Decision

Decision for J.Max Transport Ltd (OD2034177), Transport Manager, Mr Maxwell Nyamukapa & Driver Conduct Hearing for Mr Maxwell Nyamukapa

Published 18 January 2024

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner; Public Inquiry & Conjoined Driver Conduct Hearing

1.1 J.Max Transport Ltd (OD2034177), Transport Manager, Mr Maxwell Nyamukapa & Driver Conduct Hearing for Mr Maxwell Nyamukapa

1.2 Case Summary: Sole director, transport manager and driver Mr Maxwell Nyamukapa was convicted on 16 October 2023 of 20 offences of knowingly making a false record and 15 offences of failing to make a record. Revocation of the operator’s licence, disqualification of the company and director, disqualification of the transport manager and revocation and disqualification of the driver’s vocational driving entitlement. Deterrent regulatory action taken to protect compliant operators, transport managers and drivers.

2. Background

J.Max Transport Ltd held a standard national goods vehicle operator’s licence authorising 3 vehicles and 3 trailers with one vehicle in possession. The sole director was and remains Mr Maxwell Nyamukapa, the statutory transport manager was Mr Maxwell Nyamukapa and the driver was Mr Maxwell Nyamukapa.

After a random roadside encounter by the Driver and Vehicle Standards Agency (“DVSA”) on Friday 02 December 2022, and subsequent investigation, it was alleged that Mr Nyamukapa had knowingly falsified his driving records on 20 occasions and failed to make a record on a further 15 occasions. Those allegations were prosecuted in the criminal courts.

On 16 October 2023 Mr Nyamukapa pleaded guilty at Telford Magistrates Court to 20 offences of knowingly making a false record and 15 offences of failing to keep a record. He was then committed for sentence to Shrewsbury Crown Court where he was subsequently sentenced for each of the 20 false record offences to 12 months imprisonment, suspended for 18 months, and to 100 hours of unpaid community work.

As a result of the findings in the DVSA investigation, and as a result of the subsequent letter from Mr Nyamukapa’s lawyer notifying me of the convictions, a decision was made to call this case to a public inquiry and conjoined driver conduct hearing on 04 January 2024.

3. Public Inquiry and driver conduct hearing on 04 January 2024

The investigating Traffic Examiner from the DVSA, Mr Jose Kochakkadan, was not asked to attend either by myself or Mr Nyamukapa.

Mr Nyamukapa attended in person. He was not represented.

Mr Nyamukapa had sent to the DVSA by email, in compliance with the Case Management Directions, the data that had been requested. He told me that he had also emailed relevant paperwork as well.

As a result, a supplemental 4 page report had been prepared by the Traffic Examiner dated 20 December 2023. This would have been emailed to Mr Nyamukapa by the DVSA using the same email address that Mr Nyamukapa used to send the raw data and any attached documents.

Financial evidence had also been submitted to my office by Nyamukapa which was satisfactory.

My clerk had accessed the PLS system to ascertain the sentences imposed upon Mr Nyamukapa as he had not notified my office before the public inquiry as to what they were.

Other than the documents in the public inquiry bundle paginated to page C24 there were no other documents before me apart from those stated above.

4. Burden and standard of proof

The burden of proof was upon the DVSA. The standard of proof was the civil law standard; the balance of probabilities which is a lower standard of proof compared to that used in the criminal courts. In simple terms the balance of probabilities means what is more likely than not to have happened.

5. Findings of fact

I was appointed to this jurisdiction in 2008 and have presided over thousands of public inquiries and driver conduct hearings in that time. As I stated in the hearing; in all of that time this is the worst case I have ever presided over concerning a person who was both the director, transport manager and driver who was convicted of knowingly making false records. That is the context to this case.

Where there are guilty pleas to offences in the criminal courts I do not go behind those convictions because by making those unequivocal pleas the person concerned has accepted the prosecution facts of the case to the criminal law standard of proof.

Here Mr Nyamukapa had accepted all of the false record allegations put to him by the DVSA in his interview under caution and it was more likely than not that the facts presented for each allegation of a false record prosecuted in the Magistrates Court were materially the same as the facts contained in the public inquiry statement from the DVSA Traffic Examiner contained within the public inquiry bundle.

