Decision

Decision for David Edward McGregor Ltd, OM2018313

Published 9 August 2022

0.1 In the Scottish Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 DAVID EDWARD MCGREGOR LTD, OM2018313

2. Background

The Operator is the holder of a standard national licence with authorisation for 3 vehicles and one trailer. The Operator is a limited company. Mr David McGregor is the sole director and shareholder. The Operator was granted a restricted licence for one vehicle on 28 December 2018 which was upgraded to a standard national licence on 16 January 2020. The nominated transport manager was John Templeton. Mr Templeton notified the OTC of his resignation with effect from 20 July 2021, by letter dated 28 June 2021.

The Operator submitted 2 applications to vary the licence:-

• To add a new operating centre (interim authority was granted for this variation) and to increase the overall vehicle authority from 3 vehicles and 1 trailer to 4 vehicles and 1 trailer.
• To nominate David McGregor as transport manager (application dated 13 July 2021).

3. The Call to Public Inquiry

The Operator was called to public inquiry by letter dated 9 November 2021. The reasons for the call to public inquiry were that the Traffic Commissioner had concerns that the Certificates of Professional Competence that had been lodged in support of Mr McGregor’s nomination were forged documents. The Traffic Commissioner was concerned that the Operator might not be of good repute and that it did not meet the requirements of professional competence – see s.13A(2) of the Goods Vehicle (Licensing of Operators) Act 1995.

4. The Public Inquiry

The Public Inquiry took place at Edinburgh on 15 December 2021 and on 23 February 2022. Mr David McGregor attended both days. The Operator and Mr McGregor were represented on both days by Mr Neil Kelly, Solicitor. The Public Inquiry was continued because I was concerned that a matter had arisen in evidence which arguably had not been raised in the Call to Public Inquiry. During the continuation the Operator submitted a further TM1 nominating Ryan Graham as a Transport Manager. At the reconvened Public Inquiry the Operator withdrew the application to nominate a new Transport Manager as the Operator wished to downgrade the licence to a Restricted Licence.

5. The Evidence

The following is a summary of email correspondence between Mr McGregor and the caseworker at the OTC dealing with the Operator’s application for Mr McGregor to be the Transport Manager. The correspondence also dealt with the other applications for variation of the licence made by the Operator.

On 13 July 2021 Mr McGregor had completed his application to be nominated as Transport Manager online and had uploaded a document which was reproduced at page 20 of the Public Inquiry Brief (“CPC 1) in support of that application. That document purported to be a “Certificate of Qualification” for Mr McGregor dated 1 June 2021 and stating that he had successfully completed his Certificate of Professional Competence for Transport Managers.

(At the Public Inquiry Mr McGregor accepted that this was not a genuine Certificate of Professional Competence)

On 26 July 2021 the OTC caseworker emailed Mr McGregor stating “…in order to process your transport manager application we need to see your full Certificate of Professional Competence…”

On 30 July 2021 Mr McGregor replied “…On the note of the change of Transport Manager. I don’t have this document you refer to, so will need to request this. To be honest I’m not really aware of what this looks like as I haven’t seen one previously…”

On 28 August 2021 Mr McGregor emailed the OTC caseworker “I have asked for the certificate thats required from training company and I still await a response. I will send it over as soon as I have it.”

On 10 September 2021 the OTC caseworker emailed Mr McGregor asking “Have you received anything back from the training company about the certificate of professional competence? I don’t believe we have heard from you since you sent the email below on 28/08/2021”

On 12 September 2021 Mr McGregor replied “…I am trying to get whats required but struggling just now to get anyone to deal with it. I will chase up this week”.

On 16 September 2021 the OTC caseworker replied “…I’m not sure if you’ve had any luck from the course provider about the certificate – have they given you any indication of when they might be able to provide it?…”

On 20 September 2021 Mr McGregor replied “…The course provider are being difficult just now but will get to the bottom of it as soon as possible…”

There was an issue about the bank statements for the increase in authorised vehicles which was resolved.

On 28 September 2021 at 07:13 Mr McGregor emailed “Is there any update on adding the additional vehicle to my licence?”

