Rose Transport Ltd, Ms Jacqueline Walters and Mr Gilchris Walters: [2016] UKUT 392 (AAC) [2016] UKUT 0392 (AAC)

‘Specifically, the issues of concern to the Traffic Commissioner are that it appears: a) You are operating from an unauthorised operating centre; b) Your vehicles or drivers have been issued with prohibition notices by DVSA or the police in the past five years; c) You or your drivers have been issued with relevant fixed penalty notices in the past five years; d) You have not honoured the undertakings you signed up to when you applied for your licence, namely, i. That your vehicles [and trailers] would be kept fit and serviceable; ii. That you would observe the rules on drivers hours and tachographs and keep proper records; iii. That you would keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available on request; iv. Drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing; e) Since the licence was issued, there has been a material change in the circumstances of its holder, namely That the company is operating from an unauthorised operating centre. Because of the matters listed above, the Traffic Commissioner is also concerned that the company may not be of good repute, be of the appropriate financial standing or meet the [2016] UKUT 0392 (AAC) 4 requirements of professional competence. If the company does not meet these requirements your licence is at risk.’ (v) The call-up correspondence to Rose Transport Ltd also advised that the Traffic Commissioner also had concerns about the nominated Transport Manager, Ms Jacqueline Walters, and that she would also be called to the same PI and that separate call-up correspondence to that effect was being forwarded to her. (vi) Call-up correspondence was forwarded to Ms Jacqueline Walters on 10 September 2015. The Traffic Commissioner identified the following action which he would consider: ‘The traffic commissioner will consider whether you fulfil the requirements in respect of your good repute and professional competence as defined under Schedule 3 of the Act. Paragraph 16(2) of Schedule 3 imposes a mandatory requirement on the traffic commissioner that if he determines that you are no longer of good repute or professionally competent, the traffic commissioner must order that you be disqualified (either indefinitely or for such a period as the commissioner thinks fit) from acting as a transport manager. You should note that while any disqualification is in force you may not act as a transport manager for any road transport undertaking in the European Union and any certificate of professional competence issued to you ceases to be valid for the period of disqualification. The traffic commissioner by whom a disqualification order is made under paragraph 16(2) of Schedule 3 may specify measures with which the disqualified person must comply before the order can be cancelled or varied. The traffic commissioner can stipulate any rehabilitation measures he feels appropriate to the circumstances. These rehabilitation measures can include the passing of a stipulated period of time, the requirement for a person to regain professional competence by way of examination or any other demonstration of compliance. Until the rehabilitation measure has been complied with the traffic commissioner is unlikely to consider that a person has regained his/her good repute or professional competence. You should note that Article 2 of Regulation (EC) No 1071/2009 defines a transport manager in relation to a business as an individual who is designated by the holder of a licence by means of a contract who effectively and continuously manages the transport activities of that business.’ (vii) In the file of papers is a copy of correspondence dated 6 October 2015 from Ms Jacqueline Walters to the office of the Traffic Commissioner. In this correspondence Ms Walters stated: ‘At the request of my brother Gill Walters I became transport manager of Rose Transport Limited in 2013. The company had three drivers. One driver retired in 2013, one driver had his licence withdrawn on medical grounds and the remaining driver continued to drive part time until Feb 2015. Rose Transport Ltd has now ceased trading. I have now resigned as transport manager of Rose Transport Ltd. [2016] UKUT 0392 (AAC) 5 I shall not and will not be attending the public enquiry on 15 October 2015, reason being the statement that was procured from me at the behest of the DVSA was not made under caution at the interview that took place at Featherstone and upon reading the note book statement made by Tracy Love submitted to the enquiry the English language has been tailored to suit one’s ends. I had prior knowledge that the interview I was engaged in was under caution the choice for me at that time would be to terminate the interview and seek legal advice or at the very least ask for a taped or a written statement signed by me. I feel without prior knowledge to this I had that right taken away from me.’ (viii) In the file of papers which is before the Upper Tribunal is correspondence from Ms Jacqueline Walters to Rose Transport Ltd, dated September 2015 in which she states: ‘Please accept this letter as notice of my resignation as Transport Manager at Rose Transport Limited. As detailed in my Contract of Employment I give 1 week’s notice, with the last day of employment being on 11 September 2015.’ (ix) In the file of papers is a copy of ‘Form GV80A: Application to change type of licence/notification of change of transport manager’ signed and dated by Mr Gilchris Walters on 11 September 2015. In the completed form, two boxes have been ticked to indicate that Ms Jacqueline Walters is to be removed as Transport Manager from the licence and that no other professional competent person is to be added to the licence as a Transport Manager. (x) In the file of papers is a copy of ‘Form SUR1: Application to surrender a goods or public service vehicle operator’s licence’ signed and dated by Mr Gilchris Walters on 16 September 2015 and date-stamped as having been received by the OTC on 21 September 2015. The form is completed to indicate surrender of licence number OD 0262985 in the name of Rose Transport Ltd. The licence itself and a goods vehicle identity disc were attached to the relevant form. (xi) The PI took place on 15 October 2015. Amongst others present were Mr Gilchris Walters. We return to what happened at the PI below. For the moment, however, we note that at the outset of the PI, the Traffic