Decision

Written decision for George William Stobbart t/a Wille Stobbart (OM0035830)

Published 9 October 2020

In the Scottish Traffic Area.

Decision of the Traffic Commissioner for Scotland (redacted public version).

Public Inquiry and Driver Conduct Hearing held at Inverness on 26 February 2020.

1. Decision

Pursuant to adverse findings in terms of section 26(1)(f) and section 27(1)(a) of the Good Vehicles (Licensing of Operators) Act 1995 (the 1995 Act) the operator’s licence of George William Stobbart T/A Willie Stobbart OM0035830 is revoked with effect from 23:59 on 7 August 2020.

George William Stobbart is disqualified from holding an operator’s licence for a period of ten years with effect from 23:59 on 7 August 2020. I direct that section 28(4) of the 1995 Act shall apply.

George William Stobbart no longer satisfies the requirements of section 13A(3) to be of good repute in accordance with schedule 3 of the Goods Vehicle (Licensing of Operators) Act 1995 and is unfit to manage the transport activities of an undertaking.

George William Stobbart is disqualified for a period of ten years from engaging in the role of transport manager in any Member State with effect from 23:59hrs on 7 August 2020.

Pursuant to a finding in terms of section 115(1)(b) of the Road Traffic Act 1988 (the 1988 Act) George William Stobbart is unfit to hold vocational LGV driving entitlement.

George William Stobbart’s vocational LGV driving entitlement is hereby revoked with effect from 23:45 on 7 August 2020.

George William Stobbart is disqualified from holding vocational LGV driving entitlement for a period of ten years with effect from 23:45 on 7 August 2020.

2. Background

George William Stobbart is the holder of a Standard International Operator’s Licence OM0035830 which was issued on 30 May 1997. The licence authorises the use of 1 vehicle and 1 trailer. Vehicle Y23 WSH, had been specified on his licence since March 2001. Mr Stobbart is the nominated transport manager for the licence, having gained his CPC qualification in 1996. He is also the main driver of the vehicle specified. Mr Stobbart has not been at Public Inquiry before.

A report by Traffic Examiner (TE) Haddow was received by my office. TE Haddow had carried out an investigation into Mr Stobbart’s transport operation and her report alleged, amongst other things, that Mr Stobbart had committed numerous driving infringements.

I directed that Mr Stobbart be called to a conjoined public inquiry and driver conduct hearing: the former in terms of the 1995 Act and the latter in terms of Part IV of the 1988 Act. Letters calling Mr Stobbart to inquiry in his capacities as operator, transport manager and driver were issued to Mr Stobbart on 8 January 2020.

3. The Public Inquiry

The public inquiry called before me at Inverness on 26 February 2020. Mr Stobbart was present and represented by Mr Quigley, Solicitor. TE Haddow was in attendance. Before me was the brief of papers together with the detailed response and documents lodged by Mr Quigley on behalf of Mr Stobbart in advance of the inquiry. TE Haddow had submitted an addendum report which provided an analysis of drivers’ hours and tachograph information which had been produced by Mr Quigley in advance of the inquiry.

The financial evidence submitted by Mr Quigley in advance of the inquiry indicated that Mr Stobbart did not meet financial standing. At the conclusion of the inquiry I allowed a short period for further evidence to be produced. Further evidence was produced and I took account of that, and all of the other documentation before me, in reaching my decision.

4. Evidence

I heard evidence at inquiry from TE Haddow and Mr Stobbart. Mr Quigley had already confirmed in his written response that Mr Stobbart did not dispute that he had committed the infringements identified by TE Haddow in her report. He also confirmed that Mr Stobbart accepted the further infringements identified by TE Haddow following her analysis of data provided by Mr Quigley in advance of the public inquiry. TE Haddow’s report, and her addendum thereto, can therefore be referred to for their terms.

At inquiry TE Haddow advised that she had received an allegation that Mr Stobbart was able to drive longer than other drivers and work weekends. She undertook an investigation into Mr Stobbart’s operation. At the outset, TE Haddow had requested that Mr Stobbart provide the tachograph data from his vehicle for August and September 2018. Mr Stobbart was, however, unable to do so and admitted that he had not been downloading the digital data from his vehicle’s tachograph unit.

TE Haddow met with Mr Stobbart on 13 February 2019. She carried out a full download of the tachograph unit on Mr Stobbart’s vehicle, Y23 WSH, and downloaded the data from Mr Stobbart’s digital driver card. Her analysis of the information showed that between 27 April 2018 and 14 February 2019 a total of 155 driving infringements were attributable to Mr Stobbart.

