Decision

Decision for Onix Transcom

Published 8 November 2024

0.1 WESTERN TRAFFIC AREA

1. ONIX TRANSCOM LTD: OH2031101

2. TRANSPORT MANAGER: MICHAEL SWIFT

3. DRIVERS: EDGAR CEDERSTREMS & ERVIN STEPENS

4. AT A PUBLIC INQUIRY IN BRISTOL 10 SEPTEMBER 2024

5. BACKGROUND

Onix Transcom is the holder of a standard national goods vehicle operator’s licence authorising the use of two vehicles and two trailers from a site at Colley Lane, Bridgwater. The directors are Edgars Cederstrems and Anastasiya Cederstrema. The licence was granted in March 2022. The transport manager from grant until March 2024 was Michael Swift. John Davey was appointed transport manager on 18 April this year. The business is transport of caravans and the operation is supported by an escort vehicle. There are two personnel working in the business operation, Edgars Cederstrems and his cousin Ervins Stepens.

DVSA Traffic Examiner Christopher Eggins conducted an investigation and produced a Traffic Examiner Visit Report. The period concerned by the investigation was 1 August 2023 to 1 October 2023, the visit report was completed following a visit to the operator on 1 March 2024. The overall score of the report was 17 which resulted in a referral to my office. Mr Eggins found shortcomings in:

• Transport manager control and continuous professional development
• driver licensing and training
• drivers hours and record keeping
• compliance with the working time directive

In addition to the poor compliance systems cited above, Mr Eggins also identified substantial shortcomings in management of drivers hours and tachographs. A newly-qualified driver had driven before his digital driver card had arrived. Positioning journeys were not recorded - this was linked to the vehicle being parked in the Midlands on some weekends and the journeys from there to Somerset and back in a car were not recorded. Neither driver was making manual entries to account for the time when they were driving the escort vehicle so in-house analysis assumed that to be rest.

Mr Eggins conducted an analysis of drivers hours compliance using a premise that, when one driver was driving the truck, the other would be on duty – as was conceded in interview. When that was done, seventeen infringements for daily rest were evident for each driver, six of which fell in to the category of “very serious infringements” and eight as “serious”.

It also emerged that Michael Swift had very little, if any, role in the business. He was said to have been responsible for poor advice on driving before a tachograph was issued and that there was no need to record the positioning journeys as other work.

The company’s previous operator’s licence, OH1146453, was not referred to in my public inquiry bundle. I became aware of it only after starting to write this decision. That licence was surrendered in 2021. In January 2018, the company had attended a public inquiry following convictions of Mr Cederstrems of a number of false record offences. At that time, the business was transporting cars. The mischief was to start the day, prepare the vehicle and drive it to a fuel station for fuelling before putting a driver card in the head. Only when Mr Cederstrems left the fuel station was the card inserted and so Mr Cederstrems had banked himself time for later in the day. On that occasion, it appears from the public inquiry decision that the transport manager was held to be responsible and was disqualified. No action was taken against the operator’s licence. Having become aware of the previous hearing with similar concerns, I directed that the 2018 call-up and decision letters for both operator and driver be added to my brief and the operator was invited to make written representations, which was done. It is unfortunate that the case had to proceed in that way but I am satisfied that the process, while clunky and imperfect, has been fair.

Michael Swift has previous adverse history and had been called to public inquiry along with William James Cleeve, OH2022092 and Michael Herbert May, OH0211171 both in July this year. In no case could I find any sign of any involvement of Mr Swift with the operation. Having already made a decision to call him in relation to this operator, I reserved my decision on him for this hearing. I also called Mr Stepens and Mr Cederstrems to conjoined driver conduct hearings.

6. THE PUBLIC INQUIRY

Edgar Cedertrems and Anastasyia Cederstrema attended for the operator represented by Paul Atkinson, transport consultant. Also present for his conduct hear was Ervins Stepens and attending voluntarily John Davy. Traffic Examiner Christopher Eggins attended for DVSA.

Proceedings were recorded and I do not reproduce everything here, a transcript being available if required. In producing this written decision, I have referred to my notes and listened to the recording.