The OTC caseworker replied at 07:56 “…The full grant of the application allowing the additional vehicle cannot proceed until the transport manager situation is resolved. Do you have the correct certificate yet? Or have you made a decision on downgrading the licence to restricted? Either way, let me know and I’ll pass the information on to the Traffic Commissioner for a decision…”

At 13:37 Mr McGregor replied “Please find attached certificate”. The attached certificate purported to be a Certificate of Professional Competence for Transport Managers dated 1 June 2021 (“CPC 2”)

(At the Public Inquiry it was accepted by Mr McGregor that this was not a genuine Certificate of Professional Competence)

On 29 September 2021 at 11:33 the OTC caseworker emailed Mr McGregor:

“Thanks for providing the certificate. I am a bit mystified as to why [a discrepancy had been identified in CPC 2]…but that is something I can put to the Traffic Commissioner.

If you want to change to restricted, then as long as you can confirm that you will only be carrying your own goods only, then this should be possible without any further applications, though I will have to refer it to the Traffic Commissioner first…”

Mr McGregor replied at 12:00

As per discussion, I would like to put my licence back to restricted. The vehicles that I operate are for my own purposes and not for hire or reward. The reason I did change from restricted to national previously was because I was going to move timber for a potential customer but this did not happen.

If I need to look at changing back to national I would look at doing so in the future…”

The OTC caseworker then referred the case to the Traffic Commissioner which resulted in the Operator being called to Public Inquiry by letter dated 9 November 2021.

5.1 Mr McGregor’s evidence

Mr McGregor explained that since school he had worked as a tree surgeon. In 2018 he had decided to work for himself so he applied for and was granted a restricted licence. The business had expanded and he now had 4 drivers in addition to himself. The business covered the whole of Scotland and LGV’s were essential to the business.

When Mr Templeton had said he was going to resign at the end of June 2021 Mr McGregor had intended to change the licence back to a restricted licence. Mr McGregor had, however, always wanted to qualify as a Transport Manager and he had discussed matters with his supervisor Ryan Graham who wanted to qualify as a Transport Manager as well.

Mr Graham was booked onto a 5 day Transport Manager CPC course from 24 to 28 May 2021, with an exam preparation day on 30 July 2021. The cost of the course was £915.83 plus VAT of 183.17 – a total of £1,099.00.

Mr McGregor said that he had been working on a job with someone called “Robert”. Robert said that he had a couple of lorries. Robert said that he knew someone who would do Transport Manager CPC training on a one to one basis which would be a quicker process than going through a 5 day TM CPC course. Robert put Mr McGregor in touch with a man called John Malcolm. Robert gave Mr McGregor John Malcolm’s contact details and said that he would pass Mr McGregor’s details on to John Malcolm.

Robert said that the cost of the course would be £1,200. Mr McGregor was to pay Robert £1,200 in cash and Robert would then pay John Malcolm.

Mr McGregor paid Robert £1,200 in cash. Mr McGregor then had a video call with John Malcolm. There was no exam but Mr McGregor was asked some questions by John Malcolm.

Mr McGregor then received by post CPC 1 dated 1 June 2021 purporting to be a “Certificate of Professional Competence for Transport Managers”. Mr McGregor had uploaded CPC 1 in support of his TM1 application on 13 July 2021.

When the OTC caseworker had emailed Mr McGregor on 26 July 2021 asking for a full Transport Manager Certificate of Professional Competence, Mr McGregor had phoned John Malcolm on his mobile and asked for a full certificate. Mr McGregor had received CPC 2 on 28 September 2021 and had emailed it to the OTC caseworker.

Mr McGregor had not spoken to “Robert” since he paid him £1,200. Mr McGregor had not spoken to John Malcolm since he asked him for a full certificate at the end of July 2021. Mr McGregor had not chased up the matter of the full certificate.

Mr McGregor said after he got the letter calling the Operator to a Public Inquiry he had realised that he had been “scammed” and he had gone on line and searched for John Malcolm. Mr McGregor had found a reference to John Malcolm on a Facebook page belonging to a person called Eddie Ford. Mr McGregor produced a screenshot of the page to me. Mr Ford had posted a picture of John Malcolm and said:-

“**scammer update on john Malcolm AKA john Bayne**

I have just spoken to police and with information I have given them they are looking into the case.

They strongly advise anyone who has been affected by This fraudulent case to call them immediately.

If you have been affected please contact people now. We cannot allow this person to continue ripping people off.

Also contact your bank explaining the situation.”