TE Haddow advised that she had identified 78 instances of Mr Stobbart making a false record. She explained that he had been using the ‘out of scope’ mode on his tachograph unit to extend his driving time on days when he was also carrying out driving which was within the scope of the EU rules. The use of ‘out of scope’ mode in those circumstances was not permitted and meant that the excess driving which Mr Stobbart was undertaking would not be recorded on his driver card.

When asked at interview why he was using ‘out of scope’ mode Mr Stobbart had advised that he had used it when he put the vehicle into the garage or the ‘odd night’ to park it up. When TE Haddow made Mr Stobbart aware of the number of infringements and the fact that 5166km had been covered by the vehicle using ‘out of scope’ mode during the period in question, Mr Stobbart replied that he ‘just hadn’t realised’ how often he had been doing it. He admitted nevertheless, at the conclusion of his interview that he knew that using ‘out of scope’ mode would mean that he would not be recording the driving on his card and it would look as if he had satisfied the required rest periods. He also admitted that his use of ‘out of scope’ mode amounted to creating false records. Mr, Stobbart did not, however, consider that he had obtained a commercial advantage over other operator’s by virtue of his actions.

Taking into account periods of driving ‘out of scope’, TE Haddow identified that Mr Stobbart had exceeded his daily driving limit on 17 occasions, exceeded his two weekly driving limit on 2 occasions, exceeded 4.5 hours driving without breaks on 37 occasions and failed to take appropriate weekly rest on 10 occasions. In addition, and of significant concern, was the finding that on 89 occasions Mr Stobbart had failed to take the required daily rest. Many of these failures were serious and one occasion Mr Stobbart had taken a daily rest of only 5 hours and 44 minutes.

Of the total drivers’ hours infringements identified, 60 fell to be classified as ‘very serious’. TE Haddow advised that Mr Stobbart had informed her that one of the infringements had arisen because the person who ‘grassed him up’ wasn’t able to do a job which he then undertook.

TE Haddow also noted that Mr Stobbart had stopped using ‘out of scope’ mode after she began her investigation. Of concern, however, was that he had switched to using the ‘period of availability’ (POA) mode on his tachograph when he should have been recording other work. This meant that Mr Stobbart’s working hours were still not being accurately recorded, in particular, with reference to calculation for the purposes of the working time directive.

Mr Stobbart had initially advised TE Haddow that someone had told him using POA mode would allow him to work longer days as those periods were not counted toward the working time directive. I noted that there was no challenge at inquiry to the accuracy of any of the responses attributed to Mr Stobbart in the record of his interview with TE Haddow.

TE Haddow also analysed the drivers’ hours and tachograph information submitted by Mr Quigley in advance of the inquiry. She referred to her addendum report at inquiry and noted that in the period 9 August 2019 until 1 February 2020 there had been 25 drivers’ hours infringements on the part of Mr Stobbart, including failures to satisfy daily and weekly rest periods.

There were allegations that Mr Stobbart was using an unauthorised operating centre and a concern that he had allowed a driver without the correct entitlement to drive his vehicles. Mr Quigley was however, able to provide evidence to show that the vehicle was normally kept at the operating centre and that the individual thought to have driven the vehicle without the correct entitlement was, in fact, a mechanic at the service centre used by Mr Stobbart.

TE Haddow is an experienced examiner. The sheer number, and gravity, of the infringements she had identified in Mr Stobbart’s case made it the worst owner/driver case that she had ever seen. Her evidence was that Mr Stobbart’s behaviour amounted to a complete disregard for the rules relating to driver’s hours, roads safety and fair competition.

Despite Mr Stobbart’s admission at interview that he had deliberately used ‘out of scope’ mode to make it look as if he had taken the required rest periods, at inquiry, his position had changed. He advised that his use of ‘out of scope’ mode was as a result of misunderstanding, rather than a deliberate attempt to break the rules. His justification for using of ‘out of scope’ mode now centred on his frequent use of his vehicle like a private car, for example, to take trips to get something to eat. A lad on the ferry to France a few years back had told him that that was ok to use ‘out of scope’ mode to do that. He had never used out of scope mode to travel far from his base, so there was no real risk to road safety.

