Decision

Decision for M&M Kerr Limited, transport manager and drivers

Published 8 January 2024

0.1 IN THE SCOTTISH TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER FOR SCOTLAND

Goods Vehicles (Licensing of Operators) Act 1995

In the matter of

2. M&M Kerr Limited OM1110492

and

3. Transport Manager Michael Kerr

3.1 Conjoined with driver conduct hearings for:

3.2 Driver Graham; Driver Howard; Driver McKay; Driver Curran; Driver Crocker; Driver Murray; Driver Legget; Driver Little; Driver Godsell; Driver Halliday; Driver Nicholson; Driver Kerr; and Driver Picton-Jones

4. Public Inquiry and conduct hearings held at Edinburgh on 10, 11 and 12 January and 11 July 2023

5. BACKGROUND

M&M Kerr Limited (OM1110492) (hereinafter referred to as ‘the operator’) was incorporated on 31 August 2011. It has two directors, Mr Michael Kerr and Ms Michelle Kerr, who are husband and wife. The operator was granted a standard international operator’s licence for 12 vehicles and 12 trailers on 29 August 2012.  Mr Kerr is also the operator’s transport manager.

A report was submitted to my office by Traffic Examiner (TE) Munro. It was alleged, amongst other things, that several of the operator’s drivers had been driving its vehicles without driver cards inserted. One driver was alleged to have been unlawfully using the card of another driver. In addition, it was also alleged that the operator’s systems for monitoring drivers’ hours were insufficient and that one of its directors, Mr Kerr, had deliberately altered the speed limiters on his vehicles to allow them to travel faster than legally permitted. I was also advised that the operator’s mechanical and drivers’ hours prohibition rates were above the national average.

This was the operator’s first public inquiry but it had received a warning from my office following an unsatisfactory maintenance investigation in 2021.

I apologise for the delay in issuing this decision. It has arisen as a result of an unavoidable delay in the hearing of the last of the evidence (Driver Legget’s driver conduct hearing) in the case and my own absence from work for a period.

6. THE PUBLIC INQUIRY

M&M Kerr Limited, and Mr Kerr in his role as transport manager, were represented at inquiry by Mr Kelly, Solicitor. Mr Saad, counsel, represented DVSA. Mr Sadd rightly highlighted that his role was to assist the inquiry rather than to adopt a prosecutorial approach to proceedings. I am grateful to him and to Mr Kelly for their assistance and for their work in effectively marshalling the significant volumes of evidence in this case.

DVSA produced a ‘master table’ of all the alleged drivers’ hours offences which was circulated to parties in advance of the inquiry. Mr Kelly, on behalf of the operator, added observations and comments to that document. The document was of great assistance to the inquiry in such a large scale investigation as it ensured all parties were on notice of the specific allegations and the operator’s responses to those.  

A large volume of evidence was also produced by the operator. Both DVSA and the operator lodged additional pieces of documentary evidence in the course of the inquiry. I had regard to all of the evidence in reaching my decision.  

7. EVIDENCE

I heard evidence at inquiry from: Examiner Munro, Examiner Sweetin, Senior Examiner Davidson; Mr Michael Dunlop, transport consultant; Driver Graham; Driver Howard; Driver McKay; Driver Curran; Driver Crocker; Driver Murray; Driver Legget; Driver Little; Driver Godsell; Driver Halliday; and Driver Nicholson. Driver Craig Kerr and Driver Picton-Jones were also called but did not attend.

I took account of all of the drivers’ evidence in reaching my decision. However, given the large volumes of evidence, for the sake of brevity, my decisions in relation to the driver conduct hearings will be issued separately.

7.1 Examiner Munro

Examiner Munro had conducted a lengthy inquiry into the operator’s transport operation. The investigation began following an accident involving one of the operator’s vehicles which was being driven by Craig Kerr, Mr Michael Kerr’s son. After the incident, the vehicle was inspected and the speed limiter found to have been adjusted. It was also identified that Craig Kerr had driven for excessive periods without a card inserted.

Examiner Munro’s statement and addenda thereto were included with the bundles. 13 of the operator’s drivers had been found to have infringements, including repeated instances of driving without a card. Those transgressions were not being identified by the operator and the systems that the operator did have in place for managing drivers’ hours were not being utilised.

Of particular concern, was the use of a driver card in the name of Jamie Huxley by Craig Kerr, the operator’s son. Mr Huxley did not have the proper entitlements to drive heavy goods vehicles and had obtained the card during driver training. When interviewed by Examiner Wardrop, Mr Huxley stated that he had never given the card to anyone else to use.

Examiner Munro also identified that the operator’s vehicles were often being driven without cards for short periods at locations, both in the UK and continental Europe, where the vehicles were likely to be loaded and unloaded. The operator had given explanations for some of those, but Examiner Munro’s inquiries contradicted what the operator had said.

Examiner Munro concluded that the operator’s drivers were likely moving vehicles when they were claiming to be at rest. Manual entries were used on resumption of duty in almost all cases, and he considered this to amount to deliberate falsification of records by the drivers in question. Given the volume of offending identified and, having particular regard to the repeated use of Jamie Huxley’s card by Craig Kerr, Examiner Munro was concerned that Mr Kerr may have been complicit in the offending.

Under cross examination, Examiner Munro explained that he had made inquiries in relation to the sites in the UK where vehicles were being moved during the drivers’ rest. He had also made inquiries as to procedures in relation to a site of interest at Fruge but had not had a response. Mr Kerr told Examiner Munro that the agreements he had with the owners of the markets were all verbal. There was nothing in writing. Examiner Munro had attempted to contact the owner of the market in Fruge but had not had a response.  However, he had not inquired further and had not checked what the procedure was for moving vehicles at the other continental sites.

Examiner Munro had spoken to staff at the Scotbeef and Scotlamb sites in the UK from which the operator collected meat. He had been told there were no facilities for drivers or shunters on site. He was unable to explain why individuals from those sites, and the sites on the continent, later provided documentation for inquiry stating that there were in fact facilities at the sites in question.

His evidence was, had he had that documentation at the time of his investigation, it may have changed his view. However, he noted that what was referred to in the correspondence produced for inquiry was current practice and not necessarily the practice followed two years before.

