealt with, a telephone call was received by the OTC and subsequently a TM questionnaire was returned.  All that was missing from the questionnaire was the signature of the operator.  There then followed the communications between Mr McAuliffe and a variety of civil servants and Traffic Commissioners which are summarised at paragraph 2(x)-(xii) of the first UT decision.  The concern within the Central Licensing Office was that there wasn’t any transparency with the information provided and no guarantee that the operator had “signed up to what had been declared”.  Mr Hartley spoke to Mr McAuliffe on the telephone on several occasions to explain why a fully completed questionnaire was needed and to get to the root of the issue.  Mr McAuliffe’s view was that he had presented the information before, nothing had changed and there was no legal obligation for the form to be signed by the operator.  There appeared to be no real reason as far as Mr Hartley could see why the operator had not signed the form and it seemed that there was a great deal of “obfuscation and deflection” from the issue which was to provide a questionnaire signed by the operator.  Mr Hartley was unaware of the VOSA investigation at the time and so there appeared to be no reason why Mr McAuliffe wanted to distance himself from the operator as he appeared to be doing or for his failure to comply.

 

12.         In answer to questions put by Mr McAuliffe, Mr Hartley confirmed that the Central Licensing Office had expected to receive the completed and signed questionnaires from the operators themselves.  He accepted that there was a possibility that an operator could have signed a blank form and then sent it to the Transport Manager to complete which would also result in a lack of transparency.  The new information requested on the questionnaire was the place of birth of the Transport Manager, confirmation that he/she held an external or internal post and an acknowledgement by the Transport Manager that there was a risk of disqualification.  It was rare for a form to be returned unsigned.  If issues could not be resolved with forms then the matter was referred to a Traffic Commissioner.  In this case, Mr McAuliffe had stated that he was not going to go out of his way to secure the signature of the operator and the case worker had assumed that Mr McAuliffe was dealing with the form on behalf of the operator.  Mr  Hartley accepted that there were three occasions when the form could have been sent to the operator by his office for signature.  He accepted that he was aware of the Senior Traffic Commissioner’s Statutory Document No. 3 which stated that the completion of the form was not mandatory although failure to complete the questionnaire placed a heavy burden on the operator.  Mr Hartley considered that the issue had been adequately dealt with in TC Denton’s response (summarised in paragraph 2(xi) of the first UT decision).   

 

13.         TE Pope then presented his public inquiry brief.  He confirmed that he had been a Traffic Examiner for eight and a half years and that on 2 August 2010 he had been called by a police officer at the scene of the accident in which Mr Arora had been involved because it was evident to that police officer that something was not right with Mr Arora’s tachograph charts.  In particular, the chart for that day showed that the tachograph head had been opened at about 11.40 and had been closed at 12.30.  In answer to questions from Mr McAuliffe, TE Pope confirmed that before 2 August 2010, he had never come across a driver drawing lines on his tachograph charts to make it look like he had taken rest.

 

14.         Mr McAuliffe then gave evidence.  He had a degree in Marine Leisure Management and had worked as an Environmental Scientist before becoming an HGV driver and then a Transport Manager with Parcel Force without a CPC, leaving that employment “seven or eight years ago”.  He found that being a qualified Transport Manager fitted around  his medical condition.  He had built up a portfolio of clients and all was going well until the recession and the “rules changed” prohibiting Transport Managers from being nominated on multiple licences. He thought that he needed to be Transport Manager on eight licences to be financially viable.

 

15.         Mr McAuliffe was hesitant when Michelle Tierney suggested that he replace her as Transport Manager for Ocean Xpress because of the travelling involved in attending the Aroras’ home.  However, Ms Tierney said that the operation was “above board” but that Mr Arora pleaded poverty all of the time.  Ms Tierney had not implemented any systems but she did check the tachographs.  When Mr McAuliffe had spoken to Mr Arora, he had just returned from India and he said that his wife was still there.  They negotiated Mr McAuliffe’s fees over the telephone and then Mr McAuliffe visited Mr Arora.  Maintenance systems were in place but there was no driver defect reporting system or any working time directive records.  He gave Mr Arora some Tachopaks in order to record the working time directive information on them.  Mr McAuliffe then sent off the GV80 nomination form (signed 26 August 2009) with a covering letter informing the OTC of his other Transport Manager commitments (we note that Mr McAuliffe was Transport Manager for Ocean Xpress a little short of a year before 2 August 2010). 

 

16.         Thereafter, Mr McAuliffe had contact with Mr Arora by telephone two or three times a week and Mr McAuliffe visited Mr Arora every other week at his home.  He did not visit the operating centre because it was a piece of tarmac in a yard.  Whenever Mr McAuliffe spoke to Mr Arora, the vehicle was apparently out on the road and being driven by the second driver.  When he visited, Mr McAuliffe would normally collect the tachographs and take them away.  He would go through the driver defect reports and he would go through previous records and point out errors to Mr Arora. To say that this continued without incident until 2 August 2010 would be “stretching it”.  Mr Arora would visit India and there were minor errors on the charts for which Mr Arora always had legitimate explanations. Mr McAuliffe had to tell Mr Arora that driving within ports counted towards his driving time.  Mr McAuliffe explained that he had wanted two to three months of tachographs before he started to analyse them.  He told Mr Arora to keep an eye on his breaks because one or two breaches a month could be considered to be no more than errors but any more than that would give the impression of deliberate breaches.  The infringements then reduced.

