Meredith & Ors [2009] EWHC 2975 (Admin)

[2009] EWHC 2975 (Admin)Case No CO/4501/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2009
Before
MR JUSTICE PITCHFORD
Between
DANIEL MEREDITH & OthersAppellantsTRAFFIC COMMISSIONER FOR THE WESTERN TRAFFIC AREARespondent
Mr Christopher Over (instructed by Over Taylor Biggs) for AppellantsMr Tim Nesbitt (instructed by Hine & Co) for RespondentHearing Hearing dates: 17 November 2009
Judgment
[1]This is an appeal by way of case stated from the decision of the justices sitting at Camborne, West Cornwall.[2]In sections 115-117 and 121 Road Traffic Act 1988 there is provided a scheme by which the Secretary of State may refer to the Traffic Commissioner for the area in which the holder of a large goods vehicle licence resides the issue whether he is fit to hold the licence and, if not, whether the licence should be suspended or revoked and, in either event, for what period. The case of each of the appellants was referred to the Traffic Commissioner for the Western Traffic area, Mrs Sara Bell. Having considered their conduct, Mrs Bell ordered the revocation of the appellant’s licences together with a corresponding period of disqualification. In reaching her decision, Mrs Bell applied a guideline Practice Direction 3 issued by the Senior Traffic Commissioner with effect from June 2008. The appellants appealed to the justices who dismissed their appeals.[3]This appeal raises the following issues: 1) Whether guideline Practice Direction 3, paragraphs 2, 3, and 23 correctly interpret the effect of sections 115, 116, 117 and 121 Road Traffic Act 1988. It is submitted on behalf of the appellants that the guideline effectively closes off avenues of mitigation which are legitimately available to appellants under the Act; 2) Whether in applying Practice Direction 3 the Traffic Commissioner and the justices left out of account material considerations going to the issue whether the appellants’ conduct rendered them unfit to hold a large goods vehicle licence and, if so, whether that conduct was such as to require suspension or revocation and, if so, for what period.[4]The background to these appeals, which I take largely from the decision of the Traffic Commissioner delivered on 30 December 2008, is as follows:(i) Following a road traffic accident on the A30 trunk road in the West Country on 2 January 2007, involving a driver employed by the haulage operator, Donald Conway Bailey (the operator), the Vehicle and Operator Services Agency (VOSA), together with the Devon and Cornwall Constabulary, carried out an investigation at the operator’s depot. The investigation concentrated on tachograph records during a snapshot of time between 1 December 2006 and 31 March 2007;(ii) The investigation led to the prosecution of 22 drivers employed by the operator. They were charged with tachograph offences under section 99 ZE (1)(a)(d) Transport Act 1968 and section 3 Forgery and Counterfeiting Act 1981.

(a) of the 1968 Act:

“(1) A person commits an offence – (a) if he makes, or causes or permits to be made, a relevant record of entry which he knows to be false. (2) For the purposes of subsection 1 of this section a “relevant record or entry” is a) any record or entry required to be made by or for the purposes of the Community Recording Equipment Regulation or section 97 of this Act...”
Those offences charged under section 3 of the Forgery and Counterfeiting Act 1968 (using a false instrument), resulted from the creation of false records while the drivers were engaged in haulage in Continental Europe. (iii) Sections 115-117 of the 1988 Act apply to both large goods and passenger carrying vehicle driver’s licences, known collectively as vocational licences. The relevant statutory provisions as they were invoked in the cases of the appellants are as follows: “115(1) a large goods vehicle…. driver’s licence – (a)…. (b) must be revoked or suspended if his conduct is such as to make him unfit to hold such a licence; and where the licence is suspended under paragraph (b) above it shall during the time of suspension be of no effect….. “116(1) any question arising – (a) under section 116(1)(b) of this Act as to whether a person is or is not, by reason of his conduct, fit to hold a large goods vehicle…. driver’s licence… (b) …. may be referred by the Secretary of State to the Traffic Commissioner of the area where the holder of the licence resides. (2) Where, on any reference under subsection (1)(a) above, the Traffic Commissioner determines that the holder of the licence is not fit to hold a large goods vehicle…. driver’s licence… he shall also determine whether the conduct of the holder of the licence is such as to require the revocation of his licence or only its suspension; and if the former, whether the holder of the licence should be disqualified under section 117(2)(a) of this Act (and, if so, for what period)…. 117(1)… (2) Where in pursuance of section 115(1)(b) of this Act the Secretary of State revokes a person’s large goods vehicle… driver’s licence, the Secretary of State may – a) order the holder to be disqualified indefinitely or for such period as the Secretary of State thinks fit, or b) …… “121 Interpretation (1) In this part of this Act – “Conduct” means – a) In relation to....the holder of a large goods vehicle driver’s licence …. his conduct as a driver of a motor vehicle; and b) In relation to....the holder of a passenger-carrying vehicle driver’s licence…. his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying vehicle driver’s licence…” (a)…. (b) must be revoked or suspended if his conduct is such as to make him unfit to hold such a licence; (a) under section 116(1)(b) of this Act as to whether a person is or is not, by reason of his conduct, fit to hold a large goods vehicle…. driver’s licence… (b) …. a) order the holder to be disqualified indefinitely or for such period as the Secretary of State thinks fit, or b) …… a) In relation to....the holder of a large goods vehicle driver’s licence …. his conduct as a driver of a motor vehicle; and b) In relation to....the holder of a passenger-carrying vehicle driver’s licence…. his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying vehicle driver’s licence…” (iv) The convictions of the 22 drivers were referred to