Neutral Citation Number: [2013] UKUT 0285 (AAC)                            Appeal No: T/2013/09

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

ON APPEAL FROM THE DECISION OF SARAH BELL, 
TRAFFIC COMMISSIONER for the WESTERN TRAFFIC AREA, 
DATED 24 DECEMBER 2012

Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
George Inch, Member of the Upper Tribunal.
John Robinson, Member of the Upper Tribunal.

Appellant:
SARAH BOYES t/a BOYES TRANSPORT

Attendance:
For the Appellant: 	Mrs S Boyes in person

Appeal heard at: 	Victory House, Kingsway, London
Date of hearing: 	21 May 2013
Date of decision: 	17 June 2013

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be dismissed

Subject matter:	
Challenge to the Traffic Commissioner’s findings of fact; loss of repute.

Cases referred to:
Regina (Jones) v First-tier Tribunal (Social Entitlement Chamber) and Another – The Times 31/5/2013

Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Traffic Commissioner for the Western Traffic Area made on 24 December 2013 when she revoked the appellant’s standard national operator’s licence under Section 26(1)(a), (b), (c), (e), (f) and (h), and Section 27(1)(a) and (b) of the Goods Vehicles (Licensing of Operators) Act 1995. The Traffic Commissioner disqualified Mrs Boyes as an operator from holding an operator’s licence or being involved in the management, administration or control of an entity that holds such a licence in Great Britain for a period of two years from the date of revocation. In relation to her role as transport manager, Mrs Boyes was found to be no longer of good repute or professional competence and to be unfit to manage the transport activities of the transport undertaking. Mrs Boyes was disqualified from acting as a transport manager until she was able to demonstrate that she was trustworthy and would have a robust approach to compliance and, in any event, for a period of not less than two years from the date of revocation.

