Decision

Decision for MGFL Haulage Ltd – OF1048246 & Graham Day – TM & Vocational Driver: Michael Day

Published 15 May 2023

0.1 In the Eastern Traffic Area

1. Confirmation of the Traffic Commissioner’s Decision

1.1 MGFL HAULAGE LTD – OF1048246 & GRAHAM LEONARD DAY – TRANSPORT MANAGER & VOCATIONAL DRIVER: MICHAEL ANTHONY DAY

2. Background

MGFL Haulage Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising five vehicles and five trailers. The Directors were showing as Graham Leonard William Day and John Edward Michael Flett. Graham Leonard Day was also listed as the Transport Manager.

There is one Operating Centre at Marexport UK Ltd, Unit 5, Parker Avenue, Felixstowe IP11 4HF. Preventative Maintenance Inspections are said to be carried out by HB Commercials, DVS Stowmarket and K Murphy Services at 6-weekly intervals. The Examiner reports that DVS Stowmarket and K Murphy Services are no longer trading.

The operator attracted a warning letter dated 22 January 2008 following receipt of an S marked Prohibition Notice. The operator and Transport Manager were previously at a Public inquiry on 16 December 2019, following an unsatisfactory maintenance investigation which recorded the receipt of Prohibition Notices, including three ‘S’ marked and one fixed penalty, the use of a vehicle out of annual test, incomplete Preventative Maintenance Inspections, not signed off or brake tested, inspection intervals exceeded, weaknesses in driver defect reporting. It was found that Mr Day had received no refresher training since 2005. The Deputy Traffic Commissioner curtailed the licence to 3 vehicles and 7 trailers for a period of six months. The repute of the transport manager, Graham Day, was tarnished. A Period of Grace was granted to 16 March 2020 to show financial standing. The Case Summary refers to a further Period of Grace. That was in fact an extension. An application to increase vehicle authority dated 17 September 2020 prompted the operator to supply a satisfactory audit and financial evidence. The Case Summary erroneously refers to a decision on 4 October 2022. It was found that the Period of Grace had been extended. No submission was sent and therefore no confirmation. An audit was supplied on 3 September 2020, i.e. after the six month curtailment but the operator had already lodged an application to return to the previous authority, which is the point made by Licensing. As per the Deputy Traffic Commissioner’s decision, the curtailment should already have been lifted.

3. Hearing

The Public Inquiry was listed for today, 20 March 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator, Transport Manager and Driver did not appear.

4. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – conditions on licence to notify changes, in this case relating to management and the ability to hold this licence, and the presence of a Transport Manager meeting Schedule 3

• 26(1)(e) – statements to abide by conditions on the licence

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs)

• 26(1)(h) – material change:

• 27(1)(a) – repute, financial standing, and the Transport Manager.

• 28 – Disqualification.

Graham Day role was called separately to consider his repute as Transport Manager, by reference to the statutory duty to exercise effective and continuous management – section 27(1)(b), Schedule 3, and to consider whether I should make a direction in respect of his Certificate of Professional Competence.

The operator was directed to lodge evidence in support by 6 March 2023, including financial, maintenance and other compliance documentation. No evidence was received by that date. On 3 March 2023 my office received an email from Driver Michael Day who indicating that he would not attend the Driver Conduct Hearing. He referred to difficulties in his private life at the time and that he is aware that he cannot rely on his vocational entitlement following expiry of his Driver Certificate of Professional Competence.

My office received a further email from Graham Day, who stated he would not be attending and that he no longer wished to act as a Transport Manager. Subsequent inquiries of the Companies House register confirmed his resignation on 2 March 2023, and that the operating company currently has no Directors listed. An email purporting to come from Mr Flett was received on 16 March 2023 indicating that he would not attend the Public Inquiry “as mgffl has ceased trading”.

5. Summary of Evidence

DVSA commenced a maintenance investigation on 11 August 2022. The report of Vehicle Examiner, Mervyn Lockwood, is at pages 43 to 56. Mr Day was notified in advance of the intended visit. On 10 August 2022 he suggested that the visit would be a waste of time, as the vehicles referred to had recently been sold and the papers shredded. Nevertheless, Mr Lockwood attended and spoke to Mr Day. He reported the following concerns:

• The Operating Centre at Fagbury Road, Felixstowe is not being used. The general manager at the site stated that the operator no longer had permission to use it.