 

17.         Mr McAuliffe had been shown the driving licence of Mr Dhami and he was not concerned by the fact that he had not met him (he did not say when he was shown the licence).  Mr McAuliffe had experience as an agency driver and was aware that vehicles needed to earn money and he would be told by Mr Arora that the vehicle was on the road when he met up with him.  Further, when analysing the tachographs, the start and finish times on Mr Dhami’s records were consistent with those of Mr Arora.  Mr McAuliffe had even seen driver defect reports completed by Mr Dhami. 

 

18.         Up to 2 August 2010, Mr McAuliffe had only detected a couple of instances when Mr Arora had removed his tachograph from the tachograph whilst in the dock and he reprimanded him for this.  So when Mr Arora rang him up to say that TE Pope had taken his tachographs on 2 August 2010, Mr McAuliffe advised him that there was not an awful lot that he could do until either TE Pope requested further information or he returned Mr Arora’s tachographs to him.  They then carried on as normal.  Then Mr Arora asked Mr McAuliffe if he would speak to TE Pope because Mr Arora did not understand what was going on.  He spoke to TE Pope on a couple of occasions.  Mr McAuliffe got the impression from TE Pope that there was more to the tachographs than met the eye but when he put this to Mr Arora, Mr McAuliffe was told that there would only be the usual minor infringements on the tachographs.  Then later on, Mr McAuliffe could not recall the precise time line, Mr Arora told him that TE Pope wanted to interview both Mr Arora and Mr Dhami.  Mr Arora stated that he would attend (although ultimately he did not) but Mr Dhami would not.  Mr McAuliffe asked whether Mr Dhami had another job and Mr Arora said that he did.  Mr McAuliffe said it had to stop.  Then Mr Arora called a couple of days later and confessed that there was no second driver.  Mr McAuliffe said that he could not help him and that it was down to TE Pope and VOSA.  If they wrote to Mr McAuliffe then he would provide them with all of the information requested but he would not back Mr Arora up.  He would do all that was legally required of him.  Mr McAuliffe did not resign at that stage because his fate was sealed and he could not do anything to rectify the situation.  He could not tell TE Pope about Mr Arora’s confession because it was hearsay and made over the telephone.  Mr McAuliffe denied that he went along with Mr Arora’s deception; he told him that his activity must stop.  He advised Mr Arora to seek legal advice.  Mr McAuliffe did not go and see a lawyer himself because he could not afford to.  Then it all went quiet as Mr Arora had gone to India and then Mr McAuliffe heard from Mrs Arora that her husband was in prison.  Mr McAuliffe had stopped invoicing the company by this stage because he had been told that the vehicle had stopped earning. 

 

19.         Mr McAuliffe was asked about his interaction with TE Pope.  He denied that the disciplinary letter on Transmac paper in the name of Mr Dhami was a false document, fabricated to show that he had been performing his duties as a Transport Manager.  He was asked whether, at the time he produced the tachographs for the period March to May 2010 (with the envelopes stamped “checked 6 August”) he knew that the charts were not genuine.  Mr McAuliffe replied: “I can’t remember if that was the day I knew or not.  But at that point I had in my possession two lots of drivers’ tachographs.  Yes, there was the potential that they weren’t genuine, but that was already under investigation by Mr Pope.  That’s not my investigation, I complied with everything that VOSA had asked me to.  Mr Pope, at no point, asked me if I knew Mr Arora had been honest about it”.  It was put to Mr McAuliffe that he knew the charts were not genuine and yet presented them as being so.  Mr McAuliffe responded: “I presented them because I was asked .. I couldn’t add anything more to that investigation other than what he had confessed to me over the phone, which, if he had decided to retract or deny in court, there’s nothing that I could do or say about it.  It was a conversation between two people and you’d have to take it on the balance of probabilities ... What I was overly aware of and wanted to ensure was that .. I was seen to be compliant with the investigation .. I wasn’t hindering their investigation”.  Mr McAuliffe accepted that he sees things “in very black and white” and that he had looked at all of the evidence and was satisfied that there was nothing to show that he had been complicit in Mr Arora’s conduct.  He was now aware that others may view the position differently.  He accepted that he had made a gross error of judgment and that he should have left Mr Arora “high and dry” and resigned immediately.  However, he would not have lied to TE Pope if he had asked a direct question as he had high moral standards.  He accepted that he could have told TE Pope about the confession but queried how it could have been admissible.  He had not been involved in a cover up but had been duped by Mr Arora and had only stayed with him because Mr Arora had promised not to do it again.  Mr McAuliffe accepted that his decision to continue to act as a Transport Manager for a fundamentally dishonest man would be considered “incredible” to an experienced TC. 