11 of the operator’s drivers were found to have no infringements. Examiner Munro was uncertain whether they were doing the same or different work to the drivers who had been found to have infringements. It was possible that shunter drivers could have been used to move vehicles but it was not, in his experience, a common thing. He was unsure of the position in Europe.

Examiner Munro accepted that many of the movements off card that he had identified were minimal - seconds or minutes – and amounted to only a small amount of time over the two month reference period he had looked at. However, any period of driving would interrupt a driver’s daily rest. The volume and frequency of the movements identified raised alarm bells. If other drivers had been moving the vehicles when the drivers were at rest he would have expected to see their cards inserted into the tachograph head.

Examiner Munro confirmed that Mr Kerr had been co-operative throughout his investigation. He had provided everything Examiner Munro had asked for, with the exception of working time reports which were not available. He had also provided him with the tracker information for his vehicles.  

There were systems in place for managing drivers’ hours but those were poorly adhered to. Mr Kerr had admitted that he had not logged into the system or done any analysis. He told Examiner Munro that he was completely caught up with COVID and was focused on just getting through that. However, the offending by Craig Kerr in particular was extremely serious. If Mr Kerr had addressed the numerous alerts he would have received on his Tom Tom sat nav system he would have known that Jamie Huxley’s card was being used.

When they visited the operating centre in May 2021, Mr Kerr had told Examiners Munro and Sweetin that Jamie Huxley went out runs with Craig Kerr. He had also said that he had seen Jamie Huxley about the yard. During his later interview (which took place under caution) Mr Kerr denied that he had seen Jamie Huxley, stating that if he had said it, it must have been a mistake.   

Examiner Munro had also considered the compliance report by Mr Dunlop which had been lodged for the inquiry. He noted that Mr Dunlop’s view was that the operator still some way to go to achieve full compliance. Examiner Munro was concerned that compliance was still not how it should be such a significant time after the initial investigation.

7.2 Senior Examiner Davidson

Senior Examiner Davidson gave evidence in relation to the operation and technical characteristics of speed limiters. He advised that modern trucks were fitted with road speed limiters. They were electronic and set initially by the manufacturer when the vehicle first left the factory. Only certain approved centres were authorised to adjust them. Tachographs were calibrated within a tolerance of +/- 6kph, however that tolerance was relevant only when comparing the actual road speed of the vehicle versus the tachograph reading.

Checking of the road speed limiter was not something which was routinely carried out at a roadside stop. When the digital data was downloaded from the tachograph the speed trace would be analysed as part of the analysis. Most heavy goods vehicles were set to 90kph. In the vast majority of vehicles, the speed data taken from a digital tachograph corresponded with the speed limiter being set at 90kph.

Senior Examiner Davidson advised that he had had no direct responsibility for investigating the operator’s case. However, Examiner Munro had asked him for a professional opinion on some of the speed data that he had gathered from the operator’s vehicles. His professional opinion was that the speed limit on the vehicles in question could not have been set to 90kph because the speed trace showed them travelling for sustained periods at speeds in excess of 90kph. According to his analysis, the speed limiters were all set to higher than 90kph with speed trace readings observed across the fleet between 92kph and 98kph.

There were numerous off the shelf software packages which could be used to manipulate speed limiters. Vehicle road speed was limited to preserve road safety, however manipulation also had a significant impact on fairness. Even small increases in speed, when aggregated over many thousands of miles and multiple drivers, would give a significant advantage to the operator. That directly impacted fair competition.

When it was put to him that the impact on road safety was likely to be limited, Senior Examiner Davidson maintained that any increase in the maximum permitted speed limiter settings posed a risk. He referred me to the guidance on GOV.uk regarding the maximum speeds for goods vehicles in support of that assertion.

7.3 Examiner Sweetin

Examiner Sweetin’s evidence was that he had heard Mr Kerr stating that he had seen Jamie Huxley around the yard during his visit on 24 May 2021.

7.4 Driver Graham

Driver Graham had been a professional driver for 22 years. He no longer worked for M&M Kerr. It was alleged that he had created false records on 6 occasions, 4 at the Fruge site, once at another site on the continent and once in the UK. He stated that one of the continental movements had been when he had been asked to move the truck. He had done so without his card and knew that he should not have done so. He could not recall moving the vehicle off card in the UK. However, he denied driving off card on the four occasions alleged at Fruge.

Driver Graham advised that the procedure at Fruge was on arrival they opened the trailer and reversed onto the bay. The shunters at Fruge moved the vehicle if needed while he was at rest. His practice was to go and get a coffee or watch some TV then get into his bed in the truck to sleep.

When Mr Munro’s evidence that it would be difficult to rest in such circumstances was put to him, he advised that he felt safe at Fruge. It was much easier to rest there, even if the vehicle was moved while you slept, than it was out on a layby watching for people tampering with your load or trying to steal your diesel. He categorically denied moving his vehicle during his rest period on the four dates alleged. He also advised that had been rescued on occasion when out of time by Mr MacQuet, the owner of the Fruge site. He had never been questioned about infringements by Mr Kerr and had always made manual entries after rest periods.

7.5 Driver Howard

Driver Howard had been a professional driver for around 10 years. He no longer worked for M&M Kerr but had done so previously for 18 months. It was alleged that he had created a false record in December 2020. Driver Howard had admitted the falsification at interview, but his evidence at inquiry was that he couldn’t actually remember why he had driven off card for four minutes on the occasion alleged.

He explained that there were different bays for different customers within the continental markets. The vehicles sometimes had to move between bays.  There were facilities for drivers and there were shunters on site to move the vehicles. He had not been asked about driving off card or infringements by Mr Kerr.

7.6 Driver MacKay

Driver McKay had been driving since 1986. It was alleged that he had a made a false record at an Iceland depot in December 2020. There were three movements totalling 12 minutes of driving off card. He had retired from full time work but still drove part time. He was now working at Scotbeef in Inverurie. Scotbeef had their own vehicles and drivers and there were rest facilities available. Scotbeef employees would shunt M&M Kerr vehicles attending the site when necessary.

Driver McKay admitted driving off card on the occasion alleged. He had arrived at the Iceland depot and there were five or six trucks in front of him. He knew he was going to run out of time, but by that stage there were vehicles backed up behind him too. He panicked and pulled his card. The other movements off card which were identified were parking up once he had finished work. He knew what he had done was wrong and regretted it. He had been picked up on infringements by Mr Kerr in the past but not often. He had no other recent driving convictions.