• The Examiner was initially unable to make contact with the operator by telephone, or visits to Operating Centre or home. He found that maintenance records were missing, inspection intervals were not being managed, with no evidence of a defect and recall system or Vehicle Off-road system. Only one set of Preventative Maintenance Inspection records were provided and then only 6 for a 15 month period. One vehicle was absent. It was said to be in the workshop, in preparation for its annual test, but it had already been presented for test on 29 July 2022.

• The stated maintenance contractors were no longer used. The operator had engaged a mobile mechanic with no under vehicle inspection pit or hoist. Roller brake testing and headlamp aim testing equipment were not available.

• There was no evidence of drivers being trained on load security. Only a small number of driver defect reports were produced and then trailer details were not recorded and only limited evidence of rectification. The failure of Driver Carfoot to report defects which then appeared on the inspection record, was acknowledged during the interview under caution.

• It was found that assurances which had been provided to the Deputy Traffic Commissioner at the last Public Inquiry were not discharged with evidence of repeated shortcomings, including incomplete maintenance records (some had been destroyed), lack of recorded brake testing, and weaknesses in driver defect reporting.

Concern was expressed at the ability of the Transport Manager to exercise effective management.

Mr Day responded on 21 August 2022 with reference made to the production of a starter pack for new drivers. He suggested that systems had been implemented for forward planning, recalls, recording Vehicles Off-road, tyre and wheel management, but there was no detail and no supporting evidence. The operator failed to address the issue of the Operating Centre, that the change in maintenance contractor had still not been notified, records were still to be produced and there was no suggestion of meaningful brake performance testing.

DVSA commenced an investigation into alleged tachograph offences arising from discrepancies identified between the Preventative Maintenance Inspection records and the odometer readings, which suggested that vehicles were being driven at the same time as the inspections were being conducted.

The report of Traffic Examiner, Paul Berriman, is a pages 60 to 121 of my bundle. That involved a request for data being sent to the operator on 29 March 2022. The Examiner identified four incidents which required further investigation: 9,10, 21 and 23 December 2021 when it was noted that the driver card of Graham Day was removed and a driver card for Michael Day was inserted.

The Examiner also identified 3 instances where the driver had exceeded the daily driving limit of 9 hours, 2 instances of insufficient daily rest in a 24-hour period and 3 instances of exceeding the 4.5 hour driving limit without a required break. Mr Day admitted to making what he described as the odd mistake when running over time. He suggested this might occur when he could not find anywhere to stop. He stated that drivers cards were downloaded every 28 to 30 days, but only recorded infringements if they were “really serious”.

An interview with Graham Day was carried out on 25 July 2022. During the interview Mr Day stated that his son, Michael Day, (who is employed in the company’s office) took over the vehicle on the four occasions. Michael Day would drive to the vehicle, take over the driving and Graham Day would drive his son’s car back to the yard. That arrangement ceased when it was noticed that Michael Day’s Driver CPC had expired. In interview Mr Day described how his son would leave his main employment and drive as part of his dinner break. Mr Day was unable to explain how Michael Day recorded that other work. He also failed to record the feeder journey. The tachograph record was checked against the time sheets which had been completed. He indicated that he was hoping to keep Michael out of the DVSA inquiries but when asked how his son accessed the RHIDES (Road Haulier Identity System) at the docks, Mr Day admitted that he drove into the dock and that he was driving at times when Michael Day’s card was inserted. Mr Day thought Michael Day had his own RHIDES account but was unsure if he had his own card.

In short, the Traffic Examiner evidence showed that Graham Leonard Day, had falsified his tachograph records to extend his driver’s hours over the maximum permitted by the regulations. It also showed that Graham Day was using his son’s tachograph card. At times Michael Antony Day was riding in the cab with Graham Day driving. Mr Berriman found the following alleged offences:

• 9 December 2021 – knowingly making a false entry. In interview under caution Mr Day admitted that Michael Day drove to Bury St Edmunds in his own car to take over the vehicle but that the other journey was not recorded. Mr Day then admitted driving using his son’s card.

• 10 December 2021 – Mr Day claimed that his son, Michael, had driven in his personal car to take over DK15 ZLO as he had run out of hours and that Mr Day had driven back in the car belonging to his son. He failed to record that other journey.

• 21 December 2021 – knowingly making a false entry. Mr Day referred to Michael Day driving to a point on the A140 in his personal car He failed to record that other journey. This was purported to be because Mr Day had run out of hours but during the interview under caution Mr Day admitted to driving using his son’s card.

