Decision

Written decision of the deputy Traffic Commissioner for Scotland for Central Haulage and David Honeyman

Published 19 November 2021

0.1 AMENDED VERSION

0.2 (Page 19 - Para 105.)

0.3 IN THE SCOTTISH TRAFFIC AREA

1. PUBLIC INQUIRY

Goods Vehicle (Licensing of Operators) Act 1995 (“the Act”)

Road Traffic Act 1988

1.1 CENTRAL HAULAGE LIMITED – OM2022890

1.2 TRANSPORT MANAGER – DAVID HONEYMAN

1.3 AND 8 DRIVERS

1.4 BEFORE: ANTHONY SECULER, DEPUTY TRAFFIC COMMISSIONER,

heard at the Office of the Traffic Commissioner for Scotland, Edinburgh, On 30th September and 1st October 2021

2. Background

Central Haulage Limited (“the operator”), is the holder of a Standard National Operator’s Licence granted on 17th June 2019 authorising four vehicles and four trailers.

The sole director is Johanna Dunne (16.10.68) and the designated transport manager is David Honeyman.

On 10th March 2020, DVSA Traffic Examiner Barry Wardrop encountered one of the operator’s vehicles being driven by James Strathearn during a routine enforcement check. James Strathearn had been disqualified from holding or obtaining an operator’s licence in October 2018 for 5 years having regard to serious drivers’ hours offences.

TE Wardrop saw what he believed to be the operator company’s vehicle download card in Mr Strathearn’s wallet. Mr Strathearn declined to show TE Wardrop the card unless police were in attendance.

This encounter prompted DVSA Traffic Examiner investigations which were complex and substantial. The eventual public inquiry brief extends to over 200 pages and DVSA evidence amounts to over 1200 pages. In addition, prior to the inquiry, DVSA examiners assisted with the assessment of over 1300 pages of documents produced on behalf of the operator. I commend Traffic Examiner Beverley Stoner and colleagues for the thoroughness and fairness of their investigation carried out under the difficult circumstances of the Covid 19 pandemic.

I also express my gratitude to Mr Gray and my inquiry clerk for ensuring that all documents reached me prior to the hearing thereby saving public inquiry time. The call-up letter dated 11th May 2021 sets out the grounds for concern regarding the operation of the licence. These included repute and professional competence under section 13A(2) of the Act and breach of undertakings in respect of observing the rules on drivers hours and tachographs under section 26 of the Act. There was an admitted breach of condition/material change under section 26 of the Act in not notifying a change in named directors of the company.

An application to apply for a new licence in the name of Tarduf Services Limited was withdrawn prior to the hearing.

Eight drivers were called to attend a driver conduct hearing under the Road Traffic Act 1988 conjoined with the public inquiry.

3. The Public Inquiry

The public inquiry was scheduled for June 2021 but subsequently re-arranged for the stated dates.

The operator attended represented by Mr Alistair Gray, Solicitor Advocate. Director Johanna Dunne attended on behalf of the company and Mr Gordon Dunne, managing director and husband of Johanna Dunne, also attended.

Mr Aaron Harrison, proposed transport manager, attended.

Driver James Strathearn attended represented by Mr Richard Freeman, Solicitor Advocate.

The transport manager, Mr Honeyman, and driver Edward Pearce were represented by Mr Neil Kelly, Solicitor.

DVSA Traffic Examiners Beverley Stoner and Barry Wardrop attended with two other DVSA representatives, Alexander Davidson, Traffic Enforcement Manager and Examiner Kevin Syme.

At the commencement of the Public Inquiry I outlined the key issues that arose from consideration of the papers:

i) The suggestion of “Fronting” – the initial application was made with Hana Simpson as the sole company director. There were suggestions that she had links with James Strathearn who was driving on behalf of the operator company.

