Decision

Decision for WILLIAM GEORGE CHARLES MORRIS t/a LINLINE TRANSPORT

Published 25 February 2022

0.1 IN THE EASTERN TRAFFIC AREA

1. WILLIAM GEORGE CHARLES MORRIS t/a LINLINE TRANSPORT – OF1050375

1.1 TRANSPORT MANAGER AND AS A DRIVER

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

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3. Background

William George Morris holds a Standard International Goods Vehicle Operator’s Licence authorising 4 vehicles and 4 trailers. Mr Morris has been his own Transport Manager since grant of the licence in 2005.

There are two Operating Centres: Kentford Automotive Ltd, Bury Road, Kentford, CB8 7PZ, and 5 Walton Avenue, Felixstowe IP11 3HH. There are three declared contractors showing on the licensing record: Kentford Automotive Ltd, HB Commercials and SPR Trailers, undertaking Preventative Maintenance Inspection of vehicles and trailers at 6 and 8-weekly intervals, respectively.

Mr Morris’ previous licence, OF0221845, was revoked. This licence was granted at a Public Inquiry on 16 June 2011, after he provided two undertakings relating to Transport Manager refresher training and driver induction and training.

4. Hearing

The Public Inquiry was listed for today, 17 January 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present and represented by Tim Ridyard of Ashtons Solicitors. Following the usual practice described in Statutory Document No. 9, parts of the hearing were held in private where I needed to take evidence of a sensitive nature.

5. Issues

The public inquiry was called for me to consider whether there were grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) – Condition to notify relevant changes

• 26(1)(f) – undertakings (drivers’ hours and tachographs)

• 26(1)(h) – material change:

• 27(1)(a) – repute, financial standing and professional competence

• 28 – disqualification.

Mr Morris was called separately to consider his repute as Transport Manager under section 27(1)(b) and Schedule 3.

He was also called to a conjoined Driver Conduct Hearing to consider whether he should be permitted to continue to rely on his vocational driving entitlement.

The operator was directed to lodge evidence in support by 31 December 2021, to include evidence of financial standing, original maintenance records for all vehicles and trailers over the last 9 months, maintenance contract(s), forward planner, evidence of the systems for managing drivers and their hours. The financial evidence, received on 7 January 2022, disclosed sufficient finance by way of three-month average, to meet the prescribed sum.

6. Summary of Evidence

I refer to the evidence of the Traffic Examiner, Richard Mutimer, at pages 41 to 209. That evidence is not at issue.

PK63 HZU was stopped by Traffic Examiner, Lee Rittman, on 8 December 2020 when it was found to have no driver card inserted for Driver Nicholas Carl Avison. Further analysis revealed four dates of driving without a card. The Driver blamed Mr Morris.

The follow up investigation commenced on 6 January 2021. Mr Mutimer considered the tachograph evidence obtained by Mr Rittman and found evidence that the driver would complete his day, remove his driver card and then someone else drove with no card inserted:

• 20 November 2020 – 1 hour 37 minutes, covering 92 km from Kentford to the Port of Felixstowe

• 21 November 2020 – 1 hour 11 minutes, covering 89 km from Felixstowe to the Kentford Operating Centre

• 26 November 2020 – when Mr Morris was the driver, 1 hour 39 minutes, covering 90 km to Port of Felixstowe.

Mr Mutimer than requested all the relevant data for the period of 3 August 2020 to 29 November 2020. Mr Morris admitted that there might be issues with obtaining the data. He explained that Needham Analysis had been contracted to analyse the digital data but did not cover the vehicle he chose to drive. Needham Analysis cooperated with Mr Mutimer’s inquiries.

Mr Mutimer then obtained data from the Felixstowe Port police relating to the unique RHIDES card issued to Mr Morris. On arrival at the Port, each relevant driver must put their hand on a scanner, which identifies the driver and operator, and then records the time of loading and unloading at the terminal. He also obtained the analogue records from Mr Morris.

Mr Mutimer then obtained ANPR data for vehicle AY55 KHW for the sample period. It was confirmed that Mr Morris had been using this vehicle. Mr Mutimer found that the tachograph card was regularly removed, apparently when Mr Morris had reached his maximum permitted hours. The vehicle was then regularly un/loaded at the Port without any record being made. The suggestion of false records was further corroborated by the ANPR data. It was apparently common practice for Mr Morris to fail to record work at the terminal on the weekend, which would have reduced his weekly rest periods significantly.

Mr Morris was advised on these findings by telephone on 24 February 2021. He was encouraged to seek legal advice. The relevant data was supplied to Mr Ridyard and Mr Mutimer took him through the evidence. The offences were accepted.

