Neutral Citation Number: [2010] UKUT 397 (AAC).

 

Appeal No: T/2010/52 & 53

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF SARAH BELL,

TRAFFIC COMMISSIONER for the WESTERNTRAFFIC AREA,

DATED 11 JUNE 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President (HESC); Judge of the Upper Tribunal.

 

Patricia Steel

Member of the Upper Tribunal

 

David Yeomans

Member of the Upper Tribunal

 

Appellants:

 

SHAUN ANDREW TAYLOR (Operator) and MARK TAYLOR (Transport Manager)

 

Attendance:

 

For the Appellants: Mr C.J. Over, Solicitor.

 

Appeals heard at: Victory House on 7 October 2010

Date of decision: 22 October 2010

 

DECISIONS OF THE UPPER TRIBUNAL:

 

1)     The appeals are allowed. The repute of Shaun Taylor and of Mark Taylor is tarnished but not lost. In place of the order for revocation, the operator’s authorisation is curtailed from 4 vehicle and 4 trailers to 3 vehicle and 3 trailers with effect from 1 November 2010.

 

We accept an undertaking in the following terms:

 

 All tachograph records will be submitted for independent expert analysis, on a weekly basis, and the analysis reports will be acted upon, retained for 2 years, and produced on request to VOSA or the Office of the Traffic Commissioner.

 

We further direct that the operator’s compliance, both in relation to maintenance and tachographs/drivers’ hours, should be the subject of VOSA investigations in circa six months time.

 

Subject Matter:

 

Essential Ingredients of a Written Decision.

 

Cases referred to:

 

2007/459 KDL European Ltd and Kevin Lumsden

English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605.

2000/57 Yorkshire Rider Ltd

2002/1 Bryan Haulage Ltd (No1)

2007/104 Steven Lloyd t/a London Skips

 

REASONS FOR DECISIONS:

 

2)     This was an appeal from the decision of the Traffic Commissioner for the Western Traffic Area made on 11 June 2010 when she revoked Shaun Taylor’s operator’s licence (OH1079809) under Section 26)(1)(e), (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 and found loss of repute and loss of professional competence in relation to Sean Taylor (as operator) under Section 27(1)(a) & (c) and Schedule 3 of the Act, and loss of repute in relation to Mark Taylor (as Transport Manager) under Section 27(1)(a) and Schedule 3.

 

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

(i)        The Appellant is the holder of a Standard National operator’s licence authorising 4 vehicles and 4 trailers. The licence was granted, after a Public Inquiry before the Traffic Commissioner, on 7 October 2008. The nominated Transport Manager is Mark Taylor, who is Shaun Taylor’s brother.

(ii)      Mark Taylor had previously held an operator’s licence granted in March1999. His authorisation had been halved to 3 vehicles and 3 trailers in April 2007, and at around the same time, a driver working for Mark Taylor (Mr D. Ball) was prosecuted by VOSA for 6 tachograph offences, including one of falsification. Mark Taylor’s licence expired on non-renewal in March 2009.

(iii)     On 7 January 2009 Mr Ball was stopped when he was driving a vehicle specified on Shaun Taylor’s licence. As a result of further concerns arising, a detailed analysis of 76 tachograph records relating to Shaun Taylor’s operation was undertaken. Mr Ball was prosecuted again and, on 1 July2009, pleaded guilty at Exeter Magistrates’ Court to 5 offences of exceeding the 4.5 hours driving limit, 1 mode switch offence, and 1 false record. He was fined. Another driver, Mr Comer, was also prosecuted and convicted in relation to 4 offences of exceeding the 4.5 hours limit.

(iv)     Shaun Taylor and Mark Taylor were also prosecuted in respect of these offences, as operator and Transport Manager respectively. There were also some additional matters relating to a defective tachograph and failure to produce record sheets. The evidence against the operator and Transport Manager included interviews with VOSA officers, which took place in April 2009.

(v)      Between 18 November 2009 and 12 March 2010 vehicles specified on Shaun Taylor’s licence sustained 5 prohibitions - for overloading, a defective tachograph and brake defects x 3.