6.1 The evidence of Traffic Examiner Christopher Eggins

TE Eggins introduced himself and adopted the relevant papers in the bundle as his evidence. He told me that he had reviewed data for March and April 2024 and noted that Mr Cederstrems had been recording some manual entries. There had been a marginal improvement but instances of driving the escort vehicle still did not appear to have been recorded. Both directors had cooperated fully throughout. Given Mr Cederstrems’ good knowledge of drivers hours generally, his apparent lack of knowledge in relation to manual entries was notable. There was no definite evidence of forged records. Mr Swift had not made any contact and Mr Eggins had seen no evidence of any engagement from him at all and understood that the company had not either. Mr Swift had been written to by post, had a letter hand-delivered and been emailed but no response.

6.2 The evidence of Edgars Cederstrems

Mr Cederstrems had been driving heavy goods vehicles for thirteen years. The second driver was Ervins Stepens. They collected static caravans from the manufacturer in Hull and delivered them across the country. Mr Stepens only drove the lorry when empty. They only drove Monday to Friday, not weekends or public holidays as wide loads weren’t permitted. He drove about 30 hours a week and Mr Stepens about 10 hours.

Mr Swift had been on the licence from the start in March 2024. Mr Cederstrems had seen him three times in that period. He had got in touch with him by phone when the truck went for 6-weekly or MOT. Mr Swift just said everything was good. He had never gone through the tachograph reports with him nor provided any training. One of the issues was a lorry being left up-country and then driving back to base. Mr Cederstrems had phoned Mr Swift to ask if it was OK to leave the lorry in Northampton and to return home in the escort vehicle. Mr Swift had said that should be fine. He had not said that the journey needed to be recorded as other work.

Mr Swift had said it was OK for Mr Stepens to drive using a print-out for 15 days when he had just passed his test and was awaiting his card. Mr Swift had not provided any advice in relation to what to record when he was driving the escort vehicle. Some of the driving with the escort vehicle was to go to the shops, occasionally to meet a client.

Mr Davey attended twice a month and they spoke on the phone. He brought the printouts to their house and went through what had happened and what went wrong. He believed his infringements had improved. Manual entries were now made for any positioning journeys between Bridgwater and Northampton. At night, they slept in the lorry. They removed their cards and put them back in the next day. There was no need to break the rules to get the job done and he never put any pressure on Mr Stepens to infringe.

Before having met Mr Atkinson, he had been unaware of the Traffic Commissioner powers in relation to his driving entitlement. He didn’t know the rules about double-manning and he asked about them on an operator licence awareness course in March. Now he knew what to do. He had also had training on manual entries with a consultant Steve Funnel. If Mr Eggins checked his records now, compliance would be much better. If he could not drive for a period, he would not be able to find a driver who would drive wide loads. He would lose his customers and his business. Christmas period was a quiet time. He was willing to offer an undertaking for a compliance audit. He could manage with just one vehicle at the moment.

I took Mr Cederstrems to the encounter report (pg 102 of the bundle) where a number of offences were identified at a DVSA encounter at Trowell Services on 15 May 2023. Mr Cederstrems told me that was because Trutac didn’t recognise his card when it was in slot 2. I pointed out that the DVSA encounter dealt with raw data using DVSA’s analysis. Mr Cederstrems could not respond. I asked why this was not a trigger for action. I was told that no paperwork had been issued.

Mr Swift had been recommended by their previous transport manager, Steve Funnel. He had asked Mr Swift why he didn’t attend. Mr Swift said that he worked in the new way and Mr Funnel worked the old way. I noted that I found that difficult to understand and reminded Mr Cederstrems that he had a duty to check that his transport manager was doing the job correctly.

He had last spoken to Mr Swift in September or October 2023. Mr Swift had been going on holiday but they had never spoken again. I asked why he had not been removed from the licence. Mr Funnel had advised that they keep him on the licence. I said I was confused. Mr Cederstrems told me that he didn’t know his transport manager wasn’t doing his job until March this year. He still had full access to the Trutac system. Mrs Cederstrems would be better to answer about dealing with him.

