Decision

Decision for Trojan-Mek Ltd (OG1128143) and Simon Caudle (Transport Manager) and Leighton Price (Driver) and Philip Thornburrow (Driver) and Shaun Bosley (Driver). Conjoined Public Inquiry and Driver Conduct Hearings.

Published 3 November 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner; Public Inquiry and Conjoined Driver Conduct Hearings

1.1 Trojan-Mek Ltd (OG1128143) and Simon Caudle (Transport Manager) and Leighton Price (Driver) and Philip Thornburrow (Driver) and Shaun Bosley (Driver)

2. Background

The operator, Trojan-Mek Ltd, holds a standard national licence authorising 8 vehicles and 6 trailers, granted on 12 August 2014.  There are two directors of the operating company, Leighton Price and Colin Watkins. Both directors were the directors on a previous licence held by Trojan-Mek Ltd which was revoked in May 2014 following a public inquiry. The nominated Transport Manager on the licence was previously Simon Caudle until he was replaced in April of this year by Efan Price, Leighton Price’s son. The business is a machine relocation company engaged in the movement of high value heavy machinery, as well as some general haulage work.  A Driver and Vehicle Standards Agency (“DVSA”) roadside encounter with one of the operator’s vehicles on 1 December 2022 resulted in the discovery of an apparently false record by one of the operator’s drivers. 

A follow up DVSA investigation by Traffic Examiner (“TE”) Haines-Burke found a number of more serious offences, resulting in an unsatisfactory investigation visit report in view of operator compliance failings found. TE Haines-Burke also expressed concerns about the Transport Manager’s knowledge and his monitoring of drivers and drivers’ hours/WTD systems. His investigation also resulted in the prosecution of the operator and 3 of its drivers, including company director, Leighton Price.  The operator pleaded guilty at Merthyr Tydfil Magistrates’ court in June 2023 to 2 offences of permitting Leighton Price to fail without reasonable excuse to make a relevant tachograph record or entry as required by the drivers’ hours legislation.  Trojan-Mek Ltd was sentenced to a fine of £1,000 and ordered to pay costs of £740. Leighton Price pleaded guilty and was convicted of 6 offences of failing, without reasonable excuse, to make a relevant tachograph entry or record on dates between 1 July 2022 and 10 November 2022, and one offence of knowingly making a false record on 15 July 2022.  He was sentenced to fines totalling £6,020 and ordered to pay £447 costs. The operator’s driver, Philip Thornburrow, was convicted of one offence of knowingly making a false record on 26 August 2022 and he was sentenced to a fine of £300 with costs.  Another of the operator’s drivers, Shaun Bosley, was also convicted of one offence of knowingly making a false record on 23 November 2022 and he was fined £166 with costs.

The operator and its former transport manager, Simon Caudle, were called to public inquiry to explore the shortcomings identified by the DVSA.  Drivers, Leighton Price, Philip Thornburrow and Shuan Bosley were called to conjoined driver conduct hearings under the 1988 Act to review their driving conduct and determine whether they continued to be suitable persons to hold Large Goods Vehicle driving entitlement.  

3. The Public Inquiry and Conjoined Driver Conduct Hearings

The conjoined public inquiry and driver conduct hearings were listed for 27 September 2023 at Pontypridd and commenced and concluded on that date.  Leighton Price, company director, appeared on behalf of the operator and in his capacity as driver.  He was unrepresented but had received assistance in preparing for the hearing from Neil Thomas, transport consultant of NRT Consultancy.  Neil Thomas attended as a witness for the operator along with Efan Price, the current transport manager.  Drivers Philip Thornburrow and Shaun Bosley attended and were unrepresented.  TE Haines-Burke attended from the DVSA.