7.7 Driver Curran

Driver Curran no longer worked for M&M Kerr. He had only driven for the company for a few weeks. He had been a professional driver for many years but had a background in vehicle mechanics too. It was alleged that he had created 3 false records and had committed a number of driver hours’ rest offences. He stated that he had made print outs for some but accepted that he had not provided those to Examiner Munro.

Driver Curran accepted that the daily rest offences identified were quite significant - hours as opposed to minutes. One was an error and related to a ferry movement which had gone wrong. It could take hours to get through customs and things were really difficult as a result of Brexit and COVID. He knew it was unacceptable for a professional driver to make those sort of mistakes.

It was alleged that he had made false records at Runges. He explained that the procedure at that site was that you put the vehicle on a bay and then took rest. He would sleep in the cab but when he woke up he would go for a walk or have a shower. Once the vehicle was unloaded one of the shunters would move the vehicles off the bay round the corner for you. The tachograph would flash that the vehicle had moved but that he wasn’t concerned because they knew the vehicles were being moved all the time. It was the procedure on that site.     

7.8 Driver Croker

Driver Croker had been a professional driver for many years. He no longer worked for M&M Kerr. It was alleged that he had created two false records and daily rest offences. He couldn’t remember the exact dates, but he would have taken print outs and handed them into the office.

Driver Croker denied that he had made false records at the continental sites. There were facilities and shunters on site. He couldn’t remember clearly whether someone else had moved the vehicle, but they must have done because he had not.  He knew that periods of driving off card should have been queried by Mr Kerr but didn’t feel that he was doing anything wrong. At the site in Belgium, they had to give their keys in.

7.9 Driver Murray

Driver Murray was alleged to have created false records on seven occasions. He failed to attend interview despite being asked to attend twice by Examiner Munro. Driver Murray’s evidence was that he had not deliberately avoided attending interview. The dates offered had been difficult for him to manage. His parents had been involved in a crash with an HGV in August 2020 and he was heavily involved in caring for them. His partner also had a miscarriage around that time. He was still working for M&M Kerr.

He accepted that he had probably committed the daily rest offences which were alleged but couldn’t really remember what happened.  Operation Brock and COVID were making everything very difficult.  He also accepted that he had made a false record at DHL Huntingdon. He had parked outside but was told to move. He ejected his card and would have noted it in his diary. He accepted, nevertheless, that he was unable to produce that. He denied, with the exception of one instance, driving at Fruge without a card in. The shunters moved the vehicles there.

Driver Murray also admitted driving on two occasions without a card at services in the UK and on another occasion at Yoplait. He had his partner with him. She was pregnant and he needed to get to decent facilities.

Driver Murray had been driving for a long time. In the past he had never had a conversation with Mr Kerr about infringements but he had more recently. Things were much more stringent now.  It was commonplace in continental Europe for other people to move your vehicle. It was safe to allow that while you were in the compounds.

Driver Murray advised that he had been told to load at Scotbeef. He confirmed that there were facilities for drivers there. Employees at Scotbeef had moved his vehicles when he had been loading there. He estimated that the lorry he drove had been running at roughly 92kph in 2020 but it was running strictly at 90kph now.

7.10 Driver Legget

Driver Legget gave some evidence at the hearing on 11 January 2023. He accepted that he had probably committed the two daily rest offences identified but denied he had made false records.

It became apparent during driver Legget’s conduct hearing that he had not had sight of a report which was included with my papers, alleging that he had behaved inappropriately and in an aggressive manner toward DVSA officers during a roadside stop. His driver conduct hearing was therefore adjourned to allow for proper service of that documentation and to allow Driver Legget to take legal advice. For a variety of reasons out with the control of my office, the hearing was only able to be reconvened in July 2023. 

7.11 Driver Little

Driver Little had been driving for around 18 years since he retired from his previous job as a fisherman. He still worked for M&M Kerr. It was alleged that he had created a false record at the Scotbeef site in Bridge of Allan. Driver Little denied that he had created a false record and stated instead that one of the shunters at Scotbeef must have done so. He had a clean licence and had never had any other transgressions as a driver.

Driver Little only did UK work. Mr Kerr had not spoken to him about any infringements, but he did not normally have any issues with driving time. He drove all of the operator’s vehicles. They could run on downhill, but he had never noticed significant over speeding on the flat.

7.12 Driver Godsell  

It was alleged that Driver Godsell had made three false records and had committed some daily rest offences. Driver Godsell couldn’t fully remember given the time that had passed but assumed that the daily rest offences had occurred while he was travelling to or on the train. The conditions were horrendous and drivers were often stuck with no ability to park up. He would have had a diary, but he was unable to produce that given the time that had passed.

One of the false records was alleged to have taken place at a truckstop. He accepted that he may have moved whilst at the truckstop without his card in during his rest. Another allegation arose whilst he was parked up near Calais. Conditions were horrendous. If you drove a British vehicle you were a target for illegal migrants. He heard noises outside and jumped up straight away from his sleep to move the vehicle. He had forgotten to insert his card in the panic.

The final false record was alleged to have been created at Fruge. Driver Godsell denied that allegation. He had gone to bed or for food or a shower. Shunters moved the vehicles at Fruge. It was common place for shunters to move vehicles at the sites they visited in continental Europe. It also happened in the UK at the sites M&M Kerr visited. Going forward he would be much more careful. He had learned his lesson. He liked working at M&M Kerr.

7.13 Driver Halliday

Driver Halliday had been driving for 30 years. He had a clean licence. It was alleged that he had created four false records – two at Pickstock in England and two at Fruge. There was an abattoir at Pickstock and facilities for drivers. When he arrived there, that was his day over. Pickstock employees would move the vehicle if needed and he had not driven off card there as alleged. They now had a standing trailer at the site and the staff at Pickstock load the meat. Drivers were not allowed to do that for health and safety reasons.

Driver Halliday also denied that he had made false records at Fruge. Shunters moved the vehicles. When his card was out he was off duty and did not drive. He did not make manual entries so did not understand what was alleged. When the question ‘rest until now’ came up, he accepted it because he had been on rest.

