Neutral Citation Number: [2013] UKUT 489(AAC) Appeal No: T/2013/46

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF JOAN AITKEN,

TRAFFIC COMMISSIONER for the SCOTTISH TRAFFIC AREA,

DATED 19 JUNE 2013

 

 

Before:

Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

Mr L Milliken, Member of the Upper Tribunal.

Mr G Inch, Member of the Upper Tribunal.

 

 

Appellant:

SHEARER TRANSPORT LTD and JAMES SHEARER (Director)

 

 

Attendance:

For the Appellant: Mr N R Kelly, Solicitor

 

Appeal heard at: George House, George Street, Edinburgh

Date of hearing: 27 September 2013

Date of decision: 30 September 2013

 

 

DECISIONS OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed. A stay having been granted, the revocation and disqualifications shall come into effect at 23:59 on 31/10/2013.

 

 

Subject matter:

Convictions for serious offences, including assault occasioning severe injury and permanent disfigurement, possession of a self-loading pistol and bulleted cartridges, and supply of controlled drugs. Non-disclosure of notifiable convictions on application form for an operator’s licence. Continuing non-disclosure at a subsequent public inquiry.

 

Cases referred to:

2002/217 Bryan Haulage (No. 2)

David Finch t/a David Finch Haulage [2010] UKUT 284 (AAC)

 

 

 

 

 

 

REASONS FOR DECISIONS:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the Scottish Traffic Area made on 19 June 2013 when she found that the operator was not of good repute, and also disqualified the operator and its sole director, Mr James Shearer, from applying for or holding an operator’s licence in any traffic area for a period of 12 months, under section 27 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

 

2)     The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision and is as follows:

(i)     The Appellant is the holder of a standard international goods vehicle operator’s licence authorising 4 vehicles and 4 trailers.

(ii)    The sole director of the company is Mr James Shearer. He was appointed director on 25/6/2003, and his wife, Mrs Shirley Ann Shearer was, at that time, appointed company secretary.

(iii)  In 1992, Mr Shearer was convicted of striking Mr Harvey, c/o Rutherglen Police Office, with a knife or similar instrument to his severe injury and permanent disfigurement. Mr Shearer was sentenced at Edinburgh High Court to a period of 5 years imprisonment.

(iv)  In 1997, Mr Shearer was convicted of three offences committed in December 1996, after his release from the previous prison sentence. These further convictions were for supply of cannabis resin, possession of a self-loading firearm together with ammunition (thirteen bulleted cartridges), and possession of cannabis resin. He was sentenced at Falkirk High Court to 3 years imprisonment on the firearms case and to 6 months imprisonment for supply of cannabis. He was admonished for the possession of cannabis.

(v)   On 10 November 2005 the Central Licensing Unit received an application for a goods vehicle operator’s licence from Shearer Transport Ltd, signed by Mrs Shearer, the company secretary. The application was for authorisation for two vehicles and two trailers. Mr Shearer was named as sole director. In answer to the question: “Have you, your company, your directors, partners or any person named in question 13 had any convictions which must be notified to the Traffic Commissioner?” (The emphasis of the word “any” is on the form). The answer given was “No”.

(vi)  In block capital letters on the same form, above the signature, are the words: “I DECLARE THAT THE STATEMENTS MADE IN THIS APPLICATION ARE TRUE. I UNDESTAND THAT … IT IS AN OFFENCE TO MAKE A FALSE DECLARATION”.

(vii) The Traffic Commissioner, although unaware of Mr Shearer’s convictions because they had not been disclosed, nevertheless had some concerns because, previously, a company of which Mrs Shearer was director had made an application for an operator’s licence and the application had been refused, and also because of links with a man called Mark Kirby who, in 2005, had been convicted of the illegal importation of 416 kgs of cannabis resin and had been sentenced to a period 6 years and 9 months imprisonment.

(viii)         A public inquiry to consider this application eventually took place on 4/1/2008, before the Deputy Traffic Commissioner. Repute was an issue. At no time during the public inquiry was mention made of Mr Shearer having serious criminal convictions. The Deputy Traffic Commissioner was persuaded to grant a licence to Shearer Transport Ltd.