the Traffic Commissioner. In a written decision dated 30 December 2008 she imposed on 19 of the 22 drivers either suspension or revocation of and disqualification from holding a large goods vehicle licence. (v) These appeals are brought by 4 of the drivers who were dealt with before the Traffic Commissioner as follows: Daniel Meredith “…Mr Meredith pleaded guilty to 13 counts of false record and one count of not taking a 45 minute break after 4.5 hours driving. The offences were committed between 9 December 2006 and 23 March 2007. In addition in 2007 he received two fixed penalty tickets for speeding, including on one occasion in a goods vehicle. Mr Meredith did not attend the Driver Conduct Hearing but was represented by Mr Over. Mr Meredith admitted on three occasions he deliberately drove without recording the fact on a tachograph chart. On other occasions he would have realised that the record was false if he had in any way put his mind to it. Mr Meredith should have done so particularly bearing in mind that often he was taking the minimum or almost the minimum rest period. Mr Meredith was described as an anxious young man who subsequently returned to the Army as he was unable to cope with civilian life. He has joined the Transport Corps and Mr Over was unsure if he was vocationally for the Army. Mr Over confirmed that he would notify my office if he was able to ascertain one way or the other but at the date of writing this decision, no such notice has been received. In any event unlike the Magistrates’ Court, personal circumstances are not relevant when I look at fitness. The fact that he may be a military driver is however relevant to my jurisdiction. Military drivers come within the remit of the south eastern and metropolitan area. However, as a deputy for that area I have the authority to make this decision in any event. In all the circumstances Mr Meredith has put the public at risk to an unacceptable level in all the circumstances, in my judgment, he is no longer fit to hold a vocational entitlement and it is appropriate and proportionate to revoke his vocational driving entitlement and disqualify him for a period of 12 months from 23.59 on 15 February 2009. This will give him the opportunity to notify his employer and take advice on any appeals. Christopher Nicholas Billinge Christopher Nicholas Billinge Mr Billinge pleaded guilty to 12 charges…. In addition Mr Billinge has 6 points on his licence including a fixed penalty for speeding in a goods vehicle. Mr Billinge did not attend the Driver Conduct Hearing but his interests were represented by Mr Over. Mr Billinge admitted daily rest offences and moving his vehicle without a tachograph chart to hide rest offences. Mr Billinge said that he felt under some pressure to do so, although he did not specifically raise his timing difficulties with his employer. I was told by Mr Over that Mr Billinge is still employed by the operator but he had been moved to local driving to avoid recurrences of these offences. Between January and March 2007, Mr Billinge showed a reckless disregard for the driver’s hours legislation he deliberately worked “off chart” and regularly failed to take adequate rest between duty times. In my judgment, Mr Billinge is no longer fit to hold a vocational entitlement. In all the circumstances I am satisfied it is appropriate and proportionate to revoke his vocation entitlement and disqualify him from holding such an entitlement for a period of 12 months. Robert Graham …. In addition to his convictions, Mr Graham received a formal warning in 2000 from my predecessor for a drink driving conviction and he was convicted in 2008 for speeding in a goods vehicle for which he received 3 points. Also in 2008 he was convicted of failing to provide the identity of a driver for which he received 6 points. Accordingly, at the time of the Driver Conduct Hearing, he had 9 points on his licence. Mr Graham did not attend the Driver Conduct Hearing but was represented by Mr Over. Between 15 December 2006 and 28 March 2007, on 12 occasions Mr Graham produced false records. On a number of occasions, it was more likely than not that his daily rest had been interrupted. Mr Over advised that Mr Graham’s circumstances were slightly different to other drivers in that he had a medical condition such that he would move his vehicle to be near good light when parking up at night. As a professional driver, Mr Graham knew that it was incumbent upon him to keep proper records. If there is no accurate record made at the time then it is impossible for me to assess the actual risk to road safety. The potential risks are serious and his driving record is aggravated by his very recent convictions which have left him with 9 points on his licence. At the same time, I accept he does not fall into the same category of driver who knowingly and persistently fails to keep a proper record to hide daily rest infringements. In all the circumstances, I am satisfied that it is appropriate and proportionate to revoke Mr Graham’s vocational driving entitlement and disqualify him for a period of 6 months…. Richard Carol Hicks …in addition [to his convictions] he has on his record a fixed penalty in March 2007 for speeding in a goods vehicle. Mr Hicks did not attend the Driver Conduct Hearing but was represented by Mr Over. At the Magistrates' Court Mr Hicks admitted that on 26 March 2007 he knew his driver’s hours were up for that period and he deliberately continued to drive without a tachograph chart. On 9 other occasions the chart did not actually reflect the duty he had undertaken. As stated previously, this leaves the driver open to suspicion whether his note contemporaneous record that rest periods have been breached and the false record created to hide this. Such a suspicion is heightened in this case in the light of Mr Hicks’ admission in relation to the offence of 26 March 2007. In all the circumstances, in my judgment it is appropriate and proportionate for Mr Hicks’ vocational entitlement to be revoked and that he be disqualified for holding such an entitlement for a period of 12 months….” (vi) Of the 18 drivers who did not appeal no action was taken against 4 whose licences had lapsed. The other 14 had their licences suspended for periods of between 7 and 28 days.