Mr Mutimer refers to a four-month period and 36 offences of creating false records and an additional 39 offences where Mr Morris has contravened driver’s hours restrictions and the requirements to maintain an accurate record. As the summary above suggests, Mr Mutimer concluded that the false record offences were mainly committed in order to hide the time spent un/loading at the Port of Felixstowe. He inevitably concluded that the manual records created to appear that Mr Morris had taken the correct rest resulted from an alteration of the tachograph clock. He was then able to insert a new record with an incorrect time/date so as to allow him to keep on driving. At weekends he tended not to record his work at all.
In a statement Mr Morris advised that incidents occurred during a period of significant stress and serious health issues. Mr Morris referred to the anxiety of running a business, whilst trying to meet customer expectations. To his credit he accepted that he had failed to record his full shifts and in particular his movements to, from and about Felixstowe Docks. He referred to planned schedules not going as hoped, which impacted on other schedules leaving his available hours to be compromised. He created false records to hide his tracks. He implies that his judgement was also compromised and felt that he had no choice. He also apologised. I have now seen missing mileage reports for the period 5 April 2021 to 28 November 2021. I refer to Mr Murtimer’s email received prior to the hearing and disclosed to Mr Ridyard. For obvious reasons, given past conduct, Mr Mutimer questions the weight which can be attached to this document. As Mr Mutimer’s investigation showed, Mr Morris stopped the tachograph from recording, so it was necessary to cross-refer against ANPR sightings and the Felixstowe Port Terminal records. However, he was able to extract the following information from what was supplied:

• 5 to 6 April 2021 daily rest should be a minimum of 9 hours, actual: 7 hours 44 minutes.

• 8 to 9 April 2021 daily rest should be a minimum 9 hours, actual: 8 hours 17 minutes.

• 13 to 14 April 2021 daily rest should be a minimum 9 hours, actual: 4 hours 38 minutes.

• 22 to 23 April 2021 daily rest should be a minimum 9 hours, actual: 8 hours 42 minutes.

• 21 to 23 July 2021 daily rest should be a minimum 9 hours, actual: 8 hours 52 minutes.

• 26 to 27 July 2021 daily rest should be a minimum 9 hours, actual: 8 hours 39 minutes.

These rest offences continued even into July 2021

My dip-sampling of the maintenance records suggests that the records for AY55 KHW are fairly typical:

• 23 November 2021 (7 weeks and 6 days before the hearing and 7 weeks from the previous inspection) – inspection with decelorometer brake test showing 56% and 26%, and disclosing a significant list of defects, many of which are to be monitored.

• 5 October 2021 – inspection with decelorometer brake test showing 55% and 28%, and disclosing a significant list of defects, many of which are to be monitored.

• 9 September 2021 - inspection with road test of brakes and no driver detectable defects.

• 16 August 2021 - inspection with decelorometer brake test showing 55% and 27%, and disclosing a significant list of defects, many of which are to be monitored.

• 14 July 2021 (8 weeks and 5 days since the last inspection) - inspection with decelorometer brake test showing 62% and 27%, and disclosing a significant list of defects, many of which are to be monitored.

All the inspections were completed by HB Commercials with exception of 9 September 2021. I compare and contrast the number of defects identified by HB Commercials with the one inspection carried out by Jim Scott Maintenance. The latter contractor is not on the notified list.

7. Determination

Based on the full evidence, which has been summarised above, I am satisfied that I may make adverse findings under sections 26(1)(b) – condition to notify relevant changes, and 26(1)(f) – undertaking on drivers’ hours and tachograph compliance.

All the shortcomings concerning the creation of false records were accepted in writing, prior to the hearing. Representations dated 7 January 2022 put me on record that Mr Morris intends to retire as a road transport operator and will not seek to be a Transport Manager on this or any other licence. I was told that Mr Morris accepts the wrongdoing with regard to tachograph records and does not seek to shirk personal responsibility, but the representations refer to his health as an important context for the commission of these offences.

To his credit, Mr Morris acknowledges that the licence must be brought to an end. I note the offer surrender, but that is refused. I refer to paragraph 28 of Statutory Document No. 10 and by reference to 2015/010 Cornwall Busways Ltd. A traffic commissioner is not bound to accept the surrender of an operator’s licence. An operator can only be disqualified once an operator’s licence has been revoked, the power to refuse surrender is therefore essential if the worst offenders are to be prevented from avoiding disqualification. That is an important part of the jurisdiction, as the Upper Tribunal explained in 2013/082 Arnold Transport Ltd: ”operator licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the… Traffic Commissioners in GB, must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field…. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.”

