Decision

Written decision for Sherralin Mary Ballard t/a SJL International (OD1105881)

Published 16 November 2020

West Midlands Traffic Area.

Redacted decision of the Traffic Commissioner.

Public Inquiry held in Birmingham on 13 October 2020.

Operator: Sherralin Mary Ballard t/a SJL International (OD1105881).

1. Decisions

Standard international licence OD1105881 held by Sherralin Mary Ballard is revoked with effect from 0001 hours on 29 November 2020, pursuant to Section 26(1)(f) and 27(1)(a) and (b) of the Goods Vehicles (Licensing of Operators) Act 1995.

Sherralin Mary Ballard has lost her good repute as operator and transport manager, pursuant to paragraph 1 of Schedule 3 to the 1995 Act. Under paragraph 16 of that Schedule, she is disqualified from acting as a transport manager under any operator’s licence for the period of three years, from 29 November 2020 until 29 November 2023.

Under Section 28 of the 1995 Act Sherralin Mary Ballard is disqualified for the period of three years, from 29 November 2020 until 29 November 2023, from holding or obtaining an operator’s licence and from being a director of a company holding or obtaining such a licence.

Under Section 115 of the Road Traffic Act 1988 the Large Goods Vehicles driving entitlement of Sherralin Mary Ballard is revoked with effect from 0001 hours on 29 November 2020. Under Section 117 of that act she is disqualified from holding LGV entitlement for a period of 12 months, from 29 November 2020 until 29 November 2021.

2. Background

Sherralin Ballard is the operator, transport manager and driver of the one vehicle specified on her sole trader operator’s licence. On 1 July 2019 she used a driver tachograph card which was not her own. As she was coming to the end of the maximum duty time possible that day (15 hours) she withdrew her own tachograph card and inserted a card in the name of John Newland. She drove for a further 28 km and 30 minutes, thereby attempting to disguise an offence of insufficient daily rest. This offence was discovered by the French authorities at a later stop on 17 July 2019.

A subsequent investigation by DVSA traffic examiner Mariusz Szewczyk showed that Mr Newland’s tachograph card had also been used in Ms Ballard’s vehicle on 18 June and 25 August 2019. On 18 June Ms Ballard withdrew her card after 9 hours and 38 minutes of driving; Mr Newland’s card was then inserted and the vehicle was driven for a further 237 km and 3 hours 12 minutes. On 25 August Mr Newland’s card alone was used, for 5 hours and 56 minutes of driving. Interviewed by Mr Szewczyk on 3 January 2020, Ms Ballard accepted that she had used Mr Newland’s card on 1 July 2019, but stated that Mr Newland had been the driver on the two other occasions. She denied that she had remained in the vehicle after withdrawing her card on 18 June 2019: she had returned home as a passenger in another HGV.

Shortly after this interview Mr Szewczyk discovered that Mr Newland had in fact died in January 2019 and thus could not have used his card later that year. Mr Newland was Ms Ballard’s brother.

3. Public inquiry

At the inquiry held in Birmingham on 13 October 2020 Ms Ballard admitted that she had used her deceased brother’s card on 1 July 2019, in order to carry on beyond her permitted hours to a safe parking place. On 18 June 2019 she had been accompanied by another driver: when she was approaching the limit of her maximum driving time that day he had offered to carry on driving, so that they would reach their destination earlier. Unbeknownst to her he had used Mr Newland’s tachograph card, which she said was kept in the cab as a memento of her brother.

Ms Ballard had assigned work to the same driver on 25 August 2019. Again, he had used Mr Newland’s card. Ms Ballard accepted that she had never checked this driver’s entitlement or tachograph card: because they were in a relationship she had simply trusted that everything was in order. She had never downloaded that driver’s card and her downloads of the vehicle unit were too infrequent (and outside the permitted 90 day period) for her to be able to identify that the vehicle had apparently been driven by her deceased brother.

I asked Ms Ballard why she had not mentioned any of this at the interview with Mr Szewczyk. (Response redacted)

I asked her why she had taken no action even after the French authorities had discovered the 18 June 2019 instance of driving on someone else’s card. Ms Ballard maintained that she had trusted the driver and that he had exerted his considerable charm to negate her suspicions.