(ix)  In September 2010, a variation application to double authorisation up to 4 vehicles and 4 trailers was granted without a public inquiry.

(x)   In 2013, the Traffic Commissioner’s office became aware of Mr Shearer’s convictions, which had never been declared. The Traffic Commissioner therefore decided to convene a new public inquiry to consider the question of repute, and also the question whether the holder of the licence had made, or procured to be made, for the purpose of the application for the operator’s licence, a statement of fact which (whether to the knowledge of the operator or not) was false.

(xi)  In advance of the public inquiry, Mr Shearer filed a statement. He admitted the offences and set out the matters that he regarded as mitigating features. So far as the non-disclosure was concerned, Mr Shearer said in his statement that he had taken advice about whether the convictions needed to be disclosed. The advice he got, he says, is that the convictions did not have to be disclosed.

(xii) At the public inquiry held on 20/5/2013, Mr Kelly (representing the operator and Mr Shearer) said that he had been acting for the operator and Mr Shearer at the time of the 2008 public inquiry, although he had not appeared at the public inquiry itself.

(xiii)         In evidence, Mr Shearer said that the application form was in the handwriting of his wife, who was company secretary. However, the two of them had completed it together. He said that he had asked somebody in the transport business whether the convictions should be mentioned. He was told that the convictions did not need to be disclosed because they were ‘spent’, and so he had not disclosed them. Mr Shearer accepted that disclosure would probably have made the application process “a little bit more tricky”, but he denied that this was the reason he and his wife had answered ‘No’ to the question.

(xiv)         Mr Shearer went on to say that the person whose advice he had obtained was a Mr Strachan, a friend of Mr Shearer’s brother-in law who was a transport manager. Subsequently, Mr Shearer said that it might not have been Mr Strachan, it might have been Mr Forsyth, who: “was involved in the transport stuff, he’d been doing it for years”.

(xv)The Traffic Commissioner asked Mr Shearer why he had not taken advice from her office, and simply asked: “Do I have to tell you about these?” Mr Shearer said that he did not know why he had not done this.

(xvi)         Mrs Shearer gave evidence and said that she had signed the application form, but her husband had made a telephone call and taken advice. She also thought that the provider of the advice was either Mr Strachan or Mr Forsyth.  It emerged that, at the time the form was completed, Mrs Shearer was on maternity leave from a firm of lawyers where she worked as a Para-legal. However, for reasons of embarrassment, and lack of access to “books”, Mrs Shearer had not used her links with the law to ascertain the correct position with regard to convictions, or rehabilitation after a person had served such long sentences.

(xvii)        Mr Kelly submitted to the Traffic Commissioner that she could, in her discretion, disregard convictions due to the passage of time. In any event, the convictions did not impact upon road safety, fair competition or environmental protection. Moreover, in relation to non-disclosure, advice had been sought. Mr Kelly said that it had been a useful opportunity for the Traffic Commissioner to actually meet Mr and Mrs Shearer as she could assess their manner of giving evidence.

(xviii)      The Traffic Commissioner issued a written decision on 19 June 2013. She found that Mr and Mrs Shearer had colluded to answer the question on the application form about convictions in the negative. She said: “I cannot find that any informed advice was sought or given”. She did not believe what she had been told at the public inquiry. The incorrect answer given on the form served to mislead both her office, and the Deputy Traffic Commissioner at the 2008 public inquiry that had been called to consider repute. In short, the licence had been granted on the foundation of a deceitful untruth. Operator licensing depended upon trust and: “only those of repute should pass through the gate and be granted a licence”.

(xix)         The Traffic Commissioner referred to Article 6 of European Regulation 1071/2009 and to Schedule 3 of the Act. She referred to some previous decisions of the tribunal including 2002/217 Bryan Haulage (No. 2), and to a decision of the Court of Session that she considered to be relevant and helpful. She reflected on the passage of time that had elapsed since the original convictions but found that it was still quite likely that, had the true facts been known at the time of the application and public inquiry, the application would have been refused. In any event, she added: “It is the act of deceit in the 2005 application form, in a case heard in 2008, where the damage was done”.

