Decision

Decision for Kevin King & Sons Transport (OC1122141) and K D Plant and Haulage Ltd (OC2045076) and drivers: Kevin King and (Redacted)

Updated 19 April 2023

1. Background

Kevin King is the holder of a Standard International Licence as a sole trader, trading as Kevin King and Sons Transport (“the operator”). The licence was granted in August 2013 and four vehicles and four trailers are authorised on the licence.

K.D. Plant and Haulage Ltd (“the operator company”), hold a Standard National Operator’s Licence authorising three vehicles and three trailers. The licence was applied for on 10th May 2021 with Debbie Wallace (Kevin King’s partner) named as the sole director and Philip Ridgway nominated transport manager.

On the 4th May 2021, the operator was subject to a DVSA maintenance and traffic compliance investigation. The maintenance investigation was marked as mostly satisfactory.

The traffic investigation into drivers hours and compliance systems raised a number of matters of concern. The operator did not provide all the data requested initially, but an analysis of the data files for 2 of the 3 vehicles being used was carried out for the months of August, September and October 2020.

The analysis revealed a number of occasions where at the end of permitted driving periods a driver card was withdrawn and another driver’s card inserted in less than 30 seconds.

DVSA Traffic Examiner Johannah Groom, arranged an interview with Mr King for 2nd July 2021. He failed to attend without prior notice to DVSA. A second interview was arranged for 7th July 2021. He again failed to attend. A third appointment was made for 9th October 2021 and again Mr King did not attend.

On 2nd September 2021 [REDACTED] attended for interview in relation to the drivers’ hours and other potential offences. He admitted to being in possession of Mr King’s driver card and to using that card on 20 occasions to seek to cover up driving time offences.

Critically, [REDACTED] stated that Kevin King had given him his driver card to use and that he had been “pressured” by Mr King into using it.

Kevin King attended for interview with Mr Powell, solicitor, on 12th November 2021. He accepted that as operator and transport manager he had failed to identify the offences but stated that, following a serious motorcycle accident on 19th July 2020, he had left his digital driver card in his truck and was unaware of its use by [REDACTED].

By a call-up letter dated 22nd December 2022, the operator was called to attend a public inquiry. The licence granted to the operator company was called to the same hearing and Kevin King and [REDACTED] were called to conjoined driver conduct hearings.

2. The Public Inquiry

At the public inquiry Kevin King attended in his capacity as a sole trader, as a director of the operator company, as a transport manager, and as a driver.

Ms Debbie Wallace, co-director for the operator company attended. Mr King and Ms Wallace were represented by Mrs Beverley Bell.

Driver [REDACTED] attended via a video link.

Prior to the hearing I received statements from Kevin King and Debbie Wallace and a full file of maintenance, compliance records and financial information in respect of the operator and operator company.

I heard evidence from the attendees and received submissions from Mrs Bell. The full record of the public inquiry evidence is contained in the recording of the proceedings and is not reproduced for the purposes of this decision. Neither is the evidence contained in the written statements and interviews.

3. Findings on the Evidence

Having reviewed the evidence contained in the brief and the oral evidence from the inquiry, I make the following material findings:

It is accepted evidence that [REDACTED] used Mr King’s digital driver’s card between the period 27th July – October 2020 on 20 occasions.

In using the card [REDACTED] is admitting to serious drivers’ hours offences in creating a false record and concealing required break and rest period offences.

The critical area of disagreement between the parties is how [REDACTED] came to be in possession of Mr King’s card and whether Mr King had known about, or prompted the use of the card, at the material time.

In interview, [REDACTED] states that Kevin King gave him his driver card. He stated that Mr King pressured him into using the card: “he would be screaming down the phone at me ‘we can’t afford to pay for everything put my card in and get parked outside the job so you are first in the morning’, stuff like that”.

He admits his culpability stating, “There is no excuse. I have done it everybody has a choice haven’t they?”.