6.3 The evidence of Anastasiya Cederstrems

Mrs Cederstrems had seen Mr Swift three times also. Mr Swift had told her that he didn’t work with paper; it was all email or WhatsApp. He had assured her that everything was under control. He had all the passwords and login details. Prior to losing contact, she would ring, text message and email. She did all the paperwork herself. The last contact was because the road tax on her truck had doubled and she wanted advice. She had sent Mr Swift a screenshot of the letter from Mr Eggins. She got no response and called Mr Funnel. He had attended within a fortnight and advised that they stay with Mr Swift until the DVSA investigation was over. She met John Daley in February and had agreed that he become transport manager once this was all over. She then met Mr Eggins on 1 March and he advised her to act straightaway which she had done.

They saw Mr Davey twice a month or even more often. He had access to Trutac. He worked the same way as Steve Funnel so she was now confident. He had been in to see the maintenance provider. If the lorry could not be operated this would be all their profit gone.  

6.4 The evidence of John Davey

Mr Davey was aware of the issues when he agreed to be transport manager. The directors were very communicative. He attended every two weeks. If there were any infringements he would debrief them face-to-face with the driver. He had attended the maintenance provider and discussed loading for brake test. The provider felt that what they had been doing was adequate as it was probably as heavy as the weight at which the lorry operated.

He had spoken to Trutac about the double-manning issue. They had gone back to look at it further and he hadn’t heard back. The only infringements were because they couldn’t get to the services, on another the driver was two minutes short on a break. Other work was now recorded.

Mr Davey had attended a refresher course about two months earlier. He was due to attend a brake testing course.

6.5 The evidence of Ervins Stepens

Mr Stepens passed his driving test in March 2023. Before that, he had been a forklift truck driver. He had not driven for anyone else as a professional HGV driver. He hadn’t known that he had needed to make a manual entry of other work when driving the escort vehicle. I challenged Mr Stepens that that position was unlikely having been recently trained and qualified. He had been told by his instructor that he could drive whilst awaiting his digital tachograph driver card. He could not remember the name of his instructor. He accepted the schedule of offences in his driver conduct report. Lorry driving was the family’s only income so any suspension would have a serious effect. He thought that his cousin and his previous transport manager knew the rules better.

6.6 Submissions

In relation to Mr Cederstrems as a driver, there was no device or magnet used. He had cooperated in the investigation and under interview. He had not received the best advice from Mr Swift. As a driver, he was not being managed by the transport manager. There had been a clear traffic encounter in January 2024. He had done further training.

The operator had provided all compliance documentation in advance. Both directors had attended. They had just trusted Mr Swift. That trust had been breached. It would not happen again. I was offered an undertaking for a compliance audit. Curtailment to one vehicle was manageable for a period. If the licence was suspended, they probably could not manage. They would lose their customers and not get them back. There was no formal written contract.

I reserved my decision.

7. POST INQUIRY EVENTS

I began to write this decision at the beginning of October. On 7 October, I became aware that the company had previously held licence OH1146453 which had attended public inquiry in 2018 following convictions of the director Edgar Cederstrems; Mr Cederstrems had also been called to a driver conduct hearing. I asked for the call-in papers and decision to be added to the public inquiry bundle and the operator was given an opportunity to provide further written submissions, particularly with respect to the seemingly similar circumstances of offending. Mr Atkinson provided those further submissions promptly, on 13 October, for which I am grateful. I am particularly grateful as my office could not find a copy of the driver conduct decision and we provided instead the hearing notes. The operator was also asked for an explanation for not declaring the convictions on application for the current licence.

The mischief in 2018 was summarised by DVSA Traffic Examiner Amy Comer at the time:

• “I pointed out these findings to Mr Cederstrems where he admitted straight away that he was not putting in tachograph charts in the morning and travelling from the operating centre to Shell Petrol …in order to save time on the tachograph card and to hide having to take an additional break”.

Mr Atkinson’s submissions helpfully include a timeline and reference to the hearing notes which show that Mr Cederstrems did declare his conviction at the 2018 inquiry. Whilst the company erroneously failed to declare the convictions on the new application, they had previously been declared. The previous inquiry had been disclosed.

Mr Atkinson submits that the current situation can be distinguished from the previous conduct as that arose from failing to record a walk-round check and driving a heavy goods vehicle on a road without a card in the tachograph head. That was not the case here where the breaches involve failure to record positioning journeys and to record driving another vehicle, albeit generally as part of the business.