Commissioner noted the correspondence dated 6 October 2015 from Ms Jacqueline Walters, and as set out in sub-paragraph (vii) above. The Traffic Commissioner addressed the issues which had been raised by Ms Walters and we return to his comments below. We have noted that the Traffic Commissioner asked Mr Gilchris Walters whether he was representing Ms Jacqueline Walters and that his response was that he was not as they had ‘fallen out’. (xii) The Traffic Commissioner also addressed the issue of the purported surrender of the operator’s licence in the name of Rose Transport Ltd. Mr Gilchris Walters confirmed that it was the intention of the operator to surrender the licence. The Traffic Commissioner informed Mr Walters that the request for surrender had not been accepted because of the potential for revocation and disqualification, Mr Walters confirmed that he understood that and in response to a direct question from the Traffic Commissioner stated that he was not [2016] UKUT 0392 (AAC) 6 seeking the continuance of the licence, in any event. There was then the following exchange: ‘THE TRAFFIC COMMISSIONER: So it would be revoked on the grounds of a lack of financial standing – MR WALTERS: Yes. THE TRAFFIC COMMISSIONER: - if nothing else – MR WALTERS: Yes’ (xiii) We also note the following exchanges which took place towards the end of the PI: ‘GILCHRIS WALTERS – CALLED By THE TRAFFIC COMMISSIONER … Q. Alright. You are a director of one entity which you know is going to be revoked? A. Yes. Q. You know it is going to be revoked anyway? A. Yes. Q. You went seven years without using the right Operating Centre, which is pretty basic, and there are some other issues which have been spelt out in the reports. The licence is going to be revoked, you know that anyway – A. Yes. Q. - because actually if you could surrender it you would surrender it? A. Yes. Q. All right. I can tell you that unless you are going to persuade me to the contrary I am going to make a finding that the Operator no longer has the necessary good repute, all right – A. Yes. Q. - so that is the limited company, and does not have professional competence because I am going to find that your sister loses her repute as the Transport Manager and you do not have the necessary financial standing because you have not produced any, and that all the matters set out in the call-in letter are actually made out in respect of the entity where you are the Director, you understand that? A. Yes. Q. Do you have a problem with any of that? A. No. Q. I am trying to be frank with you. I am not minded to disqualify you as a Director, do you understand that – A. Yes I do. [2016] UKUT 0392 (AAC) 7 Q. - because technically I can do it. I accept that in large part the failings are due to your lack of management skills and your lack of knowledge. You should have had the knowledge about the Operating Centre, there are a number of failures there, but I am minded to find that you lose your repute, you understand that – A. Yes. Q. – as a Director, the entity loses its repute. Turning to your sister, I do not accept what you have said about her doing 20 hours a week. It is quite clear if she is paid less than £3 per hour I do not accept that she is doing 20 hours a week and I do not think she has been Transport Manager conducting continuous and effective management of transport and I accept what has been said to me by the Examiners relating to her being vague and so on. In fairness to you the Examiner made it clear that it was your sister rather than yourself … and clearly what little Transport Manager role was being undertaken was by you … … Q. All right, but actually the Transport Manager role has not been carried out and I am going to say that she loses her good repute as a Transport Manager. I am going to decide what to do about that – do I disqualify her indefinitely or for a period of time or make her do something? Do you think that she is going to be a Transport Manager again? What I am minded to do is make an order that she could not be a Transport Manager until she took new CPC exams as a Transport Manager. A. I would prefer, well, I’m speaking for her because she’s not here. I’d prefer you to do that as opposed to – Q. Exams? All right, so what I will do then is say she has got to pass new exams as a Transport Manager. A. Yes. … Q. … I have described the process where you come across as an honest person, a decent human being if you like, but one who does not have the management skills to be a Transport Manager, do you think that is fair? A. Yes, I would, if I had the choice, I’d like to do the CPC again myself. Q. You would? A. Yes. Q. Well you have a problem as I said you lose your repute as a Transport Manager but then say that you are disqualified until you take new CPC exams? A. No, I would not. Q. You would not? A. No. [2016] UKUT 0392 (AAC) 8 Q. All right. Well that is what I am minded to do then. A. Okay. … Q. … So I actually have to say formally that you lose your good repute as a Transport Manager but I want to make it clear on the record that I do not cast aspersions on your integrity, all right, and that is important, and I will be making an order that you be disqualified, as with your sister, until you pass new CPC examinations, you understand that? A. Yes, I do. … I need to turn, I think to Rose Transport Limited and all the matters are made out in the call-in letter under Section 26(1)(a); 26(1)(c); 16(10(f) and 26(1)(h) of the Act. I also make a formal finding that the Operator no longer has the necessary good repute. … I am making a formal finding that the Transport Manager Jacqueline Walters has lost her good repute as a Transport Manager and she is disqualified until she passes new CPC examinations. I am also making a finding in relation to No 1 Skip hire Limited. I know it is a restricted licence but the call-in letter has gone to Gilchrist Walters and I can make that decision. I am making the formal findings that you do lose your good repute as a Transport Manager but as I have said I will make a file note that I do not question your integrity. I have to disqualify you either until a particular act has happened or until a period of time has passed or for an indefinite period. In your particular case I believe it would be appropriate to do the same as for your sister and say the disqualification is until you pass new CPC examinations as a Transport Manager. … THE TRAFFIC COMMISSIONER: … do you understand, Mr Walters, what I have done?’

