Finch (t/a David Finch Transport), Re [2010] UKUT 284 (AAC)

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

[2010] UKUT 284 (AAC)

Venue (TRAFFIC COMMISSIONER APPEALS), ON APPEAL FROM THE DECISION OF RICHARD TURFITT,, TRAFFIC COMMISSIONER for the EASTERN TRAFFIC AREA,

Between

Finch (t/a David Finch Transport), Re

Date 18 March 2010

For the Appellant s: No attendance. The tribunal was asked by the Appellant to determine the appeal on the papers.

Appeal heard at: Victory House on 14 July 2010

Date of decision: 22 July 2010

DECISION OF THE UPPER TRIBUNAL :

The appeal is allowed to the extent that the order for disqualification under section 28 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) for a period of three years commencing from 20/3/2010 is set aside and, in its place, the tribunal makes an order for disqualification for a period of 18 months commencing from 20/3/2010.

Subject Matter:

Disqualification. Requirement for brief reasons to be provided in order to explain to an operator why a particular order for period of disqualification has been made.

Cases referred to:

Brian Edward Clark (2001/74)

Steven Lloyd, t/a London Skips (2002/30)

Rai Transport (Midlands) Ltd (2004/373)

K Jaggard (2005/367)

Reasons:

1) This was an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area made on 18/3/2010 when he revoked the operator’s licence of David Finch with effect from 23:59 on 19/3/2010 and, under section 28 of the Act, disqualified Mr Finch from holding or obtaining a licence in any traffic area for a period of three years, commencing from 20/3/2010.

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

(i) The Appellant is the holder of a Standard National Goods Vehicle Operator’s Licence authorising 3 vehicles and 3 trailers. He has held a standard national licence for over 12 years. He also holds a vocational large goods vehicle driver’s licence. His operating centre was recorded on Traffic Area Office records as “The Street, Ingham, Bury St Edmunds, IP31 1NR”.

(ii) In 2007, the operator sustained one immediate and three delayed prohibitions, and was convicted of failing to produce tachograph charts.

(iii) On 8/1/2009, an accredited VOSA stopping officer using a conspicuously marked VOSA stopping vehicle directed vehicle V4 DFH, driven by Mr Finch, onto a weighbridge site. Mr Finch ignored the directions to follow the vehicle. The stopping officer made a second attempt to direct the vehicle to the weighbridge and, eventually, the vehicle followed the stopping officer to the Sawtry VOSA weighbridge. Mr Finch, when asked, explained that he believed that the stopping officer needed the police to stop him. The incident, according to the VOSA officer, was aggravated by a number of potentially dangerous manoeuvres by Mr Finch.

(iv) When weighed, the vehicle unit was overloaded in relation to its rear axle (15.83%) and gross weight (8.83%), although the overall train weight of the vehicle unit and trailer together was not alleged to be overweight.

(v) A VOSA vehicle examiner then examined the vehicle. In addition to two advisory items, an immediate prohibition was issued for:

Service brake line operating adaptor not fitted, preventing the correct operation of the braking system – service palm coupling used without a line adaptor. EBS cable connected and operated service brakes on semi-trailer.

The situation was that a UK vehicle was towing a ‘continental’ trailer. This required a palm-coupling converter (which was in use) but the converter needed a service line adapter (which was not in use). Consequently, no service signal air pressure passed to the trailer when the service brake was applied. The prohibition was ‘S’ marked.

(vi) Mr Finch was asked to produce his tachograph charts, which he did, but it appeared that Mr Finch had failed to enter dates in the centrefield. However, it was possible to ascertain that Mr Finch’s last driving activity was in December 2008, demonstrating a rest period of at least seven days. There do not appear to be any proceedings or adverse conclusions reached in relation to the charts, apart from the failure to properly complete the centrefields.

(vii) As a consequence of the events of 8/1/2009, Mr Finch was (on 12/8/2009) convicted of two offences at Huntingdon Magistrates’ Court:

· Failing to comply with directions to stop by an accredited officer (Fine £75)

· Brake components and actuators offence (Fine £115 + £250 costs).

(viii) On 18/3/2010, the Traffic Commissioner also suspended Mr Finch’s vocational licence for a period of eight weeks, commencing 23:59 on 19/3/2010.

(ix) Meanwhile, an unannounced maintenance investigation took place on 29/7/2009. There were difficulties arranging it because there are a number of potential sites on “The Street, Ingham”. It transpired that Mr Finch had moved, some 12 months earlier, from Old Middleton’s Yard, The Street, Ingham, Bury St Edmunds IP31 1NR to Ingham Service Station, The Street, Ingham, Bury St Edmunds IP31 1NR.

