Statutory guidance

Senior Traffic Commissioner Statutory Document No. 15

Updated 15 October 2021

The following is an accessible alternative to the original PDF statutory document. Every effort has been made to replicate the original faithfully, but this has not always been possible. There will be instances below where the formatting required to fit within an HTML document has not allowed the original content to be transposed directly. Footnotes have also been incorporated into the body of the text, as have some tables. In case of doubt reference should be made to the original document.

1. Guidance

The Senior Traffic Commissioner for Great Britain issues the following Guidance under section 4C(1) of the Public Passenger Vehicles Act 1981 (as amended) and by reference to section 1(2) of the Goods Vehicles (Licensing of Operators) Act 1995 to provide information as to the way in which the Senior Traffic Commissioner believes that traffic commissioners should interpret the law in relation to appeals against the removal of international road transport permits.

1.1 The International Road Transport Permits (EU Exit) Regulations 2018

(Section 1 Haulage Permits and Trailer Registration Act 2018)

For the purposes of these appeals the relevant regulations (as amended) came into force on 21st November 2018. The Regulations apply to use of a goods vehicle for the carriage of goods for hire or reward on an international journey. In order to undertake such a journey to or through a relevant country or Member State, the operator must carry a valid permit (or a valid UK Licence for the Community if applicable) for each part of the journey. Regulation 26 sets out the details which must be specified on the permit. Regulations 5 to 18 refer to the exemptions for relevant countries (Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Georgia, Kazakhstan, Kosovo, Montenegro, Morocco, Russian Federation, Serbia, Tunisia, Ukraine, relevant Member States of the EU with reference to Schedule 1 – see Annex 1). Regulation 19 provides that the Secretary of State may grant a temporary exemption for the purpose of addressing an emergency or some other special need (Section 3A the Goods Vehicles (Licensing of Operators) Act 1995). An operator must apply to the Secretary of State for a permit within the terms set out in regulations 20 and 21. Regulation 23 allows the Secretary of State to designate the number of permits to be granted where a relevant international agreement restricts the number of permits available for international journeys to, in or through that country or Member State. The Secretary of State may alter or remove a designation. In advance of granting a permit the Secretary of State must, where relevant, consider:

• the exhaust emissions of the relevant goods vehicle(s);

• the goods which the applicant intends to carry under the permit;

• the frequency which the applicant intends to use the permit;

• the proportion of journeys made by the applicant annually, which are international.

The Secretary of State is permitted to use random selection and to take account of any other matters which the Secretary of State considers appropriate in determining whether to grant a permit.

Where an operator is granted a permit under regulation 25, that operator must keep a record of any international journey made using that permit and must provide the Secretary of State with a copy of that record upon request.

The Secretary of State may cancel a permit under regulation 27 on the following grounds:

• the operator’s licence is revoked, suspended or curtailed under section 26 or 27 of the 1995 Act or equivalent legislation for Northern Ireland;

• the operator breaches any condition attached to that permit and fails to remedy that breach within 20 working days of notification;

• the operator is guilty, in respect of that permit, of an offence under sections 173 or 174 of the Road Traffic Act 1988 (with equivalent provision for Northern Ireland);

• the operator requests that the permit is cancelled.

The Secretary of State must give the operator notice of at least 20 working days of a decision to cancel a permit and must notify the operator of the reasons for that decision. Subject to an appeal, the permit will cease to have effect on the date specified in the notice.

Where the Secretary of State decides to cancel a permit, an operator may appeal in Great Britain, to a traffic commissioner under regulation 28. An appeal must be brought within 20 working days of the date on which the operator was notified of the Secretary of State’s decision to cancel the permit.

On appeal, the traffic commissioner must:

a) consider any written representations made and any evidence provided when the appeal is brought;

b) inform the appellant of the outcome of the appeal within a period of 56 days, beginning with the day on which the appeal was brought;

c) provide reasons for the determination.

Paragraph 3A of the regulations allows for the traffic commissioner to extend the period of time for the determination of the appeal where it is considered necessary for the particular case to be dealt with fairly and justly. Traffic commissioners should record their reasons for doing so.

The presiding traffic commissioner may give such directions as that traffic commissioner considers appropriate to give effect to the determination. The traffic commissioner’s decision is, subject to any application for judicial review, binding on all parties affected by the determination.