Christopher Nicholas Billinge

[5]Practice Direction 3 represents guidance from the Senior Traffic Commissioner to all Traffic Commissioners who apply legislation concerning, among other things, fitness to obtain or to keep vocational driving licences. Practice Directions issued by the Senior Traffic Commissioner had no statutory foundation until section 4C was inserted by the Transport Act 2008 into the Public Passenger Vehicles Act 1981. Section 4C provided the Senior Traffic Commissioner with authority to give to the Traffic Commissioners “a) guidance, or b) general directions, as to the exercise of their functions under any enactment”. Paragraphs 1-4 of Practice Direction 3 read as follows:
“1. The Secretary of State refers decisions regarding the conduct of applicants for and holders of passenger-carrying vehicles (PCV) and large goods vehicles (LGV) driving licences to the Traffic Commissioners. Traffic Commissioners must take account of the relevant legislation set out in the Road Traffic Act 1988 as amended by the Road Traffic (Driver Licensing & Information Systems) Act 1989 and in the Motor Vehicles (Driving Licences Regulations) 1999. 2. The legislation requires Traffic Commissioners to take account of the conduct of an applicant or licence holder “as a driver of the motor vehicle” and [for PCV applicants/drivers only] in any other respect to his holding a PCV driving licence”
Consequently they will rarely be able to take account of the personal circumstances of the driver (unless of course they specifically relate to his or her conduct whilst driving a motor vehicle). 3. The criminal courts can and do take account of the driver’s personal circumstances when sentencing as a result of a conviction which serves to highlight the differing nature of the two jurisdictions. Specifically a court is punishing a person for an offence whereas the driving Traffic Commissioner is considering not whether to punish a person but whether that person is fit to obtain or to continue to hold a vocational licence. There is therefore no question of the “double jeopardy” rule being applied. 4. Traffic Commissioners are concerned that their approach when dealing with questions of an individual’s fitness to hold vocational entitlement should be consistent. These guidelines are intended to ensure that consistency of approach, but are only to be used as a starting point. These guidelines are not to be read too prescriptively or too narrowly and Traffic Commissioners have full discretion to move up or down from the recommended guideline if their judgment deems it appropriate.”[6]Paragraph 21 explains that a tachograph is a sophisticated device, calibrated for accuracy, which provides a reliable record both to the driver’s employer and to the enforcement authorities. EEC Regulations 561/2006 and 3821/85 set the limits for hours and days of work and required rest periods, and provide for drivers’ obligations towards proper recording. Paragraph 22 highlights the seriousness of tachograph recording offences. In the event of falsification enforcement agencies will be prevented from establishing whether and to what extent a driver has complied with the regulations. The driver may have deliberately falsified a record with the intention of concealing breaches. The Traffic Commissioners regard falsification as more serious than breaches of the driver’s regulatory duty. “Conscientious operators regard falsifications of tachographs and interference with recording equipment as so serious as to warrant summary dismissal in many cases.” Paragraph 23 draws attention to a statement of the Court of Appeal in R v Saunders, Hocking & Williams (Times Law Report 21.2.2001) to the effect that those who commit offences of falsification must understand the serious consequences on discovery. In that case appeals against sentences of imprisonment were dismissed.[7]Paragraph 23(a)-(c) sets a guideline or standard for the imposition of suspension and revocation for such offences. It reads:
“a) Failure to keep a full record of the complete driving period. Formal warning to one month suspension b) Deliberate falsification of the chart will result in either suspension of the vocational entitlement or revocation and disqualification dependent upon the scale and degree. Whilst this guideline is not exhaustive it is likely that the Traffic Commissioner will apply a sliding scale of one month’s suspension per offence for up to 3 false records offences, and revocation and disqualification for up to 6 months for up to 5 offences. Six or more false records will be likely to result in revocation and disqualification for 12 months. c) The use of any device to interfere with the recording equipment revocation and disqualification for 12 months.”