(x) There have been no previous public inquiries or unsatisfactory investigations in the previous five years but this maintenance investigation was unsatisfactory because, in addition to the above, routine safety inspections were not being carried out by the stipulated contractor. They were being undertaken by Mr Finch, who is not a trained mechanic, and at premises with no adequate facilities. Moreover, although inspections were taking place every eight weeks in accordance with a forward planner and there was a ‘simple’ driver defect reporting system in operation, the PMI records did not show mileages, defects found were not shown as rectified by Mr Finch, and the roadworthiness certificate was not signed. The MOT failure rate was 10% worse than the national average.

(xi) On 20/9/2009, the Operator wrote to VOSA advising that, although he undertook the inspections, any rectification (and all pre-MOT preparation) was undertaken by his contractor. He apologised for moving from one location on ‘The Street’ to another, and explained that “as it is the same postcode and is already a licensed yard, it was overlooked in error”. Mr Finch promised that, in future, all inspections would be carried out by his contractor.

(xii) By call-up letter dated 21/1/2010, Mr Finch was notified of a public inquiry to be held on 23/2/2010. The Traffic Commissioner’s powers were spelled out and the operator was advised that, if the Traffic Commissioner decided to revoke the operator’s licence, he would also consider whether to disqualify him indefinitely, or for a specific period under section 28 of the Act.

(xiii) At the public inquiry, the Traffic Commissioner clarified the evidence to be heard and explained procedure. Before looking at finance in camera he said:

“Right, well, I’ll just finish my introduction by saying … obviously there are a number of tools available at my disposal, if I find that the breaches are made out, that I am satisfied that there is evidence to the civil standard, i.e. more likely than not, then I can intervene in a number of ways. I can decide to take no action, I can issue a formal warning, I can curtail the licence, which means reduce the number of vehicles you would operate, I can suspend the licence for a short period, or I can revoke it. And I would remind you that part of the decision will be considering whether you meet the mandatory requirements”

Mr Finch, who was unrepresented, replied “Yes”.

(xiv) The Traffic Commissioner then heard evidence from Mr Barley, Vehicle Examiner, and from the operator. When asked questions by Mr Finch, the Vehicle Examiner accepted that Mr Finch had told him that, whenever a vehicle went for MOT, the MOT preparation (and any other significant rectification work) was undertaken by his stipulated maintenance contractors:

Q … I was doing my own inspections but, as I say, if and when there was any work to be done, it was done by a stipulated contractor. So I did say at the time, you know, did I not?

A Yes, yes, you said it was being done, or, yes, the MOT preparation work and any major work was done by Chassis.

(xv) The Traffic Commissioner assisted the operator in giving his evidence by asking him questions. Amongst other things, Mr Finch said he had put the wrong service brake line-operating adapter on, but this was accidental and not deliberate. In relation to the overloading Mr Barley helped the operator to explain that: “the train weight overall, vehicle and trailer total, wasn’t an overload, whereas just the vehicle was overloaded”.

(xvi) After discussing the convictions sustained, the Traffic Commissioner began to bring proceedings to a close:

TC: Right, Mr Finch, I’ve got to decide what I’m going to do with you. There’s quite a lot of information here, so I’m not going to make my decision today.

Op: I have a copy of my letter sent to Leeds.

TC: Oh good.

Op: Saying that we’d been at court.

TC: Right, take a copy of that …

(xvii) The papers (p.77) contain a copy letter from the operator to the Eastern Traffic Area in Cambridge, dated 20/8/2009, in which Mr Finch advises the Traffic Commissioner of his convictions, and the fines imposed by Huntingdon Magistrates’ Court eight days earlier, on 12/8/2009.

(xviii) The operator was unable to satisfy the requirements for financial standing and, by written decision dated18/3/10, the Traffic Commissioner revoked the operator’s licence on grounds of financial standing, loss of repute, professional competence, unauthorised use of an operating centre, convictions, failure to report the convictions, prohibitions, breach of statements of intent and undertakings and failure to notify a material change.

(xix) The decision dealt with finance, prohibitions, the operating centre, preventative maintenance inspections, convictions, overloading, tachographs and the operator’s approach. In relation to the operator’s licence, the Traffic Commissioner clearly took a serious view:

“In this case I am satisfied that the operator has moved operating centre without any consideration for the requirements of the licensing regime or the need to notify the Office of the Traffic Commissioner. Not only was he convicted of offences relevant to his fitness to hold an operator’s licence, but he also failed to inform the Office of the Traffic Commissioner within the 28 days required as a condition to hold such a licence …”.

The Traffic Commissioner concluded that the operator ought to be put out of business “in the interests of safety of other road users as well as other responsible operators who strive to ensure compliance with the requirements of this regime”.