 

20.         Mr McAuliffe had since changed his outlook on things and would not agree to be nominated as an external Transport Manager in the future.  He accepted that he did not have a “very happy relationship with” the OTC and that trust was fundamental.  The DTC described the relationship as “miserable and combative”,  to which Mr McAuliffe responded that it did not necessarily follow that an unhappy relationship meant that trust could not exist.  The lack of trust was “historical, unfortunately, from information that has not been supplied in the past, information that’s gone amiss, questions that have remained deliberately unanswered.  That trust has broken down on both sides, it’s not just come from one side, the breakdown of trust”.  Mr McAuliffe was aware that he came across as “extremely arrogant” but it was actually a question of wanting to avoid ambiguity.  He accepted that the position was exacerbated by him seeing everything in “black and white”. The group of people who did not like him grew larger by the month.

 

21.         Mr McAuliffe returned to his evidence.  When Mrs Arora rang to inform him that Mr Arora was in prison (so August 2012), she also stated that Mr Arora wanted a fresh start and wished to operate two vehicles.  Mr McAuliffe agreed to continue to act as Transport Manager for the company but only upon the basis that one vehicle was operated.  The arrangement remained the same even after the second accident as Mr Arora had said that it was “just an accident” as a result of two vehicles having pulled out in front of him.  Then when the public inquiry brief was received, Mr McAuliffe realised the extent of the lies he had been told by Mr Arora and the extent of the problem identified by TE Pope and Mr McAuliffe resigned. 

 

22.         He pointed to the good compliance record that he had as Transport Manager for other operators.  He had learnt from his experience and he hoped that the lines of communication with the OTC would be easier in the future and that both sides could learn that shutting down conversations was not the best way forward.  He agreed that the hearing before the DTC had been “amicable” unlike the one before TC Denton.  He recognised that he was fighting for his good repute.  The DTC asked: “So I have been okay this morning have I?” to which Mr McAuliffe answered in the affirmative and acknowledged that she had also granted him a stay.  He hoped that he could re-engineer his approach to the Traffic Commissioner jurisdiction and he could not see any reason why Traffic Commissioners could not work with him.  The DTC highlighted Mr McAuliffe’s approach in objecting to her as the allocated Traffic Commissioner for the rehearing when she had granted a stay.  Mr McAuliffe described himself as being “like a dog with a bone” about issues. 

 

23.         TE Pope was then recalled.  He considered that Mr McAuliffe’s time line had become muddled as he was aware in August 2010 that there was no second driver.  So, Mr McAuliffe had been aware of the true position for a number of months before he spoke to TE Pope on the telephone on 17 November 2010.  It was alarming that Mr McAuliffe had asserted in that conversation that he could discredit the evidence that TE Pope had collated in the same way he had done in Southampton.  He had referred to the copy driving licence of Dhami and had said that as both Mr Arora and Mr Dhami wore turbans, that at a casual glance they could be mistaken for each other.  Mr McAuliffe made these assertions when he knew that it was Mr Arora who had driven the vehicle throughout.  TE Pope was satisfied that Mr McAuliffe had made the statements in that conversation in order to deflect TE Pope from concluding that there was only one driver of the operator’s vehicle.  Then following that call, one disciplinary letter in the name of Mr Dhami was produced when again, Mr McAuliffe had known that Mr Dhami had not driven the vehicle.  Mr McAuliffe may not have expressly lied to TE Pope but he did so by inference. 

 

24.         TE Pope made the further point that it was Mr McAuliffe’s case that he had been analysing the vehicle’s tachographs prior to May 2010 and that Mr Dhami had been drivinig (or so he thought).  Yet Mr Dhami told TE Pope that he only applied for a job in May 2010.  So where were the infringement letters addressed to Mr Dhami before May 2010?  And as for the one that was produced, the letter did not make clear the nature of the infringements identified.  And as for Mr McAuliffe’s assertion that he had worked with Mr Arora from 2009 in order to make him a compliant driver with the rules on drivers’ hours and records, all tachographs analysed save for two had missing mileage.  For example, on 5 June 2010, there had been five hours ten minutes of driving with only one break of twenty minutes.  The head had then been opened and a line drawn on the tachograph chart.  Where was the infringement letter about that? These infringements represented a fundamental problem.  During the telephone call of 17 November 2010, Mr McAuliffe asked about missing mileage as he was not aware that there was any.  Missing mileage of 3,961kms was a large amount for one vehicle over such a short period.  It “beggared belief” that in 2011 TE Pope was still investigating the assertion that two drivers had been driving the vehicle and that he had needed to resort to obtaining a report from a handwriting expert.  One only needed to analyse the tachographs to establish that only one driver was responsible for the driving as there were no positioning journeys for the second driver when the charts appeared to suggest that there had been driver changes at Felixstowe and Liverpool.  On one occasion there had been an apparent change over when the vehicle had not stopped.