[8]In her decision of 30 December 2008 the Traffic Commissioner explained the justification for her decisions as follows:
“8. The drivers’ hours rules are a vital element of the legislative system in place to ensure road safety and fair competition. Where those rules are breached then it is a matter of chance whether road safety will be compromised, leaving road users injured – or worse. Further, there will always be an element of a driver and/or operator gaining an unfair competitive advantage, whether directly or indirectly. 9. Of particular concern to Traffic Commissioners is where drivers fail to record all their duty time on their tachograph records. Where this happens, any check by the police or VOSA at the roadside will give a false impression of the actual working day and may prevent detection of infringements. Where this happens, a driver leaves themself (sic) open to the conclusion by a Traffic Commissioner that all duty has not been recorded deliberately, with intention to deceive the authorities. Potentially driving whilst tired is unacceptable behaviour from a vocational driver for the reasons given above. 10. There are of course occasions when errors are made out of ignorance. Ignorance of the law is no excuse for professional drivers. Drivers have a separate and distinct duty to keep themselves up to date on the driver’s hours rules. Compliance is an essential part of the driver’s continuing entitlement to drive professionally. There is a separate duty on employers to ensure that drivers employed by an operator are fully compliant. In particular, employers should: 10.1 Ensure those they employ hold correct vocational entitlements for the vehicles they want them to drive; 10.2 Ensure drivers are fully familiar with the hours rules and if not to be given appropriate training; 10.3 Check records regularly to ensure ongoing compliance; 10.4 Formally deal with any infringements.”
[9]It is clear, and it is common ground between the appellants and the respondent, that in imposing revocation and disqualification as she did upon the 4 appellants, the Traffic Commissioner applied the guidance contained in paragraph 23(b). She came to the conclusion that each of the appellants had admitted 6 or more occasions when a record was falsified which, according to the scale, was likely to result in revocation and disqualification for 12 months.[10]The appellants appeared before the justices on 12 February 2009. The justices had before them a bundle of documents which comprised:(i) The relevant provisions of the 1988 Act;(ii) The decision of the Traffic Commissioner;(iii) Practice Direction 3;(iv) A certificate of attendance by Mr Robert Graham on a one day digital tachograph and driver’s hours training course;(v) Documentary evidence supporting the appellant’s assertion of the impact of suspension or revocation on their work prospects. In addition, the justices were provided with the witness statement of Mr John Carpenter, a traffic examiner interpreting the result of his examination of the tachograph charts recovered in respect of each of the appellants.[11]The appellants were represented by Mr Over who also appeared to present this appeal. Notwithstanding paragraph 2 of Practice Direction 3 to the effect that personal circumstances were of limited relevance to the issue of fitness, the justices heard mitigation on behalf of each of the appellants directed to their current circumstances and the likely consequences to them of revocation of their vocational licences. In summary the submissions made before the Justices as recorded in the Case Stated were as follows: Daniel Roger Meredith Mr Meredith was aged 26 years. He commenced work with Conway Bailey Transport in October 2006. He was significantly affected by his prosecution and was accepted back into the Army in July 2008. Evidence was received from Battery Sergeant Major Hall to the effect that Mr Meredith was working in the motor transport wing looking after 23 vehicles in the fleet. The Army operated the same regulatory scheme as that employed in civilian life. They did not use a tachograph but did keep a duty log. It follows that Mr Meredith would, under supervision, be bound to keep to lawful driving hours. Christopher Nicholas Billinge Mr Billinge was aged 47. He continued to be employed by Conway Bailey Transport and had been working very closely with the compliance manager to ensure no repetition of offending. His charts were checked every day. Robert Graham Mr Graham was aged 56 years. He had been a lorry driver for 35 years. He had no previous conviction for a regulatory offence. He too retained his position with Conway Bailey Transport and was regarded highly by his employer. Richard Hicks Mr Hicks was 43 in April 2009. He had no previous convictions and had been a large goods vehicle driver all his working life. He too was continuing in employment. The offences he committed, except for one, were identical to those in respect of which other drivers had been suspended for short periods. The exception related to a journey to east London. He therefore drove on to Hungerford, failing to record the extra journey in his tachograph chart.[12]Mr Over submitted to the justices, as he repeated in argument to me, that since the Traffic Commissioner was not concerned with the infliction of punishment the issue was whether the conduct proved and admitted was such as to require the revocation of licences. In his submission revocation was disproportionate. Disqualification from driving large goods vehicles for a period of 12 months was not required in the circumstances. The hearing before the justices took place some 2 years after the commencement of the investigation. In the meantime, one of the appellants was driving for the Army under immediate supervision and the other three were driving for their original employer who was putting into effect an improved system of training and supervision. There had been no repetition of offending and it was unnecessary to take the step of revocation.[13]It is further common ground between the appellants and the respondent that the appeal to the justices was by way of re-hearing. They were not making a judgement as to whether the decision of the Traffic Commissioner was one to which she could reasonably have come but whether in their judgment revocation and disqualification was the appropriate order in the circumstances. The justices concluded as follows:
“We considered the conduct of the appellants, listed in the bundle, and their (sic) seriousness. We also considered the personal circumstances of each appellant which the Traffic Commissioner would not have had the benefit of. We had the power under section 19 Road Traffic Act 1988 to make any order we thought fit, and were not restricted to simply conducting a review of the original decisions. However we saw no reasons to disturb the original decisions. We were of the opinion that the decisions of the Traffic Commissioner were clearly defined and compliant with Practice Direction 3. We were also persuaded they were proportionate orders. We therefore dismissed the four appeals with effect from 23.59 hours 25 March 2009.”