Simon Caudle who was called to the public inquiry to consider whether he continued to meet the requirements to be of good repute and professional competence as transport manager did not attend.  By email dated 13 September he indicated that he would not be attending the public inquiry.  The Senior Team Leader for OTC Wales responded to him by email of 18 September reminding him, as explained in the letter of 31 July 2023 calling him to public inquiry, that it was important that he attend the hearing and that failure to do so may result in me deciding the case in his absence. In fact, another member of staff had already responded to him in similar terms but, as there was no record of that correspondence and the caseworker had gone on holiday, the email of 18 September was sent to ensure fairness to Simon Caudle so that he was under no misapprehension as to the requirement for him to attend and the implications for him should he not do so. He responded by email later that same day, in somewhat strident terms, confirming that he would not be attending, that he had retired, and that being a transport manager was of no further interest to him.  Having regard to Statutory Document 9 on Case Management, I decided that it was fair and appropriate to proceed in his absence.

I heard oral evidence from TE Haines-Burke, Leighton Price, Philip Thornburrow, Shaun Bosley, Neil Thomas and Efan Price and received written summing up submissions from Leighton Price, on behalf of the operator, supplemented by oral closing submissions from him.  At the conclusion of the hearing, I indicated that I was reserving my decision and would produce a written decision as soon as possible.

4. Evidence

In addition to the papers in the public inquiry and driver conduct briefs I was provided with a bundle from the operator in advance of the hearing.  That included submissions on behalf of the operator; witness statements from Leighton Price, Efan Price, Gareth Evans (of OLS-Uk-Ltd); audit report from NRT Consultancy; bank statements and accounts; vehicle test history report and vehicle encounter report.  On the day of the inquiry, I was additionally provided with a written “summing up” submission from Leighton Price and a further written statement from Efan Price.  On the evidence provided, I indicated that I was satisfied that the financial standing requirements continued to be met.  Recent driver records and tachograph data had been provided by the operator to TE Haines-Burke in advance of the public inquiry, as requested in the call up letter.  TE Haines-Burke had prepared an update statement for the inquiry, dated 20 September 2023, which was served on the operator in advance of the hearing. In response to that update statement, the operator provided additional documentation to TE Haines-Burke which he had the opportunity to consider shortly before the public inquiry hearing and which he commented on in his oral evidence. 

Simon Caudle was invited to send any written representations or evidence that he wished me to see 14 days in advance of the hearing date.  He sent an email dated 13 September and another on 18 September, as already referenced above.  I have treated those emails as his evidence in considering whether he continues to meet the transport manager requirements.

I do not set out all of the evidence in this decision because it is a matter of record within the bundle and transcript of proceedings.

5. Findings of fact

It is clear, and obviously accepted by the operator and drivers Price, Thornburrow and Bosley (in view of their guilty pleas in the criminal court) that the drivers’ hours offences fully specified in the Briefs, were committed. There was also acceptance that Leighton Price had used a defective driver card in breach of the requirements and in relation to which he received a DVSA fixed penalty  on 22 July 2023, and that he was stopped whilst driving without carrying his driver CPC card in May 2023, in breach of requirements.  Accordingly, I find that the operator and its drivers have incurred relevant convictions in the past five years and the operator has not honoured the undertakings it signed up to when it applied for its licence, namely that it would observe the rules on drivers’ hours and tachographs and keep proper records, and I find that sections 26(1)(c)(i) and (ii) and section 26(1)(f) of the 1995 Act are made out.

It is also clear on the evidence, again undisputed, that the operator’s drivers and vehicles have been issued with prohibition notices by the DVSA in the past 5 years, including one on 21 November 2019 for an overloaded vehicle.  Accordingly, I find that the operator’s vehicles or drivers have been issued with prohibition notices in the past five years and that the operator has not honoured the undertakings it signed up to when it applied for its licence, namely that its vehicles and trailers would not be overloaded, and I find that section 26(1)(c)(iii) and section 26(1)(f) of the 1995 Act are made out.