ii) The poor level of compliance, at the time of the investigation, into systems for managing drivers’ hours, working time and tachographs between December 2019 and March 2020. – The Transport Manager, David Honeyman, was clearly not carrying out constant and effective management and his continued repute/professional competence needed to be determined. The Transport Manager and the Managing Director, Gordon Dunne, each stated that the other carried out vehicle unit downloads and as each denied that they had the competence to do so, this raised suspicions that James Strathearn was using the company card said to be in his possession. In any event, David Honeyman was planning journeys without taking drivers’ hours and working time into account and feeder journeys, mainly between the operating base in Falkirk and Johnson’s Bridge, Lockerbie, were not being counted as “other work”. David Honeyman stated that he knew those journeys should have been counted and drivers gave conflicting accounts as to how those journeys took place. Some said that family and friends took them at various times of day and night, others referred to a company van and some described the shared use of private cars. Examination of the vehicle unit data identified numerous occasions when drivers’ cards were “pulled” in order to seek to conceal rest and break infringements and there were suspicions that drivers’ cards were being mis-used.

iii) The employment status and management of drivers – at the time of the investigation there was an over-reliance on agency drivers and the agency used, Forth Valley Commercials, was run by James Strathearn’s mother, Eileen Strathearn, adding to the “fronting” concerns. The operator company demonstrated no systems for monitoring availability having regard to working time and rest periods, and on one occasion Gordon Dunne stated that he didn’t care provided the jobs were completed.

iv) The current level of compliance – as a Traffic Commissioner I have to assess the risks to road safety and fair competition as at the date of the public inquiry. The combination of the complexity of the investigation and the challenges of the Covid 19 pandemic had resulted in considerable delays in scheduling the inquiry. The operator company had submitted considerable evidence of current systems and records and these needed to be assessed to evaluate whether genuine and sustained improvements had been made.

v) Driver conduct – the 8 drivers called to conduct hearings would be heard as to their infringements and fitness to hold LGV licences. In addition, their evidence would be assessed against the issues facing the operator company.

I stated that the suggestion of “fronting” was the most serious issue facing the operator as this would suggest that the licence had been granted on the basis of deceit and would almost inevitably lead to loss of repute and revocation.

At the conclusion of the hearing, I announced that my decision would be reserved pending consideration of all the evidence read and heard and the submissions received. This decision summarises my findings on the key issues in order to help explain the outcome and for the sake of clarity in the future.

4. Findings on the Evidence

The evidence concerning the operator’s compliance systems was uncontested and Mr Dunne had been co-operative and open in interview.

The disputed evidence concerned the encounter with James Strathearn on the 10th March 2020. TE Wardrop stated that he saw the company card in Mr Strathearn’s wallet when asking for the driver’s licence and CPC card. He saw the word “Central” which prompted his request to see the full card.

James Strathearn stated in evidence that TE Wardrop had reached across the dashboard to open Mr Strathearn’s wallet without his consent.

Having heard from both parties I have no doubt that TE Wardrop’s evidence is the truth. The request for the driving licence and CPC card at the beginning of an encounter is entirely consistent with normal operating practices. Mr Strathearn’s refusal to show the card raised legitimate concerns.

I reject Mr Strathearn’s account that he left his wallet on the dashboard and TE Wardrop reached across and opened it without his consent. If TE Wardrop was willing to go that far, why would he not have continued to remove the card to confirm his suspicions?

TE Wardrop stated that initially Mr Strathearn said that the card was from his previous operator’s licence. I find it highly unlikely that he would keep that in his wallet having had the licence revoked at public inquiry in 2018. His explanation at this hearing that the card was a fuel card from that revoked entity that he kept in his wallet for “sentimental reasons” I find to be similarly unbelievable.

Mr Dunne’s recollection of there being only 2 company cards which were at his home the next day, many miles away from Mr Strathearn’s route, does nothing to cast doubt on the accuracy and honesty of TE Wardrop’s evidence.

In conclusion on this issue, if Mr Strathearn was so adamant that he was not in possession of the operator’s company card why not just produce the card in his wallet it to the Traffic Examiner, without requesting police attendance?

Regarding the suggestion of fronting there were reasonable grounds for suspecting that this had occurred:

(1) James Strathearn was believed to be in possession of the company tachograph card. My findings on the disputed evidence give solid grounds for the DVSA’s concerns.

(2) The explanation of the involvement of Hana Simpson and the reasons behind her being the sole director are unconvincing. She invested no money (but took out sums in expenses) and had no apparent background or expertise in logistics. She was alternately named as an investor and the person who would run the logistics and despite Mr and Mrs Dunne stating she had no input to the business, one driver stated he took work instructions from “Hana” and, she was not removed from Companies House records until 1st August 2020.

(3) The fact that Mr Dunne and Mr Honeyman each stated the other downloaded the vehicle units, yet they were done soon after Mr Strathearn’s driving.

