Decision for Elspeth A McCulloch and Simon McCulloch t/a Messrs J McCulloch & Son (PM0002250)
Written decision of the Deputy Traffic Commissioner in Scotland for Elspeth A McCulloch and Simon McCulloch t/a Messrs J McCulloch & Son and Simon McCulloch as transport manager and driver and driver Mr Roddie transport manager and driver Simon McCulloch and driver Mr Roddie
IN THE SCOTTISH TRAFFIC AREA
DECISION OF THE DEPUTY TRAFFIC COMMISSIONER FOR SCOTLAND
ELSPETH A MCCULLOCH AND SIMON MCCULLOCH
t/a MESSRS J MCCULLOCH & SON
PM0002250
Decision
The Operator
I refuse the surrender application. The conduct of the operator in 1) the serious failings noted above, and 2) their refusal to engage with either the DVSA or the OTC combines to persuade me that road safety can only be safeguarded by regulatory action of some type. The informed observer should be aware that refusal to engage with the road safety regulator for the PCV industry will result in proportionate action. In circumstances of serious failure and non-engagement, an operator will not be permitted to simply surrender the licence.
I therefore revoke the licence, with a delay until 2359 hours on 19 January 2026 to allow for notification.
Mr Mc Culloch as driver
Taking 8 weeks as a starting point for moderately frequent breaches, and considering Mr McCulloch’s deliberate conduct to be at least twice as severe, I suspend his entitlement for a period of 16 weeks (beginning 2359 hours on 19 January 2026 to allow for notification.
Mr McCulloch as Transport Manager
Mr McCulloch has lost his repute as TM. I disqualify him and do not specify a period of time, nor any specific rehabilitative measures that he should demonstrate. ( His disqualification will begin at 2359 hours on 19 January 2026 to allow for notification.
Mr Roddie
I do not anticipate that Mr Roddie will require to attend a similar hearing in the future and I consider that his case can be dealt with by way of a warning.
Further directions
Due to the seriousness of the above failings and the lack of engagement with DVSA/OTC should either Elspeth or Simon McCulloch seek to return to the industry and/or apply to be added to a licence in the future, this should be referred to a commissioner.
This was an unusual hearing.
The operator was called to a public inquiry, as a result of three drivers being found driving without a valid Certificate of Professional Competence (CPC). The operator has declined to attend the hearing. There are two partners in the business, being Elspeth and Simon McCulloch. Neither attended.
Simon McCulloch was also called for conjoined hearings into 1) his repute as Transport Manager (TM) , and 2) his conduct as a driver.
One of the drivers, who was also called to a conjoined Driver Conduct Hearing, attended. That is Mr Roddie.
On 13/08/2025 an application was received to surrender the operator licence. This surrender was considered at the Public Inquiry.
Findings in Fact
It was identified during the investigation that Simon McCulloch had carried out 178 occasions of driving without holding a driver CPC entitlement from 3rd August 2024 to 18th June 2025. Driver Martyn Hugh Roddie did not hold a CPC qualification from 22nd October 2024 to 18th June 2025 and had driven on 128 occasions without a driver CPC qualification. Driver David Jones did not hold a CPC qualification from 24th April 2023 to the 6th September 2024 and had driven on 92 occasions.
I accept all of this as established, since there is no contradictor to Ms Scott’s report. For his part, Mr Robbie accepted the facts pertaining to him to be established.
When interviewed under caution, Mr McCulloch said that he knew he should not have been driving without a CPC and had simply not made the time to do the five day course required. Other than driver shortages, Mr McCulloch provided no explanation for his conduct.
I was told by Ms Scott that there had been no meaningful co-operation from the operator. When asked to co-operate Mr McCulloch’s position was apparently “I am not doing that because I’ve shut shop.”
Examiner Scott explained the risk to Mr McCulloch’s repute. He said “it will be what it will be”. That is hearsay evidence, but is admissible. This is a civil, regulatory hearing. I find Ms Scott to be credible and reliable. She is a professional DVSA examiner with no reason to be anything other than truthful. She presented as open and straightforward. I accept that this is what was said to her in respect of the two instances above.
By email of 8th of July to Examiner Scott, Mr McCulloch discussed the vehicle encounter on the 18th of June 2025, he confirms it has brought into sharp focus his responsibilities and he has decided he no longer wishes to bear these responsibilities and will be surrendering the operator’s licence on the 10th of August 2025. Mr McCulloch states he has been under huge stress and pressure trying to conform to all the responsibilities put upon him as transport manager and business manager and has realised no matter how much work he puts in It will never be enough. The mental health breakdown he has suffered after the encounter has made him appreciate that he must prioritise his own health.
DVSA investigations uncovered that there were fifteen occasions of missing driver card data, across four drivers (pp39-40 of the bundle).
There were 16 instances of missing vehicle unit data (p41 of the bundle)
There were two instances of driving without a card inserted.
It was not possible to understand the reasons for these failings, because of the operator’s lack of engagement.
There were other matters that the Examiner could not meaningfully conclude on, because of the lack of co-operation. These included whether the vehicles were insured.
