Decision

Decision for Mark Entwistle

Updated 21 July 2021

1. MARK ENTWISTLE

2. OH2021242

3. PUBLIC INQUIRY HEARD AT BRISTOL ON

4. 7 JULY 2021

5. BACKGROUND

Mark Entwistle holds a standard national licence authorising the use of one vehicle and one trailer from an operating centre at Wheal Concord Tin Mine, TR16 5DZ. The licence came in to force on 14 May 2019.

The operator was called to public inquiry in July 2020 following a DVSA inquiry in November 2019. A variation application to increase authority was refused at the inquiry and the licence was suspended for the month of August 2020. My reasons and ex tempore decision from that hearing are here:

Mr Entwistle was encountered by DVSA on 2 July 2019 at Boughton, on the M2 in Kent. Traffic Examiner Trevor Coote identified significant periods of driving without a card inserted. Mr Entwistle put this down to his nephew using the vehicle in the mornings without the trailer attached. On 18 November 2019, Traffic Enforcement Manager Andrew Ball interviewed Mr Entwistle under caution. Mr Entwistle continued to deny any wrongdoing, insisting instead that the unrecorded driving was without the trailer attached or by another person. The DVSA evidence from the automatic number plate recognition cameras is irrefutable and Mr Entwistle now accepts that he was in the habit of driving without a card inserted. I find he has falsified his tachographs records and I further find that he has lied to two DVSA officers. Maintenance arrangements are in place. Mr Entwistle failed to supply documents in advance but, from the oral evidence, it appears there is a lack of effective brake testing. It also appears that the inspections are too far apart given the nature of the vehicle and trailer and their work. Those can both be corrected. Falsifications and lies normally lead to a loss of good repute. I balance them against apparent good compliance since the engagement of Michael Pearson as transport manager. I also take in to account the impact that revocation of the licence would have. I find, by the finest of margins, that good repute remains intact. Pursuant to a finding that the rules on drivers hours and records have not been observed, under Section 26(1)(f) of the Act, the licence is suspended for the calendar month of August 2020. The period between preventative safety inspections is reduced to 8 weeks. Any increase in authority would be inappropriate at this time I record the following undertaking: All equipment shall undergo a roller brake test at every inspection with at least alternate inspection being laden.

On 28 January 2021, Mr Entwistle submitted an application to increase authority to three vehicles and two trailers from a new operating centre at Wheal Briton Travel, TR4 8HH. Following exchanges of correspondence, the application was referred to me on 7 May 2021. I noted that two vehicles already appeared regularly to be in use given the movement of vehicles on and off the licence. I directed that the application be heard at public inquiry.

On 25 May 2021, the transport manager Michael Pearson notified my office of his resignation. He enclosed a “warning” letter he had sent to Mr Entwistle on 2 May following attendance at the yard on Saturday 1 May where he had witnessed two vehicles, CA11GPT and M77GPT, both connected to trailers and loaded. Mr Pearson further enclosed a letter from him to Mr Entwistle dated 17 May which was his resignation.

6. PUBLIC INQUIRY

Mr Entwistle attended the public inquiry represented by Harry Bowyer, barrister and supported by Mr Willie Willmetts, transport consultant. A statement and supporting documentation including a compliance audit by Mr Willmetts were provided in advance. All Covid directions were complied with in full for which I was grateful.

Mr Bowyer noted that there were admissions within the statement in relation to operating more vehicles that authorised, failing to comply with the brake test undertaking and operating from an unauthorised operating centre. The operator was without a transport manager and had been since May. An application had been made for a period of grace. Mr Entwistle’s location (in west Cornwall) meant that transport managers were scarce. There were two individuals interested but neither wanted to put themselves forward with Mr Entwistle facing his second public inquiry within 12 months.

An application had been made for the operating centre. Having received advice, Mr Entwistle had ceased operating from the unauthorised operating centre last week. The second vehicle had been sold. The proposal was for Mr Willmetts to be contracted to assist including interviewing the new transport manager. A roller brake test facility had been sourced to produce them in the proper manner.

The evidence of Mark Entwistle

Mr Entwistle adopted his statement as his evidence in chief. He traded as “Going Places”. Mr Entwistle told me that roller brake tests had been undertaken but he hadn’t realised he needed a printout. If the licence continued, he would use the local Authorised Testing Facility which could provide the printout. Loading depended on the availability of a vehicle or other ballast.

