Decision

Decision for G&N Transport Ltd OG1146309 and Transport Manager Deborah Boyland

Published 14 September 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

2. PUBLIC INQUIRY AND CONJOINED DRIVER CONDUCT HEARING HELD AT PONTYPRIDD ON 12 MAY 2021

In the matter of

G&N Transport Ltd OG1146309

and

Transport Manager Deborah Boyland

and

Driver – Craig Russell McCarthy

and

Driver – Lee McDonnell

and

Driver – Lee Anthony Meredith

2.1 In attendance at the public inquiry

Deborah Boyland, transport manager and director

Glyn Boyland, director

Craig Russell McCarthy, driver

Lee McDonnell, driver

Lee Anthony Meredith, driver

Traffic Examiner Alexander Bell, DVSA

3. Background

The operator has held a standard national licence authorising 15 vehicles and 10 trailers since 2016. A Driver and Vehicle Standards Agency (“DVSA”) roadside encounter with one of the operator’s vehicles on 10 June 2020 resulted in tachograph records and driver card data being requested from the operator. Examination of the data provided, and additional data provided to DVSA subsequently, revealed numerous drivers’ hours infringements by drivers working for the operator.

4. The Public Inquiry and Conjoined Driver Conduct Hearings

Glyn and Deborah Boyland, directors of G&N Transport Ltd, attended the Public Inquiry at Pontypridd on 12 May 2021. Deborah Boyland was also called to the inquiry in her capacity as Transport Manger. Drivers Craig McCarthy, Lee McDonnell and Lee Meredith were called to conjoined hearings under the 1988 Act to consider their LGV driving entitlement. In advance of the hearing, the operator had provided evidence in the form of inspection records and driver daily defect reports, forward planning system records, tachograph audit records, training and disciplinary records. I had also received written representations in advance of the hearing from Deborah Boyland.

5. Evidence

Evidence was heard from TE Bell, Craig McCarthy, Lee McDonnell, Lee Meredith, Deborah Boyland and Glyn Boyland. Written evidence in the form of a public inquiry statement by TE Bell incorporating interviews under caution of the drivers and transport manager and associated documentary evidence was adopted by TE Bell and accepted as accurate by all parties.

As set out in that evidence, which is not repeated here, the operator had an arrangement with a third party company based in North West England under which two of its drivers (Craig McCarthy and Lee Meredith) drove the operators’ vehicles but received instructions on a daily basis directly from that third party company. The drivers were paid by the operator on the basis of timesheets submitted by them, but it was accepted by the operator and transport manager that they had no direct control over the drivers during the period in question when the offences were committed. The operator was unaware of the pressure being put on the drivers by the company for whom they were providing the service, particularly on Mr McCarthy, a relatively inexperienced driver who committed the most serious offences, regularly pulling his card throughout May 2020 to complete the jobs given to him by that third party company. Craig McCarthy’s offending during the period in question was not picked up by Deborah Boyland because he was only paid for the work shown on his timesheets (which did not include the periods of driving without his card). Had he recorded accurate hours, infringement reports would have been generated and Deborah Boyland would have taken action, although it was also accepted by Ms Boyland that the deception could and should have been picked up before it was using the operator’s systems and by exercising a greater degree of control over Mr McCarthy.

The drivers’ hours infringements committed by Lee Meredith were of a less serious nature but he had recorded consistent daily rest offences over a four month period whilst receiving his instructions from the same third party company. Unlike Mr McCarthy, Mr Meredith was not intentionally committing drivers’ hours offences or manipulating time sheets to appear within the regulations. Rather, it was accepted that his was a training issue which needed to be addressed. Although Mr Meredith did receive infringement reports from Deborah Boyland, he did not understand how the offending occurred and the operator failed to rectify this by way of training and proper instruction. The operator and transport manager accepted that failure.

The third driver, Lee McDonnell, drove exclusively for the operator and received his instructions directly from Deborah Boyland. On 30 September 2020, he came to be driving a different lorry to the one he usually drove and discovered that he did not have his medication with him. Upon discovering this, he contacted Deborah Boyland who instructed him to abandon his final collection and return empty. He did as instructed but panicked and removed his driver card, driving for 50 minutes without his card to get home. In doing so he committed 3 offences of failing to use a tacho record/driver card, knowingly making a false entry and taking insufficient rest within a 24 hour period.

Since the DVSA intervention, the operator has made changes within the company to improve drivers’ hours systems management and disciplinary procedures. It has engaged a transport consultant to assist in that regard and introduced a new policy requiring drivers to take earlier breaks to reduce infringements of that nature. It no longer does work for the company mentioned above and all drivers work directly to Deborah Boyland.

TE Bell’s evidence was that Deborah Boyland is a very competent transport manager who responded immediately to shortcomings and was very helpful throughout the investigation. She is now a director of G&N Transport, along with her father, Glyn Boyland. Ms Boyland now works full time in her role as transport manager and director and has taken on the primary management role now that her father has stepped back.