(xx) The issue of disqualification is dealt with in one sentence at the end of the decision:

“On a finding which leads to revocation I am obliged to consider the issue of disqualification, taking all matters into account I make the orders outlined at paragraphs 1 and 2 above”.

3) At the hearing of this appeal, the tribunal was advised that the Appellant was unable to attend the hearing in London, but he wished his grounds of appeal to be considered, and the appeal determined on the papers. We therefore agreed to proceed as requested.

4) The grounds of appeal limit the issue before us to the question of disqualification which, according to the operator, was “too severe a punishment”.

5) First, the operator pointed out that he had submitted a copy of his letter to the Traffic Area Office advising of his court appearance. We find that this ground is made out, at least insofar as there is no suggestion in the transcript, or the decision, that the letter of 20/8/2009 was not genuine, or was not sent as suggested.

6) Other grounds of appeal are raised which repeat issues raised at public inquiry and which the Traffic Commissioner properly dealt with (e.g. prohibitions allegedly issued by “over zealous VOSA inspectors”) or which reiterate matters not in dispute (e.g. inspections carried out prior to MOT tests by maintenance contractors, compliance with drivers hours, and the fact that, in relation to the overloading incident, the gross train weight was 38470kg, when the permitted gross train weight was 40000Kg). In our judgment, these grounds do not take the appeal any further.

7) The issue that troubled the tribunal to the greatest degree was simply the absence, throughout the hearing, and in the Traffic Commissioner’s written decision, of any focused discussion as to the need for, length of, or consequences of, a lengthy period of disqualification - and the absence of any intelligible reasons for the decision to not only impose a disqualification, but a disqualification of three years.

8) The power to disqualify is separate from the power to revoke, and is provided for under a separate section of the Act. The making of a disqualification order creates a special liability to criminal conviction if, during the period of disqualification, a person applies for or obtains an operator’s licence. It can extend across all traffic areas and affect licences other than the one to which the initial revocation related.

9) There is also a stand-alone right of appeal to the tribunal in relation to disqualification, as provided by section 37(4) of the Act.

10) The tribunal is mindful that, in Brian Edward Clark (2001/74) the tribunal said:

“We were also referred to 5/2000 Marilyn Williams and 18/2000 Euroline Transport Ltd, in the first of which the Tribunal stated that “an order for disqualification does not necessarily follow revocation but requires some additional feature which should be identified in the decision”. In mentioning the need for “an additional feature” we have to say that we consider that those two decisions go too far. The reasoning was based on 1995 G 36 Greylands Waste which was decided before the decision in Thomas Muir (Haulage Ltd v. Secretary of State (1998 SLT 666): this held that traffic commissioners’ powers are to be exercised “to achieve the objectives of the system” rather than by way of punishment, with assessment of culpability and use of words such as “penalty” being inappropriate. The power to disqualify is contained in s.28(1) of the Act and no requirement for any additional feature is specified. On the contrary, the provisions are in general terms, consistent with the Thomas Muir case. Of course, disqualification is not always ordered in addition to revocation. However, there are cases in which the seriousness of the conduct is such that a traffic commissioner may properly consider that both revocation and disqualification are necessary for the purposes of enforcing the legislation. We think that this is just such a case and hope that operators and drivers will be in no doubt as to the view which traffic commissioners and the Tribunal take of this type of conduct.”

11) In Steven Lloyd, t/a London Skips (2002/30) , the tribunal said:

We considered the power to disqualify in Brian Edward Clark (2001/74) and then referred to previous decisions on the point. Although we do not consider that an additional feature is necessary before disqualification may properly be imposed, it is plain that this should not be routinely ordered, as appears to have occurred.

12) In Rai Transport (Midlands) Ltd (2004/373) the tribunal said:

Nevertheless it is perfectly clear from the Court of Appeal’s decision that before ordering disqualification a Traffic Commissioner needs to set out the relevant findings of fact, which in a case like the present required a careful analysis of the actions of those concerned because they were not in positions of responsibility throughout the relevant period, and then conduct the appropriate balancing exercise, so that the licence holder is aware of the material used to justify disqualification.

13) In K Jaggard (2005/367) the tribunal said:

We have to say that it is obviously unsatisfactory that the Traffic Commissioner did not give reasons for his orders of disqualification and in particular for the distinction made between the partners. It may be that he was intending to return to disqualification later but that at the end of a long day this was overlooked. In the absence of the Appellant’s written submissions we might have been tempted to have substituted our own order, based on the traffic examiner’s evidence that the fire had been started by the Appellant. However, having heard the Appellant we think that the right course is to quash the order of disqualification made against him and to remit this issue to the same Traffic Commissioner for his further consideration.

