‘(The Appellant) has links with licence No ON1113722 held by Mrs Janet Lyons trading under the same trading name, Lyons Haulage. At a Public Inquiry on17 November 2012 into this licence, (the Appellant) attended and gave evidence on behalf of Mrs Lyons [she was too unwell to attend] that in relation to Lyons Haulage ‘we all trade together’
‘The Department notes that DVSA (GB) have reported 1 encounter during 2013/14 which was clear. The Department further notes that DVA (Northern Ireland) have reported 13 encounters with vehicles being operated by (the Appellant) between March 2009 and11 September 2012 . These included but were not limited to infringements relating to roadworthiness, overweight, tachograph/drivers infringements and no vehicle licence. Six further encounters have been reported by DVA since October 2012 of which one, on16 October 2012 , was clear. This is a noncompliance rate of 83%. The failures related to failure to record data, drivers rest, no operator’s licence, overweight, tachograph calibration and wear on tyres. (The appellant’s) criminal record indicates 27 convictions many of which are ‘spent’ under the rehabilitation of offenders. However the Department notes there are convictions from 2012 onwards including fines for assault on police, resisting police, obstructing an authorised examiner, no road freight vehicle licence and overloading.’ (xi) In the response to the notice of appeal, Ms Jones set out the following background to the Public Inquiry: ‘Given the compliance and other issues in respect of (the Appellant’s) application which had come to the Department’s attention the Department considered, under Section 32(1) of the 2010 Act, that it was appropriate to make a determination on the application for a restricted licence at Public Inquiry. The Public Inquiry was convened in accordance with Regulation 18 of the Goods Vehicles (Licensing of Operators) Regulations (Northern Ireland) 2012 and Schedule 1 Article 1(1) and the grounds for calling the Inquiry were communicated to the Appellant in the Call up letter dated the11th November 2014 and its enclosures. The Call up letter can be found at pages 1-8 of the appeal bundle and the enclosures appear thereafter. The Public Inquiry took place on the10th December 2014 . A copy of the transcript from the Inquiry can be found at pages 425-491 of the Appeal bundle.’ (xii) The Public Inquiry proceedings are summarised by the Head of the TRU at paragraphs 24 to 47 of her decision. (xiii) At paragraphs 48 to 73 of her decision the Head of the TRU set out her findings of fact and conclusions arising from the ‘balancing exercise’
‘I believe that the decision made was unfair as it was heavily influenced by DVA Representatives. It was very clear from the notes that a lot of time and effort went into preparing evidence for the Public Inquiry.[2016] UKUT 0143 (AAC) 6 On numerous interviews over the past nine years with DVA Traffic Examiners, myself and my wife and the following (named individuals) … In the interviews I have been told on more than one occasion that each of the DVA Officers will work together and do their upmost to put me out of business. On one particular interview between my wife and (named individual) he was rude and arrogant and left my wife extremely upset and distressed to which he entered the interview with the words ‘Mrs Lyons I will put you out of business’
‘The Head of the Transport Unit contends that this was not adduced as evidence during the Public Inquiry and therefore should not be considered as part of the Appeal. The Respondent would also point out that the Transport Regulation Unit is entirely independent of the Driver & Vehicle Agency … The Appellant had asserted at the Public Inquiry that he had been stopped more regularly than was noted in the brief. The Head of the Transport Regulation Unit asked him if he had evidence to which he confirmed that he had noted encounters in his diary but that he had not brought that to the Public Inquiry. The Head of the Transport Regulation Unit permitted the Appellant to provide this post Inquiry for her consideration. No such evidence, nor any other documents were received by the Respondents.’
‘The Head of the Transport Regulation Unit would point to the transcript at page 428-429 whereby the appellant specifically states that he would wish for Mr Ian Isaac to represent him. The Respondent would state that in hearing[2016] UKUT 0143 (AAC) 8 this appeal the entirety of the transcript should be considered and no part of it disregarded.’
‘The Respondent contends that this did not amount to any guarantee to (the Appellant) that his permit would be converted to a full restricted licence and refutes that it would be converted after 1 year. There has been no evidence produced either in the notice of appeal or at the Public Inquiry to substantiate the allegation that such a conversion would be made. Furthermore at the Public Inquiry (the Appellant) stated, “..So he told me; look … be more compliant in the next twelve months and in twelve months we’ll come back here again and look at it…” The Respondent contends that this demonstrates that the Appellant was aware that the application would require further consideration.’
‘… engaged in the normal processing and preparation of the case in the required way before coming to a decision as to whether or not to grant a restricted licence. The Appellant was in no way prejudiced by the timeframe in so doing as he had the benefit of a temporary permit throughout this process.’
‘During the duration of the temporary permit scheme and application process for bringing ‘own account’ operators into the restricted licencing process, 4082 applications were received. To date, the Appellant is the only permit holder to have been called to a Public Inquiry. However all applications are processed in the same way and all were assessed using the same criteria. If during that administrative exercise it is noted that there has been a history of non-compliance, or other issues against the licence holder an operator check will be requested from one or more authorities, including the DVA. Other authorities from which requests could be made include the DVSA, HMRC and PSNI. Following receipt of an authority’s operator check the Department will consider whether or not an operator satisfies the requirements of the Goods Vehicle (licencing of Operator’s) Act (Northern Ireland) 2010 and may decide to call the operator to a Public Inquiry.’