I also noted that Mr Nyamukapa was represented throughout the criminal court process by a very experienced transport lawyer and advocate. That advocate has appeared before me regularly over the past 10 years and I know, as a result, how thorough he is. From my personal knowledge I can safely say that I know, with confidence, the sort of advice he will have given to Mr Nyamukapa both before the hearing at Telford Magistrates Court on 16 October 2023, before the sentencing hearing at Shrewsbury Crown Court and thereafter in relation to this public inquiry and driver conduct hearing and the likely outcome for each.

The sentences recorded on the PLS document provided to me by my clerk before the public inquiry were confirmed by Mr Nyamukapa. He could not have been taken by surprise, or prejudiced, by what was recorded on those three PLS sheets because he was present, and represented, in the Crown Court when those sentences were handed down by the sentencing Judge and he would have been advised thereafter about them by his lawyer.

The evidence of Traffic Examiner Jose Kochakkadan contained in the public inquiry statement that appears, with all exhibits and print offs, at pages B1 to B124 was credible, cogent and highly persuasive. I have accepted it as such. I noted that it had never been challenged by Mr Nyamukapa.

The guilty pleas entered by Mr Nyamukapa to all of the allegations made by the DVSA clearly demonstrated that those allegations were proven. For the avoidance of any doubt I would have found, from the admissions made by Mr Nyamukapa in his interview under caution, that all of those allegations were proven had the offences not been prosecuted.

Knowingly making a false record is a crime of dishonesty. It is extremely serious as it (a) allows the unscrupulous individual to get round the strict drivers hours and tachograph rules and regulations that are designed to protect road users from tired drivers and (b) it also allows an unfair commercial advantage to be gained because the person committing the offence(s) can work for longer than a compliant individual and by doing that it allows them to not only earn more money for the extra (unlawful) time worked but it also allows them to undercut compliant operator’s on price as a result.

Here Mr Nyamukapa admitted he had deliberately committed the false record offences for commercial reasons. He said he did so to keep his business afloat due to the increased fuel prices created by the war in Ukraine. Every operator, large and small, was adversely affected by that increase in fuel prices but that did not in any way allow them to deliberately break the rules and falsify records as a result. The vast majority of operators remained compliant and in doing so some went out of business; but they made the choice to go out of business rather than to break the strict rules. Mr Nyamukapa’s explanation for why he made the conscious decision to break the rules again and again and again was wholly without any lawful foundation or merit. Upon further investigation by myself in the hearing it was clear that he had gained, as a result of deliberately falsifying his records, an unfair commercial advantage over other operators who remained compliant.

I further found that but for the random roadside stop of Mr Nyamukapa by the DVSA it was more likely than not that Mr Nyamukapa would have carried on falsifying his driving records. His explanation to me that he would have stopped on his own volition was unpersuasive.

Not only had Mr Nyamukapa deliberately falsified his driving records he had put road safety at risk by his doing so because he was driving for longer than he was lawfully allowed to drive and did so without taking the minimum break periods and/or periods of rest that are in place as a matter of law to stop drivers becoming tired whilst driving.

The supplementary report dated 20 December from the Traffic Examiner highlighted 4 allegations of failing to take the prescribed minimum period of daily rest. Mr Nyamukapa was taken through each of the 4 allegations and asked for his explanation. He gave it and in 3 of the 4 allegations (3 September 2023, 01 October 2023 and 8 November 2023) I found those allegations to be proven. I accepted Mr Nyamukapa’s explanation for the allegation dated 31 October 2023 and did not take it into account.

This meant that despite being formally investigated for serious road traffic offences by the DVSA and despite being summoned to the Magistrates Court Mr Nyamukapa still continued to commit what I regarded to be serious offences on the three occasions I found as proven. Road safety had again been put at risk because Mr Nyamukapa had failed to take, by significant periods of time, the minimum period of daily rest that is required to be taken to protect road users from tired drivers.

By significant periods of time I meant:

• The proven offence on 03/9/23 showed the daily rest taken was 1 hour and 06 minutes too short; and

• The proven offence on 01/10/23 showed the daily rest taken was 2 hours and 05 minutes too short; and

• The proven offence on 08/11/23 showed the daily rest taken was 5 hours and 28 minutes too short.