He accepted that he sometimes made slip ups - everyone did – but he tried to drive within the law at all times. He loved working for M&M Kerr. They made him feel like part of the family.  Things were much more stringent now in relation to the management of drivers’ hours.

7.14 Driver Nicolson

It was alleged that driver Nicolson had falsified records on six occasions and failed to take sufficient daily rest on one occasion. Driver Nicolson advised that the daily rest offence had occurred as a result of him failing to realise he was on his fourth reduced rest. It was simply an error. He denied creating false records.

All of the allegations, with the exception of one at Pickstock, concerned driving off card at continental sites. Driver Nicolson maintained that shunters had moved his vehicle at the market sites on all the occasions alleged with the exception of one when he had been a passenger in the vehicle. He accepted that would have been classed as interrupting his daily rest.  He also admitted that he had moved the vehicle without his card in at Ashford when he was woken by people round about the lorry. He knew he shouldn’t have done that.    

Driver Nicholson had never done a drivers’ hours CPC course but intended to do some training to improve his knowledge. He had never been picked up on any infringement by Mr Kerr.

7.15 Driver Craig Kerr

Driver Craig Kerr did not attend the inquiry but submitted a written statement. It was alleged that he had created 15 false records by unlawfully using the driver card of Jamie Huxley. It was further alleged that the use of the Mr Huxley’s card had allowed him to drive excessive hours, posing a significant risk to road safety. 

Driver Kerr admitted using Mr Huxley’s card on all the occasions specified. He was trying to make a success of livestock work that he was undertaking himself, outwith M&M Kerr, and had made a mess of everything. He was extremely sorry and realised the gravity of all that he had done. It was all his own doing. Mr Michael Kerr had no part in scheduling his work and he did not know that he was using Jamie Huxley’s card. Mr Kerr offered personal details in mitigation, which are addressed as part of his driver conduct decision.

7.16 Mr Michael Kerr

Mr Kerr told me that he was the joint director of the operator company along with his wife. He was also the transport manager. It was his father’s business initially, but he and his brother joined and built the business up. The business was primarily focused on the delivery of fresh meat to continental Europe. Road haulage was his life and it was all he had ever wanted to do. He didn’t think there was any other operator in Scotland hauling hanging meat.

The business had been undertaking continental work since 2012. He had a well-equipped operating centre with two pits and a roller brake tester. He currently employed office staff, 11 full time drivers and had others he could call on when needed. The drivers undertook work which meant long periods away from home. It was difficult to find good drivers and he tried to treat them like he would want to be treated himself. He had been working with his customers recently carrying out humanitarian work in Ukraine. He provided the vehicle and the customers provided food to be sent to help those displaced.

He had an in-house mechanic and a relatively new fleet.  He kept his fleet up to date as older vehicles cost a fortune to fix and recover from the continent if they broke down.  He accepted the MOT pass rate was not as good as it should be but was confident that his vehicles were generally well maintained. Brexit and the COVID pandemic had had a huge impact on the business. They had looked at it and reckoned they had lost around 3 months’ worth of work as a result. The pandemic had made it extremely difficult to manage the continental work. Channel crossings were fraught with difficulty.

Craig Kerr was his son. He had worked for him in the business since he was 21 but now lived in Ireland. He was no longer employed by M&M Kerr. Craig had been involved in an accident while carrying livestock. He was working for Armstrongs and wanted to have his own business hauling livestock. He had accompanied Mr Kerr doing that work when he was young.  Mr Kerr was aware that Craig was suffering as a result of a previous traumatic experience but did not realise at the time how bad it was. He was not aware of the full extent of the driving Craig was doing or that he was using someone else’s driver card.

The first time that he had become aware of the fact that Craig was using Jamie Huxley’s card was when Examiner Munro visited him in May 2021. Craig had later told him that Mr Huxley was travelling with him. He admitted that he had not checked further on that, or checked that Mr Huxley had the correct entitlements. He had just taken Craig’s word for it. He knew that was completely wrong.  He had so much on his mind at the time with COVID and Brexit his oversight was severely lacking.

He was adamant at inquiry that he had never seen Jamie Huxley in the yard. He didn’t think he had said that but accepted that DVSA officers said that he had. In relation to his email of June 2021 in which he advised that he wasn’t aware that Jamie Huxley was driving, Mr Kerr had no real explanation. Craig had told him at some point that he and Mr Huxley had a falling out. He remained adamant that he did not know that Craig was using Mr Huxley’s card. He had eventually suspended Craig in April 2022. He had later sacked him but couldn’t remember the sequence of events clearly.

Mr Kerr told me that he was 100% sure that he had not discussed Mr Huxley with Craig prior to 24 May 2021. That being the case, he could not explain how he was able to give the full explanation around Mr Huxley’s involvement with Craig to Examiner Munro on that day.  He denied lying to DVSA to get them off his back. When Examiner Munro had showed him the evidence it was quite obvious what had been happening. He remained adamant however, that he did not know that Craig was using Mr Huxley’s card. 

He did not know what Craig’s motive for driving such excessive hours had been. He accepted that he had completely failed in his role as transport manager in not properly identifying and dealing with the issue sooner. He was 100% sure now that he could identify if any driver was using another’s card. He knew how to use the software to identify that now.

Mr Kerr gave extensive evidence, which I do not repeat here for the sake of brevity, about the facilities at the abattoirs and markets which his vehicles travelled to which accorded with the evidence given by his drivers.  There were shunters and facilities at most. He had agreements in place with all the sites in terms of how his vehicles were handled. He accepted it would have been helpful if he had produced the documentary evidence obtained for inquiry to DVSA at the time of the investigation. He had offered to get some, but Examiner Munro said it wasn’t worth it.

Mr Kerr admitted that all of his vehicles had the speed limiters adjusted. All were adjusted from 56mph to 60mph. They repaired all of their own lorries and it was almost impossible to undertake diagnostic testing without specialist equipment. He purchased a software package to help with that in July 2020. Someone told the mechanic you could use it to adjust the speed limiters and he told Mr Kerr. He didn’t know the exact timings around the speed limiters being adjusted but they had all been adjusted over a period of about a month.

