Scott Craig Walker+stephen Nicoll+brian Wright V. Secretary Of State For Transport
| Jurisdiction | Scotland |
| Judge | Sheriff G.A. Way |
| Court | Sheriff Court |
| Date | 31 August 2010 |
| Docket Number | B1942/09 |
| Published date | 31 August 2010 |
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
B1942/09
Judgment of Sheriff George Alexander Way
In
Summary Application - Road Traffic Act 1988 section 119(1) (as amended)
SCOTT CRAIG WALKER
4 Wentworth Road Dundee DD2 3SD
APPELLANT
against
(First) The Secretary of State for Transport and (Second) Ms Joan Aitken
Traffic Commissioner for the Scottish Traffic Area, Scottish Traffic Area Office,The Stamp Office, 10 Waterloo Place Edinburgh EH1 3EG
RESPONDENTS
Dundee 25th August 2010
The Sheriff, having resumed consideration of the cause, quashes the Decision of the Traffic Commissioner of 24th August 2009 to the extent of the sanction imposed and remits back to the Traffic Commissioner for re-hearing; finds no expenses due to or by either party.
"George Way"
Sheriff of Tayside Central and Fife.
NOTE:
1. This is an appeal by way of Summary Application in terms of section 119 of the Road Traffic Act 1988 (as amended). The issue between the parties can be quite briefly stated as whether the traffic commissioner left out of account material considerations going to the issue whether the appellants' conduct rendered them unfit to hold large goods vehicle licences and, if so, whether that conduct was such as to require suspension or revocation and, if so, for what period. The appellant invites me to make such order as I think fit to quash, reverse or otherwise de part from a decision of the Traffic Commissioner for the Scottish Traffic Area issued on 24th August 2009 to find that his conduct had rendered him unfit to hold an Large Goods Vehicle (LGV) licence and in consequence of that decision to suspend him from driving large goods vehicles for a period of two months. The Appeal was heard along with those of two of the appellants work colleagues ( Brian Wright and Stephen Nicoll ) who had appeared before the Traffic Commissioner at the same Enquiry held over the 22nd and 23 August 2009. All three Appeals proceeded on the basis of the same Record and agreed Productions and all parties were content that no further evidence required to be led.
2. The Statutory Provisions
Section 115(1) of the Road Traffic Act 1988 provides:
"A large goods vehicle ... driver's licence-(a) must be revoked if there come into existence, in relation to the holder, such circumstances relating to his conduct as may be prescribed; (b) must be revoked or suspended if his conduct is such as to make him unfit to hold such a licence; and where the licence is suspended under para.(b) above it shall during the time of suspension be of no effect."
Section 116 provides:
"(1) Any question arising-(a) under s.115(1)(b) of this Act as to whether a person is or is not, by reason of his conduct, fit to hold a large goods vehicle ... driver's licence ... may be referred by the Secretary of State to the traffic commissioner for the area in which the holder of the licence resides.
(2) Where, on any reference under subs.(1)(a) above, the traffic commissioner determines that the holder of the licence is not fit to hold a large goods vehicle ... driver's licence ... he shall also determine whether the conduct of the holder of the licence is such as to require the revocation of his licence or only its suspension; and, if the former, whether the holder of the licence should be disqualified under s.117(2)(a) of this Act (and, if so, for what period) ..."
Section 117(2) provides:
"Where in pursuance of s.115 (1) (b) of this Act the Secretary of State revokes a person's large goods vehicle ... driver's licence, the Secretary of State may-(a) order the holder to be disqualified indefinitely or for such period as the Secretary of State thinks fit ..."
Section 121(1) provides:
"In this part of this Act-'conduct' means-(a) in relation to ... the holder of a large goods vehicle driver's licence ... his conduct as a driver of a motor vehicle; and (b) in relation to ... the holder of a passenger-carrying vehicle driver's licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying vehicle driver's licence ..."
Section 119 provides:
(1) (1) A person who, being the holder of, or an applicant for, a large goods vehicle or passenger-carrying vehicle driver's licence or the holder of a LGV Community licence or a PCV Community licence], is aggrieved by the Secretary of State's-
(a) refusal or failure to grant such a licence in pursuance of section 112 or 113(4) of this Act,
(b) suspension or revocation of such a licence in pursuance of section 115 or 116(4) of this Act, or
(c) ordering of disqualification under section 117(2) [or 117A(2)] of this Act,
or by a notice served on him in pursuance of section 115A(1) or 116(4) of this Act] may, after giving to the Secretary of State and any traffic commissioner to whom the matter was referred notice of his intention to do so, appeal to a magistrates' court or, in Scotland, to the sheriff within whose jurisdiction the holder of or applicant for the licence] resides.