[14]The questions posed for the opinion of this court are:
“a) Bearing in mind the regulatory purpose of the legislation is not to punish drivers twice for any offences; and taking into account the original offences and personal circumstances of the appellants, did we err in law by considering that the orders made by the Traffic Commissioner were proportionate ones in relation to the appellants….; b) Bearing in mind all of the evidence presented and bearing in mind our discretion to make any order we thought fit, did we err in law by using our discretion to dismiss the appeals against the appellants…..”
[15]As Mr Over’s argument developed it became apparent that the appellants had two points of law to advance, neither of which was foreshadowed explicitly in the questions posed. The first concerned the lawfulness of the application of Practice Direction 3; the second concerned the allegation that justices failed to take account of material considerations when assessing the appropriate sanction. In consequence it was submitted that the sanctions imposed were disproportionate and, therefore, unlawful. (1) Practice Direction 3[16]Mr Over’s first submission was that the guideline in Practice Direction 3, paragraphs 2, 3 and 23(b) improperly excluded consideration of the personal circumstances of the driver unless they specifically related to his or her conduct whilst driving a motor vehicle. Mr Over submitted that it was impossible to form a judgment whether any sanction should be imposed and, if so, whether the sanction should be suspension or revocation and, if either, for what period, without consideration of the appellant’s personal circumstances. The justices, he submits, erred in law when relying on and applying Practice Direction 3.[17]There can be no doubt that the “conduct” which is such as to make the driver “unfit to hold” the large goods vehicle licence (LGV) within the meaning of sections 115(1)(b) is the conduct of the licence holder “as a driver of a motor vehicle”. This is to be distinguished from the “conduct” to be considered when judging the fitness of a passenger-carrying vehicle licence (PCV) holder which will include, by section 121(1)(b), in addition to his conduct as a driver, any conduct “relevant to his holding a passenger-carrying vehicle licence”. Thus, in Secretary of State for Transport, Local Government and the Regions v. Snowdon [2002] EWHC 2394 (Admin) and R (On the application of Stace) v. Milton Keynes Magistrates Court [2006] EWHC 1049 (Admin), both cases in which the driver held a PCV licence, the High Court was invited to consider the risks he posed to passengers by conduct which was not confined to his “conduct as a driver”.[18]In my judgement, paragraphs 2 and 3 of Practice Direction 3, as they apply to the holder of a large goods vehicle licence, accurately reproduce the effect of sections 116 and 121(1)(a) of the 1988 Act. The personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as driver. Thus, personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention, or carelessness) would be relevant to the question of fitness to hold the licence, while personal circumstances which would, in the ordinary sentencing exercise, go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence holder), would not.[19]It seems to me, however, that the judgement whether the licence holder’s conduct as a driver makes him unfit to hold the licence cannot be focused exclusively upon the matters which gave rise to the referral to the Traffic Commissioner, but should embrace the licence holder’s conduct as a driver as a whole, good and bad, relevant to the question whether, at the time of making the judgement the licence holder is unfit. For example, it may be relevant to fitness whether the matters of complaint took place in isolation or against a background of repeated disregard for the law of the road.[20]Judgement of the conduct itself is only the first stage of the decision maker’s task. The second stage involves the application of section 116(2) of the 1988 Act. Where the Traffic Commissioner has determined that the conduct of the driver makes him unfit to hold the licence, she “shall also determine whether the conduct of the holder of the licence is such as to require the revocation of his licence or only its suspension....” I have added the emphasis in italics in order to highlight the fact that equally important is the judgement whether the conduct must lead to revocation and disqualification (and therefore the requirement to re-apply for the licence at the end of the period of disqualification) or only to suspension (which does not).[21]At this second stage of decision making, personal circumstances may well be relevant. It is trite that the purpose of the legislation concerning LGV drivers is to ensure their compliance with the laws of the road. Compliance is necessary to keep the public safe from large vehicles. A licence holder whose conduct has amounted to deliberate and persistent flouting of his responsibilities as a driver will be at risk of revocation and disqualification. However, if the experience of referral and the risk of revocation have sufficiently brought home to the licence holder that his livelihood is in jeopardy, such that the Traffic Commissioner is persuaded that further offences are unlikely, it seems to me that it is open to her to conclude that the sanction of revocation is not required. As appears below, it was a judgement such as this which permitted the Traffic Commissioner to allow the operator to retain its operator’s licence under the equivalent statutory scheme for operators.[22]Paragraph 4 of Practice Direction 3 makes clear the objective of consistency of approach but emphasises that the guidelines should only be used as a starting point, and “Traffic Commissioners have full discretion to move up or down from the recommended guideline if their judgement deems it appropriate”.