The frequency of driver licence checking was inadequate and monitoring of driver CPCs at the time of the DVSA investigation in January was non-existent, with the then transport manager Simon Caudle relying on drivers to keep him informed of their expiry dates. There was ineffective management control and insufficient procedures in place to prevent operator licence compliance failings.  There were ineffective analysis procedures in place to detect falsification, drivers’ hours or working time directive infringements and insufficient procedures in place to ensure appropriate use of tachograph or manual records by drivers.

I find on the balance of probabilities that Simon Caudle had insufficient understanding of the systems that he was supposed to be monitoring in relation to driver infringements, missing mileage and working time directive reports.  Although the software was capable of monitoring and producing working time directive reports, these had never been accessed by Mr Caudle, who should have been reviewing, monitoring and acting on those reports as transport manager.  Simon Caudle had insufficient understanding of the working time regulations to effectively carry out his role.  Mr Caudle has suggested in his evidence that he was unable to give a good account of himself on the day he was interviewed because of a reaction to fluorescent lighting in the interview room.  He indicated that he felt the interview should have been postponed, although acknowledged that he did not mention that at the time but only the following day.  TE Haines-Burke refers to this in his evidence.  However, even if allowance is given for that and I were to accept that his answers were vague as a result of an adverse reaction to the lighting, there is clear evidence of him failing even to access working time directive reports generated by the Tachomaster system and no evidence whatsoever of any system in place.  That demonstrates a failure continuously and effectively to manage working time directive requirements.  No records were created, stored or retained and there were no disciplinary procedures in place.  Nor was there any evidence of formal monitoring of driver CPCs.  I am satisfied on the evidence before me that Simon Caudle demonstrated a lack of understanding of the software systems for generating and monitoring tachograph and WTD reports. I find that he failed effectively and continuously to manage all the transport activities of the business, as required by the legislation. He has provided no explanation or mitigation for his failings and chose not to attend the inquiry so has passed up the opportunity of giving evidence or challenging any evidence before the Tribunal which he disputed.

6. Considerations and decision in respect of the operator, Trojan-Mek Ltd

I have weighed up these adverse findings against the operator with the positive features in considering the appropriate starting point for regulatory action. Also on the negative side is the fact that this is the operator’s second call to public inquiry, with some of the same failures which resulted in the previous licence being revoked still apparent – viz failure to monitor and supervise the transport manager and breach of the undertaking regarding compliance with drivers’ hours and tachograph rules and regulations.  The director, Leighton Price, has himself committed drivers’ hours offences.  Whilst I appreciate that he is not a full-time driver but acts as a “stand in” driver wherever necessary, and that there was a lot going on with his co-director seriously ill at the relevant time, it is even more important that he, as company director, should set the standards in terms of compliance with drivers’ hours responsibilities.  He cannot seek to blame others for his infringements as operator, or driver. As soon as he realised that his transport manger was not performing that role effectively and was resisting introduction of appropriate systems to ensure that driving infringements were unlikely to happen (the tracking system now installed), he should have acted. As the Upper Tribunal has repeatedly stated, drivers’ hours compliance goes directly to road safety.

However, on the positive side, the operator co-operated with the enforcement investigation and with this public inquiry process.  Although there was a previous public inquiry, that was nearly 10 years ago, and this operator’s licence has been held since 2014 with no adverse regulatory history since grant, which I take into consideration.  Some effective changes have been made to ensure future compliance, with tangible evidence in support.  Efan Price, although inexperienced as a transport manager, has engaged with experienced transport professionals to introduce new systems which have improved compliance. Both he and the operator recognise the need for this support and there was detailed evidence about how the operator and transport manager have worked with the consultants and intend to continue doing so with a view to further improvement. Although TE Haines-Burke’s update report identified some concerns about some instances of driving without a card, each of these were explained by Efan Price (with the exception of one) to the TE’s satisfaction.  One area that was picked up by the TE, and accepted by the operator, was the need for Efan Price more carefully to analyse the infringement reports before his interviews with the drivers.

