Stephen Peter Hurley v Head of the Transport Regulation Unit

Background

An application for a standard international goods vehicle operator’s licence was received in the Department from the Appellant on 20 November 2018. The application sought authorisation for 1 vehicle and 1 trailer.

On the application, the Appellant declared the following convictions:

‘The circumstances which brought this application to Public Inquiry lie in issues of whether the applicant has established he is of good repute related to:

• The earlier application by Stephen Hurley for an operator's licence which had been withdrawn by him in January 2020;

• The subsequent application made by JJ, with whom the applicant is in a relationship. This second application was itself withdrawn in November 2020. Stephen Hurley accepted that the application made by his partner was designed as a "front", in the sense that he would in fact run the business and that his partner would help with the administration, but it would seem otherwise to the outside world. When challenged, his partner had attempted to deceive the Department into believing there was no link between her and Stephen Peter Hurley. The applicant admitted he was aware that this is what she had planned to do.

• The unspent convictions of Stephen Hurley, which were not disclosed in the current application, but which had been included in the previous application he had made.

• Further that during the process of consideration of the current application, in June 2021, Stephen Hurley had lied in giving a response to the Department about her application, where he denied links to JJ. She is his fiancée, and they are to be married shortly.

I was grateful for early sight of the witness statement of Stephen Hurley (and that of GL) which sets out the background and provides a frank explanation of events during both of the earlier applications and the one that is now before me.

This is of course Stephen Hurley's application and therefore the onus is on him to satisfy me that he has the necessary good repute to hold a licence, financial standing, has a TM with good repute and the necessary qualification to afford professional competence and that arrangements for the running of vehicles are sound.

I heard from Mr Hurley and received representations from Darren Finnegan of counsel on his behalf.

In weighing the arguments, I note in the positive that there is no suggestion that the applicant has operated LGVs without a licence and no criticism is made of him as an LGV driver. There are monies that show he meets the financial standing requirement and I have no immediate concerns about the proposed TM, albeit this would be his first appointment to the role. I accept that all relevant convictions were properly disclosed in the first application.

I accept that whilst his second application was incomplete, in that three of the older convictions were left out, in the mistaken belief of those who advised him that they were now 'spent', I do not find that to be the most significant factor in my decision.

In the negative, I struggle to accept that his first application was withdrawn out of frustration about the length of time the process was taking and whether he would ever be given a hearing date. The timing, and the indication that he intended to make another application point in another direction. I believe it to be more likely than not that the application was withdrawn in order to facilitate the making of JJ’s application. I find the application made in the name of JJ to be a wholly dishonest attempt made in conjunction with his partner to undermine the regulatory system. lt represents an extremely poor exercise of judgement, which was compounded at the point when JJ was challenged, when rather than admitting the nature of the deception continued with further lies. It is the case that when the current application was made in June 2021 that the applicant was not

transparent when again challenged about the nature of the earlier application by his partner and denied links to her.

The decision in the Upper Tribunal case of Aspey Trucks Ltd (2010/49) makes clear the role of the Presiding Officer or Traffic Commissioner as the gatekeeper to the haulage industry, when considering new applications. Those who are allowed entry must satisfy the Presiding Officer or Traffic Commissioner of their good repute. In answering the question whether I am so satisfied in respect of this application, I need to be awake to what the public, other operators, and customers and competitors alike would expect of those permitted to join the industry that they will not blemish or undermine its good name or abuse the privileges it bestows.

For whatever reason there has been a serious attempt to undermine the system both directly and indirectly perpetrated by Mr Hurley. It would be an affront to the regulatory system for a licence to be granted to an applicant prepared to mislead the regulator in relation to his application as recently as in June 2021.

It has been necessary for me to determine whether this applicant meets the test of repute. The positives are outweighed by the negatives. I find Mr Hurley is without good repute.

The process of building confidence has begun only recently. Any progress made after the withdrawal of JJ's application has been undermined by the further lies in June 2021. In my view, if Stephen Hurley is to hold an operator's licence there needs to be clear blue water between the days of desperately poor decision-making and judgement and a position where a presiding officer is likely to be able to believe that Mr Hurley has been rehabilitated in a practical sense.

Time will tell whether the passage of time will be sufficient for Mr Hurley to satisfy the test of good repute. The process is not a mathematical one. When there is dishonesty or/and the exercise of poor judgement. the process of showing rehabilitation is necessarily a fraught one. Applicants need to prove a negative, but this is not an impossible task.

I note that the earlier convictions including a matter of resisting the police, relevant to Mr Hurley's capacity to handle authority become spent in January 2023, but the latter offences do not have that status until mid to late 2024

I conclude that the earliest date when the Department might legitimately be able to find repute had been demonstrated would fall between those dates, that is not before October 2023.

In the meantime, I can do no better than emphasise the obvious, that the applicant should avoid further convictions and if, and when, an application is made for it to be entirely accurate and interactions to be honest ones.

The application is therefore refused.’

‘Grounds of Appeal

There are three Grounds of Appeal.

Ground of Appeal One – The decision was Wednesbury unreasonable

The Presiding Officer did not take into account the following:

Similarly, there were irrelevant factors considered, namely:

At [18] and [19] of the decision, the Presiding Officer considered that, with the resisting police conviction due to be spent by January 2023 and the latter convictions becoming spent in mid to late 2024, that an application cannot be successful until October 2023 at the earliest.