(b) of Practice Direction 3 is couched in mandatory terms:

“Deliberate falsification of the chart will result in either suspension of the vocational entitlement or revocation and disqualification dependent on scale and degree.”
[emphasis added][23]Read with paragraph 4 I am satisfied that paragraph 23(b) does not have the effect of removing the Traffic Commissioner’s discretion. If it did, it would, in my view, be unlawful. There is no risk that paragraph 23(b) would be misunderstood by Traffic Commissioners (and their deputies) who are specialists in their field. It is not difficult to anticipate circumstances in which even a deliberate falsification of a tachograph chart, if attended by exceptional extenuating circumstances, might not justify a finding of unfitness let alone revocation of the licence. Thus the guideline would be more happily phrased if it read, “Deliberate falsification of the chart will usually result...” but that would serve simply to make transparent what is already implicit.[24]In my judgement the application of Practice Direction 3 by the Traffic Commissioner and the justices was lawful and appropriate. That does not, however, dispose of the appeal because the further question arises whether the justices took account of all material considerations relevant to “conduct”. Failure to take account of relevant circumstances[25]Mr Over recognised that the appellants were not in the same position as those other 14 drivers whose licences were suspended for 7-28 days. Each of these appellants accepted a degree of deliberation; each committed a significantly greater number of offences; and each of them had other relevant convictions. While Mr Over did not explicitly concede that there should not have been some sanction, he was realistic enough to recognise that suspension was probable. He submitted that in the light of two factual circumstances which were overlooked the sanction of revocation and disqualification was disproportionate.[26]The first factual circumstance was that the significant majority of offences concerned a failure to record journeys of comparatively short distances, between 1km and 9kms. In an agreed summary prepared for the appeal it is explained that:
“In each case alleging falsification the appellants entered either a false start or end odometer reading on their tachograph record sheet (“the chart”) which had the effect of concealing...a journey carried out by them. These journeys were undertaken during what was purported on the record sheets to be a rest period. In some cases the rest periods were of such duration that when the concealed journey was taken into account then the appellant could not have complied with the requirements for the minimum rest. One of the appellants’ fellow drivers went to trial on the issue of falsification (Mr Gibson) and the magistrates court accepted VOSA’s submission that to prove knowledge it was not required to show intent but that the defendant knew or ought to have known that the chart was incorrect or false.”
I shall call these offences Type 1.[27]In some cases it was not possible for the examiner to ascertain whether the off-chart distance was driven during what should have been a period of rest. In others there was undoubtedly driving during a period of rest but there was additional travel at a time which may or may not have included a period of rest. I shall call these offences Type 2. The following is a summary of the offences committed in which I have omitted reference to offences of failing to take rest periods: Daniel Meredith Type 1: False record x 13 including Type 2: additional overall distance missing Distance travelled during rest period: 1km – 7km 76km, 144km, 55km Christopher Billinge Type 1: False record/instrument x 9 including Type 2:additional overall distance missing Distance travelled during rest period: 1km-3km and 87km 19km, 186km, 207km, 42km Robert Graham Type 1: False record x 12 including Type 2: additional overall distance missing Distance travelled during rest period: 1km-8km 118km, 21km Richard Hicks Type 1: False record x 10 including Type 2: additional overall distance missing Distance travelled during rest period: 1km-9km 12km, 7 km, 48 km[28]The seriousness of the offending is to be found, first, in the repetition of offending over a comparatively short time span of 4 months. Furthermore, each of the appellants accepted a degree of deliberation. The Traffic Commissioner was entitled to conclude that the offending amounted at the least to a reckless disregard for the drivers’ obligations under the regulations. In the majority of cases the falsification concealed a journey taken during a period recorded as a rest period. The effect that journey may have had upon the continuing and cumulative requirement for rest periods is unknown. I accept Mr Nesbitt’s submission that while many of these journeys were of a comparatively short distance that fact did not entitle the appellants to assert that these were minor breaches. As Practice Direction 3 points out it is the concealment of evidence required for effective regulation of drivers’ hours which, in my view rightly, causes the traffic commissioners to take a serious view. Each of the appellants had, in addition, falsified the record so as to fail to account on at least two occasions for considerable further distances travelled.[29]The offences and their seriousness were fully described by the Traffic Commissioner’s report and in the witness statement of Mr Carpenter. All the relevant material was before the justices. I do not consider the absence of specific reference by the justices in the Case Stated to an assessment of seriousness demonstrates that they were acting in ignorance of its true perspective. They were entitled, having considered the material themselves, to accept the assessment of the Traffic Commissioner.