Ms Boyland explained that the variation application had been made because of an increase in work last year, which would allow the business to take on more. The operator would like 2 more vehicles, but has applied for 5 (to allow for a margin), and an additional 10 trailers.

6. Evidence relating to drivers

Driver, Craig Russell McCarthy attended for interview under caution on 16 September 2020. He co-operated fully with TE Bell during the investigation and accepted TE Bell’s evidence regarding his offending behaviour, which TE Bell read out at the inquiry (pages 160 and 161 of the Brief). Mr McCarthy had prepared a written statement which he read out at the hearing and in which he accepted that he was guilty of the 27 charges set out in the call in letter – these were 8 offences of knowingly making a false record or entry, 10 of failing to use a tachograph record sheet or driver card, 3 of exceeding 10 hours driving time, 3 of exceeding 4.5 hours driving without the required breaks and 3 of taking insufficient rest within a 24 hour period. Mr McCarthy had received a letter from DVSA prosecution branch in November of last year advising him that, due to the Covid situation, a decision had been taken not to prosecute

These offences were committed during May 2020. The infringing was intentional to avoid taking a break period and exceed the maximum driving period. Mr McCarthy admitted to keeping separate notes on some of the occasions to ensure his driver card recorded a rest period of 9 hours while he was driving into the evening without a driver card and continuing the following morning without a driver card.

In his evidence, Craig McCarthy expressed his deep regret and remorse and apologised to the operator and Ms Boyland for bringing them into disrepute by his actions. He had not appreciated the serious nature of the offences he committed at the time, although he does now. Ms Boyland gave evidence in support of Mr McCarthy explaining that he had been naïve, easily led by those giving his driving instructions at the time, he had recently completed a drivers’ hours course and there had been no drivers’ hours infringements by Mr McCarthy since October last year.

Driver Lee Anthony Meredith attended for interview under caution on 13 November 2020 in relation to 4 offences of taking insufficient rest within a 24 hour period and one offence of exceeding 10 hours driving. In respect of the latter, Mr Meredith had been stuck in traffic following a road traffic accident and had made a written record at the time to explain that. As regards the insufficient rest offences, his evidence at the hearing was consistent with what was said during interview with TE Bell. He fully accepted that he had committed these offences but did not understand how. He had attended a driver hours course arranged by the operator in recent months and this has improved his knowledge and resulted in no further infringements.

Driver Lee McDonnell apologised for the 3 offences committed by him on 30 September 2020. He explained that he had been worried because he didn’t have his medicine with him and realised how stupid he had been to pull his card. Since the offences came to light Ms Boyland had taken him off tramping work and put him on day work and the operator had sent him on a drivers’ hours training course which he had found informative.

7. Findings of fact

It is clear, and accepted by all parties, that the drivers’ hours infringements which were the subject of interviews under caution with the drivers and transport manager, and fully specified in the Brief, were committed. Accordingly, I find that the operator has not honoured the undertakings it signed up to when it applied for its licence, namely that it would observe the rules on drivers’ hours and tachographs and keep proper records, and I find that section 26(1)(f) of the 1995 Act is made out.

Deborah Boyland accepted that she failed effectively and continuously to manage all the transport activities of the business, as required by the legislation, by failing to control and manage the driving activities of Craig McCarthy and Lee Meredith whilst they were driving on G&N Transport business but receiving instruction from a third party. One of these drivers, Craig McCarthy, was employed on a “self employed” basis which raises concerns about control of itself. Whether that did have any bearing on the reason why the offences were committed by Mr McCarthy is a moot point. Ms Boyland indicated to TE Bell at the time of her interview that the company was moving away from using so called “self employed” drivers and, at inquiry, she confirmed that the company would be prepared to agree to an undertaking to no longer use them, in view of concerns expressed by me. On the basis of the evidence, in particular that of TE Bell and the written and oral evidence submitted by Ms Boyland herself at inquiry, I consider that Ms Boyland is an effective transport manager and find that her repute is retained.

8. Considerations and Decisions in respect of the operator and transport manager

I have weighed up these findings against the positive features identified by both TE Bell and Ms Boyland in her submissions to me. Of particular significance is the operator’s good compliance history and the swift action taken by the operator as soon as the drivers’ hours infringements came to light. The operator and transport manager have demonstrated a commitment to improved compliance and done all that could be expected in that regard. They recognise that a loss of control is likely when self employed drivers are used and indicated that they would agree an undertaking in that regard, which is set out in my decision at paragraph 3(ii) of my Decision above. Whilst adverse findings are made out, I do not consider there to be any need, on balance, to take regulatory action against the operator’s licence. A warning is issued in relation to future compliance.

Following the inquiry, the operator confirmed by email dated 26th May 2021 that it would be prepared to agree an additional undertaking on its licence to carry out an independent audit, in the terms set out at paragraph 3(i) of my Decision above.

A variation application has been made to increase authorisation from 15 vehicles and 10 trailers, to 20 vehicles and 20 trailers. Mrs Boyland explained that this was to allow the business to expand and that the company would like 2 more vehicles, but has applied for 5 to allow for a margin.

