Decision

Decision for B & H HAULAGE LIMITED

Published 1 September 2022

0.1 SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

1.1 PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 15 AUGUST 2022

2. OK1138857 B & H HAULAGE LIMITED

3. Background

The operator B & H Haulage Limited is the holder of a standard national operator’s licence authorising seventeen vehicles granted on the 16 October 2015. The director of the company is Simon Steven Butcher and until 25 July 2022 James Alexander Hearnden was also a director. Mr Hearnden is also the sole director of J & H Haulage Limited which holds a licence authorising 30 vehicles and 4 trailers. Whilst the operator has been called to two previous public inquiries no adverse findings or regulatory action is recorded against them.
Robert Dark has been the transport manager since the 7 June 2022. In September 2021 David Mist was nominated as transport manager and his application was withdrawn in November 2021. He was never formally approved as transport manager and following the withdrawal of his application sent a notification of resignation to the Traffic Commissioner which was received on the 28 January 2022. This stated that his resignation was a result of lack of communication with the directors, use of more vehicles than the licence permits and no investment in training. In the time between the resignation of Mr Mist and the appointment of Mr Dark the transport manager role is said by the operator to have been undertaken by a Paul Sandu and the director Mr Butcher.
On the 21 July 2021 a 32000 kg vehicle EY18GZD was stopped by a DVSA officer and it was found that the driver of the vehicle Peter James Shopland did not have the correct entitlement to drive a vehicle of that weight. It transpired that his entitlement had expired when he failed to undertake a routine medical test. The absence of the correct entitlement on his licence was not picked up by the operator or any of the individuals undertaking the transport manager duties.
On the 19 November 2021 Traffic Examiner Rossiter attended the operating centre having analysed data which had been sent to him by the operator. The outcome of the investigation was unsatisfactory as Mr Rossiter found that driving licence checks were not being made sufficiently regularly or effectively and repeat drivers’ hours and working time directive offences were recorded without disciplinary action being taken or training being carried out.
Apparent offences by a driver Guy Ayscough included an occasion on the 19 July 2021 when Mr Ayscough removed his driver card at 11.54 hours after 4 hours and 20 minutes driving. The vehicle was then driven for 32 minutes between 11.56 and 12.28 and the card reinserted at 12.23. An investigation was undertaken by the “transport manager” David Mist on the 23 November 2021 when Mr Ayscough claimed the vehicle had been driven by a mechanic who had attended the vehicle to fix a fault. In a subsequent interview with Mr Rossiter the driver accepted that this claim was false and that he had driven the vehicle. He also claimed that Simon Butcher had told him what he should do which included completing a driver defect report and taking a printout of the tachograph record both of which contained false details.
A third driver Keith Houlden was also found to have committed offences including two offences of making false records, one of failing to keep records of other work and one of failing to make any records of driving.
On the 25 November 2021 a vehicle EA64GVV was stopped when it was found that the vehicle had ceased to be authorised under the operator licence on the 22 November 2021. On the 14 February 2022 a vehicle GN64FJA was used when the test certificate for the vehicle had expired on the 30 September 2021. An explanation for this omission was submitted on behalf of the operator.
A check revealed that the prohibition rate for maintenance faults was 36.9% against a national average of 23% and these faults included defects which are driver detectable. Drivers’ hours offences have also been recorded including on ten occasions in 2021.
A decision was made to call the operator to inquiry and details of the concerns and allegations were included in the call up letters and inquiry bundle. Three of the drivers, Mr Houlden, Mr Shopland & Mr Ayscough were called to conjoined driver conduct hearings and I will detail my decisions in those cases separately.

4. The Public Inquiry

Director Simon Butcher and former director James Hearnden attended the inquiry and the operator was represented by Ms Evans. The current transport manager Robert Dark had not been called to the inquiry but was invited to attend and did so. Both Mr Butcher and Mr Dark had submitted statements in advance of the inquiry.
Driver Kevin Houlden attended a conduct hearing via video link in the absence of the operator. He admitted the offences as set out by Traffic Examiner Rossiter and in answer to my questions said that nobody within the company encouraged or forced him to commit the offences. He said that he had been spoken to by David Mist in relation to the infringements.

Driver Keith Ayscough attended the conduct hearing in person and admitted the offences set out by Mr Rossiter. It was agreed that of the 14 offences involving driving more than 4.5 hours without taking the required break 11 were at a level where no action would be taken by the DVSA if they were identified at the roadside. In relation to the offence on the 19 July 2021 Mr Ayscough admitted that he had driven after removing his card and the claim that a fitter had attended and driven was false. He said that Simon Butcher had told him to say this had happened and “pretend a mechanic had come out”. He had taken a print-out of the tachograph record about a month afterwards. He said that Mr Mist was not involved in the conversation he had with Simon Butcher. He had done what he did in filling out the defect sheet and print out fraudulently because he thought “he would get away with it.”