‘I refer to your non-attendance at the public inquiry held … on 15 October 2015, before the Traffic Commissioner Mr Jones. The inquiry was called under section 35 of the Goods Vehicles (Licensing of Operators) Act 1995. The reasons (“grounds”) for the inquiry were set out in our letter of 10 September 2015. Decision Jacqueline Walters no longer has the necessary good repute and professional competence to be a transport manager. Please see enclosed a copy of the Traffic Commissioner’s oral written decision. The Traffic Commissioner specified the following measures that you must comply with before the declaration of unfitness can be removed: That you are disqualified from holding or applying for any such position within the EU until you pass new transport manager CPC examinations. Measures specified may be varied by the Traffic Commissioner on application from you or by the Traffic Commissioner subject to notice being given by you in accordance with Paragraph 17(4) of Schedule 3 to the Act …’

‘Decisions made in respect of Rose Transport Ltd OD0262985 [2016] UKUT 0392 (AAC) 10 Adverse findings are made under sections 26(1)(a); 26(1)(c)(iii); 26(1)(ca); 26(1)(f) and 26(1)(h) of the Act. The operator no longer satisfies the requirement to have sufficient financial standing under sections 27(1)(a) and 13A(2) of the Act. The operator no longer satisfied the requirement to be professionally competent under sections 27(1)(a) and 13A(2) of the Act. The operator no longer satisfies the requirement to be of good repute under sections 27(1)(a) and 13A(2) of the Act. The operator’s licence is revoked forthwith. I do not make any order of disqualification under section 28 of the Act.’

‘Decisions made in respect of transport manager Jacqueline Walters Jacqueline Walters no longer has the necessary good repute and professional competence. She is disqualified from holding or applying for any such position within the EU until she passes a new transport manager CPC examinations.’

‘Decisions made in respect of transport manager Gilchris Walters Gilchris Walters no longer has the necessary good repute and professional competence. He is disqualified from holding or applying for any such position within the EU until he passes a new transport manager CPC examinations.’