Mr McGregor recognised John Malcolm from the photograph. Mr McGregor sent a message via Facebook to Mr Ford which Mr McGregor then deleted. Mr McGregor replaced the deleted message with another message:-

“10 DEC AT 08:41

Eddie I deleted the last message as it was a kryptic. But basically I have had issue with the same guy as you had with scam and I was looking to try and speak. Could you call me when you get the chance please – David [mobile number].”

Mr McGregor explained that John Malcolm had had a Facebook page which Mr McGregor had seen. However, John Malcolm’s Facebook page had been taken down before Mr McGregor had realised that Mr McGregor had been scammed.

Mr McGregor had not heard back from Mr Ford. Mr McGregor had not contacted the police about the scam.

Mr Graham had been put through a 5 day Transport Manager training course. At the time when Mr McGregor was going through his “training” with John Malcolm, Mr McGregor had not been aware of what a TM training course involved. Mr McGregor did not know that CPC 1 and CPC 2 were fake certificates when he had produced them to the OTC.

Mr Graham could not be at the Public Inquiry because he was on a course. Mr McGregor produced evidence that Mr Graham had passed his TM CPC but he did not have his certificate.

Mr McGregor worked in a highly regulated area of business. He had no need to forge Transport Manager CPC certificates. Mr McGregor felt very stupid and he understood that he had put his operator’s licence and his business at risk.

In cross-examination by me Mr McGregor explained that the “training” with John Malcolm had taken place before the date on CPC 1 and CPC 2 which was 1 June 2021. Mr McGregor had first spoken to “Robert” about transport manager CPC training in May. Mr McGregor gave Robert £1,200 in cash a few days after the conversation. Mr McGregor did not get a receipt for the cash. The cash had been cash that Mr McGregor had around the house.

Robert had been working on the same site as Mr McGregor near Barrhead. Mr McGregor had never met Robert before. Robert was removing parts of a garage and putting in a new base for the garage. Robert drove a grey estate car. Mr McGregor only saw Robert on the site a few times – possibly 3 times. Mr McGregor had Robert’s mobile number but it was on an old phone.

Mr McGregor had arranged his training with John Malcolm just before Mr Graham was booked onto his course (20 May 2021).

When Mr McGregor spoke to Robert, Robert had said that he knew someone who could do TM CPC training quicker than normal training providers because it would be “done one to one”.

John Malcolm had phoned Mr McGregor a couple of days after the conversation with Robert. John Malcolm said that he had been in touch with Robert and John Malcolm could do one to one training for Mr McGregor to get his TM CPC. Mr McGregor agreed to the training. There was no discussion about availability. There was no discussion about cost. John Malcolm said he would organise the training.

I asked Mr McGregor how he knew that he had to give Robert £1,200 in cash to pay for the course. Mr McGregor answered that he had known that because Robert had told Mr McGregor had to pay Robert £1,200 in cash for the training by John Malcolm. Mr McGregor did not know how Robert knew this. Mr McGregor did not question the amount, or why he had to pay Robert and not John Malcolm, or why it had to be in cash.

Mr McGregor said that it was not unusual for him to pay £1,200 in cash in the course of his business. He accepted that he had not paid for any of his other professional qualifications in cash.

Mr McGregor paid Robert the cash a couple of days after Mr McGregor’s conversation with John Malcolm. The payment had not been put through the company’s books because Mr McGregor thought that it was personal expenditure.

At that point in the cross examination I adjourned the Public Inquiry because it appeared to me that in the course of the PI a possible alternative explanation had arisen that had not been expressly raised in the Calling Up Letter. It seemed to me that a possible explanation for the unusual arrangement with “Robert” and “John Malcolm” was that Mr McGregor knew that he was not paying £1,200 for training resulting in a genuine TM CPC, instead he entered into an arrangement to get a forged Transport Manager Certificate of Professional Competence. The continuation would also allow the Operator to produce any mobile phone records or Facebook messages etc. that might support Mr McGregor’s evidence, and to submit a TM1 for Mr Graham to be the new Transport Manager.

When the Public Inquiry reconvened I allowed Mr Kelly to re-open his examination in chief of Mr McGregor as Mr Kelly wished to ask further questions to deal with the point that had been raised and various documents had been produced by Mr McGregor before the continued Public Inquiry.