In submissions to me the operator refers to the Senior Traffic Commissioner’s Statutory Document 10 Annex 4 and considers the case falls into the “Severe to Serious” category.  Having conducted the above balancing exercise, I agree with that assessment.   There is a clear need for regulatory action, as recognised by the operator in its submissions before me.  I heard evidence about the impact on the operator’s business of regulatory action that I might take against the licence.  In considering the Priority Freight question, “how likely is it that the operator will, in the future, comply with the operator licensing regime?” I find the answer to be “likely” on the evidence.  I do not consider that revocation is appropriate but do consider there is a need for a deterrent intervention by way of a period of curtailment and I curtail the licence by five vehicles (i.e. from 8 to 3 vehicles) under section 26(1) of the 1995 Act with effect from 23:45 hours on 17 October 2023.  That curtailment will remain in place for a period of two months, i.e. until 23:45 hours on 17 December 2023.  I also make an order under section 26(6) of the 1995 Act that vehicles removed from the licence for the period of the curtailment may not be used or specified on any other operator’s licence.

Following the DVSA’s intervention, the operator did move swiftly to replace Simon Caudle as transport manager and introduce new systems, taking on board advice from DVSA and external transport consultants.  However, given that these new arrangements have been in place for a relatively short period of time, and the residual concerns explored during the inquiry, an audit undertaking was proposed to give me assurance that the improved compliance will be sustained.  For that reason, the audit undertaking in the terms set out at paragraph 2 of my Decision above is attached to the licence, agreed to by the operator.  It will be for the operator to ensure that it continues to achieve the required standards in future, and I note promises made regarding the continuing use of contracted transport consultants to assist with achieving that. Leighton Price recognises that he and the business would benefit from attending an Operator Licence Awareness Training course and an undertaking was offered in that regard, again attached to the licence in the terms set out at paragraph 2 of my Decision above.

It follows from the above that I do not find that the operator has lost its repute, though I find it severely tarnished.

7. Considerations and decision in respect of transport manager, Simon Caudle

In considering the good repute of Simon Caudle as transport manager I have performed the balancing exercise with reference to the negative findings and features set out in paragraphs 8 to 11 above.  There were serious compliance breaches which demonstrate a clear failure to exercise effective and continuous management of the transport operation. I have considered whether there is any evidence of positive features to be weighed in the balance. He did co-operate fully with the DVSA investigation which I weigh in the balance.  However, the improvements made since the DVSA intervention were not introduced by Simon Caudle, but by the new transport manager who replaced him.  I have not been provided with any evidence to demonstrate what he has done/is doing to ensure compliance with the rules or to address the shortcomings found by the DVSA.  The role of the transport manager is a key one which Simon Caudle has failed to fulfil effectively, resulting in compliance failures and a clear risk to road safety.

In considering whether his good repute is lost, rather than merely tarnished, I cannot avoid the comments of the appellate Tribunal in Andrew Harris trading as Harris of Leicester (2014/050): “Given the importance attached to operators complying with the regulatory regime and given that transport managers must: ”effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can properly be taken not account when assessing good repute.”  The Tribunal has confirmed in Angus Smales trading as Angus Smales Eventing (2014/058), that being a transport manager is far more than just holding the qualification.  I find that Simon Caudle has not demonstrated the ability to meet the statutory duty and that continues to be the case.  In the circumstances, and as was confirmed in Matthew Reynolds (2015/049), I must find that he has lost his repute as transport manager and no longer satisfies the requirements of paragraph 14A of Schedule 3 to the 1995 Act.  I have considered whether such a finding would be a disproportionate response but have determined that such a finding is entirely appropriate and indeed inevitable on the evidence before me.