8. FINDINGS OF FACT AND CONSIDERATION

The offences alleged by DVSA are accepted. I summarise them here. In doing so, I refer to the severity as defined in EU Regulation 2016/403 supplementing EU Regulation 1071/2009 and as adopted in to UK law. MSI means most serious infringement, VSI is very serious, SI is serious and MI is minor.

8.1 Edgar Cederstrems – insufficient daily rest offences

Date	Length of Rest	Shortfall	Comment	Severity
2/8/23	7hrs 27min	1hr 33 mins		SI
3/8/23	6:09	2:51		VSI
8/3/23	7:54	1:06		SI
9/8/23	6:48	2:12		VSI
10/8/23	7:47	3:13	4th reduction	VSI
16/8/23	7:28	1:32		SI
21/8/23	7:54	1:06		SI
22/8/23	8:18	0:42		MI
23/8/23	8:57	0:03		MI
25/8/23	8:26	2:34	4th reduction	VSI
29/8/23	7:29	1:31		SI
30/8/23	8:28	0:32		MI
1/9/23	9:43	1:17	4th reduction	SI
11/9/23	4:41	4:19		VSI
14/9/23	6:32	2:28		VSI
25/9/23	7:15	1:45		SI
26/9/23	7:34	1:26		SI

8.2 Edgars Cederstrems – excess daily driving

Article 1 of the EU Commission Implementing Decision pf 7 June 2011 states that the calculation of daily driving time ends at the start of an uninterrupted rest period of at least seven hours. Without 7 hours break, daily driving is deemed continuous. That leads to the following offences:

Date	Daily rest	Daily driving	From	To	Severity
3/8/23	6:09	15:47	8:52, 3/8	19:51, 4/8	MSI
9/8/23	6:48	17:59	6:03, 9/7	18:34, 10/7	MSI

8.3 Ervins Stepens – insufficient daily rest

Date	Length of Rest	Shortfall	Comment	Severity
2/8/23	7hrs 27min	1hr 33 mins		SI
3/8/23	6:09	2:51		VSI
8/3/23	7:54	1:06		SI
9/8/23	6:48	2:12		VSI
10/8/23	7:47	3:13	4th reduction	VSI
16/8/23	7:28	1:32		SI
21/8/23	7:54	1:06		SI
22/8/23	8:18	0:42		MI
23/8/23	8:57	0:03		MI
25/8/23	8:26	2:34	4th reduction	VSI
29/8/23	7:29	1:31		SI
30/8/23	8:28	0:32		MI
1/9/23	9:43	1:17	4th reduction	SI
11/9/23	4:41	4:19		VSI
14/9/23	6:32	2:28		VSI
25/9/23	7:15	1:45		SI
26/9/23	7:34	1:26		SI

8.4 Ervins Stepens – no manual entry

A total of 39 offences, mostly overnight or weekend but with 8 which occur in the middle of a working day. Each is considered a VSI.

There are a total of fifty-one very serious infringements, sixteen serious and six minor. Regulation 2016/403 refers to a rather mechanistic approach to dealing with this offending. Three serious infringements are equivalent to one very serious. More than three very serious infringements per driver requires “the launch of a national procedure on good repute”. Here there are twenty-eight very serious infringements per driver. It would appear that this operator has met that criterion comfortably. The operator has clearly not observed the rules on drivers hours and tachographs and Section 26(1)(f) is made out. I attach considerable weight.

It is relevant to look at the operator’s compliance history. In 2018, the director was convicted of falsifying tachograph records. Mr Atkinson seeks to distinguish that from the current conduct because the 2018 matter included actual driving. To a degree, that is true, but 2018 also included carrying out other work off-card, that being the daily walk-round check. The point is that he will have become aware that the purpose of tachographs is to allow enforcement of driving time and rest periods. It is obvious that rest periods cannot be assessed without recording other work. The fine, victim surcharge and costs came to £3,821 which one would expect to leave a big imprint on the driver/director’s mind.