The motivation was to allow the vehicles to get to destination quicker. There was nothing open, no facilities for drivers due to COVID and it was really intended to help the drivers get to Dover or Calais a little bit quicker. None of the vehicles were set to go above 60mph and as a result he did not consider it to be a risk to road safety. He accepted that it had affected fair competition, but he felt given the delays caused by Brexit and COVID he felt that any advantage was minimised.

The trigger for changing the vehicles back was the fact that they were getting stopped all the time. The process of resetting the speed limiters had begun in November 2021. He wasn’t deliberately trying to trick the system and he deeply regretted having done what he did.

Under cross examination, Mr Kerr confirmed that he did not dispute Mr Munro’s findings as regards his failures to ensure that the laws in relation to drivers’ hours were adhered to. He also accepted that failure had given rise to offending on the part of his drivers and that in turn had affected road safety and fair competition. He had become completely overwhelmed with everything and regretted what had happened deeply.

He accepted that he knew in May 2021 that there were serious concerns and that it had taken longer that it should have to rectify matters but he had been making improvements. To make major improvements he had to buy new trailers, which took some time, and implement new systems.  As soon as Mr Dunlop came on board in January 2022, everything was rescheduled. He had stared to give much clearer advice and warnings to drivers soon after Mr Munro’s visit in May 2021.

He was now on top of the management of drivers’ hours. He felt that he was 100% better in terms of compliance than he had been at the time of the investigation. The business was more profitable now than it had ever been. He could sleep in his bed at night knowing he was running lawfully.

In relation to the stop involving Driver Legget, Mr Kerr had complained about the way DVSA officers had treated him. He had heard the way that the DVSA officer was speaking to driver Legget over the phone when he called him during the stop and felt that he was treated very badly. He had made a compliant about the officers in question which remined unresolved.

What had happened was not deliberate. Mr Kerr did not set out to break the law. Things happened and he should have taken more action. He accepted that he had failed in meeting the undertakings on his licence and also in his obligations as transport manager.

Mr Kerr made reference to the evidence produced by his accountant regarding the financial impact of regulatory action. He could subcontract some work, but would be likely to lose some customers in the process. Three vehicles were in use servicing a contract with Mackies. If his fleet was halved, he could not carry out the work. He could subcontract some work, but it was difficult to estimate how much.

A suspension would be extremely financially damaging, but the business may be able to survive a short period. Mr Kerr still had the trailers and maybe able to employ traction only operators to help him in the short term.

Revocation would mean the end of the business and the loss of all his staff and drivers. He accepted that his actions meant that he would not be able to carry on as transport manager. He had been spreading himself far too thinly and that was part of the problem. He had discussed employing a new transport manager with Mike Dunlop and would employ a replacement transport manager should the licence survive. He wanted to continue in the industry, and he was truly sorry for everything that he had done.

7.17 Mr Dunlop

Mr Dunlop had been engaged by Mr Kerr in January 2022. He asked for help with his systems for drivers’ hours and explained that he was being investigated by DVSA. Mr Dunlop explained some of the nuances he considered applied around the type of work carried out by the operator’s drivers on the continent.

The compliance position was significantly better than it was at the time of Mr Munro’s investigation. It was night and day compared to when he first went in but there was still quite a bit of work to do. Mr Kerr was engaging with him and had taken on board all of his suggestions for improvement. When asked about the adjustment of the speed limiters on the operator’s vehicles he agreed that must have affected road safety, at least in a generic sense. 

Mr Kerr knew he was spreading himself too thin and realised now that he needed help. He was accepting of Mr Dunlop’s advice that he should hire a replacement transport manager should his licence survive. Mr Kerr’s fleet was fairly new and Mr Dunlop didn’t have any concerns regarding the current prohibition rate.

7.18 Submissions

Mr Saad made brief submissions on behalf of DVSA, drawing my attention to the salient parts of the Examiner Munro’s investigation and findings. Examiner Munro’s statement and the addenda produced for the inquiry were to be read, in their entirety, into the evidence.  

Mr Kelly submitted that this case came down to the issue of trust. The drivers I had heard from spoke well of Mr Kerr. He treated his employees well. As regards maintenance, the prohibition rate was high largely as a result of those issued following the collision involving Craig Kerr. It was otherwise a young fleet and there would be an undertaking to have laden roller brake testing going forward for his tractor units at every PMI.

In relation to Mr Kerr’s altering of the road speed limiters on his vehicles, he had admitted that at the first opportunity. Mr Kelly reminded me that the speed limiters were set high between July/August 2020 and November 2021. I had heard Mr Kerr’s account of the reasons for that. There was no evidence to support that the road speed limiter on any vehicle were set at a speed greater that those set out in the DVSA report – between 92-98kph. Mr Kerr’s evidence was that none of the vehicles had been set to travel over 60kph.

In Mr Kelly’s submission there was not a substantial road safety issue caused by the increase in the set speeds. Classic lorries were able to travel at 60mph on the road. On that basis, if there was a road safety impact, it must be a small one.

It was, nevertheless, accepted on behalf of the operator that fair competition had been compromised by the altering of speed limiters.  Mr Kerr had not set out to cheat. The advantage taken had been opportunistic upon his mechanic advising him that the speed limiters could be altered. In Mr Kelly’s submission, alteration of a speed limiter would not fall to be classed as a VSI, rather an MSI according to the categorisation of defects. There was a speed limiter fitted to the vehicles and there were tachographs fitted. If the road speed limiter had been fully disabled then it would have been a completely different category of offence.

Mr Kerr did not appreciate the seriousness of his actions. He genuinely believed that not exceeding the legal speed limit made it less egregious than it may otherwise have been. He was fully aware of the seriousness of the matter now. It was not done in pursuit of money but to try and help his drivers in what were unpreceded and extremely challenging times. 

There was insufficient evidence before me to establish driving off card during rest breaks was a widespread practice amongst the operator’s drivers.  The new evidence produced for inquiry from the abattoirs and markets in continental Europe made it clear there were facilities and shunters available. The drivers’ evidence was broadly consistent with that as was Mr Kerr’s evidence. Mr Kelly invited me to give weight to the limited amount of time driving off card that had been identified – just over 2.5 hours in total over a two-month period.