(4) The role of Forth Valley Commercials in the appointment of David Honeyman and the engagement of drivers.

(5) The links between Transport Manager David Honeyman and James Strathearn. David Honeyman was an offending driver on James Strathearn’s licence and was employed through Forth Valley Commercials.

Mrs Johanna Dunne and Mr Gordon Dunne appeared as experienced, respectable businesspeople. I could see no reason why their involvement in the licence needed to be concealed and indeed, Johanna Dunne was named (incorrectly) as a co-director on the application submitted by Hana Simpson on 3rd April 2019.

Case-law is quite clear that the more serious the allegation the more cogent the evidence needs to be, although proof remains on the “balance of probabilities”. Mrs Dunne and Mr Dunne were adamant in their denial of fronting and there is little doubt that since the early days of the licence Mr Dunne has been in operational control. Whilst there was a woeful lack of due diligence in the appointment of Hana Simpson as a sole director and David Honeyman as a transport manager, I do not find the suggestion of fronting made out to the required standard.

The breach of the undertaking to observe the rules on drivers’ hours and tachographs at the time of the investigation is clearly established by the evidence and admitted in the realistic submissions on behalf of the operator.

Mr Honeyman’s role as an active transport manager was relatively short-lived, albeit he remains named on the licence pending Mr Harrison’s formal approval. He was realistic and open in his evidence that he was not cut out to be a transport manager and had no intention of resuming the role for this or any other operator. I formally find that he failed to exercise constant and effective management of the transport activities of the operator.

Regarding the employment status of drivers, reliance on agency drivers has diminished and this is to be welcomed. It is far easier to monitor the working time and rest periods of employed drivers and Mr Dunne estimates that 50% of the drivers are now employed. Regarding Forth Valley Commercials, the use of the agency continues to be drawn back and other agencies supply two thirds of the agency drivers.

Mr Harrison demonstrated a keen desire to receive satisfactory assurances about the availability of agency drivers having regard to their work/rest time and other duties.

Regarding existing levels of compliance, TE Stoner, noted that there had been substantial improvements in systems for managing drivers’ hours, working time and tachographs, and in compliance generally. Documentation and reports were provided in a transparent fashion with the operator showing areas where progress still needed to be made.

I am satisfied that Mrs Dunne, and Mr Dunne in particular as the operational managing director, have a genuine desire to have full control of the licence and to receive the information they require in order to fulfil their legal and business responsibilities as directors.

In Aaron Harrison, the operator company has a competent and reputable transport manager. Mr Harrison clearly created a good impression when dealing with TE Stoner during the investigation and I was impressed by his attitude, commitment and professionalism at the public inquiry. He has a good working relationship with Mr Dunne and, taking their evidence together, I am satisfied that they can manage the transport activities of the operator company in a compliant manner.

5. Considerations and Decision

Breaching the drivers’ hours rules and regulations, failing to record full working time and driving without a card to hide the fact that breaks and rest have not been achieved shows total disregard for the drivers’ hours rules and regulations. It also puts lives at risk.

The inconsistencies in the accounts of drivers as to how the feeder journeys took place – regarding pay, company or private vehicles, single or double manned – were striking and cannot be explained by memory lapses. The coincidence of so many professional drivers having friends and relatives who were willing to take repeated journeys at all times of the day and night in the middle of winter to place them at company vehicles was simply unbelievable

Whilst the level of shortcomings and the absence of proper drivers’ hours and working time management would justify severe regulatory action against the licence, I weigh in the balance the substantial improvements made by the operator as confirmed by TE Stoner.

Most importantly, those changes were implemented immediately at the time of the DVSA investigation and have not awaited the calling in to public inquiry.

Aaron Harrison impressed as an enthusiastic, knowledgeable and conscientious individual who could be trusted to manage the transport operations of the business. He had assumed control of the compliance systems from Mr Honeyman in March 2020 pending resolution of his formal status at this inquiry.

Training had been arranged for drivers, including agency workers, and audit reports by Logistics UK had been commissioned and action was being taken on the flaws identified in those reports.

