Decision

Decision for Scrap a Car Scotland.com Ltd (OM2058009)

Published 9 May 2023

0.1 IN THE SCOTTISH TRAFFIC AREA

1. WRITTEN DECISION OF THE TRAFFIC COMMISSIONER

1.1 OM2058009 SCRAP A CAR SCOTLAND.COM LTD

2. Background

An application dated 27/06/2022 was made by the operator for a standard national GVOL requesting authorisation for the use of 10 vehicles and 10 trailers. The applicant’s sole director, Mr Lindsay Craft, previously had held a GVOL - OM1097007 Lindsay Craft trading as Scrap a Car Scotland - with authorisation for the use of 1 vehicle and 0 trailers.

Licence OM1097007 was called to a Public Inquiry conjoined with GVOL application OM2001733 – Scrap A Car Scotland.Com Ltd on 28/08/2018 following an adverse report from DVSA Traffic Examiner Cobban. Concerns were raised over whether Mr Craft as a sole trader, or a limited company of which he was director of (Scrap A Car Scotland.com Ltd), were operating up to 9 vehicles unlawfully. The then Commissioner also considered the operator’s failure to notify her offices of Mr Craft’s sequestration on 14/04/2014 as per the undertakings signed up to upon grant of the licence.

The Commissioner’s decision was to revoke Mr Craft’s sole trader licence with immediate effect and to disqualify him from applying or holding an operator’s licence in this or any other traffic area for a period of three years. The GVOL application for OM2001733 was subsequently refused. Mr Craft’s period of disqualification ended on 17 September 2021.

The applicant company had previously applied for a restricted GVOL 27/09/2021, requesting authorisation for the use of 10 vehicles and 10 trailers. That application was withdrawn and my office notified that another application would be made at a later date.

Given Mr Craft’s compliance history, I directed that this current application be considered in full at inquiry.

I apologise for the delay in issuing this decision. That has arisen largely as a result of the volume of business in the traffic area.

3. Evidence

A bundle of documentation was lodged, albeit later than directed, in advance of the inquiry. I had regard to that documentation in reaching my decision. At inquiry, I heard evidence from Mr Craft and his proposed transport manager, Mr Gracie. Mr Craft’s life partner, Ms Cameron, was also in attendance. Mr Kelly, solicitor, appeared on behalf of the applicant company.

Mr Craft told me about his working history. He had begun his career in the army and then worked in various roles until he started his scrap car business.

He told me that he fully accepted that he had erred in the past. He had jumped the gun and operated more vehicles that he was authorised for. The Traffic Commissioner had been right to disqualify him and he held his hands up to the wrongdoing. He had to sell the lorries he had bought and it had cost him dearly. That was now in the past.

[REDACTED].

[REDACTED].

[REDACTED].

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Mr Craft told me he worked seven days per week. He managed the scrap business and worked on the farm. He told me that he employed lots of people in his business that he knew would not be employed elsewhere – he was a social worker, sometimes a money lender when they were hard up and a businessman all rolled into one.

In terms of vehicles, Mr Craft had applied for an authorisation for 10, but he did not need that number to start out. Large vehicles would make it much easier to service his business needs without the need to rely on others. He had smaller vehicles but it was more cost effective and environmentally sound to use larger vehicles.

Mr Craft told me that he had been working with his proposed transport manager in supporting his current fleet. He had known Mr Gracie for years and he had helped him raise standards. Mr Gracie had implemented the necessary systems to ensure compliance. His existing lorries were stopped regularly and checked over. He spoke to Mr Gracie every week and made sure that everything was ok. Mr Gracie had the necessary skills to ensure that proper records were kept and that complimented his own skills in running the business.

The proposed transport manager, Mr Gracie told me he had worked in transport since the early 1980s. He had worked for many companies and had had his own training business. He had encountered some personal challenges and had left his full time role as a result of that.

Mr Gracie advised that he had assisted Mr Craft in the past, but Mr Craft had asked for his help again around September 2022. He had started reviewing the systems which were in place and noted the Mr Craft was not dealing well with the compliance side of things. He was just too busy and had no time to implement systems or to ensure they were working well.

Mr Gracie told me that he then set about implementing systems, such as defect reporting, downloading of driver cards etc. They had implemented a disciplinary process for drivers and had cause to use it in December 2022. He was very aware of his own responsibilities to me as transport manager. With his help he believed that Mr Craft could operate compliantly, and he felt well equipped to challenge him should he discover things were not as they should be.

In submission, Mr Kelly asked me to grant the licence. Despite the serious issue before me and the previous disqualification, he submitted that I could find the operator to have the necessary repute to allow grant. Mr Craft was remorseful and had sincerely apologised for his behaviour. Recent vehicle encounters with DVSA had been clear. An audit undertaking was offered should I be prepared to grant. Mr Kelly also reminded me that I may defer the grant of any application should I choose to do so.

4. Consideration of the evidence and balancing

I find the statutory requirements in relation to finance, stable establishment and professional competence to be met in this case. The operator has more than sufficient [funds and I found Mr Gracie to be diligent and competent is his approach to his duties. This is a case, therefore, which rests solely on whether I am able to find that Mr Craft, as sole director of the operator company, has the necessary repute to be granted a licence.