4. Consideration

I am unconvinced by Ms Ballard’s account, which I note changed substantially from the interview with Mr Szewczyk on 3 January 2020 and the public inquiry on 13 October 2020. On 3 January she claimed that it had been Mr Newland who had driven on 18 June and 25 August 2019 and that she was not present in the vehicle after “Mr Newland” had taken over on 18 June. At the inquiry she has stated that she continued as a passenger in the vehicle on 18 June while the other driver drove. She said that she had failed to realise that she should put her card into slot 2, as she was not very familiar with the rules on double manning.

Ms Ballard has not offered any evidence for the existence of this other driver beyond simply asserting it. She never at any stage took copies of his driving licence, driver qualification card or tachograph card, which a competent transport manager would be expected to do before allowing a driver to drive a vehicle. Even allowing for his charm and a personal relationship, this was a substantial failure on Ms Ballard’s part. She also failed to conduct timely downloads of driver cards and vehicle units: had she done so, she would have been alerted to any misuse of Mr Newland’s card.

I find it difficult to accept that Ms Ballard had no knowledge of the use of the deceased Mr Newland’s card by this other driver. Her account rests on a series of unlikely events:

1. that the other driver was able to gain possession of Mr Newland’s card and return it to its place on 18 June 2019, all completely unobserved by Ms Ballard;

2. that despite being put on notice on 17 July 2019 by French police that Mr Newland’s card had been used, Ms Ballard proceeded accidentally to leave it available for use again on 25 August 2019 by the same driver who she says abused it on 18 June 2019.

I also note that Ms Ballard lied to Mr Szewczyk when interviewed by him on 3 January 2020, when she said that Mr Newland had been the driver on 18 June and 25 August 2019.

5. Findings and decisions

The deliberate use of another driver’s driver card is an action which inevitably entails loss of good repute. Such a major act of deception completely destroys the trust which I should be able to have in an operator and transport manager. Ms Ballard has accepted that she used Mr Newland’s card on at least one occasion, 1 July 2019. Whether she or another driver drove using Mr Newland’s card on 18 June and 25 August 2019 is almost immaterial: the fact is that Ms Ballard lied to DVSA about the driver on these dates. Whoever it was, it could not have been Mr Newland, who had died some six months previously. A reputable operator/transport manager would have returned Mr Newland’s tachograph card to DVLA or put it beyond use: they would not have used it themselves and/or allowed others to use it. A reputable operator/transport manager would not have lied about the card’s use to a DVSA traffic examiner when questioned.

For the reasons set out above I find that Sherralin Mary Ballard is not of good repute. Revocation of the licence is therefore mandatory under Section 27(1)(a) and (b) of the 1995 Act. I am also revoking the licence under Section 26(1)(f) – failure to fulfil the undertaking to ensure the observance of rules relating to drivers’ hours and tachographs.

Before coming to this decision I carried out a balancing act. On the positive side was the fact that the vehicle appears to have been correctly maintained. But the negative findings of falsification and attempted cover-up are so serious as to outweigh this. I asked myself the Priority Freight question of how likely it is that the operator would comply in the future. Given that Ms Ballard has used a dead person’s tachograph card and told untruths about this to DVSA, I do not have confidence in future compliance. The conduct is serious enough to merit the operator being put out of business (the Bryan Haulage question).

5.1 Disqualification

Having concluded that Ms Ballard’s good repute is lost, I am obliged to disqualify her from acting as a transport manager on any licence. In this case the breach of trust has been so serious that I consider that a period of three years is the minimum disqualification which can be imposed.

I have also concluded, for the reasons set out above, that Ms Ballard should be disqualified from holding or obtaining an operator’s licence in future, and from being the director of a company holding or obtaining a licence. In deciding upon the length of the disqualification I have taken account of paragraph 100 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry, or between five and ten years where operators have encouraged drivers to falsify records. Ms Ballard falls firmly into the category of creating/presiding over falsified records: however, although the nature of the falsification was extremely serious (and compounded by the later cover-up attempt), the falsifications were not as numerous or frequent as is normally required for a five to ten year disqualification. I am therefore imposing a lower disqualification period but at the upper end of the scale for a first public inquiry.

5.2 Driver conduct

Ms Ballard also attended a parallel driver conduct hearing. In line with the Senior Traffic Commissioner’s Guidance Doc 6 (case study 23), I am revoking her LGV driving entitlement for a period of 12 months, for the use of another driver’s card. The Guidance Doc makes clear that use of another driver’s card is as serious as the use of any device (such as a magnet) to interfere with the tachograph unit.

Nicholas Denton

Traffic Commissioner

29 October 2020