(vi)     Shaun Taylor and Mark Taylor were called up to Public Inquiry by call-up letters dated 22 March 2010. The Inquiry opened on 16 April 2010 before the Traffic Commissioner. Shaun Taylor and Mark Taylor attended, but they were not represented. As requested, they brought with them their more recent tachograph records, and these were looked at by Traffic Examiner Edmonds who was present at the hearing. Miss Edmonds, giving evidence, expressed some concerns. There was “some discontinuity” involving missing mileage, and one of the vehicle’s records showed either a tachograph fault or falsification. At this point, the Traffic Commissioner interposed a driver’s conduct hearing in relation to Mr Comer, and then she returned to the Public Inquiry and asked Shaun Taylor if he had any questions for Miss Edmonds. He did not. The Traffic Commissioner then retired to allow Miss Edmonds and Shaun Taylor to discuss the tachograph records that had been submitted. When the hearing resumed, Miss Edmonds said:

“One of my biggest concerns is I feel they should have professional analysis and because it’s being done in-house I think these things aren’t being picked up”.

Given that the operator had become aware of the 2009 offences by April 2009 at the latest, the Traffic Commissioner was unimpressed:

“You are here at Public Inquiry and they’re not externally analysed. You’ve just looked at it”.

(vii)   The Traffic Commissioner also ventured a view concerning the tachographs produced at the hearing:

“And there is no improvement in the charts that Miss Edmonds has seen today from the time when she took the prosecution … so far as I can see there are no discernable improvements, but we need to have them professionally analysed …”

The Traffic Commissioner then indicated that she proposed to adjourn, and advised both Shaun Taylor and Mark Taylor to take legal advice. She also asked for an undertaking that all charts would be sent out for external analysis. Shaun Taylor agreed.

(viii)  The Public Inquiry resumed on 4 June 2010, and Shaun Taylor and Mark Taylor attended, along with Mr Cocks, a Transport Consultant, and Mr Higgins, who had been instructed by the operator to undertake the external tachograph analysis, and to assist and support the operator with tachograph compliance. The tachographs produced at the previous hearing had been analysed by the F.T.A. and their summary report had recently been made available. Mr Cocks confirmed that he had been through the report with his clients. There was also a report from Mr Higgins, and Ms Edmonds again attended.

(ix)     Unfortunately, the Traffic Area Office has subsequently mislaid the F.T.A. analysis, and also Mr Higgins’ report. However, the F.T.A. analysis has been made available to us by Mr Over, acting on behalf of Shaun and Mark Taylor. We are grateful. Mr Higgins’s evidence, and the Traffic Commissioner’s unequivocal approval of Mr Higgins’ work, and his objectivity as a witness, is clear from the transcript.

(x)      The F.T.A. report shows that some 95 tachograph charts were considered in which 10 instances of “discontinuity” are identified and, bearing in mind that some transgressions can result in more than one contravention being recorded, there were a total of 11 tachographs showing drivers’ hours infringements. Traffic Examiner Edmonds commenced by explaining that there were some limitations with the analysis, and she expressed sympathy with operators who may be dependant on an analysis company to pick up on contraventions, which is not always a straightforward task. Miss Edmonds went on to say that she also had sympathy with drivers on mode switch misuse because of a change in what is, or is not, acceptable. In relation to the mode switch contravention identified in the records Miss Edmonds said: “I am not too worried about that”.

(xi)     Miss Edmonds told the Traffic Commissioner that of the ‘exceed 4.5 hours’ contraventions there were only 2 that were serious enough to, possibly, warrant some action.

(xii)   There were instances of power supply interruption but Miss Edmonds added that she was not saying there was anything untoward, but some questions might be asked. She referred to one record in particular, but then concluded: “… so I’m not too worried about that, but obviously these are the sort of questions I would be asking”.

(xiii)  Next, Miss Edmonds pointed out that Mark Taylor was not fully recording his non-driving duty but, a little later in her evidence, she was unable to say whether he continued to fail to make a record after he had been given advice by the Traffic Examiner to do so.

(xiv)  Miss Edmonds said that what caused her “the most concern” was something that had not been picked up by the FTA but, she said: “it is understandable because we’re only talking about two and one kilometres. It is something that I wouldn’t necessarily expect the Operator to identify …”

(xv)   Finally Miss Edmonds commended Mr Higgins’ work, approving of his systems and the fact that the operator had instructed him to undertake his analysis of tachograph records on a weekly basis, which meant that infringements were identified quickly.