Mr Craft was disqualified from holding an operator’s licence for a period of three years, which period ended on 17 September 2021. That is a lengthy period for a first disqualification and it undoubtedly reflects the dim view which the former Traffic Commissioner took of Mr Craft’s behaviour, as set out at paragraphs 47-57 of her decision (contained within the brief of papers). She found him to have operated unlawfully and to have been involved in an attempt to circumvent the licensing system via an application made in his partner’s name. He had benefitted materially in failing to notify his sequestration.

Within a few days of the end of his period of disqualification, on 27 September 2021, Mr Craft decided to lodge another application for an operator’s licence. That was shortly after he had committed the section 38 offence which he was convicted of in October. 2021. Following Mr Craft’s conviction, Mr Kelly (quite appropriately) advised Mr Craft that the appropriate course of action would be to withdraw that application. He did so on 28 January 2022. The application before me was made on 27 June 2022. Mr Craft’s conviction remains unspent.

In an application case it is for an applicant to satisfy me that they meet the statutory requirements for the licence. I reminded myself of the importance of the gatekeeper function, in particular, with reference to repute. 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”

Paragraph 1(2) of schedule 3 to the 1995 Act directs me, in assessing whether an applicant company has repute to take into account all of the material evidence, including evidence in my possession relating to the conduct of its directors, where that may relate to the company’s fitness to hold a licence. Mr Craft’s conduct, leading to a lengthy disqualification from operator licensing, is relevant as is his subsequent and more recent [REDACTED].

The existence of an unspent conviction, no matter how serious, may not necessarily require that an application be refused. The decision of the Upper Tribunal in T/2013/46 Shearer Transport Limited, although not quite on all fours with the current case, provides useful guidance in when considering the impact of such convictions on repute. In that case, responding to a submission that the passage of time should be taken into account when considering what weight to attach to evidence of previous convictions, the tribunal at paragraph 7 state:

“…the passage of time is of little benefit if, during the intervening period, there is evidence of deceitful and dishonest conduct. In our judgement, rehabilitation generally depends upon the passage of time coupled with exemplary behaviour during that period.”

The Shearer case concerned a failure to declare unspent convictions and a consideration of loss of repute, rather than its establishment at application stage. However, I find the same principles can be applied in this case. Had I been considering Mr Craft’s repute in light only of his previous conduct and disqualification as an operator then the passage of time may be afforded more weight. However, given the section 38 conviction, there is clearly an absence of exemplary behaviour in the intervening period.

There are positives to weigh in assessing Mr Craft’s repute. I accept that his conviction was not road transport related and that mitigation was offered as regard the stress he was under at the time he committed it. I also accept that he deeply regrets his behaviour and that he underwent rehabilitation, at significant cost, in an attempt to conquer his drug addiction.

Mr Craft has accepted his previous wrongdoing and apologised for it. He has sought out and engaged a competent transport manager. The vehicles he is currently operating seem (certainly since the involvement of Mr Gracie in September 2022) to be being managed well, with clear encounters being recorded. I also acknowledge that Mr Craft runs a successful business, in the course of which he assists many others which may not have had the best of life chances. That is, in my opinion, commendable.

Importantly, I found Mr Craft to be candid and honest in his evidence regarding [REDACTED]

However, even balancing the positives I have identified, there is no escaping the gravity, and relatively recent nature, of Mr Craft’s offending. That must be considered alongside his previous poor conduct as an operator. Having regard to the principles set out in Shearer, and the interruption of the passage of time in this case by serious offending, I cannot consider Mr Craft to be rehabilitated in terms of his repute.

In addition, it is trite law that operator licensing is based on trust. I need to be able to trust operators to comply with the regulatory regime. Mr Craft’s recent conduct indicates that, currently, I cannot.

Moreover, Mr Craft has candidly admitted that he cannot yet, [REDACTED]. The aggressive and irrational conduct he is capable of [REDACTED] means that I cannot countenance handing him a licence to operate heavy goods vehicles at this juncture. The risks to the public are just too great. [REDACTED].

If I cannot trust Mr Craft, then I cannot find him to have repute. The application is therefore refused pursuant to section 13A(2)(b) of the 1995 Act.

What is required for Mr Craft to move forward is exactly what is said in Shearer – the passage of more time and evidence of exemplary behaviour during that period. I appreciate Mr Craft’s eagerness to develop his business. However, he would be well advised to stop snatching at the opportunity to apply at the earliest possible juncture for an operator’s licence as he has done in the past. He should instead set about building a record of exemplary behaviour and only bring that forward when he is absolutely sure that he is able to evidence that he can, once again, be trusted.

Mr Craft has made a good start, by appearing before me and giving such honest and candid evidence in relation to his struggles. He may feel that this has worked against him in this instance, but it has not. I consider it to be the cornerstone upon which Mr Craft can begin to build the necessary trust again.

Mr Craft is, of course, free to apply again at a time of his choosing. However, I suspect it will assist for me to indicate that I would be unlikely to consider any further application favourably before June 2024. That will be three years [REDACTED]. I selected that date as a starting point, rather than the date of conviction, in recognition of the fact that Mr Craft sought professional help [REDACTED] immediately after the offence. However, it is also intended to reflect my concern that such serious offending took place whilst Mr Craft was still subject to a lengthy period of disqualification as an operator.

Claire M Gilmore

Traffic Commissioner for Scotland

15 March 2022