The DVSA encounter report records that, in April 2023, Mr Cederstrems was stopped by DVSA at Doxey (near Stafford on the M6). The report records two offences. Mr Eggins told me that one of those was not showing on his record of that encounter so I discount it. That leaves an offence of exceeding 10 hours driving by between 1 and 2 hours. He is encountered again by DVSA on 15 May 2023 at Trowell Services on the M1. Mr Cederstrems told me that it was a check targeted at wide loads and ESDAL compliance. He went on to tell me that it was an issue with his analysis system and not real offences apart from one for just a few minutes. When I pointed out that DVSA at the roadside analyse raw data using their own analysis system, one that is used across Europe by control authorities, Mr Cederstrems’ recollection of the event ceased. The report shows three offences of exceeding 4½ hours driving without sufficient rest, ranging from less than 15 minutes up to between 1 and 2 hours along with a further offence of insufficient daily rest of under 15 minutes. He did have a clear encounter on 19 January 2024 but, of course, if he had not been recording his time driving the escort vehicle, offences will have been concealed.

Mr Eggins’ analysis identified nineteen offences each over a two-month period in August and September 2023. Mr Eggins supports his findings by using ANPR evidence to demonstrate that the escort vehicle was either travelling in the vicinity of the truck or on a journey from Northampton back to Bridgwater. His later analysis of records for March and April 2024 found that Mr Cederstrems was still not recording periods of other work; Mr Stepens records only the one, a period of 1 hour and 44 minutes in the middle of a working day. ANPR data was not used to confirm the nature of the operation this time around but I was not told that anything had changed. If the two drivers continued to work in tandem as they had done, Mr Eggins finds that each would have committed six further daily rest offences.

I find that Edgars Cederstrems is a serial offender in relation to drivers’ hours and tachographs with countless offences over a period spanning seven years. The relationship with the EU trigger levels is one indication of the seriousness and frequency of offending, with the company being nine times over the threshold to trigger an investigation. Putting it another way, the offending rate in August and September 2023 for the operator was 73 in 62 days, or 118%. The exception report trigger level for DVSA’s Earned Recognition scheme is 4% (unmitigated, that is to say, that there may have been a relevant exemption such as to get to a place of safety). Whilst it might not be reasonable to expect all operators to achieve the Earned Recognition standard, it stands as a benchmark of what “good” looks like. This operator is thirty-times worse. Mr Cederstrems’ own offending rate was 30%, over 7 times the benchmark.

In relation to Mr Cederstrems, I reject entirely any suggestion that he did not know what he was doing was wrong. The 2018 conviction ought to have been enough for him to make sure he knew the rules. Mr Eggins found him to know the drivers hours rules well with the exception of the need to make manual entries, which Mr Eggins clearly found to be odd. I am satisfied well beyond the civil standard that the previous history will have left Mr Cederstrems with knowledge, in the legal sense, of the need to make manual entries. His offending and that of the company was deliberate and sustained. If he had any doubts about whether what he was doing was legal, he had every right to demand an assurance from the transport manager his company employed or to seek advice elsewhere. Having regard to the Senior Traffic Commissioner’s Statutory Guidance Document Number 6, the starting point for conduct such as here is to revoke and disqualify the entitlement for 12 months. The seriousness and sustained period of offending are aggravating features but, in treating Mr Cederstrems as a driver only, I balance that with the lack of transport manager intervention and so I adopt the starting point.

Ervins Stepens qualified as a driver in March 2023. To acquire his LGV entitlement, he will have had to pass a theory test and case studies both of which include drivers hours and tachographs. His offending mirrored that of Mr Cederstrems but was exacerbated by failing far more frequently to record the driving of the escort vehicle. The number of offences is large and it continued through to March and April 2024 with him recording manually only one period of other work. In mitigation, he has only worked as a driver in a family business where the culture was to have little regard for the rules. He did not benefit from any supervision from an active transport manager nor leadership from his employer. Whilst action against his vocational entitlement is necessary, it would not be an appropriate approach to consider each and every offence. To do so would see him off the road for a least a year whereas I find a far shorter period of suspension should restore his fitness to drive. Due to the lack of effective management from his employer or his transport manager, and noting his familial commitments, I reduce the action to suspension for a period of one calendar month.