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’s standard national goods vehicles operator’s licence authorised 14 vehicles and 14 trailers.
(ii)	The licence was granted in October 2009 after a public inquiry. The investigation leading up to the current proceedings was prompted by a variation application to add two new operating centres and increase overall authorisation. The traffic examiner’s report raised capacity concerns and alleged driver’s hours and other operator licensing compliance issues, including the apparent use of more vehicles than were authorised. The report also raised issues over whether the licence was properly under the control of Mrs Boyes. The vehicle examiner conducted a maintenance investigation that was marked “unsatisfactory”. Mrs Boyes had been the subject of previous such reports which resulted in a public inquiry and a formal warning in December 2010.
(iii)	It was alleged by the traffic examiner that Mrs Boyes might be operating vehicles specified on the licence of Mr Barrie Mark Boyes (Mrs Boyes’ brother-in-law). Because of apparent links with the brother-in-law, who also holds an operator’s licence, the Traffic Commissioner decided to hear these matters (together with issues linked to Mr Barrie Mark Boyes’ operation) at a conjoined public inquiry. The public inquiry was heard over five days commencing 23/7/2012 and concluding 15/10/2012. Mrs Boyes was represented by Mr Banks, a solicitor. At the time, no objection was made to the linking of these matters.
(iv)	The report of the traffic examiner provided evidence of infringements across the board in relation to driver’s hours and tachographs, although the traffic examiner said that her investigation was impeded as a consequence of Mrs Boyes failing to produce, or being unable to produce, complete records. There was evidence of vehicles being driven without driver cards and tachograph record sheets. 
(v)	Of the records that were produced, 13 drivers were investigated with 12 drivers having offences on their charts. 172 infringements were detected from 496 records. Between January 2010 and October 2011 the operator received seven drivers’ hours or related prohibitions at the roadside. The operator pleaded guilty to counts of permitting driving under prohibition in November 2012. A further two drivers engaged by Mrs Boyes received fixed penalty notices in relation to two of the offence prohibitions.
(vi)	Mrs Boyes claimed that the missing mileage was down to fitters, road tests, breakdowns, and taking vehicles for MOT etc. The Traffic Commissioner required evidential support for these claims which was, generally, not forthcoming. There was also evidence of vehicles being used whilst still subject to a prohibition.
(vii)	The report of the traffic examiner provided evidence of failure to use the nominated operating centre over a sustained period, with vehicles and trailers parked in the local area because, it was said, there was insufficient room at the nominated operating centre. Tachograph records showed that one vehicle was regularly being parked at the home of a driver. Another vehicle was used, but it was not specified on the licence.
(viii)	The traffic examiner noted that a number of vehicles were not visiting the operating centre at all within a 28-day period and the odometer readings on the preventative maintenance inspection sheets and tachograph charts did not match up. Moreover, many preventative maintenance inspection sheets did not have the certificates of roadworthiness signed (or, if they did, they were signed by Mrs Boyes’ daughter who had not inspected the vehicles and was in no position to verify roadworthiness) and none of the inspection sheets indicated that any form of brake testing had been being carried out. Many driver defect report sheets showed no rectification.
(ix)	Twelve roadworthiness prohibitions had been issued since November 2011, of which seven were for braking defects, and two were for tyre defects. These are serious safety-critical defects. The maintenance records at public inquiry clearly demonstrated that the vehicles on many occasions could not have been inspected on the day shown on the inspection sheets.
(x)	The Traffic Commissioner explored whether Mrs Boyes’ husband, Stephen Boyes, played a significant part in the operation. Mr Stephen Boyes had previously had an operator’s licence revoked. The Traffic Commissioner, in her decision, set out 10 evidential indications that Mr Boyes was far more involved than Mrs Boyes suggested.
(xi)	Mrs Boyes admitted in evidence that she may not have scrutinised the paperwork as well as she might but she blamed this on the lack of a proper service from a fitter. She also blamed the contractors and drivers for many of the failings. It was a common theme of her evidence that she felt that she had been unlucky much of the time. Mrs Boyes said that, on occasion, she had put another vehicle on the road when one of the specified vehicles was off-road for repair and maintenance. Whilst there was no margin, she insisted that she had never had more than 14 vehicles on the road at any one time. Mrs Boyes was adamant that she did not operate any vehicles on Mr Barrie Mark Boyes’ licence.
(xii)	In her written decision, the Traffic Commissioner undertook a balancing exercise. In relation to the suggestion that vehicles specified to Mr Barrie Mark Boyes were being operated unlawfully by the appellant, the Traffic Commissioner concluded that although there was much evidence to suggest that the appellant was the real operator of the vehicles on Mr Boyes’ licence, this evidence when carefully examined fell short of the standard of proof required for such a serious allegation. On the other hand, so far as the involvement of her husband was concerned, the Traffic Commissioner concluded that the actual operator was either a partnership or, more likely, that Mrs Boyes’ husband was the actual operator.
(xiii)	The Traffic Commissioner’s decision sets out a number of examples indicating that the maintenance records were not a reliable indicator, and not an accurate record, of whatever maintenance was actually taking place. It was clear that, at best, Mrs Boyes had not picked up on the discrepancies and inconsistencies that had emerged, somewhat graphically, in the evidence. The Traffic Commissioner described the maintenance records as “a complete mess, to the point where it would be open to me to find that some of them are fabricated”. Again, however, she drew back from such a finding and focussed, instead, on Mrs Boyes’ lack of monitoring, questioning or control.
(xiv)	The Traffic Commissioner concluded that Mrs Boyes did not have a system for records management and the written decision provides examples of how Mrs Boyes’ explanations for inconsistent dates and missing mileage, when analysed, were shown to be manifestly incorrect. Mrs Boyes did not have an effective system in place for checking charts received or checking for missing data. 
(xv)	With regard to the use of a place other than the operating centre, the Traffic Commissioner concluded that Mrs Boyes’ explanation at public inquiry, namely that vehicles had been parked in response to customer requirements, simply did not pass scrutiny.
(xvi)	The Traffic Commissioner asked how likely it was that the operator would, in future, operate in compliance with the operator’s licensing system and she found that it was most unlikely. The operator asked if the conduct of the operator was such that the operator really ought to be put out of business, and the Traffic Commissioner concluded that it was. The Traffic Commissioner felt that a line had to be drawn because Mrs Boyes had demonstrated that she could not be trusted, and the risk to road safety was too great to determine otherwise. Moreover, there had been unfair competition to the detriment of the legitimate industry. The Traffic Commissioner also noted that Mrs Boyes had been the nominated transport manager throughout the material time and so her conclusions in relation to Mrs Boyes as operator applied equally in relation to her performance as a transport manager.
(xvii)	The written grounds of appeal extend to some13 pages. Many of the grounds originally raised were not pursued at the hearing but we think it right to summarise the issues raised, and deal with them briefly. Amongst other things Mrs Boyes alleged:
•	the Traffic Commissioner had incorrectly linked her case with that of her brother-in-law;
•	the Traffic Commissioner was agitated when she first commenced the public inquiry and was disagreeable and annoyed throughout;
•	the appellant and her solicitor were unable to give the evidence that was needed to be heard throughout the inquiry;
•	the procedure was excessively drawn out;
•	the Traffic Commissioner did not examine the records properly;
•	VOSA had submitted “false information, blatant errors and unjustified allegations” to the Traffic Commissioner and these had been accepted by the Traffic Commissioner without question;
•	the Traffic Commissioner’s findings of fact were wrong.
(xviii)	Subsequently the tribunal received an email and written representations from Mrs Boyes stating, amongst other things, that she wished to pursue the arguments that her public inquiry was hindered to the point of clouded judgement by not being heard in isolation, that the current systems were not explored adequately, and alternatives to revocation were not properly considered.  