In relation to his failure to download his vehicle’s tachograph unit, at interview Mr Stobbart had admitted that he had not done so prior to January 2019, under explanation that there was no one to ‘point him in the right direction’. The first time his company card had been locked into the vehicle unit was 17 January 2019, after TE Haddow had requested the information.

However, Mr Stobbart’s evidence at inquiry regarding his failure to download the tachograph data was confused and contradicted what he had said at interview. When asked why he had not downloaded the vehicle unit, he admitted that he had not downloaded the data for three or four years, but then went on to suggest that he thought someone else had been doing it. He was, nevertheless, unable to provide any evidence as to how or when that had taken place.

When it was put to him that his prior inconsistent statements may affect his credibilty, Mr Stobbart position was that he hadn’t changed his story. Rather, TE Haddow just hadn’t asked him why he was using ‘out of scope’ mode during his interview. I noted that TE Haddow had asked him that question directly at interview. His response, as noted in paragraph 10, was that he had used it infrequently, to take the vehicle to the garage or the ‘odd night’ to park it up.

Mr Stobbart’s position at inquiry in relation to his switch to using POA mode on his tachograph equipment was that he had asked the same individual who he had thought was downloading his tachograph data, for advice. That individual had told him using POA mode covered breaks as well as periods of availability. Mr Stobbart had then started using it.

The financial evidence submitted in advance of the inquiry indicated that Mr Stobbart did not meet the required financial standing for his licence. [REDACTED]

I was not asked to consider a period of grace.

Mr Quigley urged me to show leniency toward Mr Stobbart. Honesty was the cornerstone of the operator licensing regime, and Mr Stobbart had owned up immediately to what he had done. He had been courteous and co-operative at all times. He had provided the tachograph evidence required for the public inquiry, even although that showed recent infringements.

This was a case of a lack of understanding of what was required, rather than one in which there had been deliberate flouting of the rules. Mr Stobbart’s lack of knowledge of the rules was largely down to the fact that he had not updated his skills. He had learned a lesson and intended to do so now. This was not a case where the, admittedly serious, potential impact on road safety posed by Mr Stobbart’s actions resulted in actual harm, and that was a matter that I ought properly to take into account.

Mr Quigley drew my attention to the fact that Mr Stobbart’s vehicle was well maintained and that the vehicle’s MOT pass rate was 100%. He had held a clean driving licence for many years. He had accepted his failings and sought to improve. Mr Quigley acknowledged that Mr Stobbart’s evidence at inquiry contradicted what he had said at interview and noted the impact that may have on Mr Stobbart’s credibility. However, with further education Mr Stobbart could be a compliant operator. He was happy to give an undertaking to download his vehicle unit and card and pass them the DVSA for inspection as required.

Regulatory action would have a devastating effect. Mr Stobbart was 65 years old and the sole breadwinner in his family. The lorry was his only means of earning a living, and any loss of income would likely lead to the loss of the family home. There was no one else able to act as transport manager for Mr Stobbart. When asked about the impact of disqualification, Mr Stobbart’s view was that he would not be able to earn a living and advised that he thought his age would count against him in seeking new employment as a driver for another operator.

5. Consideration of the evidence and balancing

The fact that false records had been created and drivers’ hours infringements had taken place was not in dispute in this case. Mr Stobbart had admitted using ‘out of scope’ mode on his tachograph equipment, and in so doing, creating false records. He accepted that he had broken the drivers’ hours rules, on numerous occasions, and that 60 of the infringements were classified as being ‘very serious’. A finding in terms of section 26(1)(f) of the 1995 is therefore made out.

However, whilst Mr Stobbart had admitted at interview that he had used ‘out of scope’ mode deliberately to conceal the fact that he had not taken the required rest periods, at inquiry his evidence changed and I was asked to accept that he had done so inadvertently. I had to determine, therefore, whether I believed that Mr Stobbart had acted as he had simply out of ignorance or whether, as he had first admitted, he had done so deliberately.

I found Mr Stobbart to be an unreliable and incredible witness. Given the inconsistencies in his evidence at inquiry I was unable to rely on it. He had admitted deliberate wrongdoing at interview under caution and he had not sought to challenge that evidence at inquiry. His shift in position to one of inadvertence was simply not credible, particularly given the evidence of the significant distances covered using ‘out of scope’ mode and his evidence about being ‘grassed up’, and I considered it a cynical attempt to ‘soften the blow’ in terms of any action that may be taken against him. I find therefore, that Mr Stobbart deliberately used ‘out of scope’ mode on his tachograph equipment to extend his driving times. In so doing he deliberately made false records on 78 occasions and committed the numerous drivers’ hours infringements referred to at paragraph 11 of this decision.