Whatever the factors that led to the unsatisfactory situation regarding Hana Simpson being a sole director, apparently in name only, I make no findings against the repute of director Johanna Dunne and I am satisfied that Mr Dunne’s management of the business is genuine and capable of being effective. Both Mrs and Mr Dunne have agreed to undertake Operator Licence Awareness Courses and I trust them to attend those courses within the next 6 weeks.

In terms of the seriousness of the shortcomings identified at the time of the investigation the operator would be facing severe/serious regulatory action under Senior Traffic Commissioner’s Statutory Document No. 10.

I have regard to the submissions from Mr Gray at the conclusion of the inquiry and Mr Dunne’s evidence that any suspension or curtailment of the licence would prove fatal to the business having regard to financial commitments and contractual undertakings.

I note that the operator is performing work that is critical and in high demand at the present moment. I therefore accede to the plea to mark the regulatory failings with a formal warning. I stress this is intended as a final warning and does not represent minor or insignificant failings.

There can be no doubt, having regard to my findings on the evidence above, that Mr David Honeyman failed to provide effective and continuous management of this operator’s licence from the date of its grant in June 2019.

I accept that Mr Honeyman has been open and realistic in stating that he is not cut out to be a modern-day transport manager. I accept that his stated intention not to become a transport manager in the future is genuine but in order to remove any possibility of a change in heart, I determine that removal of his repute and therefore professional competence is appropriate and necessary.

On finding a loss of good repute for a transport manager, disqualification from acting as a transport manager is mandatory (Para.16 of Schedule 3 of the Act). David Honeyman is disqualified indefinitely from acting as a transport manager with effect from 30th October 2021.

The application to vary the licence to 8 vehicles and 8 trailers is granted.

The application to add Aaron Harrison as a Transport Manager and remove David Honeyman is granted.

6. Driver Conduct Decisions

6.1 Statutory Background

Section 115 (1) of the Road Traffic Act 1988 provides that “a large goods vehicle or passenger-carrying vehicle driver’s licence -

must be revoked if there comes into existence, in relation to its holder, such circumstances relating to his conduct as may be prescribed;

must be revoked or suspended if his conduct is such to make him unfit to hold such a licence; and where the licence is suspended under paragraph (b) above it shall during the time of the suspension be of no effect.”

Section 116 (1) provides that “any question arising under section 115 (1) (b) of this Act as to whether a person is or is not, by reason of his conduct, fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, may be referred by the Secretary of State to the Traffic Commissioner for the area in which the holder of the licence resides.”

Section 116 (2) provides that “where on any reference under sub-section (1) above, the Traffic Commissioner determines that the holder of the licence is not fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, he shall also determine whether the conduct of the holder of the licence is such as to require revocation of his licence or only its suspension; and if the former, whether the holder of the licence should be disqualified under section 117 (2) (a) of this Act (and, if so, for what period) or under Section 117 (2) (b) of this Act.”

Section 116 (3) provides that “a Traffic Commissioner to whom a reference has been made under sub-section (1) above may require the holder of the licence to furnish the Commissioner with such information as he may require and may by notice to the holder, require him to attend before the Commissioner at the time and place specified by the Commissioner to furnish the information and to answer such questions (if any) relating to the subject matter of the reference as the Commissioner may put to him.”

Section 121 defines conduct as meaning – (a) in relation to the applicant for or the holder of a large goods vehicle driver’s licence, his conduct as a driver of a motor vehicle.

In dealing with the individual drivers I have regard to: the evidence and findings at the conjoined operator Public Inquiry as set out above, to the individual interview records, and, to the evidence at the hearings (where applicable).

In respect of all drivers the bulk of the offences were failing to record “other work” where they undertook feeder runs from the Falkirk base to Lockerbie, or return runs, a journey taking some 1 hour and 30 minutes. The journeys were either as drivers or passengers in personal or company vehicles but as they were not home to base journeys they should have been manually recorded as “other work”. They clearly were not “rest periods” and, in many cases, counting them would have impacted on minimum daily rest periods.

6.2 David Honeyman

was interviewed both as a driver and as transport manager. He gave evidence at the hearing in relation to both roles. As a driver, was working as a part-time driver, 2 days per week, and he had doubts as to whether he was going to renew his LGV licence as he was now 74 years of age.

Analysis of his digital driver’s card for the relevant period in December 2019-February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys, mainly between Lockerbie and the operator’s base in Falkirk x. 48+.

• Insufficient daily rest x. 3.