3)	At the hearing, Mrs Boyes attended in person (her Counsel having indicated in writing that he was no longer instructed).

4)	Referring to the 172 infringements identified by the traffic examiner, Mrs Boyes spent most of the time addressing us in relation to one alleged infringement where, in relation to vehicle WX07UKS, it had been alleged that 141 kms were missing from the records between 1/4/2011 to 4/4/2011. A letter from Mercedes-Benz (page 1464 of the bundle) dated August 2012 states that vehicle WX07UKS had been recovered from the A43 on 1/4/2011 following a technical fault. The letter, however, did not state how the vehicle was recovered or demonstrate that the recovery would account for the missing kilometres. The downloaded tachograph record showed the missing mileage to have arisen between 16:53 hours on 1/4/2011 and midnight that night.

5)	However, at the point in the public inquiry where the Traffic Commissioner was considering this matter she said:

 “From Towcester to Andover is 124.5 km so… there is a possibility, but I do not think there is sufficient there. As I understand it, as long as your evidence remains, the evidence is clearly that it was driven on the 4th for those missing kilometres. I have got evidence of a recovery but not how it was recovered”.

Mr Banks response was simply, “Madam, that is all the evidence I have on that point”. Mrs Boyes’ submission was that the Traffic Commissioner’s reference to the 4th was clearly wrong and that the recovery of the vehicle explained the missing mileage.

6)	Thus, of the numerous transgressions identified, Mrs Boyes sought to question the detail of one, and even then, so far as we can see, the issue principally related to the date when the missing mileage arose - since it is clear that the Traffic Commissioner was aware of the substantive explanation for the missing mileage, and was not persuaded that the explanation accounted for the totality of the kilometres lost.

7)	Of the remaining 171 infringements, Mrs Boyes contended that 107 were minor, although 64 were admitted. In the context of the overall picture, we do not think it helpful to categorise the infringements in this way. The overall picture is of a disgraceful dereliction of duty by the operator and its transport manager, which exposed drivers, other road users and the public to significant risk.

8)	In any event, at an early stage of the public inquiry, a discussion took place between the Traffic Commissioner and Mr Banks as to how necessary it was to go through the detail of each and every infringement allegation in relation to Mrs Boyes. Mr Banks said:

 “By necessity I think many of my challenges are going to be of a very general nature… In terms of you asking: ‘Have I picked through the minutiae and taken instructions upon each and every infringement?’ - the answer to that is no, I am afraid. The approach that I have taken is that you will look at things in the round … I was not seeking to go through the minutiae of each and every case… I think it is going to be case of looking at the generality of what has occurred”.

9)	Given the extent and number of the infringements, this was a sensible approach, although the Traffic Commissioner made it plain that she would still explore some details, if only to test the veracity of the explanations offered. In fact, even a cursory reading of the transcripts, and of the Traffic Commissioner’s decision, shows that the Traffic Commissioner went to great lengths to examine all the documentary evidence, to the point of insisting on evidential support for a whole range of unsupported assertions and claims. Indeed, one of the reasons why this case took so long, and eventually produced bundles totalling nearly 1500 pages, is because of the great care with which the Traffic Commissioner approached the evidence in the case.

10)	The Traffic Commissioner considered a number of the explanations put forward and her written decision provides examples of how such claims, when analysed, were shown to be incorrect.

11)	We have examined the transcripts to see whether there is any indication to support the appellant’s assertions as to the Traffic Commissioner’s mood and attitude. We find no evidence to support the appellant’s claims. After the usual introductions, the Traffic Commissioner was (rightly) concerned about the absence of financial information in relation to Mr Barrie Mark Boyes - but then, having dealt with that, she greeted Mr Banks and Mrs Boyes and said “Mr Banks, good afternoon and apologies for ignoring you so far”.

12)	Despite the fact that the Traffic Commissioner’s papers extended to around 1000 pages, the Traffic Commissioner was sanguine about further documentation being handed in, saying, “:Well, that’s fine. As you can see I spent most of yesterday surrounded by lever arch files”.

13)	We have considered the decision to join the public inquiry in relation to Mrs Boyes with that of Barrie Mark Boyes (and another linked operator). We consider that this was well within the range of reasonable decisions open to the Traffic Commissioner. Although the other operator did not have a direct link, on the evidence, with Mrs Boyes, he did have an apparent link with Barrie Mark Boyes (and, we note, instructed the same representative as Mr Boyes). Given the apparent links, the decision to hear all the evidence together was clearly sensible.