At the inquiry, [REDACTED] confirmed the truth of his interview. He was questioned by Mrs Bell and myself and remained resolute in his version of the events.

Kevin King concedes that his systems for monitoring drivers’ hours during his absence between July and November 2020 were inadequate. He states that he only ran infringement reports and therefore did not see the drivers’ hours being run up by [REDACTED] on his card.

He stated that his digital driver card was left in his own lorry throughout the period, an unusual and risky practice for a professional driver and transport manager to operate.

Mr King maintained that he had nothing to gain financially from [REDACTED] using his card. In evidence at the inquiry he referred to savings which negated any financial motive.

Debbie Wallace gave evidence confirming her brief statement but admitting that her statement of 27th January 2023 was misleading in terms of the K D Plant Ltd application.

Both Kevin King and Debbie Wallace accepted there were telephone discussions regarding the business soon after the accident whilst Mr King was in the hospital. However, Ms Wallace denied that she gave [REACTED] Mr King’s driver card.

On the disputed area of fact I find [REDACTED] to be far more believable than Kevin King and Ms Wallace. I have no doubt that he told the truth to DVSA examiners and repeated that truthful account in evidence.

[REDACTED] co-operated fully with the DVSA investigation. He attended when requested on the 2nd September 2021 and admitted that, between 27th July 2020 and 16th September 2020, he had driven without a driver card and that he had been in possession of Mr King’s card which he had used to seek to conceal driving in excess of the 4½ hour limit without required breaks and driving in excess of the 10 hour daily limit. That admission was against his interest as it made him liable to criminal proceedings in respect of serious driver false record offences.

By way of contrast, Kevin King patently failed to co-operate with the DVSA investigation. He did not attend arranged interviews on 3 separate occasions, and failed to provide DVSA with required documentation.

He sought to surrender the sole trader licence in June 2021 and then used that as a “reason for thinking” that he did not have to supply the records. At the same time in the interview, he stated that he panicked, fearing the loss of his licence.

The licence for the operator company, K D Plant and Hire Ltd, was granted on the 18th June 2021. The DVSA investigation commenced on 4th May 2021 and on 9th May Kevin King removed himself as a director, leaving his partner, Debbie Wallace, as the sole director. Kevin King was not named as a transport manager and there was no reference to Kevin King’s licence or to his involvement in the operator company, despite the fact that Mr King was always going to be in day to day control.

Both Kevin King and Debbie Wallace have undermined their credibility by their late admission that they did seek to mislead the Office of the Traffic Commissioner by not declaring Kevin King’s involvement in K D Plant and Haulage Limited. As recently as 27th January 2023 they both signed statements stating that Kevin King resigned as a director on the 9th May 2001 in order to help with a mortgage application. Kevin King stated, “This the only reason I resigned as a director as obviously the company needed to have one. Neither of us thought we were doing anything wrong by doing this”.

The problem with their admission that they did not want to jeopardise their business is that the application was dated 10th May 2021, one month prior to Mr King allegedly being told by [REDACTED] about the use of his driver card. Whilst Mr King stated in his interview, “ I will be honest I panicked I knew that I was going to lose everything”, if I am to believe his chronology and account of the events, all he would have known at that stage is that there were some missing mileage reports regarding [REDACTED]. He said in evidence that he had investigated those matters in December 2020 as part of his FORS accreditation and he had dealt with them by way of a warning to [REDACTED]. So the question remains, why do they become so serious come May 2021 that Mr King fears revocation of his sole trader licence and the need to set up KD Plant as a contingency to continue the business?

I find the answer to be, that Mr King knew full well about the use of his card by [REDACTED], and it was the knowledge of that serious wrongdoing that prompted the new application and the avoidance and prevarication regarding DVSA.

In contrast to Mr King’s approach to the investigation, [REDACTED] was forthcoming in his responses to DVSA examiners. His admissions to TE Groom were freely given and they clearly made him liable to prosecution or conduct proceedings. I found his evidence that Kevin King gave him his driver’s card via Ms Wallace clear, credible and given as a ‘matter of fact’, without apparent malice, or, intent to shift blame away from his own wrongdoing. I can find no motive for him to have lied over this issue.