 

25.         In answer to questions from Mr McAuliffe, TE Pope stated that he had made a note of the telephone conversation of 17 November 2010 whilst they were talking.  He read out his note in full.  He accepted that he only recorded the answers and not the questions but they had definitely discussed Mr McAuliffe’s assertion that he could discredit the evidence obtained from Felixstowe docks.  TE Pope described Mr McAuliffe as being very defensive during the conversation.  And as for obtaining a report from a hand writing expert, TE Pope was forced to do that because Mr Arora had refused to be interviewed and no one had accepted the true position.  It was put to TE Pope that with his experience and qualifications he was in a far better position than that of the average Transport Manager to analyse tachographs.  TE Pope disagreed. 

 

26.         In his closing submissions, Mr McAuliffe recognised the gravity of his situation and that he had not been compliant.  He was reliant upon a character reference from Lucy Chambers, the Head Mistress of Mr McAuliffe’s local school.  The letter informed the DTC that Mr McAuliffe had been a parent and a governor of the school for many years and had recently taken up the role of Chair of Governors.  He had proven to be honest and forthright in this role.  Mr McAuliffe possessed an almost “black and white” outlook, shaped by clearly defined principles and a strong moral code.  He would not be complicit in or tacitly approve any form of wrongdoing as he operated clearly within rules and boundaries. This was particularly evident in his role as Chair of Governors.  He had a close working relationship with Ms Chambers.  She concluded by stating that Mr McAuliffe had a strong sense of justice and he would always speak out against injustice, even in situations where it would be easier to sit back and not be involved.

 

27.         Mr McAuliffe submitted that his conduct did not warrant disqualification or the re-taking of the CPC examination which would be financially prohibitive for him.  He had not been nominated on an operator’s licence for over a year and had no intention to be nominated in the short term.  He did however need his good repute to provide a source of income for him in the future.

 

The DTC’s decision

 

28.         The DTC apologised “unreservedly” for the time it had taken her to issue her decision (ten months).  She recognised that having a very heavy workload was no excuse.  She had however found the case to be unique and Mr McAuliffe a unique individual and she considered that this was a case which required detailed recounting and much thought and as a result, time slipped on.  Mr McAuliffe would have known that his failings were serious and he had not pressed for being nominated as a Transport Manger, indeed, his evidence was that he had no intention of returning to the role in the short term and none of being an external Transport Manager in the future.

 

29.         The DTC found Mr McAuliffe’s case to be “most extraordinary”.   There are many clues which can expose the non-compliant driver.  Had Mr McAuliffe been performing his role as a Transport Manager he would have realised that something was amiss with Mr Arora’s driving and business.  When TE Pope “came on the scene” Mr McAuliffe gave the outward impression of co-operation by the production of documentation which suggested that tachographs were being analysed but he did not tell TE Pope that a “ghost” name was being used by Mr Arora.  TE Pope drew out just how culpable Mr McAuliffe was when giving evidence.  His contemporaneous notes of the telephone conversation on 17 November 2010 together with Mr McAuliffe’s evidence of Mr Arora’s confession to him about his use of a false name removed any doubt about Mr McAuliffe’s complicity in trying to deflect TE Pope in his investigations.  The DTC concluded, despite the reference from Ms Chalmers, that Mr McAuliffe had acted in the way he had because there was a risk that his modest earnings would be reduced further if the truth came out and his repute would be at risk.  Any Transport Manager with any substance, integrity and repute would have removed his name from the licence after hearing Mr Arora’s confession and many would have co-operated with VOSA in order to salvage their own repute.  A person of repute would not have covered up for Mr Arora and the DTC did not accept Mr McAuliffe’s account that he could not walk away from the licence and that Mr Arora had given him assurances about future compliance.  He did not act as a person of repute.  Mr Arora was convicted of 79 offences of knowingly making a false record which included excessive driving and one duty period of 33 hours.  Mr Arora was a dangerous man on the road.  The DTC was prepared to accept that prior to August 2010, Mr McAuliffe, not having been rigorous in carrying out his duties, did not know just how non-compliant and dangerous Mr Arora was although the landscape changed once Mr Arora had made his confession.

 

30.         The DTC reminded herself of the undertakings given by a Transport Manager when signing the TM1 form.  She had listened closely to Mr McAuliffe’s description as to how a Transport Manager should fulfil his roles.  She did not accept that a Transport Manager need not visit the operating centre as it was good practice to ensure at the very least that there were no potential issues with it, for example, inadequate lighting for the carrying out of driver defect checks and that the vehicle was using the operating centre when not in use.  She had no doubt that Mr Arora was a “very dishonest and deceitful individual” and that he duped Mr McAuliffe in many respects and she did not consider that Mr McAuliffe was instrumental in initiating the use of a ghost name and two writing styles.  His culpability was in not having continuous and effective control, in not resigning in August 2010 when he knew of the ghost name and in having “misleading dealings” with TE Pope.  Mr McAuliffe placed much store on the point that TE Pope had not asked him directly whether there was only one driver and that the records were false, but Mr McAuliffe missed the point as TE Pope did not know what the position was although even on face value something could not be right. 

