James Craig & Partners t/a J Craig and Son

This is an appeal from the decision of the Deputy Traffic Commissioner (“DTC”) for the Scottish Traffic Area given on 15 March 2023. The decision of the DTC is as follows:

The appeal was considered at an oral hearing at which Mr John Craig, Mrs Janice Craig and Mrs Isla Craig (Mr John Craig’s wife) were in attendance. Mr John Craig represented the appellants.

The appellants are the partnership James Craig & Partners, trading as J Craig & Son. The partners are Mr James Craig, Mrs Janice Craig and Mr John Craig (hereinafter “Mr Craig”).

The appellants held a standard national goods vehicle operator’s licence (OM0034959) from 24 April 1996 until 12 October 2020 when it was revoked by Traffic Commissioner Claire Gilmore at a Public Inquiry (“PI”). Mr John Craig had been the nominated Transport Manager (“TM”) on the revoked licence.

The appellants were called to PI in 2020, because of the contents of a report by a DVSA Traffic Examiner (“TE”). As a result of the report, the Traffic Commissioner (“TC”) was concerned that the appellants had not honoured the undertakings signed up to when the licence was applied for, namely, (i) that they would observe the rules on drivers hours and tachographs and keep proper records; and (ii) that the TC would be immediately informed of any changes or convictions which affected the licence. Further, there was concern that since the licence had been issued there had been a material change in the circumstances of its holder. Because of these issues, the TC was concerned that the appellants may not have a stable establishment in the United Kingdom, be of good repute, be of the appropriate financial standing or meet the requirements of professional competence. There was also concern that the Transport Manager, Mr John Craig, might not be exercising continuous and effective management of the transport activities of the undertaking (Footnote: ¹).

The call up letter summarised the evidence in the TE’s report:

At the PI the licence was revoked as a result of failure to meet financial standing. By letter dated 2 December 2020 (Footnote: ²), the appellants were advised by the TC as follows:-

On 1 November 2022 the appellants submitted an application for a restricted goods vehicle operator’s licence (OM2060792) for 2 vehicles and 4 trailers.

Section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 provides that no person shall use a goods vehicle on a road for the carriage of goods, for hire or reward, or in connection with any trade or business carried on by him, except under a licence issued under the Act.

In terms of section 13 of the 1995 Act, in determining an application for a restricted operator licence, the traffic commissioner must be satisfied, among other things, that the applicant is not unfit to hold an operator’s licence.

Section 13C of the 1995 Act requires satisfactory arrangements to have been madefor a range of matters such as compliance with drivers’ hours regulations and maintenance of vehicles. A restricted operator licence does not require the holder to have a transport manager.

Once a restricted licence has been granted the requirements of sections 13, 13B and 13C, among other conditions, are continuing obligations that require to be met throughout the lifetime of the licence (Footnote: ³).

The burden of proof rests on an applicant for an operator’s licence to demonstrate that he satisfies the regulatory requirements to hold a licence.

The application was called to a Public Inquiry on 9 March 2023. The call up letter (Footnote: ⁴) stated:

The call up letter informed the appellants of the evidence that would be considered at the PI. The evidence to be considered included the previous DVSA investigation:

The call up letter also referred to the findings and warning given by the TC in revoking the licence (referred to in paragraph 7 above). The letter went on to inform the appellants of what they should now do. This included the following:

Mr Craig represented the appellants at the PI. In support of the application, he had submitted documentation which satisfied the requirements for financial standing. He produced a Certificate of Conformity from NSF Certification UK Ltd which stated that J Craig & Son “has satisfied the requirements of the Red Tractor Fresh Produce Standards for the following produce: Crop Production; Harvesting; Potato; Storage” (Footnote: ⁶). The certificate was for the period 26 April to 31 October 2022.

At the PI, the DTC asked him why he had not produced any material at all about details of the proposed maintenance system, or how the partnership would comply with laws regarding drivers’ hours. He responded to the DTC that he did not think that evidence which could simply be downloaded from the internet would help the application; he thought that what the DTC wanted was to look him in the eye and believe that he could be trusted as a compliant operator.

He told the DTC that he did not think that any supporting evidence was necessary. He said that he had been operating vehicles for over 25 years, he had only been to one Public Inquiry, his vehicles had been stopped by the DVSA without any issue being identified, and he relied on the Red Tractor certificate of conformity which he said showed that another organisation trusted him to transport dangerous substances by road and that he met high standards imposed by another regulatory body.