I reject the contention by Mr King that the first he knew of the use of his card was when [REDACTED] told him in June 2021. I have referred to the May 2021 application, and particularly noted [REDACTED] instinctive response to the suggestion by Mrs Bell that Mr King had immediately dismissed him when he found out. He greeted that suggestion with a derisory laugh and an emphatic denial that he had been dismissed, which, I found to be totally convincing. I note that the operator had no written record of the dismissal, stating that it was done over the phone.

In giving evidence before me at the inquiry, I found [REDACTED] to be far more believable as a witness than Kevin King and Debbie Wallace. I make allowance for their nervousness about appearing before an inquiry and anxiety about their futures, but I found them to be vague and inconsistent about key areas in a way that went beyond nervousness or memory loss owing to the lapse of time.

For example, Kevin King stated in his interview that “The only reports that I was doing was the Working Time Directive, the infringements…..” yet, when I put to him during his evidence that surely the Working Time reports would have shown the hours on his digital card as a driver in August-October 2020 well before the so-called confession by [REDACTED] in June 2021, his response was to deny that he had run Working Time reports.

Similarly, I found Debbie Wallace to be deliberately vague about when she knew of the use of her partner’s card and why she would have felt it necessary to make the application for the operator company operator’s licence in May 2021, if she did not already know about the serious situation of the unlawful use.

4. Considerations and Decision

In summary I find that that Kevin King has:

• Knowingly allowed his digital driver card to be used by another driver,

• Pressured that driver into breaching drivers’ hours’ offences,

• Failed to co-operate with a DVSA investigation into serious allegations,

• Failed to carry out constant and effective management of transport activities as a transport manager between July and October 2020,

• Made a false/incomplete application for an operator’s licence to the Office of the Traffic Commissioner

I weigh in the balance the positives I can find for the operator:

i. Maintenance arrangements were mostly satisfactory when DVSA conducted their maintenance investigation in May 2021;

ii. The licence has been held since 2013 and there have been no previous public inquiries;

iii. The maintenance and traffic compliance files submitted for consideration up to the date of the inquiry appeared in good order and satisfactory;

iv. Mr King attended a Transport Manager refresher training course in September 2022;

v. Financial standing is present.

I also take into account the mitigating factors in terms of Mr King’s serious road traffic accident and medical condition at the time these offences first occurred, and, the fact that they happened over a reasonably condensed period of time. Whatever Mr King’s financial position, I believe that his overriding reaction to his incapacity and his contractual commitments was to say, “just get the job done”, as described by [REDACTED].

Taken individually, each of the matters in paragraph 40 raise substantial doubts over the good repute of an operator or transport manager

Taken together I find them to be fatal to the continuation of good repute. There are always options available to an operator, and if Mr King was not well enough to fulfil his driving commitments, carry out his transport management responsibilities and run his business he always has the option to decline the work, subcontract, or hire in help. I can understand the desire of Mr King and Ms Wallace not to jeopardise their contracts and their business, but, in encouraging breaches of drivers’ hours and rest period offences, they have placed their commercial interests above the need for public safety on the roads. In circumstances where they are experiencing the pain and anxiety that goes with serious road accidents, that is all the more unacceptable.

On his own admission he has allowed large goods vehicles to continue to be used on the licence when he was not in a fit state to provide “continuous and effective management of the transport activities”. My findings place his culpability as a transport manager far higher than that. I determine that Kevin King has lost his good repute as a transport manager in accordance with Schedule 3, Paragraph 14A(1)(b) of the Act.

I have been asked to allow the operator to retain his repute to operate one vehicle and trailer as an owner/driver thereby avoiding the issue of staff management and control. Good repute is either present or not and the essential question is one of trust. I cite the Upper Tribunal in the case of NT/2013/82 Arnold Transport & Sons Ltd v DOENI

“The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.”