 

31.         As for Mr McAuliffe’s non co-operation with the Central Licensing Unit and the OTC in the completion of the TM1 form, that “beggars belief”.  He defied the advice of case workers, Senior Team Leader Mr Hartley who she described as being “hugely experienced and personable”, TC Denton and STC Bell, all of whom explained at length and with great courtesy why the operator’s signature was needed on the form.  His responses were “confrontational, refusal and challenge”.  It was now apparent that there had been a paucity of contact between Mr McAuliffe and the operator at the relevant time.  That together with Mr McAuliffe’s reluctance to obtain the operator’s signature or provide an explanation for refusing to do so pointed to the relationship being far from genuine and had probably lost its authenticity sometime in late 2010.  The DTC posed the question “how could the OTC or the TC or STC ever accept a Transport Manager’s refusal to put a document before an operator for signature when such a document had the purpose of securing compliance with a new and transformative Regulation? .. Pose all of this in another way – why would a transport manager of repute not want to have an operator sign such a document when so requested by the OTC and where there has to be a good working relationship of operator and Traffic Commissioner?”  The DTC went through the changes made by Regulation (EC) 1071/2009 and concluded that by refusing to obtain the signature of the operator on the TM1 form, Mr McAuliffe had breached the trust that must exist between Transport Managers and Traffic Commissioners.  He “sought to dance on a pinhead which even an angel would have avoided – his was a time wasting obfuscation.  He wasted everyone’s time with his pedantry and ignorance and lack of respect for the purposes of operator licensing.  All regulators, of necessity, have to have forms and processes to secure the regulatory purposes.  Seeking the signature of the operator patently is not a subversion or at odds with the Regulation .. the signature is the evidence of engagement in the operation permitted by the Regulation – that is to have a transport manager in place on the licence who fulfils the requirements of the Regulation .. only Mrs Arora as director or her solicitor/attorney/company secretary could have countersigned that form with the declaration therein”.

 

32.         The DTC went onto consider the positive features of the evidence. Mr McAuliffe presented as amicable and co-operative with the public inquiry hearing notwithstanding his abrasive and confrontational tone in correspondence.  He served his community as a School Governor and Ms Chambers had written a letter providing insight into how Mr McAuliffe’s categorises the world into black and white.  He was suffering from a debilitative illness which must not be easy for him.  Finally, Mr McAuliffe had not had any previous regulatory action taken against against him.  These positive features were not sufficient to swing the balancing exercise in his favour.

 

33.         There were three strands to the case: Mr McAuliffe’s failure to perform his duties as Transport manager; his complicity in deflecting TE Pope from the truth during his investigation; his defiance and obfuscations surrounding the signing of the TM1 form.  Each one of those strands entitled the DTC to find that Mr McAuliffe had lost his good repute.  The DTC referred to the Upper Tribunal cases of T/2012/71 Silvertree Transport Ltd; T/2014/26 Simon Sivyer; T/2014/09 Hunterstrong Engineering Ltd & Others; T/2014/42 Brian Robert Cutmore and concluded that it would be “perverse” to reach any other conclusion than Mr McAuliffe’s repute was lost.  She repeated her earlier findings and noted that the Ocean Xpress licence had had its victims and in particular, those involved in the collision in 2010 and the fatality in 2012 when Mr McAuliffe remained nominated as Transport Manager.  The DTC noted TE Pope’s “controlled distress” when having to speak about the fatality. 

 

34.         In considering the length of the order of disqualification which inevitably followed the DTC’s findings, she noted that TC Denton had disqualified Mr McAuliffe for three years and ordered that Mr McAuliffe re-sit the CPC examination  as a rehabilitative measure.  The DTC agreed that such a rehabilitative measure was necessary in Mr McAuliffe’s case, however, the position was more complex.  She had now received a “far fuller and blacker picture” than TC Denton and the DTC was not satisfied that good repute and professional competence would be rehabilitated simply by re-sitting an examination.  The difficulty was Mr McAuliffe’s perception of the jurisdiction and the Traffic Commissioners’ commitment to the purposes of operator licensing.  The issue was “propriety (in sense of trust and truth and omission and commission)”. It came down to how Mr McAuliffe “thinks and processes information and responds to authority in particular”. He needed to “work on that”.  She considered that she might be being generous in even allowing some attribution of Mr McAuliffe’s behaviour to cognitive issues.  The DTC considered that a disqualification order of three years was lenient given the evidence before the second public inquiry and even when taking account of the time that had passed since TC Denton’s order, the DTC was satisfied, given her doubts about whether Mr McAuliffe had the necessary understanding of what was required from a Transport Manager and given the seriousness of the evidence, an indefinite disqualification was required.  She was satisfied that such a “draconian” order was tempered by the power to cancel or vary the disqualification.  The remedial measure required before Mr McAuliffe could apply for the order to be cancelled or varied was the successful re-sitting of the CPC examination.  The DTC went on to give Mr McAuliffe two additional “steers” as to how he could succeed in applying for the order to be cancelled or varied: “being calm and reflective on receiving and reacting to this decision and engaging in a fresh start with the OTC with an end to complaints and abrasive correspondence .. and .. taking advice from trusted sources such as Mrs Chalmers”. 