[30]The second significant personal circumstance which applied to each of the four appellants was that there had been no repetition of regulatory offences during the period following the investigation, when they continued to drive commercially, to the date of the Traffic Commissioner’s decision (March 2007-30 December 2008) and to the date of the justices decision (March 2007-12 February 2008). Mr Over made a comparison between the driver’s treatment and the treatment of the operator.[31]A parallel system of regulation of haulage operators is provided by sections 26 and 27 Goods Vehicle (Licensing of Operators) Act 1995. The Traffic Commissioner is empowered to impose sanctions upon an operator holding a standard licence who is “no longer of good repute” up to and including revocation of the operator’s licence. Appeal by an operator against the Traffic Commissioner’s decision lies to the Court of the Transport Tribunal and not the magistrates court.[32]It is a well recognised principle of assessment by the Traffic Commissioner in the case of an operator that the question whether the operator is fit to hold a licence must be judged as at the date of consideration. That renders relevant and admissible evidence of steps taken by the operator since notification of referral to the Traffic Commissioner to ensure compliance with its regulatory responsibilities. In Bryan Haulage Limited v Vehicle Inspectorate (Appeal 217/2002) the Transport Tribunal applied the decision of the Court of Appeal in David Crompton Haulage v Department of Transport [2003] EWCA Civ 64. The Court in Crompton had found that there must be a relationship of proportionality between a finding of unfitness to hold a licence and the sanction imposed. The President of the Court, Mr Hugh Carlisle QC, in Bryan Haulage, observed at paragraph 11 that the question was whether the conduct is so serious that it requires revocation of the operator’s licence. He continued, “Put simply, the question becomes “Is the conduct such that the operator ought to be put out of business?””.[33]In Priority Freight Limited & Paul Williams (Appeal 2009/225) His Honour Michael Brodrick, in applying the Bryan Haulage question, referred specifically to the period between the “conduct” and the date of the public inquiry leading to revocation. He said:
“In our view before answering the “Bryan Haulage question” it will often be helpful to pose a preliminary question, namely: How likely is it that this operator will in future operate in compliance with the operator’s licensing regime? If the evidence demonstrates it is unlikely then that will of course tend to support a conclusion that the operator ought to be put out of business. If the evidence demonstrates that the operator is very likely to be compliant in the future then that conclusion may indicate that it is not a case where the operator ought to be put out of business. We recognise, of course, that promises are easily made, perhaps all the more so in response to the pressures of a public inquiry. What matters is whether those promises will be kept. In the present case the appellant company was entitled to rely on that old saying that “actions speak louder than words”
. By the date of the public inquiry it had already taken actions which enabled it to demonstrate that it was again substantially compliant. In our judgment had the Traffic Commissioner considered the question of whether it was likely that the appellant company would have been compliant in the future it is inevitable that he would have concluded that it was very likely that it would be.”[34]In her decision of 30 December 2008 concerning these appellants, Ms Bell, at paragraph 14, referred to the culpability of the appellants’ employer, Donald Conway Bailey:
“Unfortunately, this case demonstrates the unsatisfactory result where the checks and balances set out in paragraph 10 above are not in place, or where they are in place but not properly implemented. As a result 20 [in fact 22] professional drivers fall to be considered by me.”
It will be apparent from this paragraph that Mrs Bell had reached at least a preliminary conclusion that the drivers had either not been properly trained or not been properly supervised. However, her inquiry into the operator’s licence was not completed until after the appellants had appeared before the justices on appeal. It transpired at the public inquiry that the operator’s licence had been held in the name of Donald Conway Bailey but the business had been operated in partnership with his son and daughter in law. Technically the licence should have been held by the partnership and Mrs Bell concluded, at paragraph 26 of her decision given in the operator’s case, that “I find matters so serious that the repute of Donald Conway Bailey is lost because the incorrect licensing arrangements as well as the illegal operation and all the driver’s hours failings occurred at the time when he was exercising absolutely no control as operator. Matters are so serious I would have revoked using my discretion under section 26 as well as mandatory revocation under section 27. As already said his repute is also lost as transport manager for the same reasons. There is no evidence to suggest to me that he has regained his repute as of the date of this public inquiry.” Mrs Bell went on to consider whether arrangements in the interim enabled her to find that the repute of the remaining partners, Mark Gordon Bailey and Margaret Frances Bailey, had been regained by the date of the inquiry. Mrs Bell continued at paragraph 28:
“…I do accept that since the raid he [Mark Bailey] has worked towards compliance and wants compliance but has been doing so from an uninformed and misguided basis. I am satisfied he has learned a huge amount from the prosecution and public inquiry process it is clear now that more robust systems are in place but they still need to be enhanced. However his conduct since the raid is such that I find his repute regained as at the date of this public inquiry. That being said for this licence to continue a second transport manager is necessary. This is a large operation and the current transport manager has other responsibilities. A second transport manager is required to ensure there is continuous and effective control.”