Having concluded that Simon Caudle’s good repute is lost I must also disqualify him under paragraph 16(2) of Schedule 3 to the 1995 Act from acting as a transport manager on an operator’s licence.  I am unable to set any appropriate rehabilitation measure as Simon Caudle failed to attend the hearing or explain his circumstances.  In his email correspondence he indicates that he has retired and so has no further interest in being a transport manager.  That being the case, there will obviously be no adverse financial implications for him as a result of the disqualification. The disqualification will commence at 23:45 hours on 11 October and is for an indefinite period.  Simon Caudle can seek to vary the order but will need to appear before a traffic commissioner to satisfy them as to his ability to meet the requirements of Schedule 3 in the future.

8. Considerations in relation to vocational driving licences

The legislation in relation to driver conduct is not the same as that applicable to the operators of heavy goods vehicles.

Section 115(1) of the Road Traffic Act 1988 (“the 1988 Act”) provides that a large goods vehicle or passenger-carrying vehicle driver’s licence – (a) must be revoked if there comes into existence, in relation to its holder, such circumstances relating to his conduct as may be prescribed; (b) must be revoked or suspended if his conduct is such to make him unfit to hold a licence; and where the licence is suspended under paragraph (b) above it shall during the time of the suspension be of no effect.

Section 116(1) of the 1988 Act provides that any question arising under section 115(1)(b) of this Act as to whether the person is or is not, by reason of his conduct, fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, may be referred by the Secretary of State to the traffic commissioner for the area in which the holder of the licence resides.

Section 116(2) of the 1988 Act provides that where on any reference under subsection (1) above, the traffic commissioner determines that the holder of the licence is not fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, he shall also determine whether the conduct of the holder of the licence is such as to require revocation of his licence or only its suspension; and if the former, whether the holder of the licence should be disqualified under section 117(2)(a) of the Act (and, if so, for what period) or under section 117(2)(b) of this Act.

Section 121 of the 1988 Act defines conduct as meaning (a) in relation to the applicant for or the holder of a large goods vehicle driver’s licence, his conduct as driver of a motor vehicle, and (b) in relation to an applicant for or the holder of a passenger carrying vehicle driver’s licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger carrying vehicle driver’s licence.

In making my decision in relation to the vocational licences for the three drivers I have taken into consideration the Senior Traffic Commissioner’s statutory guidance in relation to Vocational Driver Conduct and the case of Meredith and Others v Traffic Commissioner for the Western Traffic Area EWHC 2975 (Admin). Essentially, when considering what action to take, if any, the personal circumstances of the offender are not relevant in my jurisdiction save in very limited circumstances.  However, I must take into account the circumstances of the relevant offences.

Drivers are expected to fully acquaint themselves with the relevant legislation before undertaking employment as a professional driver.  They cannot evade their personal responsibility by stating that they bowed to pressure from or orders of others on issues related to their obligations under the regulations.  It would send entirely the wrong message to professional drivers that they can drive vehicles knowing that they have falsified records.  The drivers’ hours, working time and tachograph rules assist in keeping the public safe when using public roads and it is always serious when the drivers’ hours rules are breached, particularly where a deliberate false record is made by a vocational driver. The concealment of evidence required for effective regulation of drivers’ hours is serious and I regard such falsification as more serious than the offences that it was designed to conceal. The Senior Traffic Commissioner’s statutory guidance sets out that those who commit offences of this kind must understand that there will be serious consequences if and when the matter comes to light and that a cumulative and significant period of disqualification is the likely outcome.  Subsequent conduct is also likely to be of limited weight.

Guidance in Statutory Document 6 on Vocational Driver Conduct includes case examples involving falsification of records.  That guidance refers to a starting point of four weeks suspension for each offence, but with any more than six offences involving deliberate falsifications (e.g deliberately driving without using a tachograph, deliberately failing to keep records or pulling tachograph charts/digicards) meriting disqualification for 12 months. It refers to a starting point of one week suspension for each offence, but with any more than six offences involving falsification by failing to keep required records without intent to deceive (e.g. destroying a record or failing without reasonable excuse to make a relevant record without evidence of intent to deceive) meriting disqualification for 12 months.