 

The lead up to the Appeal

 

35.         Mr McAuliffe’s appeal was originally listed for hearing on 2 June 2015.  At 13.40 on 1 June 2015, Mr McAuliffe requested an adjournment on the ground of his ill health.  Following a request for documentary evidence in support of his application, Mr McAuliffe did provide some NHS documentation although it did not support his account of symptoms which he maintained  he was suffering which would make it impossible for him to attend and follow the appeal hearing.  Nevertheless, we determined that it would be prudent and fair to allow Mr McAuliffe an adjournment to 4 August 2015.

 

36.         It should also be noted that in Mr McAuliffe’s grounds of appeal, he made an allegation of bias against the DTC.  Following the Tribunal decision of 2004/426 EA Scaffolding and Systems Limited & The Secretary of State for Transport the Tribunal issued a direction under rule 5(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 that Mr McAuliffe file an affidavit by 24 June 2015, setting out the full details as to why he alleged that the DTC’s decision was biased.  He was warned that failure to comply with the direction would result in the allegation of bias being struck out under Rule 8(3)(a) & (b)of the 2008 Rules.  Mr McAuliffe failed to comply with the direction and the allegation was struck out.

 

The Appeal

 

37.         At the hearing of this appeal, Mr McAuliffe attended and represented himself.  His first point related to the DTC’s “handling” of Mr McAuliffe’s request for reasonable adjustments made under s.29(7) of the Equality Act 2010.  He had requested an adjournment due to his disability and evidence was supplied when requested in relation to it.  The time scale he had been given in order to prepare for the public inquiry was insufficient by reason of his disability. Further, no indication had been given to him that a courier would be delivering the public inquiry bundle and as a result, he was not in when delivery was attempted.  As a consequence, he had not received the papers, further reducing the time he had been given to prepare.  The DTC refused to give Mr McAuliffe further time and failed to give reasons for doing so despite various requests.  When the DTC did determine that the public inquiry hearing should be adjourned, she did not do so upon the basis of his disability and request for reasonable adjustments but rather because she did not think that Mr McAuliffe would attend the hearing.  There was no evidence to support that conclusion and the DTC’s decision did not put Mr McAuliffe “in a good light” and it had “shifted the bias”.  Mr McAuliffe accepted that he had failed to comply with the direction given on 3 June 2015 and that as a consequence, his allegation of bias had been struck out.  However, he still considered that the DTC was biased.

 

38.         It would appear that Mr McAuliffe fails to appreciate that at no stage prior to 13 November 2013 (the day before the public inquiry was scheduled to take place) did he either identify the disability upon which he relied in support of his application for reasonable adjustments; set out how his unidentified disability would impede his ability to prepare his case or participate in the public inquiry; how his application for special measures would address his needs.  It was pointed out to him in correspondence that he had not provided sufficient evidence.  Nevertheless, Mr McAuliffe continued in a combative mode making complaints about his treatment.  Even the information provided on 13 November 2013 did not explain why Mr McAuliffe’s stated medical condition required him to have reasonable adjustments.  In view of Mr McAuliffe’s stance in relation to this issue and his determination that the hearing should not take place on 14 November 2013, it is understandable that the DTC took a pragmatic view on the inadequate evidence.  Rather than request further evidence to support the application for an adjournment as a special measure, she adjourned the public inquiry upon the basis that Mr McAuliffe was unlikely to engage in the merits of the case if it were to proceed on 14 November.  Such an approach was entirely reasonable and well founded.  The DTC did not find that Mr McAuliffe would fail to attend and at no stage did the DTC or the OTC have before them sufficient evidence upon which to allow for reasonable adjustments or to give reasons for refusing them. We are satisfied that this ground is wholly without merit.

 

39.         Mr McAuliffe next referred to the “Bangalore Principles” (we have assumed that Mr McAuliffe was referring to The Bangalore Principles of Judicial Conduct 2002).  He had been accused of being complicit with the operator but neither Mr or Mrs Arora were present at the public inquiry and as a result, it had not been possible for Mr McAuliffe to question the errors and inaccuracies in their account. Further, the public inquiry could not be described as being a “new hearing” because the DTC was using the public inquiry papers from the previous hearing and the transcript of the previous public inquiry.  In essence Mr McAuliffe’s complaint is that he did not have a fair hearing.

 