(xvi)  Mark Taylor was called and he said that he recorded his non-driving duties on a time sheet. He went on to explain the power interruptions by reference to a broken wire, which was repaired under warranty. He described new procedures in place to improve compliance, including a 3-hour seminar with Mr Higgins, and acquiring and watching instructional DVDs. Both Shaun and Mark Taylor had, moreover, applied to attend a new operators’ seminar.

(xvii)    Shaun Taylor added that tachograph records were now carefully looked at by himself or his brother before they went off for independent expert analysis.

(xviii)      The Traffic Commissioner then asked questions of both Shaun Taylor and Mark Taylor. Shaun Taylor said that it was not until the original infringements had been brought to his attention that he realised there was a problem. The Traffic Commissioner then suggested that, since then, there had been a “wholly unacceptable FTA & VOSA report”.

(xix)  After accepting that the operator did now have a system in place for tachographs to be analysed, the Traffic Commissioner returned to the question of Mark Taylor’s failure to record non-driving duty. Mr Higgins told the Traffic Commissioner that although Mark Taylor did record this work, it was not recorded on the tachographs themselves. Instead, he keeps a logbook.

(xx)   The Traffic Commissioner then explored why Mark Taylor had booked onto a new operator seminar, rather than a CPC refresher. Mark Taylor explained that the distance was too far to Leamington Spa (the venue for the next refresher), and he hoped to go on a course nearer to home. The Traffic Commissioner was displeased with this explanation.

(xxi)  The Traffic Commissioner then announced that, having asked herself the appropriate questions, she had formed a preliminary view that revocation was the right course, although she would not disqualify the operator. She asked Mr Cocks to take instructions:

“I think you need to talk to them. Explain the connotations of agreeing to it. If they want me to do the full written reasons etcetera, etcetera – as I say, it’s a preliminary view”.

(xxii)    Mr Cocks endeavoured to make a brief final submission.  The Traffic Commissioner then reverted back to Mr Higgins and asked him: “Have you found them receptive to advice?” Mr Higgins answered positively: “I have pointed them in the right direction and I think it’s been taken on board”.

(xxiii)  The Traffic Commissioner said that she would issue a written decision and, since she was on leave for two weeks in June, she would try to write the decision ‘next week’, before her break.

(xxiv)  The Traffic Commissioner’s decision, dated 11 June 2010, is extremely brief. The entire summary of the issues in the case together with the Traffic Commissioner’s consideration and findings thereon extend to less than one page. In concluding that revocation was the correct disposal, the Traffic Commissioner noted:

·         Shaun Taylor had had limited involvement in the business and had essentially left his brother to run it for him;

·         The interviews in April 2009 should have acted as a ‘wake-up’ call, but inadequate action had been taken;

·         Mark Taylor had failed to record his full duty despite clear advice given;

·         Mark Taylor was reluctant to attend a CPC refresher at the earliest opportunity because of the travel involved.

 

4)     At the hearing of this appeal, the Appellants were represented by Mr Over, who submitted a skeleton argument for which we were grateful.  The first point made was that the Traffic Commissioner had not conducted the required balancing exercise. A number of evidential features that had featured prominently in the testimony and discussions at the Public Inquiry were either ignored in the decision, or received only cursory acknowledgment. Mr Higgins, for example, received no mention in the decision, even though (at the first hearing) the Traffic Commissioner had sought an undertaking that an independent analyst would be instructed, and the operator had agreed, and complied. Nor did the Traffic Commissioner properly consider and assess the other positive steps taken by the operator and Transport Manager, albeit recently.

 

5)     The next point, linked to the above, specifically related to the F.T.A. report, which (again) received no mention in the decision, despite the attention it received at the Public Inquiry. The F.T.A. report was the subject of a lengthy commentary by Miss Edmonds, which put many of the alleged infringements into a context which was not entirely unfavourable to the operator and Transport Manager.

 

6)     There is merit in these points. We, of course, recognise that decisions from Traffic Commissioners are directed to operators who will be well aware of the issues involved and the arguments advanced. And, as the tribunal made clear in 2007/459 KDL European Ltd and Kevin Lumsden, each case turns on its own facts, with “the degree of particularity required depending on the nature of the issues falling for decision”. But, even in a brief decision, and even recognising that Traffic Commissioners are not writing decisions for the world at large, there remain some essential ingredients for all written judicial decisions, as affirmed by the Court of Appeal in English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605.