Having found that I was unable to rely on Mr Stobbart’s evidence, I could not accept his explanation regarding his switch from using ‘out of scope’ mode to using POA mode, nor his evidence that he had thought someone else was downloading his tachograph equipment. The switch to POA mode was of significant concern as it appeared that, notwithstanding an ongoing DVSA investigation, Mr Stobbart saw fit to continue to try and manipulate records to extend his periods of driving beyond that which he could undertake within the law. In addition, TE Haddow’s evidence was that Mr Stobbart continued to commit drivers’ hours infringements after her investigation.

I found therefore, that Mr Stobbart had switched to using POA mode with the intention of continuing his practice of extending his driving hours beyond that which was permitted. Even if I am wrong in that, it is simply inconceivable that a responsible operator and transport manager in the same circumstances, would seek to rely on ad hoc advice, as Mr Stobbart claimed to have done, in ensuring they were complaint in terms of the drivers’ hours rules.

In balancing, I was able to give Mr Stobbart credit for his co-operation with DVSA in their investigation. There were no apparent issues with the maintenance of his vehicle, and his MOT pass rate was above the national average. He had been operating without incident or significant concern since 1997 and this was his first public inquiry. He also had a clean driving licence and was willing to undertake further training.

Nevertheless, drivers who flout the drivers’ hours rules by failing to stop for the required breaks and working longer than the legally allowed hours gain a commercial advantage over other operators and imperil road safety. Mr Stobbart did so, repeatedly, and tried to hide that fact by falsifying records. I also concluded that he had not been truthful with me at inquiry. Such behaviour amounts to a course of conduct inconsistent with honest operating and ends the relationship of trust which is so fundamental in the context of operator licensing.

I asked myself the question posed in 2009/225 Priority Freight: How likely is it that this operator will, in future, operate in compliance with the operator licensing regime? Having regard to the serious nature of my findings, including what I had found to be flagrant and continued evasion of the drivers’ hours rules, I considered it highly unlikely that Mr Stobbart would comply in the future.

I did not accept Mr Quigley’s submission that I should give weight to the fact that no actual harm had occurred. Mr Stobbart’s actions gave rise to a significant and unacceptable risk to road safety and gave him an unfair commercial advantage over other operators. I was not prepared to give the fact that, by dint of luck, serious accident or injury had not occurred, any weight.

Mr Quigley’s submission was that regulatory action against Mr Stobart’s licence would mean the end of his business. The question posed in T/2002/217 Bryan Haulage (No.2) is therefore relevant: “Is the conduct of this operator such that it ought to be put out of the business?” In reaching my conclusion, I also had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 3.

This was a case which concerned numerous drivers’ hours infringements. I found that Mr Stobbart had obtained a commercial advantage over other operators and significantly compromised road safety. He had attempted to conceal his failures by falsifying records and had not been truthful with me at inquiry. Dishonesty was a feature. The starting point for regulatory action was, therefore, severe. I also find that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate a vehicle against this background. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative.

I find, therefore, in terms of section 27(1)(a) of the Act, that Mr Stobbart has lost his repute. In addition, I find that Mr Stobbart does not meet the financial standing required for his licence. I am therefore required to revoke his operator’s licence, and I do so with effect from 23:59 on 7 August 2020.

Having revoked Mr Stobbart’s licence, I moved to consider whether I should exercise my powers of disqualification. I had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 3 in reaching my decision. I also reminded myself of the authority in T/2010/29 David Finch Haulage. In that case, the Transport Tribunal said:

The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary…

The Senior Traffic Commissioner’s guidance states that serious cases may merit disqualification of between five and ten years, or even for an indefinite period. Notwithstanding that fact that this is Mr Stobbart’s first public inquiry, the Upper Tribunal made clear in T/2014/40 & 41 C G Cargo Ltd (Operator) & Sukwinder Singh Sandhu (Director) the serious case may merit longer periods of disqualification. The sheer number of infringements at issue in this case, and my findings of repeated and sustained dishonesty on the part of Mr Stobbart, lead me to conclude that this is a most serious case. It was the worst of its kind even seen by an experienced Traffic Examiner and it involves breaches of trust which go to the heart of the licensing regime.