In cross examination he repeated that Simon Butcher had told him to complete the defect form and had told him to cover the story by recording “regen” as the reason a mechanic was called. He accepted that David Mist was probably with him when he wrote on the printout and that Mr Mist also filled out the section concerning remedial action on the daily defect sheet. He had been told about infringements when working at B & H but could only remember signing bits of paper and no other action or training took place.
Driver Peter Shopland explained his error in failing to renew his entitlement and not taking the medical test at the time. He said that Mr Mist had checked his licence and not pointed out the omission. He was still employed by the operator and had not recorded any infringements or offences.
Traffic Examiner Rossiter confirmed the contents of his report and the ancillary documentation and said one of the basic problems he found was a failure by the operator to act in respect of the findings revealed by tachograph downloads. In cross examination he said that his visit on the 19 November 2021 was because of the documents he had been sent and Mr Mist was aware of the purpose of the visit. In relation to the false record created by Mr Ayscough on the 19 July 2021 Mr Mist said “I have been lied to” when Mr Rossiter explained his findings. He agreed that he had referred to Mr Mist as the transport manager on some occasions and accepted that this was not the case. Mr Mist was not interviewed as part of the investigation because he had left the company by the time that was being considered. Mr Rossiter said he had been unable to contact him as a potential witness because he did not have an address on record for him. 1080 tachograph records had been examined initially and a further batch following a letter sent on the 12 December 2021. He agreed the offence of 19 July 2021 committed by Mr Ayscough had been picked up by the company and Mr Mist had interviewed Mr Ayscough on the 30 July 2021. Mr Mist said that he realised the documents were false when Mr Rossiter discussed them with him on the 19 November 2021.
Mr Rossiter had examined tachograph documents submitted for the inquiry and highlighted some issues he had with some of these but acknowledged that they showed an improvement when compared to those he had analysed previously.

Mr Butcher confirmed the statement submitted in advance of the hearing and in addition told me that the operator had a total of 20-22 vehicles and had transferred them on and off the licence as they were required. He accepted now that this was practice was not permitted and was in the process of disposing of some of the vehicles. He was adamant he had not been involved in the fraud carried out by Guy Ayscough and had not told him to do what he did. He had relied on Mr Mist as the proposed transport manager and accepted what he had told him at face value in respect of compliance and effective systems. This included the check of Mr Shopland’s driving licence entitlements and the tachograph infringements of other drivers.
Ms Evans closed by submitting that the operator had held the licence for 7 years with 17 vehicles in possession. In 2021/2022 there have been three encounters and the fault for these rested partly with David Mist who was not undertaking his role as proposed transport manager effectively. Some of the offences when a tachograph card was removed whilst the vehicle was in motion would not have been picked up by the software used by the operator. This was not a case where the operator deserved to be put out of business and she addressed me on the impact of other possible regulatory actions.

5. Findings and Decision

The first aspect of this case which I need to decide is whether I find that Mr Butcher was complicit in the false record created by driver Guy Aysclough on the 19 July 2021. In deciding this I remind myself of the guidance provided in paragraph 10 of Statutory Document 10 issued by the Senior Traffic Commissioner which states as follows:

There is only one civil standard of proof, which applies to all proceedings before the traffic commissioner, namely that the fact in issue more probably occurred than not. The House of Lords has clarified that “the civil standard of proof always means more likely than not. The only higher degree of probability required by law is the criminal standard. But as Lord Nicholls explained in Re H some things are inherently more likely than others… cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it is more probable than not”. Secretary of State for the Home Department v Rehman (2011) UKHL 47.
1. With that guidance in mind, I have examined the evidence to decide whether it makes it more probable that Mr Butcher was complicit in the fraud committed by Mr Ayscough. It is admitted by Mr Ayscough that on the 19 July 2021 he falsely recorded a period of rest between 11.54 and 12.23. He appears to have completed a daily defect report dated 19 July 2021 at 12.00 saying “lorry needs regeneration” and the section of the form relating to action taken has been completed in different handwriting. There is no suggestion that Mr Butcher completed this form, and I was told that the handwriting was that of Mr Mist. Whilst undertaking his analysis of the documents he had been sent Mr Rossiter spotted that the version of events being put forward by the driver could not have been correct and alerted Mr Mist to this when he met him on the 19 November 2021. Mr Mist stated “I have been lied to” but does not say who it is he believes has lied to him. When Mr Aysclough is interviewed by Mr Mist on the 23 November 2021 he maintains the pretence that a mechanic had been called and had driven the vehicle and leaves the interview when challenged about this. He states before leaving that “Simon told him the fitter “Jack” had a class 2 licence” but does not at this stage say Mr Butcher had suggested he invent a story to cover up his fraudulent record.
Mr Ayscough was interviewed by Mr Rossiter on the 4 February 2022 and he stated that the mechanic did come out but did not drive the vehicle. He also stated that “there was a defect sheet. When I got back to the yard they made me. I asked Simon what I should do and he did a printout and wrote on it so it covered me basically” He was asked when he made the defect sheet and the print out and he said “it would have been a couple of days later for both”. In fact, the only tachograph printout which Mr Rossiter had, and which was produced in evidence was made one month after the date in question and contains no details to explain why a manual entry was made. In evidence before me Mr Aysclough said that Simon Butcher had told him to say this had happened and “pretend a mechanic had come out”. Mr Butcher in his evidence denied that any of what Mr Aysclough had said was true and said that he had no part in the fraudulent record.

