Decision

Decision for Roger Arnold t/a R A International

Published 22 September 2022

1. WEST MIDLANDS TRAFFIC AREA

2. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2.1 PUBLIC INQUIRY HELD ON 14 SEPTEMBER 2022

2.2 OPERATOR: ROGER ARNOLD T/A R A INTERNATIONAL

2.3 LICENCE OD1002112

3. Background

3.1 Licence details

Roger Arnold t/a R A International holds a sole trader goods vehicle standard international operator licence for five vehicles and six trailers, granted in 2002. The authorised operating centres on the licence are at Wharf Road, Tyseley, Birmingham B11 2DA and at Lincoln Farm Café Truckstop, Solihull B92 0LG. The transport manager on the licence is Richard Arnold.

3.2 DVSA investigation

In May 2022 I received a report from DVSA traffic examiner Robert Lees. Mr Lees reported that:

• a vehicle specified on Roger Arnold’s o-licence, KS03 FTK, had been stopped by DVSA at the roadside on 29 September 2021. It was displaying an o-licence disc in the name of Midland Bulk Services Ltd. This company’s o-licence had been surrendered by its liquidators in June 2021, after it had entered liquidation in April 2021 with £340,000 of debts. The vehicle was being driven by Ryan Kembery, a former director of Midland Bulk Services Ltd until shortly before it had entered liquidation;

• the registered keeper of vehicle KS03 FTK was Ryan Kembery;

• Mr Kembery was now the sole director of Midlands Aggregates Ltd, a company which does not hold an operator’s licence;

• the analogue tachograph charts in Mr Kembery’s possession showed that he was the sole and regular driver of the vehicle;

• the tachograph charts showed that the vehicle had been parking overnight either at Rowleys Green, Coventry or at Wykin Village, Hinckley. Neither place was an authorised operating centre on Roger Arnold’s licence;

• Mr Kembery had told the traffic examiner at the stop on 29 September 2021 that the Hinckley address was his parents’ house and the Coventry address the former operating centre of Midland Bulk Services Ltd;

• Mr Kembery had more than 42 days’ worth of tachograph charts in his possession: he had not handed them in by the 42nd day to the operator as legally required;

• although there were also four vehicles with a digital tachograph specified on Roger Arnold’s licence at the time, Mr Arnold had never supplied any data relating to these vehicles, despite numerous requests;

• a “general service agreement” between Roger Arnold and Ryan Kembery stated that Mr Kembery agreed to provide transport services using his own vehicle. The agreement permitted Mr Kembery to sub-contract the transport services to a third party. It stipulated that Mr Kembery would work “autonomously and not at the direction of the client [Mr Arnold]. It appeared to be a classic “transport for hire and reward” agreement rather than any legitimate arrangement under which Mr Kembery would operate under Mr Arnold’s licence and control;

• Roger Arnold had failed to attend for interview on either of the two dates offered;

• Richard Arnold, the transport manager, had failed to attend for interview and failed to respond to correspondence

TE Lees concluded that it was clear that Roger Arnold had been lending his o-licence to Ryan Kembery so that the latter could continue transport operations despite the surrender by the liquidator of the licence of the company of which Mr Kembery had been a director.

4. Public inquiry

• Concerned by this report, I decided to call both the operator Roger Arnold and transport manager Richard Arnold to a public inquiry. This decision was taken on 16 May 2022. Before the call-up letter could be sent, however, Roger Arnold failed to continue his licence when it came up for renewal on 31 May 2022. Because the issue of licence lending was so serious, and went to the good repute of both operator and transport manager, I decided to revive the licence so that I could proceed to call Roger Arnold and Richard Arnold to the inquiry as planned. Call-up letters were sent on 9 August 2022.

• The public inquiry was held in Birmingham today on 14 September 2022. Neither Roger Arnold nor Richard Arnold attended. I therefore proceeded to make findings on the basis of the documentary evidence available.

5. Findings

In the light of the evidence presented by TE Robert Lees, I have no hesitation in finding that Roger Arnold has been lending his licence to Ryan Kembery (Section 26(1)(h) of the 1995 Act refers). The contract between them for transport services stated that Mr Kembery must provide his own vehicle and would operate autonomously from Mr Arnold. Mr Arnold clearly had no oversight of Mr Kembery’s drivers’ hours as Mr Kembery was not handing charts into him.

The vehicle was never kept at either of the authorised operating centres on Mr Arnold’s licence (Section 26(1)(a) refers). It was kept at premises associated with Mr Kembery’s family or the previous premises of his company Midland Bulk Services Ltd.

Roger Arnold has failed to fulfil undertakings to ensure the lawful operation of vehicles and the observance of rules relating to drivers’ hours and tachogaphs (Section 26(1)(f) refers). Despite having four digital tachograph vehicles on his licence at various times between June 2020 and March 2022 he was unable to supply any drivers’ hours data relating to them.

Roger Arnold has failed to co-operate with DVSA’s investigation, failing to attend interviews arranged for 7 April and 20 April 2022.

6. Conclusions

Lending an operator licence to someone who does not have one is a very serious issue. It is an attempt to circumvent the entire operator licensing system. By his actions Roger Arnold has facilitated the operation of goods vehicles by a person with no right to do so. It is beyond my understanding how an operator could behave so dishonestly and so disgracefully. This betrayal of the trust place in him as an operator means that the loss of his good repute is inevitable. Having lost his good repute, he is no longer eligible to hold an operator’s licence (Section 27(1)(a) refers).

Transport manager Richard Arnold has either conspired with Roger Arnold in the lending of the licence to Ryan Kembery or has been so remote from the licence that he did not realise it was happening. Neither possibility is the conduct of a reputable transport manager. In addition, he has failed to co-operate with the inquiry, attending neither the two arranged interviews with DVSA nor this present public inquiry (despite having signed for receipt of the call-up letter). I therefore conclude that Richard Arnold has lost his good repute as transport manager (Schedule 3 to the 1995 Act refers) and I must thus disqualify him from acting as transport manager on any licence. The disqualification is indefinite.

I have considered whether to disqualify Roger Arnold, under Section 28 of the 1995 Act, from holding an operator licence in the future. In doing so, I have taken account of paragraph 105 of the Senior Traffic Commissioner’s Statutory Document 10. Because Roger Arnold’s actions have undermined the entire purpose of the operator licensing regime, I have decided to so disqualify him. The disqualification is for an indefinite period of time.

If they wish to argue for their disqualifications to be time-limited, Roger Arnold and Richard Arnold may request a hearing before a traffic commissioner. Given the severity of their misconduct, however, I do not envisage that the period of disqualification could be reduced to lower than five years.

Nicholas Denton

Deputy Traffic Commissioner

14 September 2022