• 23 December 2021 – knowingly making a false entry. Mr Day referred to his son having driven to a point in his car to take over as Mr Day had run out of hours. The other journey was not recorded. During the interview under caution Mr Day admitted to driving using his son’s card to mask that he was outside his hours.

In total these instances amounted to 14 offences (page 73) committed by Mr Day, committed mainly through the active assistance of his son. Michael Day was invited to attend an interview by Mr Berriman but he declined that opportunity and failed to explain his involvement in the above offences. Mr Berriman confirms that he did not hold a valid Driver CPC qualification at the relevant time.

6. Determination:

In the absence of the operator and Transport Manager and any information to contradict the above evidence, it was inevitable that I would record adverse decisions under sections 26(1)(b) – conditions on licence to notify changes, in this case relating to the Operating Centre, management and the ability to hold this licence, and the presence of a Transport Manager meeting Schedule 3, 26(1)(e) – statement to abide by conditions on the licence, 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs). On that basis, and in the absence of financial evidence, I also recorded an adverse decision under section 26(1)(h) – material change. It also meant that I was required to revoke the operator’s licence due to an absence of financial standing, under section 27(1)(a).

Graham Day role was called separately to consider his repute as Transport Manager. Based on the above evidence I was satisfied that he failed to exercise effective and continuous management as required under Schedule 3. I would have very serious concerns as to his ability to do so in future and therefore recorded an adverse decision under section 27(1)(b) and disqualified him from relying on his Certificate of Professional Competence for an indefinite time, subject to Schedule 3, paragraph 17. His disqualification as a director is referred to below. The operator was therefore without a Transport Manager, requiring revocation under section 27(1)(a).

I refer to the Senior Traffic Commissioner’s Statutory Documents and the useful summary of the law. Adherence to the rules relating to drivers’ hours is fundamental to road safety. As the appellate tribunal explained in 2010/063 Cornelius Pryde Hart and Abigail Hart trading as Zulu’s Minibus (with further examples in see Case C-297/99 Skills Motor Coaches Ltd v Denman [2001] All ER (EC) 289, 2014/037 & 38 Adam Nienaltowski & Fifth Zone Ltd, Vehicle Inspectorate v Bruce Cook Road Planing Limited and Another [1999] UKHL 3): The responsibility for ascertaining what is required and for complying with those requirements lies with the operator. The Statutory Document describes three simple steps: check compliance with the governing legislation, train drivers regarding that legislation and monitor compliance, retrain and discipline drivers where shortcomings are identified. It is clear from this case that the Directors, one of who was the Transport Manager, fell far below the standard expected of them. Their fitness was an essential element in determining the repute of the operator. For obvious reasons I had little to believe that the operator was capable of ensuring future compliance and deliberate decisions involving the controlling mind led me to the conclusion that the operator should be removed from the industry. I recorded the accompanying loss of repute under section 27(1)(a). This was a serious case, and it was not the first Public Inquiry. I gave limited credit to the operator’s realisation, albeit late in the day, and disqualified the operator for a period of 10 years. Mr Day was similarly disqualified for a period of 10 years in recognition of his direct and cynical actions. Mr Flett was disqualified for a period of 5 years.

The relevant legislation on driver conduct is set out in Sections 110-122 of The Road Traffic Act 1988. The legislation draws a clear distinction between Large Goods Vehicle (LGV) licence holders and applicants and Passenger Carrying Vehicle (PCV) licence holders and applicants. Section 112 of the 1988 Act provides that the Secretary of State shall not grant to an applicant a LGV driver’s licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. Section 121(1) refers to conduct as a driver of a motor vehicle.

The Administrative Court, on the application of Meredith and Others EWHC 2975 (Admin) 18 explained that, whilst the personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as a driver. Personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention, or carelessness) will be relevant, while personal circumstances which would, in the ordinary sentencing exercise by a criminal court go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence-holder) would not. In his absence, I noted the reference to difficulties in his private life but also the expiry of his Driver Qualification Card. I found no reason to depart from the starting point in the Senior Traffic Commissioner’s Statutory Document on Vocational Driver Conduct of a 4-week suspension per offence up to 6 offences, above which I should revoke and disqualify. For the reasons set out at paragraph 17, Michael Day’s vocational entitlement is now revoked and his disqualified from holding such entitlement for an indeterminate period.

All directions were to take effect from 23:45 on the day of the Public Inquiry.

R Turfitt

Traffic Commissioner

20 March 2023