Mr Kelly also submitted that I should give weight to the changes and improvements which had taken place and to take account of the impact of COVID and Brexit at the time of the misdemeanours in question. The picture at present was not perfect but very few operators were. Mr Dunlop was on board and Mr Kerr was fully engaged and receptive to all advice given. 

As regards the serious matter of Craig Kerr’s behaviour. Mr Kerr accepted that he let his son down as employer and transport manager. The using of another driver’s card was isolated to Craig Kerr and Mr Kerr had remained adamant throughout that he did not know that Craig was using Mr Huxley’s card. He realised the seriousness of Craig’s actions then, and now. Mr Kerr was not complicit in the arrangement.

Mr Kelly referred me to a range of authorities. I needed to be able to conclude that I could trust Mr Kerr going forward.  This was the operator’s first public inquiry. Mr Kelly reminded me of the public interest role and acknowledged the deterrence element allowed for in the jurisdiction. He reminded me that fairness was a key concept (Thomas Muir (Haulage) Limited v the Secretary of State for the Environment, Transport and the Regions [1999] sc 86) and referred me to the decision in Meredith and Others v Traffic Commissioner for the Western Traffic Area (2009) EWHC 2975 (Admin).

An individual could lose their repute as a transport manager but that finding be distinguished from the individual’s role. It was accepted that the starting point for regulatory action in this case, having regard to the Senior Traffic Commissioner’s guidance, was severe. There were, however, the positives which had to be taken into account.

The operation was compliant now. Mr Kelly invited me to be merciful having regard to the steps that had now been undertaken.  I could stop short of revocation. The letter from the company accountant showed that regulatory action short of that could have material impact on the business sufficient to satisfy the licensing objectives. A short sharp curtailment or suspension maybe appropriate. If there was a revocation, life would go on. Mr Kerr will cease business and his drivers will go on to get other jobs. A suspension on the other hand would lay a marker down in the industry. There could be no escaping of the history. 

Mr Kerr accepted that he could not continue in the role of transport manager. Mr Dunlop would advise me if his services were dispensed with.  A period of grace would be requested for new TM to be found if Mr Kerr’s repute was found to be lost.

8. Consideration of the evidence and balancing

A detailed investigation by Examiner Munro into the operator’s systems identified that the operator’s systems for ensuring that the laws in relation to driving and drivers’ hours were adhered to were not being utilised by Mr Kerr as operator and transport manager. The investigation had arisen as a result of one of the operator’s vehicles, driven by a driver who was regularly driving large amount so excess hours, becoming involved in an accident.

It was clear from the evidence before me that there had been no effective management of drivers’ hours for some considerable time. The operator’s drivers had not been monitored or managed properly. That was a significant failing on behalf of Mr Kerr and the operator company which allowed offending of varying degrees and severity on the part of the operator’s drivers, up to and including falsification of records. Prohibition and fixed penalties had been issued. Mr Kerr also admitted altering the speed limiters in his vehicles. They had remained set at a higher speed than was lawful for around 15 months.

It was admitted on behalf of the operator the formal findings in terms of Sections 26(1)(c)(iii), 26(1)(ca) and 26(1)(f) of the 1995 Act were made out. It was also conceded that the starting point for regulatory action was severe.

The allegations in relation to drivers driving off card during periods of rest, particularly at sites in continental Europe, was a central part of the DVSA investigation. Such behaviour, when widespread, is a matter of serious concern regardless of how short the periods of time involved. It is also understandable, given the evidence available to Examiner Munro at the time of his investigation, that allegations of drivers falsifying records by making manual entries were made.   

However, leaving aside the handful of occasions admitted to by some of the drivers I do not find those allegations proved for the following reasons. Firstly, there was evidence before me which was not available to Examiner Munro at the time of his investigation, in the form of vouching regarding the procedures followed at market sites, the use of shunters and the availability of driver facilities. All of that new evidence was consistent. There were driver facilities and shunters available if required.

Taken together with the evidence of the drivers, which was also generally consistent on this point, and having regard to the highly controlled nature of the work (from a health and safety perspective) being undertaken, I find it more probable than not that it was shunters, as opposed to drivers, who were moving vehicles on and off the loading bays at the sites identified. 

Secondly, I was not convinced having regard to the drivers’ evidence and the evidence regarding the operation of the tachograph units before me, that a driver’s actions in pressing the ‘rest until now’ button on the unit could accurately be characterised as falsification. Despite the fact that there is an obligation on professional drivers to ensure accuracy in their records, it struck me that the option given on the tachograph unit in question was the automatic choice in the circumstances. It was also clear that Mr Kerr’s drivers had little or no guidance from a responsible transport manager.

It remains unclear why Examiner Munro was given erroneous information by the managers of one UK site as to the facilities and procedures in place there. On the basis of what he was told, it is perhaps understandable that he did not make further inquiries of the other sites (beyond Fruge) in question. Whilst noting in his evidence that the information provided appeared to relate to current procedures as opposed to the procedures in place at the time of his investigation, Examiner Munro conceded that had the information been available to him it would likely have altered his view.

There were, however, three further issues of serious concern in this case. The adjusting of the vehicle speed limiters by Mr Kerr, which I return to later, the repeated use by Craig Kerr of another driver’s card and Mr Kerr’s alleged conspiracy in that, and the allegation that Mr Kerr had been untruthful with DVSA in the course of their investigation.  

Mr Kerr consistently denied that he knew Craig Kerr was using Jamie Huxley’s card and he was actively doing so between November 2020 and January 2021. He also fully accepted, had he been undertaking even cursory monitoring of driver activity, that he would quickly have noticed it. Where Mr Kerr’s evidence became more confused, and what no doubt fuelled Examiner Munro’s concern that he was complicit in the offending, was in his account of his knowledge of Jamie Huxley.

Mr Kerr’s evidence was that he first became aware Craig was using Jamie Huxley’s card when Examiner Munro told him on 24 May 2021. In his evidence at inquiry, he was adamant that he had not spoken to Craig about Jamie Huxley before that date.

However, that evidence was entirely incredible when considered against the evidence of Examiners Munro and Sweetin regarding Mr Kerr’s comments on 24 May 2021. Mr Kerr disputed that he had said that he had seen Mr Huxley in the yard, but he did not deny that he had told the DVSA officers that Jamie Huxley was a friend of Craig’s and that he went out runs with him. Mr Kerr later repeated those comments, referring to what he had told the DVSA officers on 24 May, in an email he sent in June 2021 (page 871 of the public inquiry statement). How could he have known those things on 24 May 2021 if he hadn’t spoken to Craig about it or known the card was in use as a result of his own inquiries?  