• Insufficient break x. 1 – 5 hours 58 minutes continuous driving.

Whilst Mr Honeyman stated to Mr Kelly in evidence that he thought it was ok to record the feeder journeys as rest – “if you get the bus to work” – he had fully accepted in interview the journey in a car to take over a lorry or the return journey back from having driven the lorry should have been recorded as “other work”.

I have no doubt that Mr Honeyman was aware as an experienced driver and qualified transport manager that these journeys should have been recorded and as a professional driver he should have known.

I have regard to the fact that all LGV drivers are working in a pressured environment at the present time and there is great demand nationally for their services.

Having regard to STC’s Statutory Document No. 6 – Driver Conduct, Annex A, I place Mr Honeyman’s offences in the category of “Persistent and/or very serious and/or habitual offences” meriting a suspension of 28 days and upwards. I take into consideration the passage of time since the infringements and the likelihood of further offending, having regard to lessons learnt during the course of the investigation and inquiry.

I give Mr Honeyman credit for his previous good conduct, his co-operation with DVSA and the inquiry and reduce his suspension to the minimum period I consider to be commensurate with the number and level of offences.

7. Decision –

the vocational driving licence of David Honeyman is suspended for 21 days with effect from 00.01, 1st November 2021.

7.1 Martin Jones,

attended the first day of the hearing and gave evidence as to his employment with the operator up until March 2020. He had failed to attend the DVSA interview as he did not want to jeopardise his new employment.

Analysis of his digital driver’s card for the relevant period in December 2019-February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys, mainly from Lockerbie to base x.49.

• Driving without a card x. 1 .

• Insufficient daily rest x. 3

He stated that he took work instructions from “Hana”, contrary to all the other drivers.

He did not challenge the number of feeder journeys and said his normal route was to start at Johnson’s Bridge, Lockerbie, then drive to Doncaster and then take the lorry back to Grangemouth where he slept in the lorry. According to TE Stoner that was contradicted by the vehicle movements after returning to Grangemouth.

He stated that a “good mate” would drive him to Johnson’s Bridge (a round trip of at least 2 and a half hours) 5 days per week and then have use of his car.

He described sleeping in a caravan at Grangemouth when challenged about sleeping in the lorry. However, he then conceded that the caravan only arrived in February.

Mr Jones was reluctant to accept that the feeder journeys should have been recorded as “other work” and that they were not rest. I found his evidence about his “mate” driving him 5 days per week unconvincing and other drivers’ evidence cast considerable doubt on his veracity.

Mr Jones’ evidence about his medical condition gave cause for concern as to whether he had complied with medical notification procedures. I remind him it is his legal duty to do so.

Having regard to STC’s Statutory Document No. 6 – Driver Conduct, Annex A, I place Mr Jones’ offences in the category of “Persistent and/or very serious and/or habitual offences” meriting a suspension of 28 days and upwards. I consider that a period of suspension is necessary to bring home to Mr Jones the seriousness of his infringements.

8. Decision –

the vocational driving licence of Martin Jones is suspended for 28 days with effect from 00.01, 1st November 2021.

9. Stephen Baikie,

attended both days of the hearing. He had not attended the DVSA interview as he had been stressed by involvement in a “wheel loss” incident which had resulted in a public inquiry and driver conduct hearing. He had received a warning for an unrelated speeding offence but was not culpable in relation to the wheel loss.

Analysis of his digital driver’s card for the relevant period in February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys to Lockerbie from the operator’s base in Falkirk x. 12.

• Insufficient daily rest x. 2.

Mr Baikie stated that he was contacted by James Strathearn in response to an online post on a drivers’ forum. He regarded himself as PAYE, employed by the operator company throughout, despite suggestions on behalf of the operator that he was a Forth Valley agency driver initially.

Questioned by me, Mr Baikie described journeys with Martin Jones in a works van, liveried Forth Valley Commercials. He described the van and the seating and I found his evidence far more credible than that of Martin Jones and other drivers telling of the lifts from family and friends. I give him credit for his attendance and the manner in which he gave his evidence. I note that he felt under pressure whilst working for the operator but feels far more comfortable in his new employment.

The number of feeder journeys cited against Mr Baikie was less than other drivers and I have no doubt that he has learnt sufficient to make suspension unnecessary and disproportionate having regard to the passage of time and his particular circumstances.