Mr McGregor explained that he was unable to provide any records about the WhatsApp video call with John Malcolm which had taken place on 1 June 2021, nor did he have Robert’s contact details because his phone had been damaged beyond repair just after the video call.

Mr McGregor said that he had not realised that CPC 1 and CPC 2 were not genuine certificates until he had a telephone conversation with The OTC caseworker after he received the OTC caseworker’ email at 11:33 on 29 September 2021. At that point Mr McGregor had realised that something was wrong.

In cross-examination Mr McGregor accepted that it was odd that Mr Malcolm had not discussed the cost of the course with him. Mr McGregor had not asked Mr Malcolm about his qualifications nor who the certifying organisation would be. The course with Mr Malcolm had been a video call over a morning. There were no written materials provided and there had been no reference to materials such as the Guide to Maintaining Roadworthiness. When I asked what topics the course covered Mr McGregor said loading and unloading and drivers’ hours. Mr Malcolm had asked various questions. The call ended with Mr Malcolm saying that he would go through Mr McGregor’s answers and Mr Malcolm would get in touch. Mr Malcolm had got in touch shortly afterwards to say that Mr McGregor had passed and that a certificate would be posted out.

Mr McGregor received CPC 1 a few days later.

Mr McGregor was a driver and had undergone driver CPC training. That had been carried out in groups of 3. He did not find the shortness of the course surprising because it was one to one. He had not been aware of the length of Mr Graham’s TM CPC course because that had been booked by Mr Graham.

I asked Mr McGregor if he had felt at the time that it was £1,200 well spent. Mr McGregor said that he had not, but he felt it was above board, it was a lot of money but it was for one to one training.

Mr McGregor said he had contacted Mr Malcolm at the end of July 2021 to obtain a further certificate as CPC 1 was not accepted by the OTC. CPC 2 had taken 2 months to arrive. He had not chased Mr Malcolm after the phone call at the end of the July, despite being told by OTC that his application could not be progressed. Mr McGregor did not go back to Mr Malcolm after he had spoken to the OTC caseworker on 29 September 2021 because Mr McGregor knew he had been scammed.

After the first day of the Public Inquiry Mr McGregor had attempted to get in touch with “Robert” by going to a site where he thought Robert might be at. Mr McGregor said he had not seen “Robert” but had been threatened at the site. Mr McGregor had contacted the police as a result but they had taken no action other than to warn him to avoid the people that had threatened him.

Mr McGregor accepted that at no point had he said to the OTC caseworker that he had been scammed. On reflection he thought that he should have told the OTC that he had been scammed after he realised what had happened.

The first time Mr McGregor told the OTC he had been scammed was in a letter he wrote dated 2 December 2021. This was a response to being called to a Public Inquiry.

Mr McGregor did not tell Mr Templeton (the former TM) that Mr McGregor had done TM CPC training with Mr Malcolm.

Mr McGregor did not tell Mr Graham that Mr McGregor had done TM CPC with Mr Malcolm. Mr McGregor had not told Mr Graham that Mr McGregor had been scammed.

5.2 Submissions on behalf of the Operator

Mr Kelly, on behalf of the Operator, submitted that as it was accepted that CPC 1 and CPC 2 were not genuine certificates it was for the Operator to explain how it was that the 2 documents came to be submitted to the OTC as evidence that Mr McGregor had obtained his Transport Manager Certificate of Professional Competence. Mr Kelly drew my attention to the decision of the Transport Tribunal in Paul Oven Transport Services Ltd 2006/56 and in particular paragraph 12:-

“…in those cases where a Traffic Commissioner is considering regulatory action under one or more the grounds set out in ss.26 to 28 of the Act, the burden of proof is on the Traffic Commissioner to satisfy himself that any of those grounds are in fact made out. It is not for the Operator to negative a ground raised against him and as a result an Operator can choose to say nothing in response to a case that is being put against him. However, if there is some evidence before the Traffic Commissioner which would justify a conclusion that upon the balance of probabilities some action should be taken under ss.26 to 28 of the Act, it would be an unwise Operator to choose not to respond to the case that is being put forward as the inevitable result would be regulatory action being taken against them as appropriate to the seriousness of the regulatory issues being raised.”