It is clear from the evidence that Mr Kerr was being untruthful, one way or another.  The have made the comments that he did on 24 May 2021 he must either a) have known about Jamie Huxley’s card being in use prior to 24 May 2021, b) have spoken to Craig about Jamie Huxley before that point, or c) lied to the DVSA officers by pretending he knew about Jamie Huxley when they advised him of their concerns regarding the use of his card.

I am unable to determine categorically from the evidence before me which of those is the case. However, having assessed Mr Kerr as a witness at inquiry, noting the evidence submitted by Craig Kerr and the fact the illegal card use was not a more widespread practice amongst the operator’s drivers (despite the complete lack of any active driver management) I consider it probable that Mr Kerr lied having been caught off guard when Examiner Munro told him what Craig had been doing. Motivation is of little consequence, however, in assessing the impact of Mr Kerr’s actions. By lying to them, he obstructed DVSA officers in the course of their investigations.  

Mr Kerr also instructed his mechanic to alter the speed limiters on his vehicles after he had told him that could be done with the software he had purchased for diagnostics. The speed limiters on all of his vehicles were altered and they were travelling on the road somewhere between 2 and 8 kph faster than they should have been for a period of around 15 months.

It was accepted on behalf of the operator that Mr Kerr’s actions had impacted fair competition. However, I was asked to accept that the impact on road safety caused by those alterations was minor on the basis than none of the vehicles were set to travel above the maximum speed limit.

I can accept, in general terms, that there may be less of a risk posed by a vehicle which has had its speed limiter altered but remains limited to a speed around the maximum road speed limit, than by a vehicle which has its limiter disabled or set at a much higher speed. However, I am not persuaded that the risk posed by Mr Kerr’s vehicles can be classed as minor.  

The government guidance I was referred to makes it clear that speed limiters on vehicles over 3.5 tonnes are designed to reduce accidents. The guidance states that having a speed limiter fitted may prevent the vehicle in question travelling at the maximum speed limit. An enforced reduction of maximum vehicle speed to a speed lower than the road speed limit then, is obviously envisaged and clearly desirable having regard to road safety. It is no doubt also intended to ensure that the maximum road speed is not breached by those vehicles by allowing for the +/- 6kph tolerance between tachograph trace and actual road speed.

By law, the operator’s vehicles were required to have a speed limiter fitted and set to 90kph.  The evidence is that Mr Kerr’s whole fleet was travelling significantly faster than that over a period of around 15 months. There are obviously other variables but in broad terms, following the logic underpinning the law on the use of speed limiters, Mr Kerr’s vehicles must have been at greater risk of being involved in an accident as a result of travelling at an increased speed over a prolonged period. It follows that road safety was materially imperilled as a result.

Mr Kerr’s wrongdoing in instructing his mechanic to alter his vehicle’s speed limiters was undoubtedly most serious, as is my finding that he lied to DVSA examiners and/or me at inquiry regarding this knowledge around the involvement of Jamie Huxley. Mr Kerr admitted that he knew what he had done with speed limiters was wrong. By the standards of any ordinary person such behaviour is bound to be viewed as dishonest.   

I was urged to consider the impact of EU exit and the COVID pandemic on Mr Kerr’s decision making. Those circumstances were undoubtedly some of the most difficult imaginable for operators and I accept that Mr Kerr would have faced significant challenges during that time. However, those circumstances also present something of a double-edged sword because it is arguably even more important that a level playing field is maintained during times of extreme hardship.  It is during such times that the margins can be tightest and it is crucial that operators can trust each other not to break the rules.

As regards the altering of the vehicle speed limiters, I also accept that there was probably an element of wanting to improve the lot of his drivers. However, ultimately Mr Kerr’s evidence was that he did it to make his lorries get to their destination more quickly. He also told me that the prompt to start changing the limiters back was the fact that he kept getting stopped. It was not, therefore, as a result of a sudden attack of conscience.

In balancing, I was able to identify some positives. I accept that the operator’s compliance, whilst in the words of Mr Dunlop still having ‘some way to go’ had improved by the time of the public inquiry. Mr Kerr had employed Mr Dunlop’s services well in advance of his call to inquiry and was reportedly willing to take advice. He also accepted that he could not continue as transport manager. Mr Kerr’s drivers spoke well of him and he appeared to care about their welfare.

In addition, there was no evidence before me to support a finding that Mr Kerr had purchased the diagnostic software with the intention of altering the speed limiters. He does his own maintenance and needed it to help with vehicle repairs. His actions were, therefore, probably opportunistic as opposed to premediated. He had also owned up to what he had done at the first opportunity. Leaving aside the serious matter of his untruthfulness generally, I also considered it likely that Mr Kerr was lying to protect his son rather than to cover up any conspiracy on his part in the unlawful card use. The lack of premeditation and conspiracy in the illegal card use go some way to mitigating culpability on Mr Kerr’s part, but that can only be afforded limited weight in the whole circumstances of this case.

I also accept that at the time of inquiry the operator’s MOT pass rate was slightly better than the national average. His fleet was modern, and he had recently bought new specialist trailers demonstrating a commitment to investment. He had been co-operative with DVSA by providing documentation they requested. There were commendations from some of Mr Kerr’s customers advising of his helpfulness and reliability. His charitable work in support of the people of Ukraine was to be commended. I was also of the view that Mr Kerr was genuinely more in control of his compliance and was invested in improving it. The evidence was that he was the only haulier of hanging lambs running out of Scotland, and revocation of his licence was likely to have a considerable impact on the industry. This was also the operator’s first public inquiry.

However, even giving the maximum weight that I can to all of those matters, I find that they still cannot outweigh the significantly negative findings of dishonesty on Mr Kerr’s part. There are also still, according to Mr Dunlop’s analysis, some important shortcomings in his systems for ensuring compliance, nearly two years after the start of the DVSA investigation.  