In the early part of this year, he had been operating two vehicles because his contracts required him to do more work. A different vehicle would be used depending on what was being used. Mr Entwistle had applied for an interim licence for the increase and had struggled to contact his caseworker. He didn’t know how the interim worked and it hadn’t been objected to.

Mr Pearson had said that he didn’t have authority to operate the second vehicle. Mr Entwistle “slowed the operation right down” following the first letter from Mr Pearson. Mr Pearson had gone on to resign once he heard about the public inquiry.

Mr Entwistle had applied to change operating centres and increase authorisation. The new and old operating centres were only a couple of hundred yards apart. He moved before it was granted because he needed more space and he couldn’t afford the rent on two sites. One vehicle was now in possession. There were no plans to buy more unless he got authorisation to. In relation to compliance, he had been in touch with Red Phoenix (Mr Willmetts) and they would help with compliance including drivers hours. Mr Entwistle would attend an operator licence awareness course. He would be prepared to have a compliance audit in six months.

I asked Mr Entwistle about the driver he employed. He confirmed that both he and Mr Ingleby-Oddy were full-time drivers and Mr Ingleby-Oddy was properly employed. He had been employed since September 2020. There were two HGVs and a 3.5 tonne vehicle, the latter being rarely used given its weight limitation. I put it to Mr Entwistle that it appeared from the facts that he had two heavy vehicles, two drivers and two trailers that he had in fact been operating two vehicles from last September. This was denied. I was told that Mr Ingleby-Oddy had only been driving the 3.5 T vehicle until March as he needed to take his driver CPC. Noting that Mr Ingleby-Oddy’s driver qualification card had been issued on 4 February, I put it again to Mr Entwistle that he would have been driving the heavier vehicle from that point. This was again denied on the basis that Mr Ingleby-Oddy needed to build his confidence following passing his CPC.

We turned to roller brake testing. I noted that, apart from one brake test on 18 June 2021, there had been no reference to brake testing on any PMI. Mr Entwistle told me that he had been taking the vehicles himself to a garage and doing the brake test himself. He had no invoices for brake testing as it had been done as a favour. The trailer would not fit on a roller brake tester. He had now started to use a temperature reader. I reminded Mr Entwistle that he had failed to provide documentation at the previous inquiry and we had discussed the need for documentation. Mr Entwistle repeated that he hadn’t realised the need to evidence the brake testing.

In terms of impact, Mr Bowyer accepted that this was a serious case. The operator had suspended himself since the previous week. Revocation would be the end of the business. I questioned that, having been told that the second driver was employed driving the 3.5T vehicle for 6 months. Mr Entwistle told me that was difficult and only worked because he was also operating the heavier vehicle. I asked about the impact of a disqualification. Mr Entwistle told me that he would have to lay off his driver and find other employment for himself.

Mr Bowyer closed by submitting that there were positives. Mr Entwistle had sought legal advice. The transport manager had not assisted in ensuring that the brake testing had happened. The application to move operating centre had been made and there had been an application for a period of grace to find a new transport manager. He had not totally flown in the face of the regulations and that was relevant to both revocation and disqualification.

7. FINDINGS OF FACT

It is admitted that Mr Entwistle has been in possession of more vehicles than authorised since September 2020. It is further admitted that he operated two heavy vehicles from March to May 2021 when authorised for only one. The contravention of Section 6 of the Act in the call-in letter is made out. This is a material change and Section 26(10(h) is made out.

Mr Entwistle told me that Mr Ingleby-Oddy did not drive the larger vehicles until March. Mr Entwistle’s own records show that Mr Ingleby-Oddy’s digital tachograph card was valid from 30 January 2021 and his CPC was valid from 5 February 2021. When I pressed Mr Entwistle on this point, he told me that Mr Ingleby-Oddy needed to gain experience having sat his CPC. But Mr Ingleby-Oddy had been driving the 3.5 tonne vehicle since September 2020. How could he gain experience to drive the larger vehicle without driving the larger vehicle? Vehicle CA11GPT, the 4.5 tonne vehicle, is a Renault Master. Apart from the stiffness of its springs, it is almost entirely identical to a 3.5 tonne vehicle. This explanation makes no sense. On the other hand, Mr Entwistle told me that the use of a 3.5 tonne vehicle was financially unviable. It could only carry small classic cars such as the original Mini without being overloaded. From 5 February, both he and Mr Ingleby-Oddy were licensed to drive the two heavier vehicles. Two trailers were in possession. He had moved to a larger operating centre to facilitate the use of more vehicles. I find on the balance of probabilities but by a wide margin that Mr Entwistle has been operating two large vehicles since February. In doing so, it follows that I am making a finding that he lied to me at the public inquiry. I will return to that later.