1.2 Case Law

This Guidance may be subject to decisions of the higher courts and to subsequent legislation. As the appeal process has not been the subject of litigation the Senior Traffic Commissioner has extracted the following principles and examples from existing case law which may be applied.

The regulations, similar to an appeal under the licensing regime, give wide powers to the appellate body to give such directions as may be appropriate to give effect to the determination (The Upper Tribunal is the appellate body for permit decisions in respect of Northern Ireland, whilst traffic commissioners are the body for such decisions in Great Britain). As can be inferred from the grounds for removal of a permit the function of the traffic commissioner is not equivalent to an appeal to the Crown Court in criminal proceedings, which is treated, in effect, as a new first instance hearing with evidence being examined a second time.

The Court of Appeal considered the approach to be adopted on appeal within the context of the operator licensing regimes in Bradley Fold Travel Ltd and Another v Secretary of State for Transport [2010] EWCA Civ 695. Leveson LJ set out the law, with reference to the judgment in Subesh & Others v Secretary of State for the Home Department [2004] EWCA Civ 56 in which Laws LJ identified the usual course on appeal and highlighted “the law’s acknowledgement of an important public interest, namely that of finality in litigation. The would-be appellant does not approach the appeal…as if there had been no first decision….The first instance decision is taken to be correct until the contrary is shown.”

The Court of Appeal stated that it is not enough that the appellant court “might prefer a different view because the burden is on the appellant to show that the process of reasoning and the application of the relevant law, require it to adopt a different view”. In R (Jones) v First Tier Tribunal (Social Entitlement Chamber) and Another [2013] UKSC 19, 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 only party to the appeal is the appellant. The legal onus is on the appellant to satisfy the presiding commissioner that, on the material available to the Secretary of State at the time, the decision was plainly wrong. In other words, the presiding commissioner has to ask whether the process of reasoning and the application of the relevant law required the Secretary of State to come to a different conclusion. That may require the presiding commissioner to consider the process behind the individual decision, which is the subject of appeal, including the reasons given in the notice of that decision.

1.3 Following Process

The Secretary of State should act lawfully, rationally and fairly, in a manner which is compatible with the human rights of those who are affected by their actions. Specific requirements within regulation 27 are intended to ensure the fairness of the decision-making process by giving notice to the relevant operator. Some of the grounds for cancelling a permit rely on findings which are a matter of public notice whereas others might require consideration of the evidence upon which the decision was based.

1.4 Sufficiency of reasons

There are long-established common law duties on public bodies to ensure the sufficiency of reasons. The Supreme Court has held that the duty to give reasons goes beyond a tribunal (Mallak v Minister for Justice Equality and Law Reform [2012] IESC 59).

The Court of Appeal has considered the question of whether there is a general requirement as to the sufficiency of reasons: “The giving of reasons may among other things concentrate the decision-maker’s mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached or alternatively alert the recipient to a justiciable flaw in the process. On the other side of the argument, it may place an undue burden on decision makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge.” (R. (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 and adopted the same approach outlined by Sedley J in R. v Higher Education Funding Council Ex p. Institute of Dental Surgery [1994] 1 W.L.R. 242)

Traffic commissioners are assisted by two guiding principles: a party is entitled as a matter of law to know why an adverse decision has been reached, and the decision-maker is obliged to demonstrate that they have conducted the appropriate balancing exercise and reached a decision based only on relevant matters. There is no need to set out every trivial factor or combination that has no influence on the decision. There are generally three main elements to the decision-making process: the relevant factors should be identified; each relevant factor should be assessed; and third, the analysis must indicate the weight or significance that has been attached to the relevant factors.

1.5 Case Management

The responsibility for making a determination is vested in the presiding traffic commissioner considering that particular appeal. That traffic commissioner will act as a single person appellate tribunal and exercise any discretion with regard to the principle of proportionality as enshrined in British, direct EU and human rights law. The independence and impartiality of traffic commissioners is guaranteed as part of the obligations on the State. The essential requirement is one of fairness but there should be no doubt as to the issues being raised.

In exercising this appellate function traffic commissioners must have regard to the decisions of the higher courts and the principle of proportionality in deciding what is commensurate with the circumstances of each individual case. The Senior Traffic Commissioner has extracted the following principles and examples from existing legislation and case law to be used as a general approach.