He told the DTC that he had acquired his Transport Manager CPC about 25 years ago and had not done any formal continuing professional development to keep his knowledge up to date. As regards refreshing his knowledge and understanding of the rules on driver’s hours, he said that he had not done anything. He told the DTC that if he came across something he did not know he would look it up on gov.uk and that he was always learning through his work.

The DTC found as follows:

The grounds of appeal are at page 180. The grounds narrate that the previous licence had been revoked due to lack of financial details. Regarding the lack of documents on vehicle maintenance, the appellant had not produced any because they had not been operating vehicles and Mr Craig did not realise that blank sheets would have sufficed. He now understood, that he should have produced more documents for the inquiry but, he said, in his defence, he did not think having a maintenance contract in place for a vehicle he might never purchase was the correct thing to do. He could not show forward planning of maintenance, insurance et cetera until he purchased a vehicle. His thoughts were to satisfy the TC that he was an upstanding citizen and that going forward would adhere to all the rules if granted a licence. He attached documentation with the grounds of appeal. He stated that he had failed to convey to the DTC that he had read the rules on the government website about driver’s hours and was fully aware of them. He had asked the DTC to question him on this so that he could demonstrate his knowledge, but the DTC had declined. He submitted that the appellants were a family firm and required a restricted licence for transporting their own goods. They would be devastated if their lack of compliance or knowledge led to injury or death of another road user, and that was why they were committed to run their vehicles in a safe and responsible manner. They had no criminal convictions and were financially sound.

Submitted with the grounds of appeal was information downloaded from the government website on the responsibilities of HGV vehicle operators; key points of a good maintenance system, a pro forma safety inspection record from Malcolm Maintenance Services, HGV defect report form for drivers, TachPro trailer safety inspection and maintenance form, DVSA example weekly record sheet and sample VOR form. Mr Craig sought to have further documentation received at the Upper Tribunal hearing. The additional documentation submitted with the grounds of appeal and on the day of the Upper Tribunal hearing were received under reservation as to their admissibility.

Mr Craig expanded on his grounds of appeal before the Upper Tribunal.

The following principles (extracted from the Digest of Traffic Commissioner Appeals) as to the proper approach to an appeal in the Upper Tribunal can be found in the decision of the Court of Appeal in the case of Bradley Fold Travel Ltd & Peter Wright –v- Secretary of State for Transport [2010] EWCA Civ. 695:

Operator licensing is based on trust, as has long been recognised by courts and tribunals.

“Traffic Commissioners must be able to trust those to whom they grant operator’s licences to operate in compliance with the regulatory regime. The public and other operators must also be able to trust operators to comply with the regulatory regime” (Footnote: ⁷).

In NT/2013/82 Arnold Transport & Sons Ltd v DOENI, the Tribunal said:

The trust in question is not blind trust or based on mere assurance that the applicant for an operator’s licence will comply in future. It is trust based on evidence that the applicant has knowledge of the regulatory regime and the skill, ability and willingness to implement the regulatory regime.

As previously mentioned (paragraph 13), the burden of proof rests on an applicant for an operator’s licence to demonstrate that he satisfies the regulatory requirements to hold a licence.

The appellants may run a good farming business and are trusted by farming and food organisations. Farming is their core business. However, that says nothing about their knowledge of the regulatory regime for operating a heavy goods vehicle or their skill, ability and willingness to implement that regime. No evidence was placed before the DTC on which he could judge those matters. The appellants, and Mr Craig in particular, were put on notice by the TC in 2020 that she had serious concerns about his knowledge and understanding of the rules relating to driver’s hours. She was also concerned about the lack of importance he appeared to attach to the call to public inquiry, demonstrated by his failure to provide documentation which had been requested. She highlighted that these were both matters which were likely to impact on the repute of any operator or transport manager (Footnote: ⁸). The appellants put no evidence before the DTC to demonstrate that anything had changed or improved since 2020. It is not good enough to say, as Mr Craig did at the PI (Footnote: ⁹), that he looks things up online on a need to know basis. If he is ignorant of the regime and is not familiar with what he needs to know or comply with, then he will not be aware that he has to inform himself on some specific issue or other. While a TM CPC is not an essential requirement for a restricted licence, as the DTC explained, a refreshed CPC would have been one way of demonstrating up to date knowledge of the regulatory regime. There are also other sources of training in drivers’ hours, but he had not availed himself of those either. The DTC was therefore entitled to find that Mr Craig had done nothing since 2020 to correct the deficiencies in his knowledge. We therefore reject the appellants’ first and fourth grounds of appeal.

