Decision

Impounding Decision for Mark Entwistle t/a Going Places

Published 17 June 2022

1. WESTERN TRAFFIC AREA

2. Application to the Traffic Commissioner for the return of a detained vehicle

3. WA20FWO

3.1 by

4. Mark Entwistle t/a Going Places

5. BACKGROUND

The facts relating to the detention of this vehicle appear not to be disputed and are documented in a series of witness statements provided to me by DVSA.

Traffic Enforcement Manager Andrew Ball tells me that he was on duty on 23 September 2021. At approximately 15:00 hours, he had cause to direct the subject vehicle to Exeter Services for inspection. The vehicle was laden with a white Mitsubishi L200 and was towing a trailer on which was a blue Mercedes GLC. The following day, Mr Ball arranged for the vehicles being carried to be collected. He spoke to a Mr David Smith who told Mr Ball he had just bought the Mitsubishi and had contracted Going Places to collect it from Leicestershire and deliver it to him in St Columb, Cornwall, as that was cheaper than travelling himself to Leicestershire to collect it. Mr Smith confirmed that it was not a recovery operation.

Traffic Examiner David Liddall told me that he arrived at Exeter Services at about 15:30 and took over the impounding from Mr Ball. He saw the white two-axle car transporter WA20FWO carrying livery in the name “Going Places Transport and Logistics”. Mr Liddall confirms the load being carried as described by Mr Ball. The Renault had a gross plated weight of 4500 kgs so was itself in scope of operator licensing. Mr Liddall noted that the manufacturers plate recorded the registration number as CA11GPT which was the registration of a vehicle previously operated by Mark Entwistle. There was no operator’s licence on display but a search of records showed that the vehicle had previously been specified on a standard national goods vehicle operator’s licence previously held by Mr Entwistle. The licence had been revoked with effect from 14 August 2021.

Mr Liddall interviewed the driver under caution. In that interview, Mr Jonathon Walter Ingleby-Oddy told Mr Liddall that Mr Entwistle was the operator of the vehicle that day. Mr Entwistle had given him his instructions that day and he was collecting the cars as part of his business operation. Mr Liddall made further enquiries and determined that “the operator had been served the appropriate paperwork and there was no outstanding finance”. He was given authorisation to detain the vehicle under the Goods Vehicles (Enforcement Powers) Regulations 2001.

The witness statement of DVSA officer Natalie Lewis identifies a number of sighting of vehicle WA20FWO:

11-Sep

1

Sightings

13-Sep

24

Sightings

14-Sep

21

Sightings

15-Sep

3

Sightings

17-Sep

1

Sightings

20-Sep

14

Sightings

21-Sep

16

Sightings

22-Sep

17

Sightings

23-Sep

14

Sightings

Grand Total

111

DVSA provided a statement from Jamie Kast, a salesman employed by Mercedes-Benz of Truro. He explains that they had contracted Mark Entwistle trading as Going Places to collect a blue Mercedes GLC350D from an address in Hertfordshire and take to their site in Cornwall. Mr Kast concludes “This arrangement was to collect the vehicle which is currently registered as being in trade so far as we are concerned was as a haulage operation not the recovery of a broken down or otherwise disabled vehicle”.

An application for the return of the vehicle was received from Mark Entwistle in time. The application was made citing the ground to be found at Regulation 4(3)(d):

(d) that, although knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner—

• had taken steps with a view to preventing that use; and

• has taken steps with a view to preventing any further such use.

Mr Entwistle supports the application with the following statement:

“I would like to have the vehicle returned. I was in the process of closing the business and have now stopped trading.

The vehicle was due to have the signwriting removed and someone was purchasing the vehicle with the intention to collect on Saturday 26th September 2021.

The purchaser (a local garage) are still wanting to buy the vehicle if possible.

I am seeking alternative transport outside of transportation.

I have now realised the seriousness of my actions and possible consequences.

I have always worked for my family to provide a stable home and security. Now owing to the loss of my business and also financial implications this has taken a severe toll on my mental health for which I’m now seeking assistance with.”

No hearing has been requested. No supporting evidence has been provided.

6. DETERMINATION AND DECISION

The events relating to the unlawful use of the vehicle in this case are not disputed.

I have no evidence of ownership which I would need prior to any direction to return the vehicle. However, I note the helpful DVSA statement that there is no outstanding finance and it is within my knowledge that Mr Entwistle has had possession of the vehicle for some time. I am further satisfied that the proper process was followed by DVSA so no issue of proportionality arises and I have no residual discretion.