40.         It would appear that Mr McAuliffe fails to appreciate that firstly, when the Upper Tribunal orders a rehearing of a case, the papers which formed the basis of the evidence before the first Traffic Commissioner also form the basis of the evidence before the second Traffic Commissioner.  Otherwise, there could not be a rehearing.  Secondly, it is normal and entirely appropriate for the second Traffic Commissioner to have the transcript of the first hearing.  Otherwise, the order the Upper Tribunal has made and the reasons for it may not be immediately apparent to that Traffic Commissioner.  Further, it is entirely appropriate for the transcript to be provided not only to the Traffic Commissioner but also to the Appellant so that relevant evidence can be highlighted and conflicts identified (not only between witnesses but in evidence that the same witness may give).  Thirdly, It was for the DTC to determine, having considered the Upper Tribunal decision and the reasons why it ordered a re-hearing, how she was going to conduct the public inquiry before her, including the calling of witnesses.  In fact Mr and Mrs Arora would not have been compellable as witnesses in the rehearing as their regulatory position had been dealt with in the first hearing and the issues identified by the Upper Tribunal and the DTC solely related to Mr McAuliffe and how he had conducted himself.  Fourthly, the DTC did not make any material findings adverse to Mr McAuliffe based upon the previous evidence of Mr and Mrs Arora.  In the circumstances, there was no entitlement or necessity for Mr McAuliffe to cross examine the couple.  The DTC made no findings at all about Mrs Arora and was scathing in her references to Mr Arora.  We are satisfied that the DTC did not contravene any of the principles or values set out in The Bangalore Principles of Judicial Conduct 2002; neither can it be said that Mr McAuliffe was deprived of his right to a fair hearing as a result of Mr and Mrs Arora not being made available to cross examine.

 

41.         The next point Mr McAuliffe made was about the length of time it had taken the DTC to issue her decision.  Mr McAuliffe highlighted that the delay of ten months or so was clearly in breach of the Senior Traffic Commissioner’s own guidance that decisions should be issued within twenty eight days.  As a result of the delay, Mr McAuliffe was concerned that the DTC had not “got the facts right”.  He asserted that during the course of the public inquiry hearing, the DTC was unable to keep up with the evidence when taking notes and was obviously “scrubbing them out” from time to time.  If her decision was based upon her notes alone when many months had passed since the hearing, then she may have based her decision on an incorrect note or understanding or recollection of the evidence.  Mr McAuliffe did not point to any particular part of the DTC’s decision which could be shown by interrogation of the public inquiry brief or the transcript of the hearing to be factually incorrect. 

 

42.         There can be no doubt that a delay of some ten months in publishing a decision is unacceptable even if the delay is caused by pressure of work.  As Mr McAuliffe has correctly observed, the STC guidance is that reasons for decisions should be issued within twenty eight days.  That deadline should be complied with by all Traffic Commissioners as long delays will have the effect of undermining the integrity of the regulatory process. However, it is clear that in this case that either the DTC had the transcript of the hearing available when writing her decision or that her notes were so detailed that she did not need a transcript.  In all likelihood she had both (even though her decision is silent upon the point).  The reason why the Tribunal can come to this conclusion is because the decision represents an accurate and very detailed summary of the evidence in this case and clearly the DTC took many hours to draft it.  As we have already observed, Mr McAuliffe  has not identified any aspect of the decision which he can show to be incorrect when referencing the papers or the transcript.  In the circumstances, we disagree with Mr McAuliffe that the delay itself causes the DTC’s decision to be unreliable or in any way unsatisfactory.

 

43.         Turning to Mr McAuliffe’s failure to secure the signature of the operator on the TM1 form, his next point was that it had been clearly stated by Mr Hartley that Mr McAuliffe had completed all parts of the form that he was required to complete.  It was also accepted that “VOSA” had failed to follow its own processes in failing to gain the missing signature that would complete the form from the operator themselves and Mr Hartley accepted that an operator could sign a blank form and then send it to the Transport Manager to complete.  The STC’s own guidance made it clear that a Transport Manager did not need to complete the TM1 form provided all of the information was supplied.  Despite repeated requests to two separate Traffic Commissioners and the STC on this matter they have refused to respond.  Mr McAuliffe insisted that there was no obligation on him to obtain the signature of the operator.  He accepted that there was evidence that his conduct in dealing with this issue amounted to a frustration of the process but he disagreed with that process and at the time, he did not want to increase his own workload.  He simply did what he was required to do and then “stood his ground and so did they”.  He had no issue with challenging authority and if he did not think that something was “proper”, he would challenge it.  He submitted that the issue of the TM1 form should not have been considered by the DTC at all. 

 

44.         We agree with Mr McAuliffe that there was no legal obligation upon a Transport Manager to complete the form or indeed to obtain the operator’s signature on it before returning the form to the OTC or Central Licensing Unit.  The issue is that a reputable Transport Manager who is in effective and continuous management of a transport operation will do so and will not enter into a course of correspondence and discussions which can only be described as bullying and combative.  He or she should be working closely with the operator and they should collaborate in the completion of the form.  Failure to do so, raises questions, as it did in this case and the good repute of a Transport Manager who fails to engage in a helpful and meaningful way with the regulatory authorities will be in doubt.  Hard pressed civil servants should not have to deal with the type of correspondence that Mr McAuliffe is in the habit of sending.  The DTC’s conclusions about Mr McAuliffe’s conduct in relation to the TM1 form are unimpeachable and we reject Mr McAuliffe’s submissions on this point.  We should add of course, that it was the Upper Tribunal who directed that the issue of the TM1 form should be considered during the rehearing as we considered that it may be relevant to repute as indeed it turned out to be.