Taking account of all the circumstances, I consider disqualification to be necessary to meet the objectives of the operator licensing regime. I have decided that I can hold back, having regard to the positives I have identified, from disqualifying Mr Stobbart for an indefinite period, but a lengthy period of disqualification is justified and proportionate in all the circumstances. I therefore disqualify Mr Stobbart from holding an operator licence for a period of ten years with effect from 23:59 on 7 August 2020. I also direct that section 28(4) of the 1995 Act should apply for the same period, that is if Mr Stobbart:

(a) is a director of, or holds a controlling interest in

(i) a company which holds a licence of the kind to which the order in question applies, or

(ii) a company of which such a company is a subsidiary, or

(b) operates any goods vehicles in partnership with a person who holds such a licence, that licence of that company or, as the case may be, of that person, shall be liable to revocation, suspension or curtailment under section 26.

I accept, given Mr Stobbart’s age, that such a period of disqualification may mean he will never return to the industry. Notwithstanding that, I consider that any shorter period would not be sufficient to satisfy the licensing objectives.

Turning to Mr Stobbart in his role as transport manager, having regard to the findings in fact which I have made, I find that he has lost his repute. He has failed to exercise continuous and effective management of his transport operation regarding his compliance with the driver’s hours rules and has imperilled road safety and fair competition. Having found that he has lost his repute, I must disqualify him from acting as a transport manger.

It was put to me by Mr Quiqley that Mr Stobbart’s deficiencies were the result of his lack of up to date knowledge. That maybe the case, however I can think of no measure which I could set which would remediate a dishonest attitude. Moreover, I can see no reason to depart from a period of disqualification in line with that which I have decided upon in respect of his operators’ licence. I therefore disqualify Mr Stobbart as a transport manager with effect from 23:59 on 7 August 2020 for a period of ten years.

I noted Mr Quigley’s submission regarding Mr Stobbart’s personal circumstances and accepted that the loss of his vocational driving entitlement was likely to lead to considerable hardship for him and his family. However, the evidence of falsification of records and drivers’ hours infringements is considerable in this case. Moreover, I was not convinced, having regard to the evidence of Mr Stobbart’s switch to the use of POA mode on his tachograph and his continued infringement of the drivers’ hours rules, that Mr Stobbart had any intention of driving within the law.

I had regard to the Senior Traffic Commissioner’s Statutory Document No.6 in reaching my decision on Mr Stobbart’s vocational driving entitlement. In balancing all of the evidence, I find that he is unfit by virtue of his conduct in terms of section 115 of the 1988 Act to hold his vocational entitlement. Moreover, I consider revocation of his entitlement to be a proportionate response and accordingly, I revoke Mr Stobbart’s vocational LGV driving entitlement with immediate effect. That being the case, by virtue of section 117, I must disqualify him from holding his entitlement, either indefinitely or for a specified period.

Paragraph 77 of the Senior Traffic Commissioner’s Statutory Document No.6 states that:

Traffic commissioners are likely to regard the falsification as more serious than the offence that it may be designed to conceal. Those who commit offences of this kind must understand that there will be serious consequences if and when the matter comes to light. A cumulative and significant period of disqualification which reflects the offence that has been subject to concealment, the falsification of records and/or use of a manipulation device, is the likely outcome. Subsequent conduct is also likely to be of limited weight.

The starting point referred to in Statutory Document in cases where 6 or more instances of falsification are found, is revocation and disqualification for 12 months.

I was also assisted by the approach of Sheriff Principal Lockhart in the case of Bruce Kirkpatrick. Mr Kirkpatrick, like Mr Stobbart, was an unreliable witness and someone who relied on his vocational entitlement for his livelihood. In the Kirkpatrick case, there were 24 false records made and the Sheriff Principal imposed a period of disqualification of four years.

There were 78 false records in this case, more than three times that found in the Kirkpatrick case. The falsification took place over a prolonged period and 155 drivers’ hours infringements were found in total. Given the magnitude of the conduct, I am persuaded that there is a compelling case for deterrence. Even taking into account the hardship that a prolonged period of disqualification was likely to have on Mr Stobbart and his family, and the fact that he had been co-operative with DVSA during their investigation, on balance, I consider a period of ten years disqualification to be proportionate. I hereby disqualify Mr Stobart from holding vocational LGV driving entitlement for a period of ten years with effect from 23:45 on 7 August 2020.

Claire M Gilmore

Traffic Commissioner for Scotland

4 August 2020