10. Decision –

Steven Baikie is given a formal warning regarding his future driving conduct.

11. William Rintoul,

attended both days of the hearing and had co-operated with the DVSA investigation.

Analysis of his digital driver’s card for the relevant period in December 2019-February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys, mainly from the operator’s base in Falkirk to Lockerbie x.14, including 1 x. 3 hour and 29 minutes journey to Northallerton.

• Insufficient daily rest x. 2.

• Insufficient breaks x. 5

• Driving without a card x. 10.

Mr Rintoul was visibly distressed by his appearance at a formal hearing and I am sure his contrition is genuine and deeply felt.

When asked if he drove his own car to the feeder journey start points he stated, “why would I use my own car? I don’t even let my wife drive that.” I found Mr Rintoul to be totally credible when he said this and I have no doubts that, as stated by Mr Rintoul and Mr Baikie, there was a “company” van or car provided, either by Forth Valley or the operator.

Asked about whether it was right to count the feeder journeys as rest, he stated, “No because you’re still working, but travelling to your work”.

Regarding the most serious offences of withdrawing his driver card from the tachograph and continuing to drive, I find that these were committed when he felt under pressure to complete his run. Mr Rintoul stated that he panicked when the tachograph started to flash (to warn him of the need to take a break) but his response, to pull his card, is clearly unacceptable and creates road safety risks.

Having regard to STC’s Statutory Document No. 6 – Driver Conduct, Annex A, I place Mr Rintoul’s offences relating to the feeder journeys in the category of “Persistent and/or very serious and/or habitual offences” meriting a suspension of 28 days and upwards. The “pulling the card” offences are referred to under “Falsification” in Annex A and Case Study 18 in Annex C. They would normally merit a lengthy period of suspension.

I mitigate the length of the suspension to take account of Mr Rintoul’s previous good character, his co-operation with the investigation and the inquiry, his genuine remorse and the fact I consider it highly unlikely that Mr Rintoul would ever re-offend.

12. Decision –

the vocational driving licence of William Rintoul is suspended for 56 days with effect from 00.01, 1st November 2021.

13. Edward Pearce,

attended both days of the hearing and had co-operated with the DVSA investigation. He was represented by Mr Neil Kelly.

Analysis of his digital driver’s card for the relevant period in December 2019-February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys, mainly from Lockerbie to base x.5

• Insufficient breaks x. 4

• Driving without a card x. 4 (short distances and short duration – 3 denied)

Mr Pearce confirmed the explanation given in his interview and Mr Kelly made representations regarding the offences. In particular, Mr Kelly stated that the infringements had not impacted on Mr Pearce’s daily rest and that he had not been deceitful.

The circumstances of the driving without a card were exceptional in that the vehicle had broken down and work was taking place on the vehicle which impact on his intended break.

Mr Kelly asked me to place the offences into the category “less serious on less frequent occasions” suggesting a starting point of 7 days suspension or a warning.

14. Decision –

Having regard to the passage of time, the lesser number of infringements, and Mr Pearce’s co-operation and attendance, I deal with him by way of a Formal Warning.

In particular, Mr Pearce needs to exercise far greater caution with his breaks and recognise that whilst, for example, he is in a queue waiting to be unloaded or being unloaded, he is not free to dispose of his own time at will and is not on a break.

15. James Strathearn,

gave evidence regarding his driver conduct. He had attended the DVSA interview and explained the drivers’ hours infringements during that process.

Analysis of his digital driver’s card for the relevant period in December 2019-February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys, mainly from Lockerbie to base x.34.

• Insufficient daily rest x. 4.

• Driving without a card x. 1.

Mr Strathearn stated in evidence that he had not realised that he needed to record the journeys from Lockerbie to base, and on one occasion, a 3 and a half hour journey from North Allerton as “other work”.

Given Mr Strathearn’s background as the holder of an operator’s licence and a professional driver, I reject the explanation that he believed these journeys to be “rest”. Those feeder journeys impacted directly on Mr Strathearn’s daily rest on 3 occasions I also find it unbelievable that family and friends drove to collect Mr Strathearn from remote locations during the winter months, particularly a night time round trip to North Allerton of at least 7 hours.