The relationship between the operator and transport manager Michael Swift has clearly been unacceptable since the inception of the licence. The transport manager visited three times in two years, preferring what were referred to as “more modern” means of working which seem to amount to doing nothing. I found the evidence of Anastasiya Cederstrems compelling. I believed her when she told me that she had trusted Mr Swift and that she had acted on advice from a consultant to leave him in post until the DVSA investigation was complete. She told me that she acted swifty to remove him once advised to by Mr Eggins. She had already found a replacement in Mr Davey. The operator should have demanded that the transport manager attend in person on a frequent basis and they should have called the transport manager to account.

Where I have a doubt in the operator’s explanation is that it mirrors the situation in 2018. At that time, it was found that the lack of effective oversight by the transport manager had allowed offending to take place and to continue. Second-time around, I would have expected the operator to seek out a robust transport manager and to ensure that they were properly engaged. They did not do so. Mr Cederstrems will know, for example, that he had only taken 6 or 7 hours rest in a day and should have expected to be called to account by his transport manager. That did not happen. The failure effectively to manage the transport manager goes to the operator’s fitness to hold a licence.

So, is this an operator I can trust to be compliant in the future? John Davey has clearly had a positive impact. As on the day of the inquiry, looking forwards, with Mr Davey or another effective transport manager in post, I find, that it could be.

With reference to the Senior Traffic Commissioner’s Statutory Document No. 10, I find that the breaches here have been deliberate and reckless acts that have compromised road safety. Failing to record positioning journeys and other work was designed to, and did, conceal serious drivers’ hours offences. So the starting point is severe. This is aggravated by the failure actively to manage the transport manager as an operator is required to do and the repetition of drivers hours matters from 2018. Further aggravating is the failure to download vehicle unit data so that the offending was not made visible. Even by March this year, the drivers were not making manual entries of other work when it seems far more likely than not that other work was being conducted.

Looking for positive features, maintenance has not been a significant issue. As at the date of the inquiry, the operator had reasonable compliance systems in place. The MOT history is fair, with one fail, one clear pass and, this year, a pass with five advisories. Four roadside encounters have led to one delayed prohibition. So the failure and prohibition rates are higher than the benchmark but the numbers are low. Financial standing is satisfied and there are no known issues with the operating centre. I discount the matter of Mr Stepens driving without a card having just passed his test as it may well have been acting on poor advice and there was, on that occasion, no advantage to be gained. The operator has cooperated with DVSA throughout. There was no device used to tamper with the tachograph.

Having conducted a balancing exercise, I find that action that significantly interferes with the transport operation is appropriate but I can step back from revocation.

The oral evidence in relation to the effect of regulatory action was conflicting. On the one hand, I was told that it would not be possible to find a driver to replace Mr Cederstrems as few drivers wanted to move wide loads. It would not be possible to sub-contract for a similar reason. I was then told that, if the licence were to be suspended, there were countless competitors who would snap up the work and it would be lost forever. The two accounts do not stack up and neither was supported by any tangible evidence.

My own assessment – for I have no other – of the operator’s finances is that a significant suspension should be survivable. I make that assessment taking in to account the obvious impact of the regulatory action taken against the drivers. In T/2013/47 Dundee Plant Company Ltd, the Upper Tribunal noted:

• “Words of doom and gloom are easy to utter, and traffic commissioners hear them all the time. It follows that, in a case like this, assuming that the traffic commissioner might have been encouraged to impose a shorter suspension had she been determined to provide a lifeline, the actuarial evidence needed to be far more specific, comprehensive and compelling than it was.”

A little later, it went on:

• “14) Moreover, as a matter of law, a suspension is very different from a revocation. It provides a glimmer of hope, and a means to return to operation with a known and established authorisation and operating centre - without the need to make a fresh application. It provides a chance for a new leaf to be turned over if the suspension can be survived. And it is, of course, not possible to disqualify an operator or a director if an operator’s licence is merely suspended.

• 15) For our part, therefore, we see no difficulty in the traffic commissioner concluding, in principle, that the right thing to do is to draw back from the ultimate sanction and, instead, impose a 12-week suspension. In any event, we consider that it would be a very retrograde step to discourage traffic commissioners from taking tough regulatory action (but falling short of revocation) if, after conducting a balancing exercise, it appears right to do so where a very clear marker is needed. We hold this view even if there is a possibility that the consequence will be to put the business in peril. In an appropriate case (which this is) a traffic commissioner is entitled to say: “I hope you survive but if not – so be it. On these particular facts, the public interest in maintaining the integrity of the system demands nothing less than a lengthy suspension”.