(2) On any appeal under subsection (1) above (except under paragraph (c) of that subsection)] the Secretary of State and, if the matter was referred to a traffic commissioner, the commissioner shall be respondent.
(3) On any appeal under subsection (1) above the court or sheriff may make such order as it or he thinks fit and the order shall be binding on the Secretary of State.
3. The Factual Background
The background to this appeal, which I take largely from the decision of the traffic commissioner, is that the appellant ( and his two colleagues who have also appealed) were professional drivers, holding large goods vehicle licences. They were all employed by TS Transport (Scotland) LTD of Longtown Dundee. The company and it's drivers became the subject of investigation by the Vehicle and Operator Services Agency (VOSA) and alleged shortcomings of the employer and the appellant were referred to the traffic commissioner under s.116 of the Road Traffic Act 1988 for a determination, amongst other things, whether the drivers were fit persons to hold large goods vehicle licences. The precise nature of the allegations (which for reasons that will become clear) are not central to my decision and so I will refer to them only in general terms. In essence the drivers were alleged to have failed to comply with the regulations designed to ensure that drivers do not work excessive hours. They must have adequate rest breaks. They must properly record their time on duty and at rest. In particular there was an allegation that the drivers (and their employers) did not record certain journeys as "on duty" when they should have known that they were obliged to do so. This particular infraction seemed to focus on driving to collect vehicles and the like which was not recorded as "duty". This has the effect of distorting the records so that any external examiner would think that a driver had not been on duty (and hence getting adequate rest) when in fact he was. The appellant and his colleagues had been interviewed, under caution, by examiners from VOSA and accepted that the interpretation of what constituted being "on duty", given to them by their employer, was not correct. They accepted that as qualified large goods vehicle drivers they had a separate duty to be informed as to the regulations and to apply them. They could not simply blindly follow their employers' directions when they knew, or ought reasonably to have known, that those directions did not accurately reflect the relevant regulations. They were in error but culpable none the less.
4. The Traffic Commissioner held that the conduct of the drivers was such that they were not fit persons to hold such licences pursuant to s.115 (1) (b) of the 1988 Act. She did not, however, deem the offences as serious as to warrant revocation of the licences (which entails a full application for a re-grant in due course) but rather suspended the appellant from driving large goods vehicles for two months. (She suspended Mr Wright for two months and Mr.Nicoll for ten weeks all in terms of s.117 (2) (a) ). This would penalise the drivers financially.. In reaching her decision the traffic commissioner stated that she applied Practice Direction 3, (being guidance issued under the aegis of the Senior Traffic Commissioner and applied throughout the UK.) in determining whether to suspend or revoke a licence for a tachograph offence. I have appended a copy of the Practice Note as a Schedule to this judgment for the sake of brevity here.
5. The Traffic Commissioner's decision
The Traffic Commissioner summed up her assessment of the appellant and his colleagues thus :
" Scott Walker accepted the Traffic Examiners Report as fair. He has ten points on his licence. He was not keeping a complete record of his work; he was fuelling off the card (Sheriffs note: this tends to conceal hours driven as the fuel used and charged to the official fuel card by a vehicle is used as a cross check) I find that he is not fit by reason of his conduct to hold the entitlement and I determine that his entitlement be suspended and that for a period of 2 months...."
"Brian Wright, I find that he is not fit by reason of his conduct and I determine that his entitlement will be suspended for a period of two months...my reasons for doing so are that he has failed to provide a full account of his driving and duty.
" Stephen Nicoll was not keeping a full account of his driving and there were discrepancies with the times on his charts and the fuel receipts. I was not persuaded that his fuel receipts were reliable. The charts did not give a true picture of this work and hence the allegations of four false records. There are too many question marks over what he was doing. He has not adhered to the rules as demonstrated by the Traffic Examiner's report. I find he is not fit by reason of his conduct and I determine that his entitlement be suspended for a period of ten weeks..."
6. The Legal Tests
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