In losing his operator’s licence in 2018, Mr Strathearn took responsibility for 118 instances of false records and using another driver’s card. The Traffic Commissioner stated, “Mr Strathearn is a man who has lost whatever repute he might ever have had. He has engaged in dangerous, dishonest and deliberate undermining of the drivers’ hours rules and tachograph rules which exist as anchors of road safety”. He clearly is not entitled to the credit other drivers have been given for previous good character and first mistakes.

I give him credit for having attended training since the investigation and for his attendance at the interview and inquiry. I also have regard to the lapse of time and to Mr Strathearn’s apology for the consequences of his attitude towards DVSA examiners for the operator and others.

Having regard to STC’s Statutory Document No. 6 – Driver Conduct, Annex A, I place Mr Strathearn’s offences in the category of “Persistent and/or very serious and/or habitual offences” meriting a suspension of 28 days and upwards.

16. Decision –

I recognise the industry demand for professional drivers at the present time and I accept that suspension will affect Mr Strathearn’s income and employability. Case Exercise 23 in the STC Guidance might suggest a lengthy period of aggregated suspension for the offences committed by Mr Strathearn but taking all the circumstances into account I mitigate the suspension period to 28 days with effect from 00.01 on 1st November 2021.

17. Anthony Van Hulssen,

did not attend the hearing. He sent an email to the office explaining a medical condition that prevented his attendance.

Mr Van Hulssen was an agency driver with Forth Valley Commercials following 19 years being self-employed, running his own light haulage company.

Analysis of his digital driver’s card for the relevant period in December 2019-February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys, mainly from Lockerbie to base x.19.

• Driving without a card x. 1 – denied.

In interview Mr Van Hulssen described friends or his wife driving to Lockerbie, often in the early hours of the morning to pick him up or driving down in his own car.

In his e-mail Mr Van Hulssen denies the driving without a card offence and describes a company car provided by Forth Valley which he stated he was not aware of and had not driven during his interview. He provides manual tachograph records of 10 of the 19 “feeder journey” offences. Those records appear not to have been shown to TE Stoner or mentioned to her in interview. They would also appear to contradict Mr Van Hulssen’s assertion in interview “I didn’t think I had to record it”, although he may have been drawing a false distinction between his car and the agency car.

Having regard to STC’s Statutory Document No. 6 – Driver Conduct, Annex A, I place Mr Van Hulssen’s offences in the category of “Persistent and/or very serious and/or habitual offences” meriting a suspension of 28 days and upwards.

Notwithstanding the number of offences, I am minded to mitigate Mr Van Hulssen’s suspension to a period of 28 days with effect from 00.01 on 1st November 2021 provided that Mr Van Hulssen writes to confirm acceptance of this decision. Should he not, he will be called to appear before me by way of a virtual (online) Driver Conduct Hearing.

18. Bartholomew McDougall

was unable to attend a formal interview and did not attend the inquiry/driver conduct hearing.

Analysis of his digital driver’s card for the relevant period in December 2019-February 2020 revealed the following offences relating to rest periods and breaks as a driver:

• Failing to record work journeys, from the operator’s base in Falkirk to and from Lockerbie x. 28.

• Insufficient daily rest x. 1.

• Insufficient breaks x. 4

• Driving without a card x. 5. (3 admitted and 2 denied)

• False record x. 1

Having regard to STC’s Statutory Document No. 6 – Driver Conduct, Annex A, I place Mr McDougall’s offences relating to the feeder journeys in the category of “Persistent and/or very serious and/or habitual offences” meriting a suspension of 28 days and upwards. The 4 offences of driving without taking the mandatory 45 minutes break aggravate his offending, particularly those of 5 hours 49 and 50 minutes driving. The driving without a card and “pulling the card” offences are referred to under “Falsification” in Annex A and Case Study 18 in Annex C. They would normally merit a lengthy period of suspension.

I mitigate the length of the suspension to take account of the passage of time and the circumstances pertaining at the time of the investigation.

19. Decision –

The vocational driving licence of Bartholomew McDougall will be suspended for a period of 3 months with effect from 00.01 on 1st November 2021 provided that Mr McDougall writes to confirm acceptance of this decision. Should he not, he will be called to appear before me by way of a virtual (online) Driver Conduct Hearing.

A.R. Seculer 11.11.21

Anthony Seculer, Deputy Traffic Commissioner, Scottish Traffic Area, 6th October 2021