I remind myself that tachographs record driving time and rest periods so that, as far as it is possible for legislation to achieve, drivers do not drive tired.  The drivers hours rules address the matter in two ways.  First, they limit driving and rest for the driver at the material time such that fatigue is minimised.  Equally importantly, they set a context for competition between hauliers – and therefore drivers – by specifying maximum driving periods and minimum rest periods so that these are not a factor that can influence one operator’s competitive position above that of another.  Operators, and it follows drivers, cannot compete on the basis of driving excessively.

I also remind myself that the research shows that between 1 in 5 and 1 in 6 deaths on the extra-urban road network is caused by a driver who is asleep at the time[1].  A sleep-related vehicle crash is characterised as one where the driver had a clear view of the object being struck for at least seven seconds and took no avoiding action.  The resulting collision will therefore be heavy, particularly when, as is the case with the vast majority of heavy commercial vehicles, the vehicle has cruise control and full speed is maintained until the point of impact.  Sleep related vehicle crashes are particularly pronounced at certain times of the day, specifically early afternoon and the early hours of the morning, responding to the body’s circadian rhythms.

Review of the offending as set out above shows that these drivers had as little as 4 hours 41 minutes between shifts and 7 hours was not unusual, That is dangerous and requires severe regulatory action but, whilst I believe revocation could easily be justified, there is enough in the positive, just, for me to step back from that.

Finally, I turn to Michael Swift’s good repute as transport manager. He was called to public inquiry in July this year along with Michael Herbert May. That was the result of DVSA investigations in 2023 when Mr Swift absented himself from proceedings, failing to attend. A vehicle was operated without a valid MOT. There was largely a complete absence of compliance systems. Mr May commented in relation to Mr Swift: “I was amazed the transport manager was not present, as instructed, for your visit. I have not been able to contact him, and my recorded delivery letter has not been accepted. But he has still been able to send me a monthly bill for £400.” Fortunately, Mr May had found himself a new transport manager far more quickly and matters at the time of the hearing were largely in order.

Michael Swift was also called with William James Cleave in July this year. A DVSA investigation had found many shortcomings. In relation to the transport manager, the examiner commented: “Examination of the records provided show no evidence that the Transport Manager, Michael Swift, has had any active involvement and even though I have contacted Mr Swift to give him the opportunity to explain the compliance systems in place, I have had no communication from him”.

Mr Swift’s only contribution I can find to any operator’s licence on which he has recently been specified is to raise an invoice each month. He has failed on three occasions to engage with DVSA and he has failed on three occasions to engage with me. He has left a trail of non-compliance everywhere he has been. I find his good repute as transport manager is lost. Due to the absolute failure to discharge his statutory duties and his prolonged and repeated failure to cooperate and engage with enforcement and regulatory authorities, I can see he has nothing to contribute as a transport manager in the future. He is disqualified from acting as a transport manager for a period of ten years and until he sits and passes again the transport manager certificate of professional competence.

9. DECISIONS

Pursuant to a finding of loss of good repute, Michael Paul Swift is disqualified from acting as a transport manager for a period of ten years and until he sits and passes again the transport manager certificate of professional competence.

Pursuant to a finding of multiple serious breaches of drivers hours rules causing me to make an adverse finding under Section 26(1)(f), the licence is suspended from 23:45 hours, 14 December 2024 until 23:45 hours, Saturday 8 March 2025. I make an order under Section 26(6) that vehicle S900SWL not be used under the authority of any other operator’s licence in that period.

The vocational entitlement of Edgars Cederstrems is revoked with effect from 15 December 2024 and he is disqualified from holding said entitlement until 14 December 2025.  

The vocational entitlement of Ervins Stepens is suspended with effect from 15 December 2024 until 14 January 2025.

Kevin Rooney

Traffic Commissioner

25 October 2024

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[1] Vehicle accidents related to sleep: a review; Jim Horne, Louise Reyner; Occup Environ Med 1999; 56:289–294