In managing a case it may be useful for a traffic commissioner to make directions for the parties to follow so that the case is in a state to be heard and that parties are not disadvantaged (See Statutory Guidance and Statutory Directions on Case Management for general assistance). It is conceivable that a party may make a request for copies of specified documents relied upon by the decision-maker. Where a party obtains relevant documentation there is an expectation that it should be supplied to the presiding commissioner. Legally qualified representatives act under professional duties to assist the tribunal.

Regulation 28 requires the traffic commissioner to inform the appellant of the outcome of an appeal within a period of 56 days of the date upon which an appeal was brought. As a matter practicality, the appeal form must be complete in order for the traffic commissioner to consider its contents. When in force, Regulation 28(3A) provides a discretion:

“Where a traffic commissioner considers it is necessary for a particular case to be dealt with fairly and justly, the traffic commissioner may extend the period of time described in paragraph (3)(b) for a period that the traffic commissioner considers appropriate in the circumstances of the case.”

The regulations do not require a hearing and the grounds for appeal are limited. Drawing on the experience of traffic commissioners and the Upper Tribunal case law on impounding cases, if the issues or facts are straightforward, then the traffic commissioner may proceed to consider the appeal on the papers. The presiding traffic commissioner may make a determination with or without a hearing, but in deciding whether a hearing is required a traffic commissioner should have regard to any view expressed by a party whether to hold a hearing to consider any matter, and the form of any such hearing. In the interests of justice any hearing will usually be open to the public unless the case involves evidence where the traffic commissioner is of the opinion that the interests of justice are best served by all or part of the proceedings being heard in private.

Any person entitled or permitted to appear may do so on his or her own behalf or can be represented by counsel (barrister) and/or a solicitor. There is no provision for free representation. Other potential representatives such as transport consultants can only appear with the permission of the traffic commissioner.

If a party fails to attend a hearing, the traffic commissioner may proceed with the hearing if satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing (See Statutory Guidance and Statutory Directions on Case Management ); and the traffic commissioner considers that it is in the interests of justice to proceed with the hearing.

2. Directions

The Senior Traffic Commissioner for Great Britain issues the following Directions to traffic commissioners under section 4C(1) of the Public Passenger Vehicles Act 1981 (as amended) and by reference to section 1(2) of the Goods Vehicles (Licensing of Operators) Act 1995. These Directions are addressed to the traffic commissioners in respect of the approach to be taken by staff acting on behalf of individual traffic commissioners and dictate the operation of all delegated functions. (See Statutory Guidance and Statutory Directions on Delegation of Authority )

Subject to the Senior Traffic Commissioner’s power to deploy traffic commissioners under section 4B of the above Act, appeals will usually be heard by the traffic commissioner in whose traffic area the operator is based. The Office of the Traffic Commissioner must inform the traffic commissioner as soon as reasonably practicable of the receipt of an appeal.

2.1 Appeals to the Traffic Commissioner and Accompanying Time Limits

An appeal must be delivered to the Office of the Traffic Commissioner so that it is received within 20 working days of the date on which the operator was notified of the decision to cancel the permit. Notices given after 4.30 pm on a working day will be treated as given on the next working day (See regulation 2). Where there is any doubt as to whether an appeal has been brought in time that issue must be raised with the traffic commissioner.

The appeal must identify in writing the decision, which is subject to appeal, the grounds for that appeal, and provide such details relating to the appellant and its representative so as to allow for the proper management of the case. Where there is any doubt as to whether sufficient details have been provided that issue must be raised with the traffic commissioner.

The onus is on the applicant to satisfy the traffic commissioner that the grounds for the appeal are made out. The Office of the Traffic Commissioner must inform the appellant of the outcome of the appeal within 56 days beginning with the day on which the appeal was brought, unless the traffic commissioners makes a direction under regulation 28(3A) that the period of time should be extended in order for that appeal to be dealt with fairly and justly. Where that direction is made the appellant should be informed in writing as soon as is practicable.