The concluding remarks by the Traffic Examiner in his supplemental report included:

“From the information supplied it would appear that there are some systems in place but no robust actions [have] been taken on the infringements, poor planning of journeys may have led to four infringements of daily rest some of which carry DVSA sanctions at roadside. No evidence of infringement report or signed disciplinary brief provided for these infringements…”

I found that it was more likely than not that as at 20 December 2023 this operator did not have robust measures in place to ensure compliance with drivers hours rules and regulations and that as a result 3 proven, and serious, offences were committed that adversely impacted upon road safety.

It was therefore clear to me that the general undertakings on this operator’s licence that related to compliance with drivers hours and tachograph rules and regulations were being significantly, and deliberately, breached at the time of the DVSA investigation and were still being breached right up to the time of the supplemental report from the DVSA.

6. Balancing exercise and consideration of Statutory Document number 10

There were some positives; Mr Nyamukapa had gone on a two day refresher training course, he had put some new systems in place that he told me about, he was thinking of getting a new transport manager to assist his operation, he was sorry for what he had done and he said he would get things right in the future. He had also made admissions to the DVSA when he was interviewed under caution and pleaded guilty in the Magistrates Court. I gave as much credit for those things as I could.

However, the 20 convictions for knowingly making a false record, and the 15 convictions for failing to make a record with the 3 proven offences in the Traffic Examiner’s supplementary statement caried significant weight. Indeed, the 20 convictions for knowingly making a false record carried the maximum weight possible as those offences cut to the very heart of the operator licensing system; to the issues of trust, road safety and fair competition.

Having looked at the operator as it appeared before at the public inquiry I found that the negatives in this case significantly outweighed the positives. Consideration of regulatory action was required.

I then carefully considered Statutory Document number 10, and in particular Annex 4 therein, issued by the Senior Traffic Commissioner for Great Britain.

Repeating all of my findings and even after giving this operator as much credit as I could give I still determined that this case fell into the “Severe” category for consideration of regulatory action and at the very top of that scale.

7. Decisions

I had heard from the operator about the effect of action against the licence. I took what Mr Nyamukapa said to me into account when answering the questions posed by the Upper Tribunal in the appeal cases of Priority Freight and Bryan Haulage.

7.1 Good repute, operator

Looking at the facts of this case I answered the Priority Freight question in the negative; I simply did not, and do not, trust Mr Nyamukapa at all to be compliant in the future. He has been proven to be thoroughly dishonest in the way he regarded compliance with drivers hours and tachograph rules and regulations, he deliberately falsified records for commercial gain and he put road safety at risk as a result.

The up to date report from the DVSA demonstrated 3 proven serious offences where he failed to take, by over an hour on each occasion, the minimum amount of daily rest and as a result road safety was again put at risk.

I add that just from the facts concerning the 20 convictions for knowingly making a false record I would have answered the Priority Freight question in the negative even after giving the operator as much credit as I could give for the positives in this case.

I then asked myself the Bryan Haulage question. Repeating everything I had already said I determined that it was proportionate to answer that question in the affirmative; the conduct of this director and/or this transport manager and/or this driver (the same person, Mr Nyamukapa) was such that the operator ought to be put out of business. The operator had therefore lost its good repute and the operator’s licence had to be revoked under section 27(1)(a) of the Act.

I again add that just from the facts concerning the 20 convictions for knowingly making a false record I would have determined that it was proportionate to answer the Bryan Haulage question in the affirmative even after giving the operator as much credit as I could give for the positives in this case.

7.2 Good repute transport manager

Mr Nyamukapa was also the transport manager. On his own watch he deliberately falsified driving records and in doing so gained an unfair commercial advantage, put road safety at risk and would have carried on doing so had he not been caught. In addition he fundamentally destroyed the relationship of trust that must be present between a transport manager and the Traffic Commissioner by his conduct.

Further, 3 serious offences were found proven in the supplementary statement from the Traffic Examiner when there should have been no offences at all present. His conduct as a transport manager, despite all of the credit I have given to him, was such that he clearly lost his good repute as a transport manager a long time ago and it had not been restored at any time up to the conclusion of the public inquiry. The loss of good repute for Mr Nyamukapa as a transport manager was made with immediate effect. That order was made under paragraph 16(2) in Schedule 3 of the Act.

