Decision

Decision for Mr Duncan John Blackburn McKee (Operator)

Published 11 May 2022

REDACTED VERSION

WARNING - THE PRINCIPAL DECISION IN THIS CASE CONTAINS CONFIDENTIAL INFORMATION AND MUST NOT BE ISSUED TO THIRD PARTIES WITHOUT THE EXPRESS PERMISSION OF OR EDITING BY THE TRAFFIC COMMISSIONER. THIS IS THE REDACTED PUBLIC VERSION.

IN THE SCOTTISH TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER FOR SCOTLAND

1.1 In the matter of the

2. Duncan John Blackburn McKee OM2040229

3. Public Inquiry held at Edinburgh on 29 and 30 April 2021

4. Background

I directed that Mr Duncan John Blackburn McKee’s (hereinafter referred to as ‘Mr McKee’) application for an operator’s licence (OM2040229) be considered at public inquiry alongside an inquiry in relation to his father’s (hereinafter ‘Mr McKee senior’) operator licence OM1137607. The inquiries were conjoined with driver conduct hearings in relation to the vocational driving entitlement of Mr McKee, Mr McKee senior and a number of other driver conduct hearings in respect of other drivers who had worked for Mr McKee senior.

Mr McKee was in attendance at the public inquiries and his driver conduct hearing on 29 and 30 April 2021. He was represented by Mr McAteer, solicitor advocate. Mr McAteer advised that he had previously acted for Mr McKee and his wife Mrs Mary McKee but he had accepted instructions in advance of the inquiry from Mr McKee and now acted solely for him.

Reports were submitted to my office by TE Haddow in relation to Mr McKee’s alleged conduct as a driver while working for his mother and father. I heard detailed evidence from Traffic Examiner Haddow during the proceedings on 29 and 30 April 2021 in relation to her investigation and findings. I also heard evidence from several of Mr McKee senior’s other drivers.

Following careful consideration of the evidence in relation to Mr McKee senior’s conduct as an operator, I found that he had few or no systems in place for the management of drivers’ hours or to ensure compliance with the laws on driving. That failure had led to significant numbers of serious infringements on the part of drivers going unnoticed, which had in turn impacted on fair competition and given rise to a significant risk to road safety.

Of grave concern was Mr McKee senior’s failure to co-operate with DVSA during their investigation. TE Haddow described it as the worst case of failure to co-operate that she had ever seen. In the absence of any explanation to the contrary, I concluded that such a failure amounted to deliberate concealment of repeated failures to comply with the law and his operator’s licence undertakings.

I found that, as a result of their actions, Mr McKee senior and his wife and transport manager Mrs Mary McKee had shown a complete disregard for the law of the road and of their statutory obligations as operator/transport manager. I revoked Mr McKee senior’s operator licence and disqualified him from holding an operator’s licence for an indefinite period on 30 April 2021.

At the conclusion of the proceedings Mr McKee requested that he be allowed time to lodge additional supporting documentation in relation to his own application for an operator’s licence. I allowed that and additional documentation was lodged with my office on 14 September 2021.

Given the closely connected nature of the evidence in the cases before me, I delayed in issuing this decision so that it could be issued along with my decisions in relation to the driver conduct decisions for both Mr McKee and his father. I apologise for the subsequent delay in issuing this decision which has arisen largely as a result of the impact of the COVID 19 pandemic on resources.

5. Evidence

TE Haddow’s evidence was that her investigations into Mr McKee senior’s transport operation had highlighted driver’s hours infringements and other concerns in relation to Mr McKee’s behaviour as a driver. It was alleged that he had committed numerous driver’s hours infringements, including rest and falsification offences. Moreover, her opinion was that Mr McKee was, at least in part, responsible for creating the culture of disregard for the rules in relation to drivers’ hours that existed in his parents’ transport operation.

TE Haddow also considered it likely that Mr McKee had deliberately positioned a number plate in one of his father’s vehicles such as to render it undetectable by ANPR cameras. She further alleged that Mr McKee was in possession of more than one digital driver card for the period September 2018 until February 2019, the intention of which was to falsify records.

Mr McKee denied having falsified records or having placed a number plate so as to avoid recognition by cameras. He also denied being in possession of two driver cards with intent to falsify records. He conceded that he had probably committed the drivers’ hours infringements identified but claimed that was as a result of ignorance rather than deliberate flouting of the rules.

Mr McKee told me that he wanted his own operator’s licence so that he could continue in the haulage business. He had other business interests, but he had grown up around lorries and loved driving. His parents were now retired. They would have nothing to do with his business if his licence were granted. He knew that things had not been properly managed in his parents’ business but he was just a driver for them. He was adamant that his business would not be a front for them.

[REDACTED].

Mr McKee told me of his desire to get things right in his business ventures from now on. He spoke of the charitable work that he was undertaking with schoolchildren through his business. He made sure that the children who had less money still ate well in his chip shop and did not suffer discrimination. He had devised a cashless scheme and was in discussion with teaching staff at a nearby school to discuss the implementation of that.