 

45.         Finally, Mr McAuliffe turned to the DTC’s findings in relation to his complicity with Mr Arora upon the issue of whether there was a ghost driver.  Mr McAuliffe submitted that there was no evidence upon which to base that finding and it was incorrect to find that Mr McAuliffe knew about the use of a ghost driver’s name by Mr Arora before TE Pope knew.  That was not the evidence.  Mr McAuliffe had told the DTC that Mr Arora had only spoken to him after he had spoken to TE Pope.  Mr McAuliffe averred to the Tribunal that in fact, Mr Arora only told him about the ghost driver after Mr Arora had told TE Pope about the ghost driver and once the decision was made to prosecute Mr Arora.  If he had known that Mr Arora was using a ghost driver’s name at any stage, Mr McAuliffe would have resigned.  He had no financial interest in continuing to act as Transport Manager.  He accepted that with hindsight, he would now act differently and he was happy to accept that some remedial measures such as a refresher course should have been required of him but he should not have lost his good repute. 

 

46.         The Tribunal asked whether Mr McAuliffe was suggesting that he was not told until sometime in 2012 that Mr Arora had used a ghost driver’s  name bearing in mind that TE Pope obtained a report from a handwriting expert in November 2011.  At that stage, TE Pope was still attempting to establish that only one driver was responsible for all of the driving.  All Mr McAuliffe could say was that Mr Arora told TE Pope at some stage and he did not know why TE Pope had instructed a handwriting expert in November 2011 and Mr McAuliffe was just “piggy in the middle”.  We asked Mr McAuliffe to consider his evidence to the DTC which is summarised in paragraph 19 above.  He denied that his evidence amounted to an admission that when he provided tachographs to TE Pope, he knew they were not genuine.  He stated that it was not for him to tell VOSA that there was a ghost driver but in any event, he did not know.  He did not hide anything; he simply gave TE Pope what he wanted.  Mr McAuliffe was struggling to understand what he was supposed to have done.  He had been told by Mr Arora that TE Pope was aware that the charts were false because Mr Arora had told him.  Mr McAuliffe was just a layman who was fighting “tooth and nail” to avoid injustice.  It upset him that he was being put in the same category as Mr Arora.  He had an unblemished regulatory history and he had been associated with the transport industry for twenty years and more.  He was aware of the pitfalls.  He is passionate about the industry.  If he had known about the false charts before TE Pope had known, he would have walked away from the operator.  He was not able to say precisely when he did know as it was so long ago.  And as for TE Pope’s notes in his pocket book of the conversation they had had on 17 November 2010, the notes only recorded one side of the conversation and could not therefore represent an accurate and true record of what was said.  TE Pope’s evidence was “deceitful” in this regard.  Mr McAuliffe thought that TE Pope had got his time line muddled and that the conversation that he said took place on 17 November 2010, took place at some other time.  Mr McAuliffe could not say when.

 

47.         We remind ourselves of paragraph 2(xx) of the first UT decision which summarised Mr McAuliffe’s evidence before TC Denton: “The Appellant went to see Mr Arora after he had been stopped on 2 August 2010 and it was then that Mr Arora revealed that he had been falsifying his charts.  The Appellant said that this would be handled by VOSA and that he should contact a transport lawyer. The Appellant told Mr Arora that he would not lie to VOSA if he was contacted.  However, when he was contacted by TE Pope, he was not asked a direct question by him and as a result, the Appellant did not have to lie to him.  He supplied all of the information requested from him. ..”  This summary is similar in its terms to the summary of evidence given by Mr McAuliffe before the DTC at paragraph 19 above and amounts to an admission that Mr McAuliffe knew about the false charts prior to his first conversation with TE Pope.  We do not take account of Mr McAuliffe’s assertion before us that in fact he did not know about the false charts until after Mr Arora had told TE Pope that they were false as this is something that Mr McAuliffe has never mentioned before and we do not consider fresh evidence on appeal.  We further reject Mr McAuliffe’s criticisms of TE Pope’s record of their conversation on 17 November 2010 and it was clearly open for the DTC to accept that the record was a truthful and reliable one and that it demonstrated that Mr McAuliffe had been deceitful in his dealings with TE Pope and had made false statements to him in the hope that he could deflect TE Pope from the truth.  In all of the circumstances, we are satisfied that the DTC’s conclusions about Mr McAuliffe’s repute are well made out and that it was inevitable that she would find that it was lost.  There is no room in the industry for Transport Managers who are prepared to attempt to mislead DVSA officials during the course of their investigations into any case, let alone such a serious one as this. Mr McAuliffe’s criticisms of the DTC’s findings that he was complicit with Mr Arora are without foundation as is his assertion that TE Pope was “deceitful” in the manner he recorded the very important telephone conversation of 17 November 2010.

 

48.         We are satisfied that the DTC’s decision is one which was plainly right as was her decision to disqualify Mr McAuliffe indefinitely.  In the circumstances of this case, such an order was proportionate and reasonable.  Neither the law nor the facts impel us to come to a different decision to that of the DTC on any aspect of this case as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  

 

(vii)    The appeal is dismissed and the order of disqualification comes into effect immediately.

 

 

 

 

 

Her Honour Judge J Beech

24 August 2015