7.3 Disqualification, transport manager

There is only one outcome when a transport manager loses their good repute, they must be disqualified. In this case, repeating all of the facts and despite the credit I had given to Mr Nyamukapa, it was proportionate to disqualify him as a transport manager for 5 years to mark the severity of his conduct, the risk he posed to road safety, the unfair commercial advantage he gained, the total loss of trust between him and myself as the Traffic Commissioner and to send out the right message to compliant transport managers and the public alike that this type of conduct can never be dealt with by anything other than the most serious and robust type of regulatory action. This case is also so serious on its facts that it is to act as a deterrent to other transport managers who may be tempted to embark on similar conduct to Mr Nyamukapa. The disqualification imposed was with immediate effect and will not end until 2359 hours on 03 January 2029.

7.4 Professional competence, operator

The operator was no longer professionally competent because it no longer had a transport manager. The licence therefore had to be revoked due to the lack of professional competence in accordance with section 27(1)(a) of the Act.

7.5 Discretionary powers

Under my discretionary powers, repeating all of the facts as I have found them to be proven, it was also proportionate to revoke the operator’s licence pursuant to sections 26(1)(b), (c)(ii), (e), (f) and (h) of the Act despite the credit I had given to the operator for the positives in this case:

(a) 26(1)(b) – the clear breaches to the conditions on the licence as the operator had failed to notify me of events that may effect its ability to remain of good repute and professionally competent; I should have been notified by the operator immediately after Mr Nyamukapa had undertaken his interview under caution with the DVSA because he had, at that point in time, formally admitted all of the allegations made to him that he had knowingly made a false record; and

(b) 26(1)(c)(ii) – the 35 convictions recorded against Mr Nyamukapa and in particular the 20 convictions for knowingly making a false record; and

(c) 26(1)(e) – the breaches to the statements of expectation made by Mr Nyamukapa when the operator’s licence was granted; and

(d) 26(1)(f) – the breaches to the general undertakings on the operator’s licence that related to compliance with drivers hours and tachograph rules and regulations; and

(e) 26(1)(h) – the material changes that had occurred since the operator’s licence was granted

7.6 Orders of revocation and why they started with immediate effect.

All orders of revocation were with immediate effect given the fundamental lack of trust I had with Mr Nyamukapa, the severity of the case, the up to date evidence of non-compliance that put road safety at risk and because there was no persuasive reason not to commence all of my orders of revocation with immediate effect.

In that respect it cannot be said that Mr Nyamukapa did not anticipate losing the operator’s licence held by J.Max Transport Ltd, or his good repute as a transport manager, well before the hearing. It is more likely than not that he would have been so advised. He had had since the time of the admissions made in the interview under caution with the DVSA to have started to make contingency plans for the loss of this operator’s licence and certainly he would (should) have been thinking about that when he was summoned to the Magistrates Courts and he definitely should have been thinking about contingency plans after he pleaded guilty to all offences on 16 October 2023 and thereafter when his lawyer wrote to me with notification of the convictions on 25 October 2023 (page C18 of the bundle). In addition, the call up letter dated 24 November (sent by email and post) said (bottom of page A10 in the bundle):

“You should consider making contingency arrangements for any outcome from the inquiry, WHICH MAY INCLUDE THE LOSS OF YOUR LICENCE.”

8. Disqualification – Mr Maxwell Nyamukapa and J.Max Transport Ltd

I carefully considered the issue of disqualification after having heard from Mr Nyamukapa as to the effects of it. In essence he said that anything other than a few months would mean he would lose hope in returning to the transport industry.

I reminded myself again that this was a very bad case; the worst case of its kind that I had seen since I was appointed in 2008.

I had considered the Transport Tribunal (as it was before the Upper Tribunal) appeal case of 2006/27 Fenlon where it was held that:

$CTA  ‘trust is one of the foundation stones of operator licensing. Traffic, commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operator believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.” $CTA 

I also considered other appeal cases on the subject of disqualification including 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage.

I repeated all of my findings and the proven allegations from the DVSA as evidenced by the guilty pleas and resulting convictions in the criminal courts. Despite all of the credit that I could give to Mr Nyamukapa this was a case where disqualification was not only proportionate but it was also necessary to ensure road safety and fair competition.