14)	The appellant was represented throughout the proceedings and no complaint was made during the course of the public inquiry either in relation to the Traffic Commissioner’s conduct of the proceedings, the conjoining of other linked matters, the adequacy of the opportunities given to the appellant to explain herself, nor in relation to the degree of analysis required in relation to the various infringements. Indeed, as will be seen, it was the Traffic Commissioner who insisted on exploring some of the allegations in much more detail than Mrs Boyes’ legal representative had originally intended.

15)	The Traffic Commissioner set out such positive features as were apparent on the evidence, but concluded that they did not outweigh the negative matters referred to. Given the history, we think that the Traffic Commissioner was right to be sceptical about promises and assurances of improvement.

16)	On any view this was a bad case, especially when placed within the context of earlier but quite recent warnings, and previous concerns raised. There was clear evidence of a woeful lack of control and monitoring, remedial action was clearly ‘too little, too late’ despite warning signs arising in 2011 and earlier. By the time of the public inquiry it was clear that the appellant had still not got on top of the maintenance problems and, despite superficial attempts to change some elements of her monitoring systems, there had been no systematic improvement to the collection, management and processing of the information available, both in relation to driver’s hours and tachograph compliance, and maintenance arrangements.

17)	Both in her grounds of appeal, and at the hearing, Mrs Boyes wished to challenge and re-visit the Traffic Commissioner’s findings of fact. In our view the findings of fact flow naturally from the evidence and are all explained in the written decision. We do not see how the Traffic Commissioner could reasonably have reached any other conclusions but, even if we were minded to take a marginally different view, we would have found no grounds to interfere.

18)	Since the hearing, the tribunal has become aware of the judgement of the Supreme Court in Regina (Jones) v First-tier Tribunal (Social Entitlement Chamber) and Another – The Times 31/5/2013. In this case, the Supreme Court found that an appellate body should not venture too readily into findings of fact made by specialist first-instance decision makers. The case was a criminal injuries compensation case where a man had run into traffic, apparently with the intention of committing suicide, and this then caused a road traffic accident that had led to Mr Jones (who was driving a vehicle) sustaining injury. To the surprise of the Court of Appeal, the First-tier Tribunal had found that they were not satisfied that the deceased had been reckless as to whether harm might also be caused to other persons by his actions. Such a finding would have been necessary to establish violent criminal behaviour such as to give rise to a right for Mr Jones to claim compensation under the scheme. The Court of Appeal disagreed with the First-tier Tribunal’s analysis (with which the Upper Tribunal had not interfered) allowing itself to be influenced by its own view of what a person would probably foresee if they ran straight into traffic. The Supreme Court held that the First-tier Tribunal was a specialist tribunal and had made a rational finding of fact that was open to it, even if others may reasonably take a different view - and it was not open to factual review by the Upper Tribunal (which had respected the First-tier Tribunal’s finding) or by the Court of Appeal.

19)	We do not think it necessary to invite representations from Mrs Boyes as to the effect of this judgement as it simply reinforces that of the Court of Appeal’s own decision in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695. Here, the judgment was to the effect that, even where an appellate tribunal has full jurisdiction over law and fact, as we do, there is a distinction to be drawn between the case where the appellate tribunal might take a different view from that of the specialist first-instance decision-maker, and the case where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view from the Traffic Commissioner (our emphasis). Only in the latter case would it be appropriate to interfere.

20)	We are, of course, a specialist tribunal ourselves but, in considering the process of reasoning and the application of the relevant law, we find no reason to criticise the approach, or the conclusions, of the Traffic Commissioner. In many ways, we think that she has been merciful. A different Traffic Commissioner, faced with the same evidence, might well have found that false records were being presented, and might have reached adverse conclusions as to the operation of vehicles specified on the operator’s licence held by Mr Barrie Mark Boyes.

21)	In the event, we find that the Traffic Commissioner’s conclusions in relation to section 26 and section 27 of the Act to be amply supported by the evidence. There was nothing to be gained by considering alternatives to revocation once the Traffic Commissioner had concluded that the appellant could not be trusted to comply in the future, and that the appellant deserved to be put out of business. Repute was lost and the consequence of this finding did not produce a disproportionate result.

22)	We further find that the period of disqualification was entirely consistent with the imperatives of the operator licensing regime in order to ensure and encourage high standards of maintenance, high standards of compliance with driver’s hours and tachograph regulations, high standards of monitoring and management, and the prevention of unfair competition.

23)	The appeal is dismissed.

Judge Mark Hinchliffe, DCP
17 June 2013