Leighton Price has been convicted of 7 drivers’ hours offences, 6 of which are falsifications of records by failing without reasonable excuse to make a relevant record and one is the offence of knowingly making a false record.  When questioned about why he committed these offences, his explanation was that his card had popped out, he had made some paper print outs but his relationship with Simon Caudle had deteriorated badly at that time, and he did not have evidence to show that. He could not really explain the circumstances of his offending, but he fully accepted his guilt before the criminal court and before me at the hearing. He was legally represented in court and is paying his fines in instalments.  These are serious offences, one of which is a deliberate falsification, though he could not explain the circumstances of that.  Since his prosecution for those offences, Mr Price has also received a fixed penalty of £100 from the DVSA on 22 July 2023 for using a defective driver card in breach of the drivers’ hours rules, and he was stopped on 4 May 2023 whilst driving an HGV and found not to be carrying his driver CPC card, again in breach of the requirements.  TE Haines-Burke’s evidence was that, although this was recorded on the DVSA system as a negative encounter, because Mr Price was able to show photographic evidence of his card, no further action was taken. In view of that, I treat that particular infringement as less significant. It was put forward in mitigation that Simon Caudle, as transport manager, should have picked up on the infringements and should have put in place tracking systems to alert drivers that they are at risk of driving in breach of the requirements.  Mr Price explained that he had a lot going on at the time and his driving is limited to that of a part time or stand in driver, though he did accept that as a professional driver, compliance with the rules was his responsibility. His vocational entitlement is important to the business, particularly on the machinery side. That is all the more reason for him to take his responsibilities seriously, which he has evidently failed to do even as recently as July of this year when he received the fixed penalty. Having regard to all these factors, and the guidance in statutory document 6, I make a finding that he is not fit to hold a large goods vehicle licence under section 115(1)(b) of the 1988 Act.  I do not consider it proportionate to revoke his licence but must suspend it, having made such a finding.  Having regard to the starting points in Statutory Document 6, I suspend his large goods vehicle driver’s licence for a period of 12 weeks with effect from 00:01 on 18 October 2023.

Philip Thornburrow has been convicted of one offence of knowingly making a false record by pulling his driver’s card on 26 August 2022.  He explained that he made a stupid decision on that day and knowingly committed the offence because he needed to get back to his family quickly.  He pulled his card to avoid having to take a break and drove for another 2 hours, a distance of 95 miles. He has not previously committed any drivers’ hours offences and I heard evidence that his compliance since has been good.  He realises that a period of suspension is inevitable and had already spoken to his employer, Trojan-Mek Ltd about other work that he would be able to do for them during any period of suspension that might be imposed.  In the circumstances and having regard to the guidance in statutory document 6, I make a finding that he is not fit to hold a large goods licence under section 115(1)(b) of the 1988 Act and must either revoke or suspend his licence.  I consider it appropriate to suspend his large goods vehicle licence for a period of 4 weeks with effect from 00:01 on 18 October 2023.

Shaun Bosley has been convicted of one offence of knowingly making a false record by pulling his driver’s card on 23 November 2022.  He is a relatively inexperienced professional driver and admitted his guilt from the outset.  He explained that he was driving back and the Severn bridge was closed so he was stuck in heavy traffic.  His ‘phone had run out of battery, there was no sleeper cab in his vehicle and, because he didn’t know what to do and was concerned about getting into trouble with his company, he panicked and pulled his card to get back.  He drove for a period of 25 minutes covering a distance of 16 kilometres.  The explanation given was consistent with his interview under caution.  The circumstances of this offence are relevant, as is the short period of time and distance driven, which go to mitigate the offence.  In the circumstances and having regard to the guidance in statutory document 6, I make a finding that he is not fit to hold a large goods licence under section 115(1)(b) of the 1988 Act and must either revoke or suspend his licence.  I consider it appropriate to suspend his large goods vehicle licence for a period of 3 weeks with effect from 00:01 on 18 October 2023  

Victoria Davies
Traffic Commissioner for Wales

10 October 2023