Mr Kelly accepted that where an Operator has submitted false certificates to the OTC, unless the Operator satisfied a Traffic Commissioner that the Operator did not know that the certificates were false, the inevitable result would be regulatory action. Mr Kelly identified, correctly, that the submission of false certificates raised the question of whether or not the Operator could be trusted. Mr Kelly did not seek to distinguish between the Operator, a limited company, and Mr McGregor, the sole director and shareholder of the Operator.

Mr Kelly submitted that Mr McGregor in his evidence to the Public Inquiry had been telling the truth. He had been scammed. Mr McGregor had no reason to either create, or cause to be created, false certificates as he was putting one of his own employees through Transport Manager training at the same time. Mr McGregor could have sought a Period of Grace to allow him to nominate Mr Graham as a Transport Manager. Mr McGregor had paid for Mr Graham’s transport manager course and Mr McGregor had paid £1,200 for his training with John Malcolm. This was not an operator who submitted a false certificate in order to avoid the cost of obtaining a genuine qualification or because he was under pressure of time to produce a TM CPC.

The OTC caseworker had told Mr McGregor what a full Certificate of Professional Competence looked like in his email of 26 July 2021 and, in particular, it should include the Transport Manager’s date of birth. CPC 2, which was supplied in September 2021, did not have Mr McGregor’s date of birth on it. That suggested that whoever created CPC 2 did not have access to the email of 26 July 2021, in other words it was not Mr McGregor. Why would Mr McGregor have waited 2 months before creating CPC 2? A period of grace had been granted for a new Transport Manager to be found and Mr Graham had undergone the TM CPC course. Mr Kelly produced various TM CPCs that he had sourced from the internet to demonstrate that if Mr McGregor had wanted to create false CPCs he could have made a better job of it by copying easily accessible genuine TM CPCs.

Mr McGregor had not realised that there was anything wrong with the training he had undergone with John Malcolm until Mr McGregor had spoken to The OTC caseworker on 29 September 2021.

Mr Kelly said that Mr McGregor was mortified and embarrassed by what had occurred. Mr McGregor had thought about not appearing at the continued Public Inquiry and allowing the Operator Licence to be revoked but he had decided to attend. Mr McGregor’s account may be unusual but it did not mean that it did not happen.

Mr Kelly referred to Annex D of Statutory Document 10 Principles of Decision Making. The first time Mr McGregor had notified the OTC that he had been scammed was in his letter of 2 December 2021 responding to the Call to Public Inquiry dated 9 November 2021. If the failure to notify the OTC that CPC1 and CPC2 were not genuine (either during or after Mr McGregor’s telephone call with The OTC caseworker on 29 September 2021, and before Mr McGregor’s letter of 2 December 2021), was a breach of the relationship of trust between the Operator and the OTC then it would fall in either the “moderate or low category” in Annex D para. 6.1.

There was no likelihood of repetition. Mr Kelly submitted that if I accepted Mr McGregor’s account as truthful, the answer to the Priority Freight question – “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” would be that it would be likely that Mr McGregor would comply in the future. If, however I took the view that Mr McGregor had knowingly submitted false documents to the OTC, Mr Kelly accepted that I would not be satisfied that Mr McGregor would comply in the future.

So far as the Bryan Haulage question was concerned, was this an operator whose conduct was such that it ought to be put out of business, Mr Kelly said that if the conduct I found established was simply failing to tell the OTC at an earlier time that Mr McGregor had unwittingly submitted false documents, then it would not be proportionate to put the Operator out of business. Mr Kelly reminded me that in Dundee Plant Co Limited [2013] UKUT 0525 (AAC) where there had been systematic lying for 16 years, with repeated falsehoods and deceits to obtain an advantage the Traffic Commissioner had stepped back from revocation and imposed a suspension instead.

Mr Kelly submitted that If I agreed with Mr Kelly’s submission that the conduct fell within “Low to Moderate” that would merit at most a 14 day suspension or removal of the margin. Mr Kelly suggested that given the positives in this case – this was the first Public Inquiry, there was no suggestion of any other non-compliance with the Operator’s Licence in this case issuing a warning would be appropriate.