 

7)     The tribunal does not seek to be overly prescriptive, or to impose an unrealistic burden on busy Traffic Commissioners. But there is a baseline below which no written decision should fall. In 2000/57 Yorkshire Rider Ltd, for example, the tribunal said that a Traffic Commissioner had to demonstrate that he had considered the evidence, and had to give adequate reasons if he is going to reject it.  It is not enough to give an account of the evidence and submissions, and then to go straight to conclusions: the reasoning in-between must be given.

 

8)     In 2002/1 Bryan Haulage Ltd (No1) the Tribunal stated:

 

“…..  In order to take action under s.26 or to make a finding of loss of good repute under s.27 or to make an order of disqualification of directors under s.28 of the Act, the Traffic Commissioner was obliged to make an assessment of the nature, number and gravity of the breaches of regulations revealed by Mr Prime’s investigations and whether there was any evidence of instruction, encouragement or acquiescence on the part of the Appellant.  That assessment and the Traffic Commissioner’s findings of fact based upon that assessment should be clearly set out in his decision.  They are not.  In relation to the Appellant’s systems and the steps taken by the Appellant to prevent breaches of the regulations, the Traffic Commissioner was further obliged to make an assessment of the evidence and make appropriate findings of fact, indicating the weight, if any, to be given to that evidence.  It is not apparent from the Traffic Commissioner’s decision that such an assessment was made or that he made the appropriate findings of fact.  It is a further requirement that the Traffic Commissioner consider the weight, if any, to be attached to the Appellant’s general record, performance, reputation and enforcement history.  Again, such an assessment is not evident from the substance of the decision.  In the absence of any adequate reasoning, it is impossible to assess what matters were taken into account by the Traffic Commissioner, the weight he place upon those matters and whether he made the appropriate balancing exercise when considering the extent to which he should exercise his enforcement powers. In the circumstances we are satisfied that the appeal must succeed.”

 

9)     In 2007/104 Steven Lloyd t/a London Skips the tribunal re-affirmed that there are three main ingredients in a properly conducted balancing exercise.  First, all the relevant factors should be identified.  Second, each relevant factor should be assessed. And third, the analysis must indicate the weight or significance that has been attached to the relevant factors and reasons for the various judgments made should be given. Thus if one factor or group of factors outweighs another or others, some explanation should be disclosed in order to provide a rational justification for the conclusion reached. The tribunal stressed the need for a Traffic Commissioner to make it clear that he had in mind all the factors, both favourable and unfavourable, which were capable of influencing the decision in question.

 

10) Not only is the operator entitled to see what the Traffic Commissioner had in mind when reaching a decision, it is also important for the Upper Tribunal to be able to do so, if the decision is appealed.  There is, clearly, no need to set out those trivial factors that could have no influence on the decision either on their own or in combination with other matters.  And, as the tribunal has repeatedly recognised, a Traffic Commissioner cannot be expected to balance one factor against another with the precision of a set of scales.  But the Traffic Commissioner should set out the basis on which the decision has been reached with sufficient clarity and detail to enable others to see the rationale and justification for the decision.  In short, reasons have to be adequate and intelligible.

 

11) Having regard to this line of authority, we conclude that the Traffic Commissioner’s decision in this case entirely fails to satisfy these essential tests. The Traffic Commissioner may have concluded that any improvements were too little too late, or that the situation was so grave as to be beyond repair but, in our judgment, this decision fails to explain why such conclusions were reached. Although there may have been reasonable grounds for taking the most serious of views in April 2010, before Mr Higgins was instructed, and on the basis of the convictions, we are of the view that any such conclusions could not have been properly reached if a full, fair and balanced analysis of all the relevant and up-to-date evidence had been undertaken at the time of the resumed, final hearing in June.