Bearing in mind the need for cogent evidence I have considered the following facts. Mr Aysclough has been inconsistent in his recollection of what happened on the 19 July 2021 and when the documentation was falsely created. He said that he was told to create the false defect sheet “when he got back to the yard” and later said it was done a few days afterwards. He said that “Simon did a printout and wrote on it so it covered me” but the print out I saw was created a month after the event and had only Mr Aysclough’s writing on it. I also note the 19 July 2021 was two days before the stop of Mr Shopland which was the first flag to the operator that their compliance would be under consideration. Mr Aysclough had falsely recorded a rest period presumably in the hope that the operator would not spot an infringement. His story is that nevertheless that same employer told him to invent a circumstance so that the infringement would not be picked up. In fact, he was spoken to by Mr Mist on the 30 July 2021 when a false statement about the attendance of a fitter was first made. If Mr Aysclough version of events is believed the reason would need to be that the director Mr Butcher was trying to prevent the transport manager Mr Mist from discovering the truth. In the absence of a statement from Mr Mist and his attendance this suggestion cannot be properly tested.
Whilst I am suspicious as to what precisely did occur, I am not satisfied to the standard of proof required that Mr Butcher was complicit in the fraudulent record and subsequent attempted deception carried out by Mr Aysclough. The inconsistencies in the evidence and lack of documentary corroboration lead me to that conclusion.
Having made my initial finding as above I nevertheless find that there a significant number of serious failings by this operator. The number and type of prohibitions being found, the level of driver’s hours offences and infringements, the use of a vehicle without an MOT, the use of an unauthorised vehicle and the failure to spot that a driver did not have the required entitlement all point to an operator whose compliance levels were well below what is required. There have been breaches of Section 6 and 26 (1) (c) (ca) and (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995. In deciding what action to take in relation to the breaches I need to balance the negative factors with the positive. Positive factors in this case are the good MOT pass rate and the fact that the new transport manager Mr Dark has been recruited and appears to be making improvements to systems and practice albeit that there is still some way to go. With reference to Statutory Document 10 issued by the Senior Traffic Commissioner I find that this case falls into the category of serious to severe taking into account the range and level of non-compliance.
Having made those findings I have to decide whether the operator is fit to hold a licence and I have asked myself the question as set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words - can the operator be trusted going forward? My answer to this question is in the affirmative but it is not overwhelmingly positive. I have had to think carefully about the impression I was given about the culture pertaining with this operator and whether I can give them a further chance. I am prepared to do so but this is unlikely to happen again. The repute of the director Simon Butcher is severely tarnished. He accepts that he should have done more, and he did not. I also find that the repute of former director James Hearnden is severely tarnished. He resigned as a director on 25 July 2022 and said that was because he realised all his attention had been towards another business and operator licence. I believe that it is more likely he resigned as a director hoping to avoid his repute coming under consideration. At the time this non-compliance happened he was a director and carried responsibility equally with Mr Butcher. I have been told Mr Butcher was unwell during this period which is even more reason for Mr Hearnden to step in and carry out his responsibilities as a director.
As regulatory action against the operator I order that the licence is curtailed to 13 vehicles and 10 trailers with effect from the 00.01 hours on the 5 September 2022. Details of the vehicles to be taken off the licence to be supplied to the Office of the Traffic Commissioner within 7 days of this decision being sent out. I remind the operator that the model whereby a pool of vehicle is retained and used within the terms of the licence as required must cease immediately.
I also seek an undertaking for an independent audit of the transport operation which should be carried out in December 2022. I will expect to see a high level of compliance and evidence that my concerns about the culture of the operation have been answered.
In relation to Mr Mist I ask that a note be placed on file that if he applies to be a transport manager on a licence in the future the contents of this decision are taking into account in considering his suitability.
Finally I request that if the current transport manager Mr Dark resigns his position he writes to me with a full explanation of his reasons for doing so.

John Baker

Deputy Traffic Commissioner

18 August 2022