It is quite clear from the transcript of the PI and the DTC’s decision that he was well aware that the appellants were seeking a restricted licence to move their own goods and not a licence to enable them to undertake hire and reward work. (See, for example, paragraph 4 and 14 of the DTC’s decision.) We therefore reject the second ground of appeal.

By letter dated 20 December 2022 (Footnote: ¹⁰), Mr Craig was informed that a PI was to be held regarding the application for a restricted licence. That letter appears to have been based on a template that had not been properly adapted to address the appellants’, or Mr Craig’s, specific circumstances and, for that reason, may have been misleading. The issue of such template, inadequately adapted, letters should be avoided. However, that letter was then followed up by a letter to the appellants dated 6 January 2023 (Footnote: ¹¹) which was specific to the appellants. It outlined the evidence to be considered at the PI and what the appellants must do to evidence their proposed vehicle maintenance system and how they would comply with the laws regarding drivers’ hours and to give details of their proposed systems. There is also information available on the government website providing guidance on applying for an operator’s licence and how to prepare for a PI, with further links to Statutory Guidance (Footnote: ¹²). Despite the detailed advice in the letter of 6 January 2023, the appellants produced no such evidence. While the appellants may have had difficulties in obtaining a proposed maintenance contract, the DTC’s refusal to grant a licence did not hinge on that one omission. They did not put anything before the DTC to evidence their proposed vehicle maintenance system or their proposed systems for complying with the laws regarding drivers’ hours. Further, as discussed above, the DTC was not satisfied that Mr Craig’s skills, knowledge and understanding were up to date and that he was able and willing to comply at all times with the undertakings on any future licence. We therefore reject the third and seventh grounds of appeal.

The DTC made no finding on Mr Craig’s credibility or reliability. However, he was not prepared to grant the appellants an operator licence on the ipse dixit or mere assertions by Mr Craig that he had knowledge of the regulatory system and would comply. To have granted a licence on such a basis would have been irresponsible. This is particularly so given the concerns of the TC in 2020 and the fact that Mr Craig had done nothing to refresh and improve his knowledge of the regulatory regime since then. Given the notice and information the appellants had been given by the TC in 2020 and in the call up letter, Mr Craig’s belief that all he had to do was attend the PI and say he was an upstanding citizen who could be trusted was unreasonable and unrealistic. The fifth ground of appeal is therefore rejected.

At the PI, the DTC asked Mr Craig to tell him about his business. Mr Craig explained that they were farmers and they needed a restricted licence for movement of their own fresh produce (Footnote: ¹³). He also explained the difficulties his business had been experiencing in finding good and reliable hauliers. He stated that in his office he had a diary and he noted things down in the diary (Footnote: ¹⁴), he also had a computer and access to the internet in the office (Footnote: ¹⁵). The DTC did not take issue with these statements and there is no evidence in either the PI or the decision that he did not accept that the appellants had a farming business, farm office, diary and computer. The eighth ground of appeal is therefore rejected.

The sixth ground of appeal is not relevant to the question of whether or not the DTC was plainly wrong and is rejected.

The appellants produced additional evidence for the appeal in the Upper Tribunal in support of their grounds of appeal. Although we have rejected the grounds of appeal, for completeness we explain why the additional evidence was inadmissible. The principles for allowing fresh evidence to be heard, and which apply to the Upper Tribunal, are laid down on the case of Ladd v. Marshall [1954] 1WLR 1489 where Denning LJ held (at 1491):

The information downloaded from the government website on the responsibilities of HGV vehicle operator, and other documentary evidence submitted with the grounds of appeal, were all documents that could have been obtained with reasonable diligence for the PI and put before the DTC. The same applies to the photographic evidence showing the farm, farm office, forward planner and computer. The fresh evidence therefore does not satisfy the first requirement to be received at this stage. Accordingly, we refuse the request to admit this evidence.

We see no reason to disturb the DTC’s findings or his reasoning in reaching his decision that he could not be satisfied that the partnership is a fit and proper person to hold a restricted goods vehicle operator’s licence or that the partnership is able and willing to comply with the law in regard to vehicle operating or that the partnership is able and willing to fulfil the undertakings on the “O” licence application form.

There are no grounds for holding that the TC’s decision on these issues was plainly wrong.

The decision of the TC dated 15 March 2023 is confirmed in all respects. The appeal is dismissed.