Neutral Citation Number: [2012] UKUT 298 (AAC)   		      Appeal No: T/2012/24

IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM A DECISION OF MISS J E PERRETT
DEPUTY TRAFFIC COMMISSIONER for the
NORTH EASTERN TRAFFIC AREA
DATED 30 APRIL 2012

Before:

Judge Alan Gamble, Judge of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal
John Robinson, Member of the Upper Tribunal

Appellant:	
D  J  BROTHERTON  t/a  JOHN  BROTHERTON

Attendance:	The appellant was neither present nor represented

Appeal heard at:	Victory House, Kingsway, London
Date of hearing:	19 July 2012 
Date of decision:	16 August 2012

DECISION  OF  THE  UPPER  TRIBUNAL

The appeal is dismissed.

Subject Matter:	Environmental offences.  Bankruptcy  
			Failure to disclose.  	Proportionality

CASES REFERRED TO:  None

REASONS for DECISION 

1.	This is an appeal against the decision of the Deputy Traffic Commissioner for the North East traffic area dated 30 April 2012 by which she revoked the appellant’s restricted operator’s licence from 23.59 hours on 15 May 2012 and disqualified him from holding or applying for an operator’s licence in all traffic areas for five years.  That decision was taken after a public inquiry conducted by the Deputy Traffic Commissioner on 27 April 2012.

2.	The appellant was not present nor represented at the hearing before us.  His wife had informed us by a letter received by the tribunal office on 4 July 2012 that the appellant would not be attending due to him having been fitted with an electronic tag on his release from prison. That tag prevented him from leaving his home in Yorkshire before 7 a.m.  Thus it precluded him from attending the hearing as he would have been required to leave home before then in order to do so.   In her letter the appellant’s wife did not request an adjournment of the hearing on his behalf.  We did not consider it appropriate to grant an adjournment on our own initiative.  Rather we considered it appropriate to proceed in the absence of the appellant. 

3.	The facts and circumstances appearing from all the documents on file and in particular the transcript of the public inquiry and the decision of the Deputy Traffic Commissioner are as follows:

(a)	The appellant was the holder of a restricted operator’s licence from 1984.

(b)	That licence authorised the operation of five vehicles from an operating centre in Otley, Yorkshire.  

(c)	On 23 September 2011 the appellant was convicted of five environmental offences at Leeds Crown Court.  The details of those offences are narrated in detail in paragraph 21 of the Deputy Traffic Commissioner’s decision.  The appellant was sentenced to a total of twenty months imprisonment in respect of them.  

(d)	The appellant has also been convicted of several other environmental offences between 1997 and 2009.  The full details of those offences are narrated in paragraph 22 of the Deputy Traffic Commissioner’s decision.  The appellant was fined in respect of all of them. 

(e)	In addition, paragraph 23 of the Deputy Traffic Commissioner’s decision narrates in detail two environmental offences for which one of the appellant’s sons was convicted, a further two such offences for which another of his sons was convicted and a further three such offences for which his wife has been convicted.  It is not disputed that all of those family members were “servants or agents” of the appellant. 

(f)	The appellant made no notification of any of the offences referred to in the preceding sub-paragraphs to the Traffic Commissioner.  

(g)	The appellant was made bankrupt in 2007.  However that bankruptcy was annulled.  He was again made bankrupt in 2009   He was discharged from that bankruptcy in 2010.  

(h)	Neither of the appellant’s bankruptcies were notified by him to the Traffic Commissioner.  

(i)	The appellant’s wife has been running his business since 2007.  She has not applied for her own operator’s licence.  

4.	We find there is no substance in the appellant’s contention in his letter of appeal that it was not necessary for him to inform the Traffic Commissioner of the convictions for environmental offences as they did not relate to the operation and maintenance of his vehicles and were committed in his scrap yard and “not on the road”.   The type of offence in question is prescribed in paragraph 5(1) of schedule 2 to the Goods Vehicles (Licensing of Operator’s) Act 1995.  The convictions described in sub-paragraphs (c), (d) and (e) of paragraph 3 above are thus covered by section 26(1)(c)(i) and (ii) of that Act.   They were also notifiable under paragraph 4 of schedule 2 to the above Act

5.	The appellant’s main ground of appeal is that the Deputy Traffic Commissioner’s decision to revoke his restricted operator’s licence and to disqualify him from holding or applying for an operator’s licence in all traffic areas for five years was not proportionate.  We reject that submission and hold that the Deputy Traffic Commissioner’s decision was proportionate.  We have carefully read her decision as a whole and especially paragraphs 26 – 35 in which she explains the basis for it. We are satisfied that she appropriately weighed the positive feature that the appellant had been issued with few prohibition notices along with several clearly negative features.  Those negative features were the convictions for environmental offences and the failure to notify either those offences or the appellant’s bankruptcies to the Traffic Commissioner in the face of the appellant having been made aware of his duty to do so on the licence renewal form which he signed as recently as 27 June 2011.  We consider that the Deputy Traffic Commissioner’s analysis of the whole situation relating to the appellant in paragraph 32 of her decision was undoubtedly correct.  It was in no way overstated.  Indeed we are satisfied that she appropriately summarised the appellant’s record in paragraph 33 of her decision as a “depressing and appalling history”.  We are further satisfied that she reasonably and correctly deduced from that “history” that she could not trust the appellant to comply in the future with the duties imposed on him as the holder of a restricted operator’s licence.  In all these circumstances we can see no error of law in the Deputy Traffic Commissioner’s decision expressed in paragraph 33 that it was “both necessary and proportionate to revoke the licence”. We also consider that the Deputy Traffic Commissioner was entitled to hold as she did in paragraph 34 that the appellant’s “disregard of the law” was “cavalier in the extreme”.   Given that, there was, in our view, no error of law on her part in disqualifying him for five years, it  was entirely proportionate for her to have done so. We would remind the appellant that the Deputy Traffic Commissioner at first considered whether an indefinite disqualification might have been more appropriate.  In our view, both aspects of the Deputy Traffic Commissioner’s decision were plainly correct and in no way disproportionate. 

6.	For all of the above reasons, therefore, the appeal is dismissed. 

	A J GAMBLE
	Judge of the Upper Tribunal
	Date: 16 August 2012