I also heard briefly from Mr McKee’s proposed transport manager, Mr Young. Mr Young had only recently left the armed forces but he had 13 years of experience in logistics therein. Mr Young told me he worked full time, but he would still try and see Mr McKee once a day. This was his first proposed transport manager assignment, but he told me he had agreed with Mr McKee the duties he would undertake. He would ensure the transport operations were run properly.

I asked Mr Young if he had if he had a contract of employment. He told me that he did and that he had signed a contract the week before. He advised that he could not produce it because he had left a copy of it in his car. When I suggested that he retrieve it, he told me that his car was at the railway station.

I carefully considered all of the evidence in respect of the allegations of falsification and infringements on the part of Mr McKee in the context of considering his fitness to hold his vocational driving entitlement. A copy of my decision in that regard is annexed to this decision. I refer to it for its terms and hold it to be incorporated herein brevitatis causa.

I found that Mr McKee had falsified records on at least 18 separate occasions during the period April 2018 – March 2020 by either pulling his driver card or by using his father’s digital driver’s card. I also found that he had ordered a replacement digital driver card with the intention of falsifying records. I was unable to conclude on the evidence before me that Mr McKee was responsible for directing the culture of lawlessness in his parents’ transport operation. However, it was clear that he played an active part in perpetuating it.

Mr McKee did not lodge any productions at the time of the inquiry in relation to proof of financial standing or otherwise. I allowed further time on his request for supporting documentation to be provided. In September 2021, Mr McKee submitted a bank statement and a document which purported to be the contract between him and his proposed transport manager, Mr Young. The bank statement submitted had no identified account holder. The transactions thereon showed sufficient funds only being transferred in only after the reminder request for documentation was sent by my office.

The purported transport manager contract had been completed with names. It was, however, lacking in other detail and was not signed.

6. Consideration of the evidence and balancing

[REDACTED].

[REDACTED].

[REDACTED]. That evidence, however, was entirely inconsistent with my findings that he had falsified records and participated in a culture of lawlessness in his parents’ transport operation between 2018 and 2020. [REDACTED]. I find that Mr McKee has simply continued, wilfully and repeatedly, to break the law of the road. His behaviour, therefore, is far from exemplary.

Even balancing in the positive of Mr McKee’s charitable work and his candid approach to the [REDACTED], which are the only positives I can find in this case, I am unable to find that Mr McKee has repute for the purposes of section 13A(2) of the 1995 Act.

Moreover, there was insufficient evidence before me to allow me to conclude that Mr McKee met the required financial standing for the licence. The bank statement lodged on his behalf in support of the application had no name on it.

Mr Young, Mr McKee’s proposed transport manager, told me that he had signed a contract with Mr McKee the week before the inquiry. He advised that he could not produce it because he had left a copy of it in his car. When I suggested that he could retrieve it, he told me that his car was at the railway station. However, Mr McKee later produced a purported contract between himself and Mr Young, which was undated and unsigned. Had a signed and dated copy of the contract already existed, as Mr Young stated, I would have expected that to have been lodged.

I did not believe Mr Young’s evidence that he had already signed a copy of the contract which he had left in his car. It is simply not credible particularly when considered in light of the document later lodged by Mr McKee. Having found that I am unable to rely on his evidence generally, I cannot find that he has the requisite repute to be appointed as a transport manager on this licence. An adverse finding in terms of section 13A(3) is therefore made out.

Immediately in advance of issuing this decision it was brought to my attention that Mr Young had been appointed, erroneously, under delegation, as transport manager on another licence (OM2016285 Grant Mitchell) in September 2021. My findings in this decision clearly have potential implications for Mr Young’s appointment on that licence. I direct, therefore, that the operator of licence OM2016285, and Mr Young, are placed on notice of my findings in this case and advised that they may be called to public inquiry as a result.

It is for an applicant to satisfy me that they meet the statutory requirements for the licence applied for. Mr McKee has failed to do so. In Aspey Trucks Ltd 2010/49 the Upper Tribunal set out the role of the Traffic Commissioner in considering an application. They said:

“In a case such as this, the Deputy Traffic Commissioner was not looking at putting someone out of business. Rather, he was deciding whether or not to give his official seal of approval to a person seeking to join an industry where those licensed to operate on a Standard National or Standard International basis must, by virtue of S.13(3), prove upon entry to it that they are of good repute. In this respect, Traffic Commissioners are the gatekeepers to the industry – and the public, other operators, and customers and competitors alike, all expect that those permitted to join the industry will not blemish or undermine its good name, or abuse the privileges that it bestows. What does “Repute” mean if it does not refer to the reasonable opinions of other properly interested right-thinking people, be they members of the public or law-abiding participants in the industry”

Given my findings in this case, I cannot countenance giving this applicant my official seal of approval. He is unfit to join this industry. His application for a licence is refused.

Claire M Gilmore

Traffic Commissioner for Scotland 8 March 2022

Annex – Driver conduct hearing decision for John Blackburn McKee (see decision here)