Mr Entwistle accepts that he has operated from an unauthorised operating centre since January 2021. This was not cited in the call-in letter as it was not known in advance. The call-in also did not refer to the failure to comply with the brake-testing undertaking because that only became apparent from the compliance documentation supplied for the hearing. I have considered whether a fresh call-in should be issued. These matters obviously were known to Mr Entwistle and his representative in advance and were addressed in his statement. They are straightforward matters of fact and Mr Bowyer has assisted in setting them in context, not least by pointing out that the transport manager also had a responsibility for them. So this is not a case in which the operator was taken by surprise. Indeed, on advice, the illegal operation from the unauthorised operating centre had ceased the week before. The Transport Tribunal said in its decision T/72/2001 Alan R Brooks, “a fresh call-up is unnecessary, as long as the position is clear”. The inclusion of these matters in the operator’s statement means that the position was indeed clear and therefore fair so no fresh call-up is required. I make adverse findings with respect to Section 26(1)(a) with respect to the operating centre and Section 26(1)(f) with respect to the failure to undertake brake testing.

In terms of general compliance, I was helpfully provided with a copy of a report of an audit undertaken by Willie Willmetts of Red Phoenix transport consultants along with a well-presented folder of relevant documents, albeit many are new and unused policies and procedures. The audit records amber in a significant number of places with a comment that systems are in place but no record kept. On the basis of the lack of any records, it is hard to find that systems are in place.

There is only one inspection record for each of the two trailers. The record for the “Brian James” trailer is dated 15 May 2021. It is not possible to identify who has completed it. The brake performance section is blank. There are no defects identified but the declaration of roadworthiness is not signed (perhaps because the technician is unable to declare that the brakes are working but I do not know). The record for the “Alloy” trailer is dated 1 May 2021. It should have received a further inspection by 26 June but none was present. Again, it is impossible to determine who has undertaken the inspection, the brake performance section is blank and the roadworthiness declaration unsigned. I understand that both trailers are lightweight with three axles. Roller brake testing of such equipment requires specialist equipment with a roller bed that can be raised. I would fully accept that such specialist equipment might not be readily available and that techniques to test the over-run brake are not well known. However, what is unacceptable is for the operator simply to ignore the undertaking commitment. The proper course of action, had Mr Entwistle considered with care how to abide by the undertaking he gave, was to write to my office explaining the difficulties and, crucially, putting forward an effective alternative for agreement. Mr Entwistle did none of that. He simply ignored the undertaking and trailers have never been properly inspected.

In relation to the drawing vehicles, there is one inspection record for vehicle M77GPT which is declared as sold on 10 June 2021. There is no supporting evidence but the public record shows that registration number not to be currently assigned so I accept that the vehicle has more likely than not been disposed of. The inspection record has been completed by Wheal Briton Travel. Tyre tread depths and pressures are not recorded and the brake performance section is blank. Given that, it is with a marked degree of bravery, that a supervisor has declared the vehicle as roadworthy.

There are two inspections for CA11GPT dated 16 April and 11 June which is within the 8-week period. Neither contains any record of tyre pressure or wear nor of brake performance. The April inspection records in relation to braking systems that “front pads getting low”. There is no rectification action. They are not mentioned in the June inspection report nor is there any invoice to show any action taken. With the same degree of bravery, both reports are signed off as roadworthy. There is a roller brake test dated 18 June 2021 which appears unconnected to any preventative maintenance inspection and appears to have been carried out for my benefit at public inquiry.

All the inspections reported in the operator’s bundle are totally unsatisfactory with major parts of the inspection missing. The saving grace is that the vehicle is only one year old. The maintenance arrangements for the current fleet (which of course shouldn’t be a fleet at all) are wholly unacceptable. It follows that I am not satisfied with the proposed arrangements for the variation application.

Finances were provided and were satisfactory.