Mr Kerr’s actions in altering his vehicles’ speed limiters have undoubtedly afforded him a significant commercial advantage over other honest hauliers. That has materially impacted fair competition over a lengthy period. To have done that, particularly during such challenging times, amounts to grave breach of trust. Similarly, lying to DVSA in the course of an investigation is behaviour that cannot be tolerated.

I have lost trust in Mr Kerr and, by extension, the operator company. NT/2013/82 Arnold Transport & Sons Ltd v DOENI is referred to for its terms. The corporate veil is easily pierced here because even although Mrs Kerr is a co-director, she is not involved in the transport operation. It is Mr Kerr that is the controlling mind.

I reminded myself of the findings of the Court of Session in Thomas Muir (Haulage) Limited v the Secretary of State for the Environment, Transport and the Regions [1999] sc 86:

“On the other hand, it does not follow that a traffic commissioner is prevented from taking into account, where appropriate, some considerations of a disciplinary nature and doing so in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation. However, taking such considerations into account would not be for the purpose of punishment per se, but in order to assist in the achievement of the purpose of the legislation. This is in addition to the obvious consideration that a direction may be used to provide direct protection to the public against dangers arising from the failure to comply with the basis on which the licence was granted. Whether or not such disciplinary considerations come into play must depend upon the circumstances of the individual case.”

There is a need in this case to view Mr Kerr’s conduct in the context of the requirement to ensure fair and consistent regulation of the industry as a whole. Unlawfully increasing the road speed of heavy goods vehicles gives rise to an increased risk to road safety and substantially affects fair competition. It is quite simply unacceptable behaviour in an industry where operators must be able to compete on a level playing field. Other operators need to understand that if they chose to act similarly, then they are likely to lose their licence to operate.

In the words of the previous Traffic Commissioner for Scotland as quoted by the Upper Tribunal in the case of T/2013/47 Dundee Plant Company Ltd:

“Other operators with knowledge of this case may be tempted to say to themselves – ‘this operator appears to be getting away with it so why should we bother to incur expenditure of time, trouble and money to run a compliant operation?’ In my view, it only needs one or two other operators to adopt this approach in response to this case to lead to greater and greater numbers doing so in future. If that happens there is a real risk that the operators’ licensing system, which has made a significant contribution to road safety, will be fatally undermined.”

Were I not to take firm regulatory action in this case, other operators may fail to appreciate the seriousness of unlawfully altering speed limiters. As a result, the regulatory system could be fatally undermined. 

I asked myself the question posed in 2009/225 Priority Freight: How likely is it that this operator will, in future, operate in compliance with the operator licensing regime? Having regard to the gravity and dishonesty involved in Mr Kerr’s wrongdoing, the prolonged nature of it, and the fact that there were still many issues to resolve even by the time of inquiry in relation to speeding and taking the required rest on the part of the operator’s driver’s almost two years after the initiating of the DVSA investigation, I was not persuaded that Mr Kerr’s promises to comply at inquiry would be kept. Accordingly, I considered it unlikely that this operator would comply in the future.

Mr Kerr told me that regulatory action against his licence would probably mean the end of his business. He wanted to carry on. The question posed in T/2002/217 Bryan Haulage (No.2) is therefore also relevant: Is the conduct of this operator such that it ought to be put out of the business?” In reaching my conclusion, I also had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 3.

Mr Kerr has obtained a substantial commercial advantage over other operators and has compromised road safety by altering his speed limiters. I also found that he has attempted to conceal the wrongdoing of others, and his own shortcomings, by telling lies to DVSA in the course of their investigation. This was a bad case then, in which dishonesty was a feature. It was accepted that the starting point for regulatory action was severe. As explained earlier in this decision, I also had deterrence in mind.

I gave lengthy and detailed consideration to the cogent and well developed submissions made by Mr Kelly on behalf of the operator as regards the regulatory action which I may take. However, on balance, for the reasons set out above, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative.

I find, therefore, that M&M Kerr Limited has lost its repute as an operator. Mr Kerr is also the transport manager. Given the findings of dereliction of duty and dishonesty in this case, I do not consider it possible to separate his actions as such from that as the controlling mind of the operator. I refer to the case of Alistair Walter T/2017/55 in that regard. It was Mr Kerr in his role as both operator and transport manager who carried out the acts complained of in this case.

Formal findings in terms of sections 27(1)(a) and 27(1)(b) of the 1995 Act are also made out in addition to those set out at paragraph 99 of this decision. Consequently, operator licence OM1110492 falls to be revoked.  

It is also proportionate to find that Mr Kerr has lost his repute as a transport manager. That being the case I must disqualify him from acting as such. I do so for a period of 12 months. No rehabilitation measure is set on the basis that he has recently completed TM CPC refresher training.

I gave careful consideration what direction I should give regarding the timing of the revocation in this case. I was advised at inquiry that the operator is the only haulier of hanging lambs running out of Scotland. Were revocation to take place too soon, it may well lead to serious disruption for the operator’s customers and abattoirs with a potentially knock on effect on animal welfare. Given the nature of the business, Mr Kerr will also need to time wind down in an orderly manner. I direct, therefore, that my decision to revoke the licence should take effect on 12 January 2024.

Having revoked this operator licence, I was bound to given consideration to whether I should disqualify the operator. In considering whether disqualification should follow revocation, I again had regard to Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making. I reminded myself of the authority in T/2010/29 David Finch Haulage. In that case, the Transport Tribunal said:

“The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary…”

The Senior Traffic Commissioner’s guidance states that serious cases may merit disqualification of between five and ten years. For a first public inquiry, the starting point suggested is between one and three years.

This is a serious case involving breaches of trust which go to the heart of the licensing regime. However, there were also several positives that I was able to find on Mr Kerr’s part. Those were not sufficient to save this licence from revocation for the reasons set out in this decision, but I am also able to give them weight in reaching my decision on disqualification.

I have decided that I can stop short of disqualification in this case. That leaves the door open for Mr Kerr or the operator company to apply again in future should he wish to do so.

The timing of that will be a matter for Mr Kerr. However, I direct that any application should be considered by a Traffic Commissioner. Careful scrutiny will be no doubt be required to assess whether Mr Kerr can be trusted, once again, as an operator of heavy goods vehicles. 

8.1 Claire M Gilmore                 

Traffic Commissioner for Scotland

28 September 2023