6. Discussion and Findings in fact

The critical issue in this case that I have to consider is whether or not I find it proved on the balance of probabilities that Mr McGregor was lying when he gave evidence that he did not know that CPC 1 and CPC 2 were false documents when he submitted them to the OTC. I note that the allegation against Mr McGregor is a serious one. I remind myself that the more serious the allegation, the more cogent the evidence has to be in order to find the allegation proved. In this case, however, it is accepted that false documents were provided to the OTC. I agree, therefore, with Mr Kelly that the remarks of the Transport Tribunal in Paul Oven Transport Services Ltd 2006/56 in particular paragraph 15 “The case against POTS was strong from the outset and required an answer from the Appellant if it was to avoid regulatory action” provide helpful guidance of the approach that I should take. The case against Mr McGregor is strong from the outset and requires an explanation from Mr McGregor. Mr McGregor accepts that CPC 1 and CPC 2 are not genuine Transport Manager Certificates of Competence and that they were submitted by him as genuine to the OTC in support of an application for him to be accepted as the Transport Manager.

The sole source of evidence that supported Mr McGregor’s case was Mr McGregor, As well as giving evidence Mr McGregor produced various documents to me. First, there was a paper trail about Mr McGregor obtaining a replacement mobile phone which supported his evidence that he was not in a position to access information held on the mobile phone such as WhatsApp messages or a record of his Zoom meeting with John Malcolm. I have no reason to doubt that Mr McGregor did not have access to the mobile phone that he was using at the time when he claimed to have been in contact with Robert and John Malcolm. That might explain why he was not able to provide a contact number for Robert (Mr McGregor did lodge a note that stated “John Malcolm – 07868 802241 Transport manager course booked 21st May 2021 for employee Ryan Graham”). It might explain why he could not produce text messages, WhatsApp messages from Robert or John Malcolm or Zoom records of a video call with John Malcolm. I am, on balance, prepared to accept that he did not have access to information because he had changed mobile phones.

Second, Mr McGregor produced “screengrabs” of what appears to be a Facebook page belonging to someone called Eddie Ford and a screengrab of a Facebook Messenger message. Both of these were obtained by Mr McGregor, he said as a result of Mr McGregor going online after he realised he had been scammed and looking for information about John Malcolm. One of the screengrabs refers to John Malcolm and appears to state that he had scammed Mr Ford, that the police were investigating and that Mr Ford encouraged others to contact the police if they had been scammed. Mr McGregor said that he recognised John Malcolm from the photograph on the screengrab. There is, however, no further detail of how Mr Ford was scammed. I have no way of knowing if these are genuine screengrabs of an account of someone who was scammed by the same John Malcolm or not. They do not provide me with any independent corroboration of Mr McGregor’s account as they come from Mr McGregor.

Looking at all of the evidence in the case, the issue comes down to do I believe Mr McGregor when he gave evidence that he had been scammed by two individuals – “Robert” and “John Malcolm”, that he had paid £1,200 in cash for what he believed to be a genuine Transport Manager CPC course, that he had submitted both CPC 1 and CPC 2 believing them to be genuine Certificates of Professional Competence as a Transport Manager and that he had not realised until 29 September 2021 that he had been scammed?

The impression that I formed from Mr McGregor’s evidence was that he was not telling me the truth. I found that Mr McGregor’s account was incredible, in the sense of not capable of being believed. The impression that I got from Mr McGregor’s evidence was that Mr McGregor was an experienced businessman. He produced evidence that he was a member of several professional bodies such as the Institute of Occupational Safety and Health, and that he had other qualifications including a Scottish Vocational Qualification in Occupational Health, Safety and Environment. Mr McGregor had never paid for any of these by cash.

It seems to me highly improbable that Mr McGregor, an experienced businessman, would pay £1,200 in cash to someone (“Robert”) who he had only met a few times and who he only knew by his first name, to obtain a TM CPC from someone (“John Malcolm”) that he had never met and knew nothing about other than his phone number. How did Mr McGregor believe that John Malcolm was qualified to deliver TM CPC training when he knew nothing about John Malcolm? How did Mr McGregor know that the price suggested for the training was a fair price? Why did Mr McGregor pay Robert £1,200 in cash when this had not been discussed with John Malcolm? Why was Mr McGregor not sufficiently interested to ask who the certifying body for the TM CPC was? If Mr McGregor did attend a video meeting for training with John Malcolm, why was he not surprised by the brevity of the course, the lack of any meaningful instruction, the lack of any materials, the lack of any form of test other than a few questions?