The operator does not have a transport manager. Given the circumstances in which the previous transport manager ceased his services, a period of grace is not appropriate as this is clearly not an operation in a stable state of good compliance. Section 27(1)(b) is made out.

I made a finding at paragraph 17 that Mr Entwistle lied to me in relation to the usage of two vehicles. I made a finding at public inquiry last year that he had lied to DVSA examiners. That was based on him first denying that it was he using the vehicle and then that it was loaded. It was only when DVSA provided him with a picture of him behind the wheel of the loaded vehicle when his tachograph record showed him to be at rest did he accept the position.

Mr Entwistle told me that he took the vehicle for a brake test himself. There was no charge as he knew the garage owner. There was no evidence because he didn’t think he needed any. He did not provide, for example, a statement from the garage owner supporting his assertion. The PMI records have blank boxes where the brake test results are meant to go. He agreed a specific undertaking to ensure that each vehicle and trailer underwent laden brake testing so he must have had in his mind that there would need to be evidence. I find it impossible to resist a finding that these unrecorded brake tests are anything more than a fiction. I find that Mr Entwistle has lied to me again.

The use of more vehicles than authorised is more serious in this case because I refused an application to increase authority just two months before an additional vehicle came in to possession. That in itself is a serious breach of the licence as Section 5(9) of the Act expressly prohibits the removal of vehicles from the licence for maintenance or because of business fluctuations and the same two vehicles have been moved on and off persistently.

Mr Bowyer points at the positives in this case. Mr Entwistle had engaged legal advice for the public inquiry and I accept that tends to indicate that he is coming to understand the value of his operator’s licence. The variation application was submitted in January and that is before my finding of the actual use of two vehicles takes effect. I can see from the licence record that Mr Entwistle responded promptly to requests from the caseworker for additional information. Our licensing service has been adversely affected in part by home-working as a result of Covid but more significantly by sustained unprecedented high levels of new and variation applications driven by a combination of IR35 rules and the dramatic transition to home shopping. So Mr Entwistle will not have experienced the service he may have expected from his previous applications and there may have been frustration. It would also have been reasonable for Mr Entwistle to have expected perhaps more assistance from his transport manager than may have been forthcoming and I make that finding as a positive in relation to Mr Entwistle without making any negative inference for his former transport manager who has not had an opportunity to rebut.

I turn now to the helpful questions posed by the Upper Tribunal to assist me with my balancing exercise. Is this an operator that I can trust to be compliant in the future? Despite the positives, three findings of Mr Entwistle lying either to me or to a DVSA officer coupled with the abject failure to comply with a key safety-related undertaking given at public inquiry and going ahead with an increase in fleet size within months of having that increase refused mean that I cannot trust Mr Entwistle to comply.

So is the conduct such that Mr Entwistle deserves to be put out of business? His conduct since the public inquiry last year has been, quite simply, appalling. He puts commercial considerations ahead of licence requirements that are there to safeguard society as a whole. I am satisfied that this is an operation that needs to be brought to an end. Mr Entwistle has lost his good repute. Section 27(1)(a) is made out.

I remind myself that, whilst disqualification does not automatically follow from revocation, it does not require any additional adverse findings. I am mindful to Mr Bowyer’s submissions. I am also mindful of the current slow turnaround for new applications and that any new application is highly likely to need to come before a traffic commissioner before any authority could be granted. The tendency to ignore the rules mean that a period of disqualification is appropriate to allow for deep reflection on how this business went so badly wrong so quickly. But I am alive to the risk that any period of disqualification is likely to be amplified by current circumstances. I do urge Mr Entwistle to consider long and heard before he makes a new application whether his future really does lie in an industry that is as heavily regulated as road haulage.

8. DECISION

Pursuant to each of separate findings under Section 26(1)(h), material change, operating more vehicles than authorised, Section 26(1)(f), failure to abide by a licence undertaking, Section 27(1)(a), loss of good repute, Section 27(1)(b), lack of professional competence, the licence is revoked. To allow for an orderly wind-down, revocation takes effect from 23:59 hours, 14 August 2021.

Pursuant to a failure to satisfy the requirements of Section 13C(4), satisfactory arrangements for maintaining the fleet, the variation to increase authority is refused.

Pursuant to Section 28 of the Act, Mark Entwistle is disqualified from holding or applying for an operator’s licence in any traffic area until 14 February 2022.

Kevin Rooney

Traffic Commissioner for the West of England

14 July 2021