The ground relied upon is not one frequently used by an applicant. It was considered by the Upper Tribunal in T/2016/08 Van Der Gaag Transport De Lier BV v DVSA. It made the following helpful comments:

“… when considering how “steps” should be interpreted the Tribunal is entitled to take a purposive approach. In making an application under paragraph 4(3)(d) the owner is accepting that criminal offences have been committed. We do not accept that in those circumstances owners should be allowed some ‘latitude’ in how they approach the steps they should take to prevent criminal offending from taking place, whether in the context of a free market or in the context of a large organisation with governance issues as was suggested by Mr Clarke. In view of the pre-condition in the sub-paragraph that owners accept that criminal offending has taken place we are satisfied that “steps” means all reasonable steps available to the owner. To put it another way, all those steps that a reasonable owner would take in the circumstances they find themselves in not only in the context of preventing past unlawful use but future unlawful use. Each case will turn upon its own facts but we should make it clear that the hurdle is a high one in cases where the applicant is an owner/operator because they must demonstrate the steps they have taken to prevent themselves from committing criminal offences. ‘Users’ of vehicles control the vehicles, they are responsible for the scheduling of the journeys the vehicles undertake and they manage and control the staff who plan or schedule those journeys. Ultimately it is within the power and control of owner/operators to stop unlawful operation if they so wish and those who do so wish should be able to demonstrate robust systems and procedures that they have put in place which would constitute reasonable steps within the meaning of sub-paragraphs (d)(i) and (ii) along with adequate explanations as to why those steps did not work in the instant case”.

It is clear that the Upper Tribunal does not see this as a ground that can be easily satisfied. In the Van Der Gaag case, it was a multi-national operation with sophisticated management systems which had broken down and caused cabotage restrictions to be broken. The Traffic Commissioner (me) had not found that sufficient steps had been taken to “with a view to preventing that use” but had gone on to accept the steps had been taken to prevent future unlawful use (through the application for a licence in the UK). In the case of Mr Entwistle, there is no large corporate governance to hide behind. It was he personally who contracted with the Mercedes dealership and he personally who directed the driver on the day. That he may or may not have made arrangements to sell the vehicle is wholly irrelevant, and I am provided with no evidence. Referring again to Van Der Gaag:

“In view of the fact that the impounding provisions are designed to prevent criminal offending, we are not satisfied that in the case of a company, oral evidence alone (however credible the TC may find it to be) will be sufficient under paragraph 4(3)(d) because one of the tasks of the TC will be to consider the efficacy of the steps relied upon by the applicant”.

The DVSA evidence clearly and unequivocally supports a finding that WA20FWO was being used for the commercial carriage of goods, cars, on 23 September 2021. No relevant exemption, for example, recovery, applied. This is supported by the clear statement from the Mercedes dealership. The vehicle combination was in scope of operator licensing. It was being operated by Mark Entwistle whose operator’s licence had been revoked so no relevant licence was in force. The unlawful use is confirmed by Mr Entwistle by the terms in which he makes his application. Mr Entwistle could quite easily not have contracted the work for that day and not directed his driver to undertake it. He could quite simply have parked his vehicle up until sold. I have no evidence that he did.

No hearing has been requested. I am conscious of the then Transport Tribunal’s comments in J Thorogood T/2005/542:

“We think it likely that in many cases owners of impounded vehicles may not ask for a hearing because they think that this is unnecessary and that the answer in their favour is obvious. It follows that traffic commissioners must be astute to order hearings to enable the issue of knowledge to be explored if the facts are other than straightforward and in refusing to return a vehicle a traffic commissioner must give sufficient reasons to enable his decision to be understood.”

I have commented that Mr Entwistle has supplied no evidence. As far as I am aware, he has not taken legal advice. This is not a “knowledge” case, as was Thorogood. The facts here appear simple and straightforward. However, having in mind Thorogood and in the interests of fairness, I will allow seven days for Mr Entwistle to request a hearing. That request must be accompanied by supporting evidence.

The applicant has failed, on the evidence before me, to make out a ground for the return of the vehicle. I propose to refuse the application. The applicant has seven days to request a hearing and, if doing so, to submit all supporting evidence.

Kevin Rooney

Traffic Commissioner, Western Traffic Area

25 October 2021