(xx)The Traffic Commissioner recognised that revocation would put the company out of business, but it was nevertheless proportionate and appropriate to do so because there had been fundamental deceit at the time of gaining the licence, and the risk for any person who does not make proper disclosure to the Traffic Commissioner is that, at some point, the past will catch up. She decided that repute had been lost and that, under section 27 of the Act, the licence should be revoked with effect from 23:59 on 30/7/2013. She did not make an additional finding under section 26(1)(e).

(xxi)         The Traffic Commissioner moved on to consider disqualification. She found that the seriousness was such that she did not wish to leave Mr Shearer in a position to immediately apply for a new licence. However, she also noted that there had been no further convictions, and no adverse matters had been drawn to her attention by VOSA. Consequently, she limited the period of disqualification imposed upon the company and upon Mr Shearer to 12 months from the date of revocation.

 

3)     At the hearing of this appeal, the Appellants were again represented by Mr Kelly who submitted a skeleton argument for which we were grateful. 

 

4)     The essential point made was that the Traffic Commissioner’s findings in relation to loss of repute were against the weight of evidence. The Traffic Commissioner had not considered whether to disregard all or some of the convictions and, in relation to the non-disclosure, she had misdirected herself in allowing the alleged deceit to outweigh the long history of the operation, the absence of convictions since 1997, and the absence of adverse reports from VOSA. Moreover, it was submitted that the Traffic Commissioner had no evidential basis upon which to disbelieve Mr and Mrs Shearer in relation to what was a bona fide misunderstanding, based upon genuine advice.

 

5)     We find no merit in this submission. As Mr Kelly pointed out during the public inquiry, the Traffic Commissioner had an opportunity to meet Mr and Mrs Shearer and to watch and listen to them give evidence. The fact of an incorrect answer on the application form was accepted. Mr Shearer had convictions that were not spent and were notifiable. There was no independent corroboration of any attempt to obtain informed advice from a reliable person in a position to give such advice and willing to take responsibility for the accuracy of it. Indeed, there was no evidence of any attempt to track down the person responsible.

 

6)     In our view, given the gravity of the offences and the clarity of the question and warning on the application form, the onus was very much on the operator and Mr Shearer to satisfy the Traffic Commissioner that the self-serving non-disclosure was the consequence of genuine ill-advised misunderstanding, rather than deliberate and dishonest concealment. In the event, Mr and Mrs Shearer failed to persuade the Traffic Commissioner that their explanation was true and we consider that, after a public inquiry, the Traffic Commissioner was more than entitled to reach the conclusions that she did, and to take an extremely serious view – especially given that there had been a public inquiry in 2008, in which repute was an issue. In a one-sided jurisdiction such as this, Traffic Commissioners are not obliged to believe everything that they are told, and the Traffic Commissioner was perfectly entitled to disbelieve the assertions made here, for the reasons that she gave.

 

7)     We are satisfied that the Traffic Commissioner did consider the effect of the passage of time but, as we pointed out to Mr Kelly, the passage of time is of little benefit if, during the intervening period, there is evidence of deceitful and dishonest conduct. In our judgment, rehabilitation generally depends upon the passage of time coupled with exemplary behaviour during that period.

 

8)     Mr Kelly complained that the Traffic Commissioner had referred to a number of cases, without specifically explaining what impact the cases had upon her approach. The consequence was that it was not possible to say whether or not the Traffic Commissioner’s approach had been correct. Mr Kelly did not think that the tribunal was entitled to proceed on the basis that the Traffic Commissioner had got it right unless there was something in the decision that suggested that she had not.

 

9)     Whilst we would not want Traffic Commissioners to feel that they must mention every important case in their decision, and we have previously discouraged automatic citation of case names and setting-out of principles, it is important that the Traffic Commissioner’s approach is demonstrably consistent with the applicable law and jurisprudence.