If Mr McGregor had been scammed in the way he described, why did he not suspect this earlier and tell the OTC? Why, according to him, was the first time Mr McGregor suspected that the training was not a genuine TM CPC course was when Mr McGregor was speaking to The OTC caseworker on 29 September 2021 after the OTC caseworker’ email at 11:33. Mr McGregor had been told by the OTC caseworker that there was a problem with CPC 1 shortly after Mr McGregor uploaded CPC 1 on 13 July 2021. On 26 July 2021 the OTC caseworker emailed asking for the Full Certificate of Professional Competence, describing the colour etc of the document. According to Mr McGregor he contacted John Malcolm and asked for the Full Certificate of Professional Competence, John Malcolm laughed and said that he did not know why the OTC were making a fuss about it. I did not believe that Mr McGregor, knowing that this was an important document that he needed in order to replace his Transport Manager who had left, did not take any steps to chase John Malcolm to produce the document, (which was his evidence to me) despite Mr McGregor claiming in emails to the OTC caseworker that he was doing so on 28 August 2021, 12 September 2021 and 20 September 2021. Did Mr McGregor not find it strange that John Malcolm took so long to produce CPC 2? I find it significant that CPC 2 appeared the day after the OTC caseworker emailed Mr McGregor on 28 September 2021 saying that the full grant of the application allowing an additional vehicle could not proceed until the transport manager situation was resolved. I find it significant that Mr McGregor did not tell the OTC caseworker that he had been scammed, despite Mr McGregor saying that it was in the course of a telephone discussion with the OTC caseworker on 29 September 2021 that he realised he had been scammed. If Mr McGregor had been scammed why did Mr McGregor not tell the OTC caseworker? These factors suggest to me that Mr McGregor knew that he had produced false documents to the OTC.

The first time that Mr McGregor told the OTC that he had been scammed was by letter dated 2 December 2021 which was a response to the Call Up Letter (p.43 of the Bundle) which was emailed to him on 10 November 2021. The letter said:-

“Following an effort to nominate yourself, David McGregor, as the replacement Transport Manager, the Traffic Commissioner has examined the Certificates of Professional Competence which have been lodged. The Commissioner will wish to be satisfied that these certificates are authentic and are not forged documents…”

If Mr McGregor had been scammed it seems to me that a reasonable response would be tell the OTC at the earliest opportunity. He did not do so.

I do not accept Mr Kelly’s submission that Mr McGregor did not create CPC 2 because, if he had, he would have known to put the date of birth in it. Mr McGregor submitted CPC 2 as genuine to the OTC despite the omission of the date of birth. Applying Mr Kelly’s logic Mr McGregor should have known that CPC 2 was not genuine and should not have submitted it because of the omission of the date of birth which, according to Mr Kelly, Mr McGregor knew was required.

I do not accept Mr Kelly’s submission that Mr McGregor had no reason to either create, or cause to be created, false certificates and therefore he must be telling the truth about being scammed. I do not know why Mr McGregor chose to put Mr Graham through Transport Manager training. I do not know if Mr McGregor knew that he could get a Period of Grace. If he did, clearly Mr McGregor did want to be a Transport Manager on the Operator Licence on 13 July 2021 when he uploaded the TM1 and the false certificate CPC 1. I do not know what reasons Mr McGregor had for wanting to be a Transport Manager on the licence in July 2021 rather than getting a Period of Grace and waiting from Mr Graham to sit and pass his TM CPC. However, an obvious reason for not applying for a Period of Grace for Mr Graham to obtain his TM CPC is that Mr McGregor may have been concerned that the absence of a Transport Manager might affect the application for an increase (as it in fact did). The fact that Mr McGregor could have sought a Period of Grace does not mean that Mr McGregor must be telling the truth. I have to consider all of the evidence and, having done so, I do not believe that Mr McGregor was the victim of a scam.

7. Findings regarding breaches of legislation

I have found that Mr McGregor, the sole director and shareholder of the Operator, knowingly submitted false documents to the OTC with the aim of Mr McGregor being accepted as a replacement Transport Manager. I remind myself that operator’s licensing is based on trust – Martin Joseph Formby t/a G & G Transport T/2012/ 34 at paragraph 17:-

“Traffic Commissioners must be able to trust those to whom they grant operator’s licences to operate in compliance with the regulatory regime. The public and other operators must also be able to trust operators to comply with the regulatory regime.”

I find that Mr McGregor, and therefore the Operator, cannot be trusted.

