Decision

Decision for Peter Edward Douglas

Published 27 September 2024

0.1 WEST MIDLANDS TRAFFIC AREA

1. PETER EDWARD DOUGLAS – PD1065585

2. WRITTEN DECISION OF THE TRAFFIC COMMISSIONER MR M DORRINGTON

3. PUBLIC INQUIRY ON 20 AUGUST 2024

4. BACKGROUND

Mr Douglas, a sole trader, was granted as restricted public service vehicle operator’s licence authorising 2 vehicles in 2007. As a result of evidence being received at my office from the DVSA that alleged serious non-compliance by Mr Douglas a decision was made to call him to public inquiry by calling in letter dated 10 July 2024.

5. PUBLIC INQUIRY ON 20 AUGUST 2024

Mr Douglas attended with his solicitor, Mr Roy. No one from the DVSA was asked to attend.

Mr Roy explained that he had only been instructed the day before the public inquiry and requested an adjournment as he was without instructions. Having set out his grounds for why an adjournment should be granted I adjourned for a short time before refusing the request giving my reasons for doing so. The hearing then proceeded and I set out, in turn, my summary of the four DVSA/Police stops to Mr Douglas and for each summary of the evidence that related to each stop I asked Mr Douglas whether he challenged anything that I had summarised. He then gave his version of events for each stop before I moved on to the next stop. Save for one minor point for the stop on 13 August 2024 for vehicle BG10RWX there was no other challenge made Mr Douglas.

I then heard further from Mr Douglas in evidence and at the end of the hearing he addressed me upon the effect of action against the licence. Mr Roy had nothing further to add. I then reserved my decision into writing.

5.1 BURDEN AND STANDARD OF PROOF

The burden of proof is upon the DVSA/Office of the Traffic Commissioner to prove any allegations that were made. The standard of proof is the civil law standard, the balance of probabilities. In other words what is more likely than not to have been correct.

5.2 FINDINGS OF FACT

All of my findings of fact have been made after applying the correct burden and standard of proof to the evidence that was before me.

Four stops were made on 29 June 2023, 5 July 2024 and 2 x stops on 13 August 2024 that I read out to Mr Douglas.

Mr Douglas accepted that for each of the four stops the vehicle had been used commercially for hire and reward.

Mr Douglas offered explanations for what happened, and why, for each of the four stops but none of those explanations formed the basis of any defence/legal justification/legal excuse for the shortcoming identified by the DVSA.

All of the evidence from the DVSA surrounding each stop (as summarised above) is more likely than not to be correct. Therefore, all of the allegations made by the DVSA (as summarised above) are proven for each of the fours stops.

As a result the summaries for each of the four stops in paragraph 9 above form my findings of fact.

There were many aggravating features in this case.  For example, Mr Douglas stated that despite knowing a tachograph machine was required no such machine was fitted (where one was not already present) because of the cost of doing so was too great. That meant Mr Douglas knowingly put a commercial interest before the legal requirement to have a tachograph machine fitted. The use of a tachograph machine is to ensure that the strict drivers hours rules are followed in order to (a) create a level playing field amongst operators and (b) to ensure that drivers take legally prescribed breaks and rest periods to protect road safety.

Another extremely serious and aggravating feature was the use of driver Stevenson on 29 June 2023 when it would have been quite obvious to Mr Douglas, an experienced operator, that Mr Stevenson did not have the required driving entitlement for the vehicle nor did he have a driver CPC qualification or a digital tachograph card which were also required in order to drive the vehicle for hire and reward.

In the absence of the correct driving entitlement the insurance for the vehicle was invalid since all policies of commercial vehicle insurance require the driver to have the correct driving entitlement required to drive the insured vehicle at the time it was being driven. If it was not bad enough, Mr Douglas then instructed Mr Stevenson to drive the same vehicle for hire and reward on 13 August 2024 when Mr Stevenson still did not have the required driving entitlement, still did not have a driver CPC qualification and still did not have a digital tachograph card. On that occasion the vehicle was seized by the Police because they were satisfied that it was not insured and as at the date of the public inquiry it remained seized by the Police.

Pulling everything together the following general undertakings on the operator’s licence were breached:

• The laws relating to the driving and operation of vehicles under this licence are observed; and
• The rules on driver’s hours and tachographs are observed, proper records are kept and that these are made available upon request; and
• Vehicles are kept in a fit and serviceable condition [no commercial MOT and no COIF created the breach]; and
• Drivers report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and that any defects are reported in writing [no, for no working, fire extinguisher].