Disqualification was also required to ensure that there was a suitable deterrent to other well informed operators who might otherwise be tempted to think along the lines of “What is the point of spending all of this money, time and effort in being compliant when there will not be severe regulatory action taken if I am caught being seriously non-compliant?” It would only take a few operators to start thinking like that before the purpose of this jurisdiction was questioned and the public would suffer.

The proportionate regulatory action was that Mr Nyamukapa be disqualified from holding or obtaining any type of operator’s licence in any traffic area, from being a director or partner in any company or partnership that holds or applies for any type of operator’s licence in any traffic area and he is also disqualified from being a majority shareholder in a company that applies for or holds any type of operator’s licence in any traffic area or from being a director, or majority shareholder of a company that is a subsidiary to a company that holds or applies for any type of operator’s licence in any traffic area. Those orders of disqualification were made under sections 28(1), (3) and (4) of the Act and the period of disqualification started immediately and ends at 2359 hours on 03 January 2029 (a five year period of disqualification).

The proportionate regulatory action is that J.Max Transport Ltd is disqualified from holding or obtaining any type of operator’s licence in any traffic area in any capacity under sections 28(1), (3) and (4) of the Act and the period of disqualification started immediately and ends at 2359 hours on 03 January 2029 (a five year period of disqualification).

In imposing a 5 year period of disqualification I had noted that Statutory Document Number 10, Annex 4, gives an entry point for disqualification after a first public inquiry of between 1-3 years. But that range as an entry point is not set in stone and in this case, given the exceptionally serious findings of fact, I had cogent and persuasive grounds to determine that it was proportionate to depart from that entry point to reflect the gravity of the case and the deterrent message that must be sent out to all other operators.

9. Driver conduct hearing for Mr Nyamukapa

For Mr Nyamukapa as a driver I repeated all of the facts in this case. I had considered Statutory Document Number 6 issued by the Senior Traffic Commissioner. Mr Nyamukapa’s conduct as a driver was such that he was no longer fit to hold any type of vocational driving entitlement. The entry point for regulatory action contained in Statutory Document number 6 where there are at least 7 proven offences of knowingly making a false record is to revoke those entitlements and to disqualify for 12 months.

This case is far more serious than that entry point (13 more proven offences of knowingly making a false record than that entry point in fact) and I had found it to be more likely than not that Mr Nyamukapa would have carried on committing those offences if he had not been caught by the DVSA which was a further aggravating feature.

Despite the credit that I gave to him I determined that the proportionate regulatory action was to immediately revoke Mr Nyamukapa’s substantive LGV and his provisional PCV driving entitlements and to disqualify him from holding any form of LGV and/or PCV driving entitlement again for a period of 3 years with immediate effect.

Therefore, this order will remain in force until 2359 hours on 03 January 2027. Such an order reflects the gravity of Mr Nyamukapa’s dishonest conduct that fundamentally destroyed the trust between him as a professional driver and myself as his regulator, the risk to road safety he created and the fact that so many offences of such a serious kind were committed that requires not only robust regulatory action but for a deterrent message to be sent out to all other professional drivers.

I have dealt with Mr Nyamukapa as a driver for a different length of time than I did for the operator and Mr Nyamukapa as the transport manager because (a) different legislation applies and (b) because a different Statutory Document applies to drivers and (c) because a driver is not responsible for an operator’s licence or the day to day management of the transport business.

10. Traffic Examiner Jose Kochakkadan and the DVSA

I would like to extend my thanks to Traffic Examiner Kochakkadan for the thorough, detailed and professional way he investigated this case and to the DVSA for making the decision to prosecute Mr Nyamukapa in the criminal courts. As a result a serious risk to road safety and fair competition has been brought to justice and I was able to take robust regulatory action against this operator, transport manager and driver so as to protect road safety and the complaint operators, transport managers and drivers that work in this heavily regulated industry.

11. Warning to Mr Nyamukapa

I will be asking the DVSA to check that you have not breached any of my orders. If you are found to have done so I will ask the DVSA to prosecute you in the criminal courts and to impound any vehicle operated in contravention of my decision to revoke your operator’s licence.

Traffic Commissioner Mr M Dorrington
The Traffic Commissioner for the West Midlands

05 January 2024.