 

12) In particular, having adjourned for an analysis to take place, it was incumbent on the Traffic Commissioner to reach some reasoned conclusions upon it, particularly given the evidence of Miss Edmonds. The F.T.A. report undoubtedly raised some concerns, but the commentary provided by Miss Edmonds was far from damning. And having required the operator to instruct an outside tachograph analyst, some credit was due for the fact that this had been done, that Miss Edmonds approved of Mr Higgins’ systems, and that a real effort had been made by Shaun and Mark Taylor to acquire a better understanding of an operator’s responsibilities, albeit belatedly, through seminars and DVDs.

 

13) The next point made by Mr Over was that the Traffic Commissioner attached too much weight to Mark Taylor’s reluctance to attend a CPC refresher course. We agree. It is clear from the transcript that this was not something that Mark Taylor expected to be quizzed about, since he had enrolled on a new operator seminar. In any event, given the extreme brevity of the written decision there were, we thought, far more important issues that needed consideration, and which do not feature at all. Equally, we consider that the Traffic Commissioner placed undue reliance upon the fact that Mark Taylor recorded his other work in a log book rather than on tachograph records and, in any event, the evidence was unclear about how this related, chronologically, with any advice given.

 

14) Regrettably, the whole flavour of the transcripts is of a somewhat unstructured public inquiry, with very little clear focus or direction. It is hard to see, for example, where in the first hearing Mark Taylor was given a proper opportunity to ask any questions of the Traffic Examiner before proceedings were adjourned. Despite her insistence that her comments were a ‘preliminary’ view, the Public Inquiries eventually culminated with some strongly expressed views by the Traffic Commissioner. Indeed, a clear impression is to be gained from the transcripts that the Traffic Commissioner was somewhat reluctant to issue a written decision and when one reads the decision it has, regrettably, the appearance of being rushed.

 

15) The tribunal has considered whether to remit the matter back for a re-hearing by a different Traffic Commissioner or Deputy. We have decided not to do so, partly because - in the absence of any considered and balanced analysis of the relevant evidence by the Traffic Commissioner - we have had to undertake our own.

 

16) We consider that there is ample reason to take regulatory action. The licence had been granted after a public inquiry only two years previously, and both Shaun and Mark Taylor had been put on notice about the tachograph contraventions in April 2009. Those contraventions led to prosecutions and, when the public inquiry opened on16 April 2010, no arrangements had been made for independent expert tachograph analysis. We do not criticise the Traffic Commissioner for adjourning the case so that further records could be analysed, or for requiring the operator to instruct an outside tachograph analysis consultant. But a fair and balanced assessment of the F.T.A. report subsequently submitted (as Miss Edmonds made clear in her evidence) suggests that the position was not as bad as in early 2009. There was still scope for improvement, particularly in relation to outside analysis of charts, but many of the contraventions were comparatively minor and difficult to detect.

 

17) By June 2010, further improvements had been put into place, Mr Higgins had been instructed, and the quality of his work, and the objectivity of his evidence, was specifically complimented by the Traffic Commissioner. There is, moreover, no suggestion that any drivers’ hours irregularities were deliberately committed for financial gain.

 

18) All in all, our view is that the repute of Shaun Taylor and Mark Taylor is tarnished but not lost. There have been convictions and, for some months thereafter, there was a culpable failure to have proper arrangements in place to ensure compliance, which meant that compliance was somewhat ‘hit and miss’. But, following the adjournment and at the time of the resumed hearing, we do not consider that the operator still deserved to be put out of business, or that the relationship of trust between the operator and the Traffic Commissioner had been irredeemably destroyed. Indeed, the evidence at the resumed hearing, viewed and assessed objectively and dispassionately, points in the opposite direction.

 

19) At our request, Mr Over took his clients’ instructions and confirmed that the operator was willing to offer an undertaking that:

 

All tachograph records will be submitted for independent expert analysis, on a weekly basis, and the analysis reports will be acted upon, retained for 2 years, and produced on request to VOSA or the Office of the Traffic Commissioner.

 

20) We accept the undertaking, and direct that it be attached to the operator’s licence. We further direct that the operator’s compliance, both in relation to maintenance and tachographs/drivers’ hours, be the subject of VOSA investigations in circa 6 months time. We allow the appeal and, in place of the order for revocation we curtail the operator’s authorisation from 4 vehicle and 4 trailers to 3 vehicle and 3 trailers with effect from 1 November 2010.

 

Judge Mark Hinchliffe, DCP

22 October 2010