 

10) As a starting point, we recognise that there is a difference in the legal framework to be applied as between a refusal to grant an application for an operator’s licence (on the one hand), and a subsequent revocation for loss of repute after a licence has been granted (on the other). At application stage, the ‘gatekeeper’ function is of importance. Thereafter, having granted a licence, any regulatory action by the Traffic Commissioner should not be punishment in itself, but designed to assist in the promotion and achievement of the purposes of the legislation. Clearly, such action can include an element of deterrence in order to prevent and discourage conduct that undermines the licensing regime.

 

11) However, on its facts, this case was not simply concerned with whether repute was lost. It was concerned with whether there had ever been repute in the first place if, as the Traffic Commissioner found, the original decision to grant the licence was based on a seriously incomplete picture, due to the deliberate non-disclosure of relevant matters.

 

12) We find nothing in the Traffic Commissioner’s approach that is inconsistent with the prevailing law. She put at the heart of her reasoning the integrity of the operator licensing system that, she rightly said, relies on trust. The citations mentioned by the Traffic Commissioner may not have particularly advanced her analysis, but one can see their relevance in the broader context. This case, however, turned principally upon its facts, and upon the Traffic Commissioner’s assessment of Mr and Mrs Shearer’s credibility, after listening to their evidence at public inquiry.

 

13) We would, moreover, have been prepared to assume that the Traffic Commissioner had got it right unless there was an indication in her decision that she had applied the law incorrectly, which there is not. We do not think that there is any obligation on a judicial decision-maker, in every case, to prove that they know all the applicable cases or to prove that they correctly understand the law. Setting out the legal framework where it is not in dispute, and citing the key cases where no specific point turns on them, is not obligatory, although it is not damaging either. What matters is that the Traffic Commissioner has set out what she thinks, and why she thinks it, and that the description and structure of her approach accords with the applicable legal framework.

 

14) In our view, the Traffic Commissioner’s analysis covered the essential points, and her reasoning has not been shown to be plainly wrong. Indeed, we think that she was probably right in her thinking as to the likely outcome had the convictions been disclosed, and was manifestly right in her judgment as to the aggravating consequences of the non-disclosure, and the most probable explanation for it.

 

15) Mr Kelly’s final point related to the disqualification. He contended that the Traffic Commissioner had not given adequate reasons, and that the reason given was not a sound basis for making this decision.

 

16) As we said in David Finch t/a David Finch Haulage [2010] UKUT 284 (AAC):

 

“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. Additionally, periods of disqualification can range from comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one. An operator subject to a period of disqualification is entitled to have some explanation, or a glimpse into the Traffic Commissioner’s mind, so that he understands why a particular order for disqualification has been made. The giving of brief but adequate reasons will also promote a consistent approach, and explain why distinctions are made as between different cases and different people.”

 

17) The Traffic Commissioner set out her thinking at paragraph 42 of her written decision. She said: “If I do not disqualify it leaves open for the company or Mr Shearer to apply for a licence”. She did not repeat, again, her findings of fact or the key principles applied – but for the purpose of this decision we summarise them as follows:

·       the criminal convictions sustained by the sole director of the operator were for very serious matters, including extreme violence, possession of a firearm and ammunition, and the supply of controlled drugs;

·       the effect of the subsequent passage of time was substantially diminished by the deliberately deceitful conduct of the offender;

·       the very foundations of this operator’s licence were built upon this deceit which, itself, was central to the question of repute;

·       other people should be discouraged from adopting a self-serving course that might appear to involve little risk. It needs to be clear that, if and when the past catches up, removal and exclusion from the industry will be a highly likely outcome.

 

18) On these established facts and principles, we agree that disqualification was necessary in pursuit of the objectives of the operator licensing system. Indeed, as the Traffic Commissioner herself recognised, some may consider the length of disqualification to be lenient, although it fully reflected the positive features of the case that, quite correctly, were put into the balance.

 

19) The appeal is dismissed.

Judge Mark Hinchliffe, DCP

30/9/2013