The starting point, as ever, is the question posed by the Tribunal in 2009/225 Priority Freight namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? This operator has decided not to continue in business, but it is important that other operators believe that effective action will be taken where the operator licensing regime is undermined. Mr Morris states that he has no intention of returning to the transport industry but, as the Tribunal commented in Arnold Transport, promises are easily made. The shortcomings amount to Deliberate acts that compromised road safety and gave the operator a clear commercial advantage through Mr Morris’s own driver offences and represent attempts to conceal those offences. Deliberate or reckless act(s) that compromised road safety and/or gave the operator a clear commercial advantage and/or operator caused or permitted driver offending and/or any attempt by the operator to conceal those offences. The starting points set out in the Directions at Statutory Document No. 10, place this case in the ‘Severe’ category. As Mr Morris accepts, I am fully justified in revoking the licence.

The operator invites me to find exceptional circumstances in this case, mainly related to his health, which I am told has suffered for several years. I refer to the representations from Mr Morris.

[REDACTED]

Mr Morris refers to considerable anxiety, which left him ill-prepared to cope with the nature of the container work, most of which emanated from the Port of Felixstowe. He refers to the impact of late changes to the allocated work with new routes leaving him no contingency for any delay.

[REDACTED]

Like many operators and drivers contributing to the national effort, Mr Morris continued to work as a ‘key worker’ during the first lock down. This impacted on his health. He refers to the uncertainty of the pandemic and the lack of understanding about how the virus was transmitted, coupled with issues around container haulage. The decrease in traffic at least during the first lockdown has been reported extensively, but so have the efforts of those who worked at the front line during that period. Those efforts should not be under-estimated, but the majority of operators and drivers did so in a compliant manner, deserving of the trust placed in them by traffic commissioner, on behalf of the British public.

The availability and health of professional drivers is rightly a matter of national concern given the reliance placed on the transport industries. It is important to recognise the additional pressures placed on drivers. HSE’s publicly available guidance stress as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’. It recognised that those suffering from stress may not be best placed to make decisions about necessary control measures.

The pandemic led to considerable changes to Mr Morris’ usual work patterns. He describes how the location for the restitution of the empty container would be changed several times, meaning he had to replan his day and often the job for the following day, sometimes up to 3 times on a return journey to the Dock. He apparently felt unable to say ‘No’ and consequently failed to comply appropriately. I am able to accept that the circumstances were challenging, but Mr Morris opted to circumvent the law, the licensing requirements, and the obligations on his competitors. His choice to do so represents a fundamental lack of good judgement. Mitigation for that, arising from his personal circumstances, had been identified before the lockdown and some action taken. I am satisfied that there were opportunities for Mr Morris to alert the authorities to his position.

The Contingency Statutory Document issued in advance of the pandemic identifies features which might be taken into account when managing operations during the restrictions. They do not really apply here. As the Contingency Statutory Document refers, conduct may be limited to matters which are relevant to the management of an operator’s licence but includes the trust placed in that operator.

Mr Morris has accepted that he is not capable of making sound day-to-day decisions necessary for the running of a transport business. That is incompatible with the role of Transport Manager. In 2014/050 Andrew Harris trading as Harris of Leicester, the Upper Tribunal explained that: “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 into account when assessing good repute.” Added to this is the fact that Mr Morris took the personal decision to drive the analogue vehicle, which was not subject to external analysis. He placed commercial considerations above those of safety. There was also a degree of sophistication in seeking to hide his offending behaviour.

Statutory Document No. 1 refers to the appellate Tribunal case law and could not be clearer, adherence to the rules relating to drivers’ hours is fundamental to road safety. The written representations correctly anticipate my finding that his behaviour did not amount to continuous and effective management and that, coupled with the decision making involved, means that he is no longer of good repute. I refer to the Tribunal decision in 2017/055 Alistair Walter, in which the Upper Tribunal indicated that, where there is a loss of good repute as a Transport Manager, then loss of repute as an operator should follow. I find no basis to depart from that approach here. I therefore record the relevant findings under sections 27(1)(a) and 27(1)(b).

8. Driver Conduct

The relevant legislation 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 or a PCV driver’s licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. It is section 121(1) which defines conduct:

• in relation to an applicant for or the holder of a LGV driver’s licence or the holder of a UK licence for the Community, his conduct as a driver of a motor vehicle; and

• in relation to an applicant for or the holder of a PCV driver’s licence or the holder of a PCV Community licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a PCV driver’s licence or (as the case may be) his authorisation by virtue of section 99A(1) of this Act to drive in Great Britain a PCV of any class.

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.