In this case I accept that leading up to the public inquiry the operator has been broadly compliant but in answering the Priority Freight (2009/225) question, “How likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” my response is, highly unlikely, having regard to his conduct leading up to and during the investigation and my finding that he has not been truthful before me at the public inquiry.

I answer the the Bryan Haulage (no.2) (T/2002/217) question, “is the conduct such that the operator ought to be put out of business?” in the affirmative. Giving your digital driver card to another in order to falsify tachograph records, making a misleading application for a licence, non-co-operation with a DVSA investigation and false evidence at a public inquiry are the most serious matters of conduct.

The Senior Traffic Commissioner’s Statutory Documents are intended to provide guidance to operators, transport managers and drivers on the standards expected of them and the consequences of failing to meet those standards. I have regard to those standards as a matter of law, and in order to maintain the integrity and credibility of the public inquiry process.

Having regard to the Statutory Document No. 10, (Annex 4), I place the operator company’s conduct in the “Severe” category as, “Deliberate or reckless acts that compromised road safety and gave the operator a clear commercial advantage and permitted driver offending and any attempt by the operator to conceal offences or failings”.

I consider the appropriate and proportionate starting point for regulatory action in Annex 4 of STC Statutory Document No. 10 to be “revocation with detailed consideration of disqualification” and I determine that suspension or curtailment would not reflect the severity of this case.

As a transport manager losing repute, disqualification of Kevin King from managing the transport activities of an undertaking is inevitable under para. 17 of Schedule 3 of the Act and I consider a period of 12 months disqualification appropriate and necessary.

Grounds for action against the licence held in the name of Kevin King and Sons Transport are established under;

• section 27(1)(a) of the Act – loss of good repute as an operator;

• section 27(1)(b) of the Act – loss of professional competence on a finding of loss of good repute as a transport manager pursuant to Schedule 3.

Grounds for action are also established under the discretionary grounds of:

• Section 26(1)(c)(iii) – prohibitions in the past 5 years;

• Section 26(1)(f) – failing to honour undertaking to observe the rules on drivers hours and tachographs and to keep proper records.

This operator’s licence will be revoked with effect from 23.59 on 13th March 2023.

Turning to the licence in the name of K D Plant and Haulage Limited, I find the failure to make full and honest disclosure in making the application fatal to Debbie Wallace’s good repute as the sole director of the operator company at the material time.

Kevin King has lost his repute as an operator and this would render him unfit to be the sole director of the operator company.

I revoke this licence having regard to the loss of good repute for the operator company and the 2 (current) directors, Kevin King and Debbie Wallace.

Grounds for action against the operator’s licence in the name of K D Plant and Haulage Limited are established under:

• Section 27(1) – loss of good repute,

• Section 26(1)(e) – false statement when applying for the licence,

• Section 26(1)(h) – material change, involvement of Kevin King.

As for the question of disqualification from holding or obtaining an operator’s licence, I consider it appropriate and necessary to disqualify Kevin King for a period of 12 months with effect from 00.01 on 13th March 2023. I repeat my findings at paragraph 40 with regard to the seriousness of his conduct and, in the absence of the positives detailed and mitigating circumstances, he would be facing a much longer period out of the industry.

I find that the primary reason for Debbie Wallace being the sole director of K D Plant and Haulage Ltd was to facilitate the concealment of Kevin King’s involvement. I am told that she would have stood down before the public inquiry had that not have been likely to attract criticism. Her prior involvement was in a supporting role dealing with invoicing, VAT and administration. It is clear that Debbie Wallace does not have the operational experience and knowledge to oversee the compliance regime as a director of a company holding an operator’s licence, and I consider it appropriate and necessary to disqualify her from holding or obtaining an operator’s licence for a period of 12 months.

Anthony Seculer,

Deputy Traffic Commissioner,

North West of England Traffic Area

13th February 2023