As a result, staff must inform the traffic commissioner as soon as an application is received and put a submission to the traffic commissioner requesting any case management directions. The traffic commissioner must then consider the appeal form and accompanying copy of the Secretary of State’s decision and determine whether the appeal can be dealt with on the papers or whether the application should be listed for a hearing. In any event, all actions should be carried out as quickly as possible and within the timescales specified by legislation and as directed by the presiding commissioner.

On receipt of an appeal, staff of the Office of the Traffic Commissioner should also notify the Secretary of State that the decision to cancel a permit is now the subject of an appeal.

Staff of the Office of the Traffic Commissioner must ensure that the presiding commissioner has all the information necessary to make a determination on that appeal. The findings required in order to cancel a permit are well within the legal competency of those acting under the authority of the Secretary of State:

• the revocation, suspension or curtailment of the operator’s licence, will be a matter of public record;

• any condition attached to a licence will be the subject of correspondence or on the face of the permit at grant; similarly, where an operator requests that the permit is cancelled, that should be the subject of a documentary record;

• staff should undertake checks to ensure that the individual who offered the surrender had the right to do so. Where the operator is a corporate entity and in administration, liquidation, or receivership, surrender would require authority from the relevant insolvency practitioner;

• where the Secretary of State’s decision is based on findings regarding sections 173 or 174 of the Road Traffic Act 1988 (or equivalent provision for Northern Ireland), the notice of the Secretary of State’s decision to state the reasons for that decision.

2.2 Hearings

Where a traffic commissioner decides to convene a hearing, the Office of the Traffic Commissioner should give any party reasonable notice of the time and place of the hearing (including any adjourned or postponed hearing) and any change to the time and place of the hearing. That will normally involve 14 days’ notice, but a shorter period may be given either with the parties’ consent; or in urgent or exceptional cases.

The traffic commissioner is entitled to expect that the appellant will attend a hearing. Where a company or other corporate body is called to a hearing a director is expected to attend. If the traffic commissioner cannot be satisfied that the person before them has the requisite authority to speak on its behalf, then the traffic commissioner is entitled to ask for authority to be produced or to find that the company is not present. The company or other corporate body should therefore seek permission from the traffic commissioner to substitute a director before any hearing.

If the applicant requests a hearing, then the traffic commissioner dealing with the matter is obliged to take that request into account when considering whether to convene one. The traffic commissioner must decide whether a decision can be reached by considering the written representations or whether fairness requires that a hearing be held.

2.3 Determination of appeal

Having considered all the evidence the traffic commissioner will decide on the application and notify the applicant in writing within 56 days of receipt of the completed appeal form and no later that 28 days of the conclusion of the hearing, where the traffic commissioner has extended that timetable under regulation 28(3A). In either case the decision of the traffic commissioner must specify the ground/s upon which the appeal either succeeds or fails. The Office of the Traffic Commissioner must ensure that the appellant is informed of the traffic commissioner’s decision within the given timetable. The effect of an appeal is to suspend the impact of the Secretary of State’s decision to cancel the permit. If the presiding commissioner upholds the decision of the Secretary of State to cancel the permit, it may be necessary to make a further direction as to when that determination should take effect. The letter communicating the determination must clearly set out the date upon which any permit may cease to have effect.

2.4 Appeals

The decision letter must also contain reference to the limited right of appeal. If the relevant traffic commissioner decides to uphold the initial decision of the Secretary of State, that decision can only be challenged by way of judicial review. In England and Wales an application is made to the Administrative Court, one of the specialist Divisions of the High Court. In Scotland a petition is raised in the Outer House of the Court of Session. Judicial Review is the process by which these higher courts review acts done by public authorities or a review of a court or a tribunal decision. The review will concentrate on any procedural issues and whether the decision was correct according to the law. (https://www.gov.uk/government/publications/form-n461-judicial-review-claim-form-administrative-court or https://www.gov.uk/government/publications/administrative-court-judicial-review-guide)

3. Annex 1 – Exemptions

See this downloadable table summarising the law in relation to exemptions as detailed in regulations 5 to 18 and Schedule 1 of The International Road Transport Permits (EU Exit) Regulations 2018. Regulation 4(1) does not apply to the use of a goods vehicle on the part of an international journey which takes place in the country listed below where that vehicle is being used for the carriage of the following goods.