14) The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary. Additionally, periods of disqualification can range form comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one. An operator subject to a period of disqualification is entitled to have some explanation, or a glimpse into the Traffic Commissioner’s mind, so that he understands why a particular order for disqualification has been made. The giving of brief but adequate reasons will also promote a consistent approach, and explain why distinctions are made as between different cases and different people.

15) In this case, the Traffic Commissioner, when setting out the “tools” at his disposal made no reference to disqualification although, as we have noted, there is the required reference in the call-up letter. At no time was this unrepresented operator asked to address the Traffic Commissioner on the subject of disqualification and, when he reads the written decision and asks ‘Why was I disqualified, and why was it for three years?’ he will not find an answer.

16) Similarly, when we ourselves come to consider the question of disqualification, and the Traffic Commissioner’s approach to it, we are unable to ascertain which features of the case he regarded as of particular significance when forming his view as to disqualification. Thus, for example, we do not know the extent to which his apparently mistaken conclusion as to the failure to notify convictions played a part.

17) For these reasons we are satisfied that the decision to disqualify for three years cannot stand and should be set aside.

18) As previous tribunals have done when faced with this situation, we have considered whether to remit the matter back to the Traffic Commissioner. Unusually perhaps, we have decided not to do so and, instead, we feel able to reach our own view. The operator did not attend before us and is content for us to determine the matter on the papers. Few facts are in serious dispute. We see little to be gained by an arguably disproportionate requirement to reconvene another public inquiry when we feel well able to undertake the task that the Traffic Commissioner should have undertaken on the facts that were before him, and which are now before us. A lengthy exposition is not required, merely a sufficient demonstration that the question of disqualification has been considered separately from revocation, followed by a brief and intelligible explanation for the particular conclusions reached in relation to disqualification.

19) The worst features of this case, in our view, are the refusal to comply with a lawful direction from an accredited VOSA stopping officer, and a significant vehicle overloading coupled with a braking defect.

20) The operator’s initial refusal to comply with the directions of the VOSA accredited stopping officer when driving his authorised vehicle, and the evidence of potentially dangerous manoeuvres exhibited at that time, amount to an appalling display of wilful non-compliance and behaviour that was both arrogant and fraught with risk. Against that, however, is the fact that no proceedings for careless or dangerous driving were brought, the fine imposed by the magistrates was modest, and Mr Finch (as the driver involved) lost his vocational driving entitlement for a period of eight weeks.

21) Overloading is always serious, especially if (as here) there was a failure to ensure that there was an effective braking system in operation. But the overloading was in relation to the vehicle not the trailer, and arose due to front-loading (for which the operator/driver was not responsible) so that the gross train weight was not overloaded.

22) The braking defect was potentially catastrophic, but did not arise due to long-term neglect of maintenance and (according to the Vehicle Examiner) was not something that Mr Finch should have picked up on his eight weekly maintenance inspections. It was a careless mistake, followed by a failure of the walk-round checks that day.

23) The unauthorised move from one place on “The Street” to another was relevant and the operator should have notified the Traffic Commissioner, but given the fact that the address on Traffic Area Office records did not change, and the new premises were already licensed, this was not the worst example of its kind.

24) It emerged that although Mr Finch undertook his own safety inspections (for which he was rightly criticised) he was generally prepared to hand over pre MOT preparation and rectification of major defects to a contractor. He had also promised to hand over all safety inspections and rectification in future.

25) There were irregularities in relation to the completion of tachograph records, but no compelling evidence of actual breach of drivers’ hours or rest period requirements.

26) On the positive side, there was evidence of the forward planning of PMI inspections, and compliance with the eight-week period between inspections, and there was an adequate driver defect reporting system - although Mr Finch should not have made the serious error in relation to the required adaptor. There has not been a previous public inquiry or, so far as we can tell, a previously unsatisfactory maintenance investigation in the past five years.

27) On the comparative scale, therefore, some elements of the operator’s conduct do fall into the very serious category and the Traffic Commissioner was right to conclude that a period of disqualification was necessary, chiefly because wilful refusal to comply with a lawful direction from a VOSA officer strikes at the heart of the partnership between the industry, VOSA and, ultimately, the regulatory regime.

28) However, having placed the positive aspects of the case into the balance, and considered the seriousness of the negative aspects, we feel that a 3-year disqualification is too long, and out of step with the approach generally taken by other Traffic Commissioners. A three-year disqualification following a first public inquiry allows for little light at the end of the tunnel and effectively prevents an operator from hanging onto any aspects of their operation. It is towards the top end of fixed term disqualifications. Our view is that a disqualification of 18 months adequately reflects the seriousness of the case.

Judge Mark Hinchliffe, DCP

22 July 2010