These general undertakings on the operator’s licence were being seriously breached right up to just a week before the public inquiry.

It is also clear to me that Mr Douglas lacked, any, or any effective management control of the transport operation to ensure that the general undertakings on the operator’s licence were fulfilled. His lack of knowledge is inexcusable as an experienced operator (he has been an operator for 17 years) and no lack of basic knowledge to operate a compliant transport operation can ever be accepted; so said the Upper Tribunal in the appeal cases of LA & Z Leonida T/A ETS 2014/024 and MGM Haulage and Recycling Ltd 2012/030.

There were some positives; the driver CPC training paid for by Mr Douglas for driver Stevenson, that a tachograph machine was now being fitted, that Mr Douglas had now completed the necessary 35 hours CPD as a driver to obtain his driver CPC, his apology for what went wrong and promises to get things right in the future.

5.3 BALANCING EXERCISE

The negatives in this case carry very significant evidential weight because every one of the fours stops in this case involved a vehicle being operated for hire and reward (fee paying passengers had been carried) when serious areas of non-compliance were identified with the vehicle and/or driver at each stop including the vehicle being uninsured on two occasions.

Against the negatives in this case were the positives that Mr Douglas explained to me and to which I have given as much credit (evidential weight) as I can possibly give.

Looking at the operator, as at the date of the public inquiry, I am satisfied that the evidential weight given to the negatives in this case significantly outweighs the evidential weight I have given for the positives in this case. Consideration of regulatory action is required.

5.4 STATUTORY DOCUMENT 10, ANNEX 4 CONSIDERATION.

Repeating all of my findings I am satisfied that this case falls in to the “Severe/Serious” category for consideration of regulatory action given the gravity of the non-compliance identified at every one of the fours stops, the lack of protection to travelling members of the public (no insurance on two occasions, no or no working fire extinguishers etc), the putting of commercial interests before the law (the reason for not fitting a tachograph machine) and the fact that exactly the same non-compliance that occurred on 29 June 2023 was deliberately repeated on 13 August 2024 because only Mr Douglas could have instructed Mr Stevenson to drive his vehicle on 13 August and that instruction was therefore a deliberate act.

6. DECISIONS

I have first asked myself the question posed by the Upper Tribunal in the appeal case of Priority Freight 2009/225; do I trust this operator to be compliant in the future? After repeating all of my findings I answer that question in the negative.

I have then asked myself the question posed by the Upper Tribunal in the appeal case of Bryan Haulage Ltd number 2 2002/217; is the conduct of this operator such that they ought to be put out of business? After repeating all of my findings, and despite all of the credit that I have given to the operator for the positives in this case, I have determined that it is proportionate to answer that question in the affirmative. As a result Mr Douglas has lost his good repute as an operator.

Having lost his good repute it is a mandatory requirement that I revoke the operator’s licence held by Peter Edward Douglas under reference PD1065585 under section 17(3)(d) of the Act.

Repeating all of my findings, and after again reminding myself of the credit I have given to the operator for the positives in this case, I have determined that it is proportionate to revoke the operator’s licence held by Peter Edward Douglas under reference PD1065585 under sections 17(3)(aa) [breach of the general undertakings that attach to the operator’s licence] , 17(3)(c) [prohibition] and 17(3)(e) [material change(s) since the licence was granted which includes the two fixed penalty notices in this case] of the Act.

All orders of revocation will take effect at 2359 hours on 30 September 2024.

I have allowed one month before the revocation of this licence comes into effect on the strict understanding that no vehicle is operated by Mr Douglas in any way that is unlawful/in breach of the general conditions that attach to his operator’s licence.

The month is to be used to wind down the transport operation as that is what he told me it would take in order to do so in an orderly manner.

I have not made an order of disqualification because Mr Douglas told me that he did not intend returning to the transport industry if he lost his operator’s licence. I will therefore have a detailed note placed onto his file that upon any future application made by Mr Douglas, or involving Mr Douglas, for any type of operator’s licence no decision is to be made without this written decision being brought to the attention of the presiding Traffic Commissioner. At that point any such application will be determined on its own merits but in the absence of Mr Douglas having successfully completed an OLAT course I am struggling to see how any application could be decided in Mr Douglas’ favour.

Traffic Commissioner Mr M Dorrington

30 August 2024.