‘The Appellant has made unsubstantiated allegations that he believes he may be the subject of discrimination and that he was treated unfairly compared to other operators. The Respondent would contend that it is for the Appellant to provide details in support of these grounds. In the case of NT/2014/02 Janet Lyons t/a Lyons Haulage ‘13 The third ground of appeal asserts that the Appellant was unfairly treated as compared to other licence holders and operators. Further details in support of this ground were promised but they have not been made available to us. It follows that there is nothing to support this ground of appeal and that we reject it. In any event appeals such as this almost always turn on their own particular facts. Since the facts of individual cases vary considerably the prospect of a ground such as this being argued successfully is virtually non-existent’’
‘The Respondent would submit that consideration of the issues of trust and fair competition was appropriate. In the case of T/2012/34 Martin Joseph Formby t/a G & G Transport, ‘Traffic commissioners must be able to trust those to whom they grant operator’s licences to operate in compliance with the regulatory regime. The public and other operators must also be able to trust operators to comply with the regulatory regime.’
‘I asked (the Appellant) on a number of occasions throughout the inquiry to submit to me any documents such as invoices, receipts, delivery notes, contracts with sub-contractors or any other documents he wished to submit in support of his claim that the work carried out, with particular reference to the transactions in the bank account for November 2014 was on his own account and that he had contracts in place for sub-contracting some of the work. He agreed to do so but no documents have been received for consideration.’
‘Since July 2014 until November 2014 there have been 4 encounters, none clear, which included prohibitions for overloading and excessive tyre wear and a defect notice for having no tachograph calibration plate.’
‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again. Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place.’
‘Under the Freedom of Information Act I would like to know how many of the 4000 applications for the restricted licence have been called to a public inquiry?’
‘In respect of the permit scheme, 4082 applications were received for a restricted licence. As at9th June 2015 , one applicant has been called to a Public Inquiry.’
‘I am writing to notify you that the prosecution service has decided, having considered the evidence currently available, not to prosecute you in relation to an incident between the 26th day of June 2014 and the 21st day of August 2014 for which papers were submitted to our offices by the police.’
‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again. Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place. For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport[2010] EWCA Civ. 695 . Two other points emerge from these paragraphs. First, the Appellant assumes the burden of showing that the decision under appeal is wrong. Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”. The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’
‘Some General Principles (a) An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them]. The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act. The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers. (b) … (c) The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation. (d) It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying[2016] UKUT 0143 (AAC) 16 that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’
‘Staff in the Driver & Vehicle Agency have separate roles, responsibilities and line management structures to those in the Transport Regulation Unit which ensures that the two functions are entirely independent of each other. There are no members of Driver & Vehicle Agency staff within the Transport Regulation Unit and equally there are no members of Transport Regulation Unit staff in the Driver & Vehicle Agency.’
‘The Transport Regulation Unit (TRU) and the Driver & vehicle Agency (DVA) are separate business areas within the Department of the Environment. Staff in DVA have separate roles, responsibilities and line management structures to those in TRU, which ensures that the two functions are independent of each other. There are no members of DVA staff within TRU and equally there are no members of TRU staff in DVA.’
‘Following a review of your application, a number of issues have come to light which will be explored by the Department at the Public Inquiry.’
‘Public inquiries are hearings conducted by statutory regulators whose functions are to ensure road safety, fair competition and compliance. The hearings are by necessity inquisitorial and one of the functions of TCs is to probe and test the evidence put forward by an operator. The approach of TC’s must be robust in those circumstances and they often have to deal with operators … who are themselves robust and who object to any form of intrusive scrutiny of their operations and react accordingly. There may be other operators or witnesses who have no or little previous experience or understanding of the public inquiry process, who may feel that they are the object of robust, unfair and intrusive scrutiny when that is not the case.’
‘Well can I just reiterate today that if you’re not good at speaking you need to consider very carefully what it is you are going to say … I want to give you the best opportunity of presenting your case …’
‘At the Public Inquiry bank statements relating to one month (November 2014) were considered along with photographs relating to the operating centre. During the public Inquiry a folder was presented containing original documents – the documents were therefore not retained by the Inquiry. These included information about vehicles, job cards, a weighbridge certificate of calibration, tachograph charts/records and some policies and procedures. No records of tachographs, daily defect reporting, vehicle inspections etc were presented.’
‘Appellant I can send them up to you this evening if you like? Head of the TRU yes please if you would provide us with those …’
‘Head of the TRU This is the reason why we ask for these in advance so that we can actually … Appellant … I think I could have sent them to the other place over there maybe … Clerk Yeah, well, it was checked last week. They weren’t there at that stage. Head of the TRU But you’ll provide the two of us, immediately post the Inquiry[2016] UKUT 0143 (AAC) 21 Appellant Yep’
‘In accordance with Article 6(2)(b) of [the 2012 Order] the temporary permit … shall cease to have effect at 23.59 on10 June 2015 .’
‘(3) The date referred to in paragraph (2)(b) is – (a) the date of the Department’s refusal given in accordance of the Goods Vehicles (Licensing of Operators) Regulations (Northern Ireland) 2012 in relation to the outstanding application, or (b) where an appeal is brought against that decision the date of disposal or withdrawal of that appeal.’