‘Goods Vehicle (Licensing of Operators) Act 1995 (‘the Act’) I want to appeal against the decision made by the TC Mr Jones on the 15/10/15 made in respect of: Rose Transport Ltd OD0262985 Transport Manager, Jacqueline Walters Transport Manager Gilchris Walters [2016] UKUT 0392 (AAC) 11 The financial standing of Rose Transport Ltd, what does he know that I don’t? He was not given any financial details or information from or by the company. So what was his decision based on? His decision(s) made in respect of the “professional competence” and “good repute” of all 3 is based on evidence provided for by 3 DVSA examiners who in my opinion should all be called before a public inquiry to answer questions regarding their behaviour, conduct and integrity concerning “their investigation”. His decision to “revoke the licences of all 3 and at the same time make “petty” remarks concerning their characters and “exalting” the “other” 3 I found rather distasteful. A little less personal opinion and a more objective examination of the evidence would have produced a much “fairer” decision, a warning or a suspension for a certain period. His decision is not “proportional”. … Grounds for appeal Poor and misleading advice by the TC. He failed to take account of matters which should have been taken into account. Offended the rules of natural justice in conduct of proceedings by showing bias: “I have accepted all DVSA evidence given to me” “Blame lies with the operator and “its” TM”. The transport manager is a “him” not an “its”. The scenario presented to the Public Inquiry by the DVSA examiners: Neil Brown, Tracy Love and Austin Jones with regards to Rose Transport Ltd. J Walters, Mr G Walters was misleading and inaccurate. The evidence along with the information produced was “duplicitous” and the conduct of the 3 DVSA examiners towards Ms Walters and Mr Walters insulting. This investigation allegedly was initiated because of no reply to a letter dated 23rd March 2015 sent by DVSA examiner Tracy Love. Why was a copy of this letter not produced at the public inquiry? How from a request for tachographs and other documentation has a public inquiry into Rose Transport Ltd arisen? Why was the public inquiry for Rose Transport Ltd conducted/held on the same day and time as No. 1 Skip Hire Ltd? Why was it heard before No. 1 Skip’s inquiry? Rose Transport Ltd as a company has no business relationship with No. 1 Skips so why were the 2 enquiries not held separately? Mr Walters was transport manager for No. 1 Skips, a director of Rose Transport and driver. Is he or is he not entitled to have other business interests outside and besides that of Rose Transport Ltd? If not, why not? If yes, why has Rose Transport Ltd as a company been linked to No. 1 Skips Public Inquiry? [2016] UKUT 0392 (AAC) 12 Neil Brown and Austin Jones turned up unannounced on the 28 March 2015 to conduct a maintenance inspection of No. 1 Skips Vehicles not Rose Transport Ltd as VE Jones tries to allege in his statement. Palace Drive has never been an operating centre for Rose Transport Ltd. Neil Brown “pretended” already having visited one of the so called unauthorised operating centres in … that he didn’t know or had no idea where it was, then I tried to explain to him where … was, thus trying to make a fool out of me. The evidence that the TC will consider (pg 8) Where is Neil Brown’s report? Why is there no Public Inquiry statement from Neil Brown? Traffic Compliances section 2 (pg 39) The £200 was for not producing Drivers Digital tacho card nothing to do with drivers hours and tachographs as is trying to be implied by producing this piece of evidence. And I could go on. These people Brown, Love and Jones have gone to a lot of trouble to misinform, mislead and misdirect the public inquiry with pages and pages of information concerning Rose Transport Ltd mainly and Ms Walters and Mr Walters in their role as transport managers and for all of those pages the Compliance and History (pg 53) not one ‘S’ endorsed pg 9 has ever been issued, ever. Rose Transport has its own shortcomings like many other companies but not to the extent or degree of seriousness of operating dangerous vehicles due to “poor” maintenance or putting “profit” before safety as is being portrayed by these 3 DVSA examiners. How would I describe the “investigation” carried out by these 3 DVSA people – unscrupulous.’

‘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 (‘Bradley Fold’). 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.’

‘It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”), and in the [2016] UKUT 0392 (AAC) 14 Regulations made under that Act. The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain. The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom. It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.’

‘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 that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. [2016] UKUT 0392 (AAC) 15 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.’

‘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.’

‘I have also received a letter from Jacqueline Walters saying she is not coming. She has given a reason for not coming which frankly I regard as bizarre. She says that she was not cautioned and claims, she says notes were tailored to suit one’s ends. If she had had prior knowledge she would have terminated the interview and sought legal advice or at least asked for a taped and written statement. Well we are not dealing with any criminal proceedings this is a civil matter. It happens separately from that, and Tracy Love is aware of this because it has actually occurred in cases some years ago where actually if, in fact, adverse findings are made which has a significant impact leading to loss of livelihood, well then although I always decide matters on the balance of probabilities, and that is the standard of proof, the more serious an issue or allegation the more cogent the evidence that is needed which is why, on occasions, there will be interviews. Sometimes the DVSA choose to interview under caution or what have you in terms of the legalities there is no obligation at all and if Jacqueline Walters wants to challenge something she needs to attend to challenge.’