Regulation 19 allows the Secretary of State to grant a temporary exemption from the prohibition in regulation 4 for the purpose of enabling an emergency or some other special need to be dealt with. A temporary exemption may be granted by giving notice in writing to the operator to whom it relates or by publishing a notice specifying the class of operators to whom it relates.

4. Annex 2 – Legislation (Road Traffic Act 1988)

4.1 173 Forgery of documents, etc.

(1) A person who, with intent to deceive— (a) forges, alters or uses a document or other thing to which this section applies, or (b) lends to, or allows to be used by, any other person a document or other thing to which this section applies, or (c) makes or has in his possession any document or other thing so closely resembling a document or other thing to which this section applies as to be calculated to deceive, is guilty of an offence.

(2) This section applies to the following documents and other things— (a) any licence under any Part of this Act, (b) any test certificate, goods vehicle test certificate, plating certificate, certificate of conformity or Minister’s approval certificate (within the meaning of Part II of this Act), (c) any certificate required as a condition of any exception prescribed under section 14 of this Act, (cc) any seal required by regulations made under section 41 of this Act with respect to speed limiters, (d) any plate containing particulars required to be marked on a vehicle by regulations under section 41 of this Act or containing other particulars required to be marked on a goods vehicle by sections 54 to 58 of this Act or regulations under those sections, (dd) any document evidencing the appointment of an examiner under section 66A of this Act,] (e) any records required to be kept by virtue of section 74 of this Act, (f) any document which, in pursuance of section 89(3) of this Act, is issued as evidence of the result of a test of competence to drive, (ff) any document evidencing the successful completion of a driver training course provided in accordance with regulations under section 99ZA of this Act, (g) any certificate under section 133A or anybadge or certificate prescribed by regulations made by virtue of section 135 of this Act, (h) any certificate of insurance or certificate of security under Part VI of this Act, (j) any document produced as evidence of insurance in pursuance of Regulation 6 of the Motor Vehicles (Compulsory Insurance) (No. 2) Regulations 1973, (k) any document issued under regulations made by the Secretary of State in pursuance of his power under section 165(2)(a) of this Act to prescribe evidence which may be produced in lieu of a certificate of insurance or a certificate of security, (l) any international road haulage permit. (m) a certificate of the kind referred to in section 34B(1) of the Road Traffic Offenders Act 1988.

(3) In the application of this section to England and Wales “forges” means makes a false document or other thing in order that it may be used as genuine.

4.2 174 False statements and withholding material information.

(1) A person who knowingly makes a false statement for the purpose— (a) of obtaining the grant of a licence under any Part of this Act to himself or any other person, or (b) of preventing the grant of any such licence, or (c) of procuring the imposition of a condition or limitation in relation to any such licence, or (ca) of obtaining a document evidencing the successful completion of a driver training course provided in accordance with regulations under section 99ZA of this Act, or (d) of securing the entry or retention of the name of any person in the register of approved instructors maintained under Part V of this Act, or (dd) of obtaining the grant to any person of a certificate under section 133A of this Act, or (e) of obtaining the grant of an international road haulage permit to himself or any other person, is guilty of an offence.

(2) A person who, in supplying information or producing documents for the purposes either of sections 53 to 60 and 63 of this Act or of regulations made under sections 49 to 51, 61, 62 and 66(3) of this Act— (a) makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular, or (b) produces, provides, sends or otherwise makes use of a document which he knows to be false in a material particular or recklessly produces, provides, sends or otherwise makes use of a document which is false in a material particular, is guilty of an offence.

(3) A person who— (a) knowingly produces false evidence for the purposes of regulations under section 66(1) of this Act, or (b) knowingly makes a false statement in a declaration required to be made by the regulations, is guilty of an offence.

(4) A person who— (a) wilfully makes a false entry in any record required to be made or kept by regulations under section 74 of this Act, or (b) with intent to deceive, makes use of any such entry which he knows to be false, is guilty of an offence.

(5) A person who makes a false statement or withholds any material information for the purpose of obtaining the issue— (a) of a certificate of insurance or certificate of security under Part VI of this Act, or (b) of any document issued under regulations made by the Secretary of State in pursuance of his power under section 165(2)(a) of this Act to prescribe evidence which may be produced in lieu of a certificate of insurance or a certificate of security, is guilty of an offence.