The Court did not go on to consider the applicability of the principle of deterrence, which was considered by the Court of Session in Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions [1999] SC 86, but regulatory action undoubtedly contributes to achieving of the purpose of the legislation.

I was told that Mr Morris wishes to continue to use his vocational licence entitlement, although this may not be on a full-time basis. I am also referred to Mr Morris’ relative age. He understands that he must be deemed fit to hold his vocational entitlement for these purposes. I do note the period since the offences uncovered by Mr Mutimer. It was suggested in representation that there was no evidence of continued offending of a dishonest nature, although driver’s hours offences continued into 2021.

[REDACTED]

I am told that Mr Morris is not medically unfit to drive. It is suggested that driving might form part of his rehabilitation and the restitution of his health. However, elevated anxiety related to these proceedings does not mean that his health issue will be resolved, with this decision.

Even accepting the representations that these offences should fall within the lesser categorisation of deliberate falsification, the starting point in Statutory Document No 6 suggests that intervention should commence with a 4-week suspension per offence, up to 6 offences, beyond which the driver’s vocational entitlement should be revoked and the driver disqualified for a minimum of 12 months.

9. Decision

Where there is (for want of a better term) mitigation, I have taken that into account when considering the need for any disqualification. There is no requirement for additional findings, but a direction for disqualification requires me to look at the circumstances. I am referred to the fact that Mr Morris sought legal advice at the outset. That was apparently at the encouragement of Mr Mutimer, who is to be commended on his approach. It is unfortunate that Mr Morris did not disclose the full extent of the issues on initial contact from DVSA. This might reflect the panicked response described to me. I accept that legal advice resulted in clear admissions to the infringements and full cooperation with DVSA. That is described in Mr Mutimer’s report and statement. That led to the agreed schedule of offences, and I recognise the benefits of the liaison between Mr Mutimer and Mr Ridyard. Whilst I cannot give “the fullest credit” sought, I can and do give considerable weight to Mr Morris acting on that legal advice.

I am aware that DVSA was also alerted to some of his personal circumstances. I am also assisted by reference to Statutory Document No. 10, which refers to circumstances where a driver is permitted to falsify records. In this case it was the operator and Transport Manager who falsified the documents. Those circumstances would support a disqualification of up to 10 years.

Mr Ridyard suggested that personal circumstances mean that disqualification is unnecessary. I refer again to the appeal decision in Arnold Transport Ltd and quote: “the Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.” My concern includes what other operators might conclude about the need to comply when looking at this offending behaviour.

Against that I must balance the need to ensure that drivers feel able to report issues with their health and to talk about their problems. Driving can be a solitary job, placing drivers at even greater risk. Goods vehicles are essential for delivering products upon which our economy and society rely, but those vehicles are useless without qualified and healthy drivers. As a society, we must not lose sight of the importance of the driver and that driver’s welfare; that includes their mental health. That challenge needs to be recognised across what frustratingly continues to be a male-dominated industry, and where evidence tells us that it may be harder to challenge societal expectations and gender stereotypes.

Taking those factors into account, as well as the personal mitigation provided, I have departed from the starting points advocated in the Statutory Documents and have determined to deal with the case holistically. For the reasons already explained above, the operator’s licence must be revoked, and Mr Morris has lost his repute. In directing that Mr Morris be disqualified from holding or obtaining an Operator’s Licence for a period of 5 years under section 28 of the Transport Act 1985, I have taken account of the personal circumstances and the additional pressures on him.

For the reasons summarised above and by reference to Mr Morris’s realisation that he is not fit to exercise the responsibilities, it is difficult to set a rehabilitative measure. I therefore direct that the disqualification preventing him from relying on his Certificate of Professional Competence and by reference to paragraph 16 of Schedule 3 of the 19995 Act be for an indeterminate period. The Schedule allows Mr Morris opportunity to seek to vary the direction, but he should be aware that any such application would need to be considered at a public hearing before a traffic commissioner.

Mr Morris may have been driving for over 43 years without incident, but the matters uncovered by Mr Mutimer’s investigation demonstrate a serious departure from the standards expected of a professional driver, to the extent that road safety was at issue. The pressures of being an operator and Transport Manager will no longer apply to Mr Morris, but someone else will have to rely on his judgement as a driver. It is suggested that I might take some assurance from him driving under someone else’s supervision. Having had regard to all of the evidence and giving maximum credit for the positives I have identified, the minimum action which I can take is to suspend the vocational entitlement for a period of 12 months.

Having checked with Mr Morris’ representative, all directions set out in this document will take effect from 23:45 on 21 January 2022.

Richard Turfitt

Traffic Commissioner

20 January 2022