8. Relevant considerations

I have considered the Priority Freight question – “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” and I have reached the view that I do not consider that I can be satisfied that the operator would in the future operate in compliance with the operator’s licensing regime. Mr McGregor’s conduct shows that he cannot be trusted.

I have conducted a balancing exercise to determine whether or not it is proportionate to find that as a result of the Operator’s breach of trust the Operator should lose its repute and therefore have its licence revoked.

On the positive side this is the Operator’s first Public Inquiry. There is no suggestion that the Operator has breached any of the other conditions of its licence. The Operator was taking steps to put Mr Graham through his TM CPC from the summer of last year and Mr Graham is now a qualified TM. There is no suggestion that there were any issues of public safety as I am satisfied that the fleet was being adequately maintained despite there being no Transport Manager in place.

On the negative side in my opinion presenting, and relying on, false documents in order to claim that Mr McGregor was qualified to act as a Transport Manager is one of the most serious breaches of trust that I can envisage. The gravity of Mr McGregor’s conduct is such that it outweighs the positive features in this case.

I have taken into account that revocation of the Operator Licence will have a serious effect on the business. Nonetheless Mr McGregor will be able to continue his business as a tree surgeon, however he will not be able to use HGV’s. If I am wrong about that and the effect of revocation will be that the business will cease, so far as the Bryan Haulage question was concerned, is this an operator whose conduct was such that it ought to be put out of business, I find that it is a proportionate response to Mr McGregor’s conduct that I should find that the Operator no longer is of good repute in terms of 13A(2)(b) of the Goods Vehicles (Licensing of Operators) Act 1995 and that accordingly the Operator Licence should be revoked in terms of section 27 of the 1995 Act. I direct that the revocation will take effect from 23:59 Friday 10 June 2022 to allow Mr McGregor to wind down the use of HGVs.

I have considered whether or not I should make an order for disqualification against the Operator and Mr McGregor (the sole director of the Operator). I note that an order for disqualification does not necessarily follow revocation. I have reached the view that given the serious nature of Mr McGregor’s conduct the protection of the public, and to need to deter others from doing the same, require that the Operator and Mr McGregor should be disqualified from holding an operator’s licence in terms of section 28(1) of the 1995 Act. I also direct in terms of section 28(4) that should Mr McGregor become the director of, or hold a controlling interest in a company that holds an operator’s licence, or of a company of which such a company is a subsidiary, or operates any goods vehicles in partnership with a person who holds such a licence, the licence of that company or that person shall be liable to revocation, curtailment or suspension under section 26 of the 1995 Act. The disqualification will take effect from 23:59 Friday 10 June 2022 to allow Mr McGregor to wind down the use of HGVs.

I have considered the guidance in Statutory Document 10 at paragraph 105 (which refers to Annex 4) on the length of the period of disqualification. Looking at the guidance and considering the nature of Mr McGregor’s conduct I conclude that this case falls within the category of severe cases. Although it is the Operator’s first public inquiry the conduct is worse than those described in “serious” cases. It is, in my view, even worse than allowing drivers to falsify records. I therefore direct that Mr McGregor and the Operator should be disqualified for an indefinite period.

Mr McGregor does not hold a Transport Manager CPC. I direct that a note shall be added to Mr McGregor’s file that should he ever seek to be a Transport Manager on an Operator’s Licence, any such application should be considered at a Public Inquiry.

9. Decision

The Operator is no longer of good repute in terms of 13A(2)(b) of the Goods Vehicles (Licensing of Operators) Act 1995 and accordingly the Operator Licence must be revoked in terms of section 27 of the 1995 Act with effect from 23:59 Friday 10 June 2022.

The Operator and Mr McGregor will be disqualified from holding an operator’s licence in terms of section 28(1) of the 1995 Act for an indefinite period. I also direct in terms of section 28(4) that should Mr McGregor become the director of, or hold a controlling interest in a company that holds an operator’s licence, or of a company of which such a company is a subsidiary, or operates any goods vehicles in partnership with a person who holds such a licence, the licence of that company or that person shall be liable to revocation, curtailment or suspension under section 26 of the 1995 Act. The disqualifications will take effect from 23:59 Friday 10 June 2022.

Hugh J. Olson

Deputy Traffic Commissioner for Scotland

20 May 2022