In view of the adverse findings, I am not prepared to grant the variation application at this time. However, I grant the variation application on an interim basis for an additional 2 vehicles and 10 trailers, not the 5 vehicles sought. Subject to a satisfactory audit report being received, and in the absence of any other regulatory concerns at that stage, I will grant the substantive variation at that stage.

9. Considerations in relation to vocational driving licences

The legislation in relation to driver conduct is not the same as that applicable to the operators of heavy goods vehicles.

Section 115(1) of the Road Traffic Act 1988 (“the 1988 Act”) provides that a large goods vehicle or passenger-carrying vehicle driver’s licence – (a) must be revoked if there comes into existence, in relation to its holder, such circumstances relating to his conduct as may be prescribed; (b) must be revoked or suspended if his conduct is such to make him unfit to hold 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) of the 1988 Act provides that any question arising under section 115(1)(b) of this Act as to whether the 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) of the 1988 Act provides that where on any reference under subsection (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 the Act (and, if so, for what period) or under section 117(2)(b) of this Act.

Section 121 of the 1988 Act 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 driver of a motor vehicle, and (b) in relation to an applicant for or the holder of a passenger carrying vehicle driver’s licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger carrying vehicle driver’s licence.

In making my decision in relation to the vocational licences for the three drivers I have taken into consideration the Senior Traffic Commissioner’s statutory guidance in relation to Vocational Driver Conduct and the case of Meredith and Others v Traffic Commissioner for the Western Traffic Area EWHC 2975 (Admin). Essentially, when considering what action to take, if any, the personal circumstances of the offender are not relevant in my jurisdiction save in very limited circumstances. However, I must take into account the circumstances of the relevant offences.

Drivers are expected to fully acquaint themselves with the relevant legislation before undertaking employment as a professional driver. They cannot evade their personal responsibility by stating that they bowed to pressure from or orders of others on issues related to their obligations under the regulations. It would send entirely the wrong message to professional driers that they can drive vehicles knowing that they have falsified records. The drivers’ hours, working time and tachograph rules assist in keeping the public safe when using public roads and it is always serious when a deliberate false record is made by a vocational driver. The concealment of evidence required for effective regulation of drivers’ hours is serious and I regard such falsification as more serious than the offences that it was designed to conceal. The Senior Traffic Commissioner’s statutory guidance sets out that those who commit offences of this kind must understand that there will be serious consequences if and when the matter comes to light and that a cumulative and significant period of disqualification is the likely outcome. Subsequent conduct is also likely to be of limited weight.

Guidance in statutory document 6 on Vocational Driver Conduct includes case examples involving falsification of records. That guidance refers to a starting point of four weeks suspension for each offence, but with any more than six offences involving falsifications (e.g deliberately driving without using a tachograph, deliberately failing to keep records or pulling tachograph charts/digicards) meriting disqualification for 12 months.

Craig Russell McCarthy has committed 27 drivers’ hours offences, 8 of which are falsifications of records and 10 are failing to use a tachograph record sheet or driver card. These are very serious offences, committed deliberately in an attempt to evade drivers’ hours regulations. The starting point extends to in excess of a year. It was put forward in mitigation that he was a relatively inexperienced driver, having only gained his vocational licence in 2017, and that he bowed to pressure being put on him by those giving him his driving instructions. I accept that and also take into account his evident remorse, full co-operation with the DVSA investigation and his lack of infringements since these came to light. Having regard to all these factors, and the guidance in statutory document 6, I make a finding that he is not fit to hold a vocational licence. Ordinarily, I would revoke and disqualify for a period of at least 12 months, but in view of the mitigating factors referred to above, I reduce it to a period of nine months, commencing 12th June 2021. The disqualification relates to holding or applying for a vocational licence, he cannot apply for a new one until 12th March 2022. The delay in commencement of this order is to enable my decision to be communicated to Mr McCarthy.

Lee Anthony Meredith has committed 4 offences of driving without insufficient rest over a four month period. I am satisfied from the evidence that the offence referred to in his call in letter relating to exceeding the 10 hour driving limit was unavoidable, given that he was stuck in traffic due to a road traffic collision and quite properly made a record of that at the time. I accepted the evidence put forward by both TE Bell and by Mr Meredith himself that the offences for which he was reported were committed inadvertently due to him misunderstanding the rules. It was also accepted by the operator that it could and should have done more to avoid Mr Meredith repeating these infringements during that period. I have also had regard to additional mitigating features which are Mr Meredith’s co-operation with DVSA, his attendance at a drivers’ hours training course and clean infringement history since last October. I issue a warning as to his future driving conduct.

Lee McDonnell has committed 3 offences on the same date, one of which involved falsification by pulling his card and driving for a period of 50 minutes. The circumstances of this offence are highly relevant. Mr McDonnell required his medication, completely panicked upon discovering that it was in another lorry and, “in a moment of madness” pulled his card. There was no deliberate and premeditated attempt to deceive in his case and the mitigation is such that I issue a warning as to his future driving conduct.

Victoria Davies

Traffic Commissioner for Wales

27th May 2021