[35]Mrs Bell concluded that there should be a short period of curtailment of the size of the operation but that an increase in the number of vehicles could take place not long after her decision was given on 24 June 2009.[36]Mr Over poses the question: If it was right to give credit to the operator for taking steps to regularise its training and supervision of drivers, and thus to conclude that reputation had been regained and that revocation of the operator’s licence was not required, why was it not right to give credit for the drivers’ clean regulatory record for the 2 year period after the conduct complained of, leading to a similar conclusion?[37]In my view the drivers were not in precisely the same position as the partners in whose name the operator continues in business. The continuing partners were not responsible, or not primarily responsible, for the operator’s failings. The person responsible throughout the relevant period was the former partner who had since retired who should have performed, but did not perform, his duties as transport manager. Had he continued as operator Mrs Bell was explicit that the licence would have been revoked. She was also explicit that the retiring partner was at least in part responsible for the drivers’ offences. However, there was one sense in which the drivers’ position could properly be compared with the continuing partnership. Like them, the drivers had continued to work for a period of 2 years. Three of the drivers were undergoing the same process of compliance, the fourth was driving for the army, and all four had committed no further breach of the regulations.[38]I accept Mr Over’s submission that the period of compliance since the investigation commenced in March 2007 was relevant to both stages of the section 116 question: first, whether the licence holder’s conduct as a driver made him unfit to hold the LGV licence and, second, whether the sanction required was suspension or revocation.[39]There is, however, nothing in the Traffic Commissioner’s report to indicate that a prolonged period of post-offence good conduct was taken into account when the section 116 judgement was made. On the contrary, the Traffic Commissioner’s reasons concentrate exclusively upon the criminal conduct which was referred to her and say nothing about the intervening period. It could be observed, as did HH Michael Brodrick in Priority Haulage that the prospect of an inquiry is likely to concentrate minds, but the same observation could have been made about the operators. The fact is the drivers were entitled to and did, through Mr Over, rely upon their post-investigation conduct. Consideration of the licence holder’s “conduct as a driver” in the round is a matter of such importance, it is my view that, had the Traffic Commissioner given it due consideration, she would have said so in her report, as she was later to do in her report upon the operator.[40]The Case Stated demonstrates that although the justices were addressed about the personal circumstances of the appellants, including their post offence driving record, they were also urged on behalf of the respondent to apply the reasoning of the Traffic Commissioner and to apply Practice Direction 3. There is no indication to what extent, if at all, the justices treated the appellants’ “conduct as drivers” since the investigation as material to the section 116 question. There is, on the other hand, every indication that the justices were influenced by the apparent compliance of the Traffic Commissioner’s decisions with Practice Direction 3. I have been provided with a copy of the justices’ sentencing remarks which are identical in effect to the reasons provided in the Case Stated. I am persuaded that the absence of explanation as to the process by which the justices reached the same decision as the Traffic Commissioner, together with their uncritical acceptance of the Traffic Commissioner’s decision, leads to the conclusion that the justices did not appreciate the importance of making a judgment of the appellants’ driving “conduct” as a whole. For these reasons it is my judgement that the justices made an error of law. I have sympathy for the justices’ position since they were likely to afford weight both to the Traffic Commissioner’s assessment of seriousness, and to the literal application of Practice Direction 3, unless they were specifically advised of the embracing nature of “conduct as a driver” in section 116.[41]The justices’ decisions in the case of each of the appellants will be quashed. I consider that these matters retain a sufficiently serious public interest to require the decision of a new bench of magistrates addressing the issues in the light of the contents of this judgment. Other drivers, less seriously implicated than these appellants, have served short periods of suspension. I shall remit the matter for a rehearing. I shall direct that in each case suspension of revocation and disqualification by the Traffic Commissioner shall continue until 1 February 2010 or further order of the justices.[42]As invited by the parties, I shall consider submissions on costs in writing. The appellants shall deliver their written application to the respondent and the court within 7 days, failing which there will be no order as to costs. The respondent shall respond within 7 days thereafter. I shall make a decision on the papers after 14 days.