As noted in the Examiner’s report at p51 of the bundle, the lack of engagement made the audit impossible to fully complete:
Also identified through analysis there was missing driver card data, vehicle unit data and driving out of scope had been identified. This would have been discussed with Simon McCulloch at the audit that had been arranged on Wednesday, 20th August 2025 at the operator’s premises in Stranraer.
In the absence of contradiction, and also taking into account the lack of engagement by Mr McCulloch I accept that position.
The Operator
There is a live surrender request in respect of the operator. I require to balance whether to accept that, or to refuse that and take regulatory action.
I refuse the surrender application. The conduct of the operator in 1) the serious failings noted above, and 2) their refusal to engage with either the DVSA or the OTC combines to persuade me that road safety can only be safeguarded by regulatory action of some type. The informed observer should be aware that refusal to engage with the road safety regulator for the PCV industry will result in proportionate action. In circumstances of serious failure and non-engagement, an operator will not be permitted to simply surrender the licence.
I carried out a careful balancing exercise in considering the deficiencies and any positives or mitigations. I asked whether this operation was so deficient that it should be put out of business (2002/217 Bryan Haulage). There are no real positives or mitigations here. The failings were serious, in that the drivers’ operation was very seriously non-compliant. There is no real explanation for that. Indeed, Mr McCulloch – one of the partners in the operation – accepted that he himself had driven with no CPC while knowing that this was wrong.
I considered whether this was an operator which I could trust to be compliant in future. As per the Upper Tribunal in “2014/008 Duncan McKee,” trust is one of the foundation stones of operator licensing. I must be able to trust operators to comply with all the relevant laws, rules, and regulations because operators are not under supervision of a commissioner in the conduct of their daily business. I cannot trust this operator to be compliant. It has refused to engage in investigating the live issues. That leaves me concerned that it is not an operator which is interested in achieving compliance.
I proceeded to consider the question posed by the appellate Tribunal in “2009/225 Priority Freight, namely how likely the operator is to comply in future”. The operator appears to me to be unlikely to comply in future. The failings were serious, wilful, and unlawful. There has been no contrition, nor acceptance that the operator must face up to its failings and assist the Office of the Traffic Commissioner in preparation for today’s hearing.
I therefore revoke the licence, with a delay until 2359 hours on 19 January 2026 to allow for notification.
Mr McCulloch as driver
I now consider Mr McCulloch’s professional entitlement.
Case Example 27 of the Senior Traffic Commissioner’s Statutory Document 6 reads in terms:
“Mr Smith was stopped at the roadside whilst driving a Large Goods Vehicle and 8 drivers’ hours offences (exceeded daily driving limit/ insufficient daily and weekly rest) were identified. The enforcement agency referred the case to the traffic commissioner.
TC Action: Mr Smith is called to a driver conduct hearing. The traffic commissioner considers the frequent and persistent breaches of the rules (daily driving limits and minimum rest periods) and, as a result, suspends Mr Smith’s licence for a period of 8 weeks.
Note: There is a need to consider the extent and the frequency of the breaches.”
In my view, Case Example 27 is far less serious (in extent and frequency of breaches) than Mr McCulloch’s repeated and deliberate driving without valid CPC.
Taking 8 weeks as a starting point for moderately frequent breaches, and considering Mr McCulloch’s deliberate conduct to be at least twice as severe, I suspend his entitlement for a period of 16 weeks (beginning 2359 hours on 19 January 2026 to allow for notification.
Mr McCulloch as Transport Manager
Not only were the original failings serious, but for a transport manager to flatly refuse to engage with DVSA and/or the OTC in efforts to investigate safety-critical failings is wholly unacceptable.
Mr McCulloch has lost his repute as TM. I disqualify him and do not specify a period of time, nor any specific rehabilitative measures that he should demonstrate. ( His disqualification will begin at 2359 hours on 19 January 2026 to allow for notification.
Mr Roddie
Mr Roddie has done the correct thing by engaging with the DVSA investigation and this office’s preparation for today’s hearing. He has been left, to some extent, high and dry by his previous employers who have not turned up today.
To his credit, he accepts the factual accuracy of Ms Scott’s findings in respect that he drove without a valid CPC on the occasions in question. At the time, he did not appreciate that he needed to fulfil his CPC requirements, because his main role was in maintenance. He accepts now that he was in error and he should not have been driving on the occasions in question.
I have considered whether regulatory action in the form of a suspension is required in order to safeguard road safety. There were, after all, a significant number of occasions of unlawful driving.
However, after considering matters, I do not think that is required.
Mr Roddie had been in error but has now learned his lesson. His CPC is now valid and up to date. He is in employment in a purely mechanical role. He has engaged properly with the appropriate regulatory bodies and has attended today’s hearing from Stranraer. Having met him, I can see that he takes the hearing seriously.
I do not anticipate that Mr Roddie will require to attend a similar hearing in the future and I consider that his case can be dealt with by way of a warning.
Further directions
Due to the seriousness of the above failings and the lack of engagement with DVSA/OTC should either Elspeth or Simon McCulloch seek to return to the industry and/or apply to be added to a licence in the future, this should be referred to a commissioner.
KT Young, DTC
14 January 2026