This is an arbitrary imposition of a rehabilitation period. It appears that the latter offences (breach of a non-molestation order and possession of class A) are to reach a state of being almost spent before Mr Hurley can be of good repute. It therefore appears that a significant reason for declining the application was Mr Hurley’s antecedents.

Alternatively, the Presiding Officer has declined the application based on Mr Hurley’s dishonesty, but has used his convictions as a measure for setting rehabilitation in terms of repute. This is an irrational, alternatively unreasonable, decision. None of the convictions relate to dishonesty. As such, their statutory rehabilitation periods are of no relevance to deciding when Mr Hurley can attain good repute.

Ground of Appeal Two – The decision was not proportionate

Considering there was nothing fatal to hide (such as a previous disqualification), and that the lies were, in our respectful submission, explainable in the circumstances, the decision not to grant a licence with conditions was disproportionate. This submission is bolstered by the lack of road safety or fair competition concerns and considering that Mr Hurley had applied vigorous candour to the instant public inquiry.

Mr Hurley did not attend the public inquiry with clean hands. That he attempted to dishonestly circumnavigate the regulatory regime was fully admitted without attempts to excuse his behaviour. With this balanced against the Aspey Trucks Ltd. [2010] UKUT 367 (AAC) need for the TRU to exercise caution in who is allowed to enter the profession and the need for those individuals to be of good repute, the instant decision strikes the balance in a disproportionately cautious manner.

In the alternative, the period of rehabilitation required before good repute can be established is both disproportionate and plainly wrong.

Jurisprudence from similar cases from the Upper Tribunal required the Presiding Officer to adopt a different view. In Edward Coakley T/A CRA [2012] UKUT 77 (AAC), a PSV licence case, the sole director had two convictions for breach of the peace and one for assault. These convictions were “of insufficient seriousness to alter the finding of good repute” (Coakley at [9]).

In T/2009/530 Boomerang Travel Ltd. another PSV case, the applicant had convictions for AOABH for which he served 12 months imprisonment and, some time later, a conviction for common assault. The Upper Tribunal found that the earlier set of convictions had become spent and that the latter offence, although unspent, was ‘not sufficient on their own to deny Mr Pilkington his good repute’ (Boomerang at [4]).

The Tribunal is asked to take note of Shearer Transport Ltd. [2013] UKUT 0489 (AAC). The applicant had convictions for striking a member of police staff with an instrument causing permanent disfigurement, supply of cannabis, possession of a firearm and possession of ammunition. For each of these offences he received a sentence of imprisonment. Mr Shearer then made an application for an operator’s licence and did not disclose any convictions. This licence was granted and a subsequent extension was granted. Eight years had elapsed before it became apparent that the operator had failed to disclose the convictions. The Traffic Commissioner revoked the operator’s licence and suspended Mr Shearer for 12 months.

At the other end of the scale, in Formby [2012] UKUT 369 (AAC) an appeal to the Upper Tribunal against a decision not to grant an operator’s licence was dismissed. The applicant had been convicted 10 years previous for conspiracy to supply Class A and Class B drugs. He had been sentenced to 14 years imprisonment. At the time of his application, the applicant was serving the remainder of his sentence on licence. Similarly, the facts of the key case of Aspey namely importation of class B with 11 years imprisonment, demonstrates the genre of offending which requires the balance to be struck against the granting of a licence.

In our submission the instant decision is demonstrably inconsistent with the case law supra. Shearer provides particular contrast. Both the convictions and the dishonest and deceitful attempt to hide those convictions are of considerable difference to Mr Hurley’s wrongdoing. Mr Shearer was disqualified for 12 months. Mr Hurley has an effective disqualification of 19 months. As such, it is submitted that there is no relationship of proportionality between the findings in the instant case and the sanction against Mr Hurley.

However, even in the absence of specific case law, the fact that Mr Hurley was denied good repute due to the presence of unspent convictions is an error of law due to being disproportionate. Alternatively, the time required for Mr Hurley to wait before making a new application is similarly disproportionate.

No consideration had been given to the possibility of using conditions or undertakings to offset concerns of the TRU in relation to Mr Hurley’s honesty.

Ground of Appeal Three - Insufficient reasons were given

Similar to what has been submitted at [17] supra, the reasoning of the Presiding Officer is rather unclear. Paragraph [12] leads us to conclude that the decision to refuse the licence is based on Mr Hurley's dishonesty in the J application and the June 2021 e-mail to NICOLO denying links to Ms J. However, [17]-[20] appear to suggest that it is the presence of unspent convictions, and not the attempt to mislead, which is the substantive reason for denying good repute.

Given that the reasons given are manifestly unclear, this indicates that the decision maker has failed to take into account relevant considerations or had taken into account irrelevant considerations (Re Thompsons's Application (2004] NIQB 9 at (7)). Similarly, reasons given by the Presiding Officer do not comply with the TRU guidance which states that a decision must be properly structured and provide sufficient intelligible reasons for the conclusion reached (Department of lnfrastructure, 'Practice Guidance Document No.10 - Format of Decisions' (2019) p.3 para. (81).

Similarly, at [17], the Presiding Officer explains that the process of gaining good repute is not a mathematical one. However, at [18] - [19] a mathematical process of finding the approximate median of three dates is set out.

At [11], the issue of the failure of explicitly mention the earlier set of convictions in the instant application is addressed. This paragraph is straddled by the paragraph on positive factors and the paragraph on negative factors. The Presiding Officer says that this consideration is not the most significant factor, however, it is unclear as to what camp this factor falls.

Relief’

The appellant asks the Upper Tribunal to substitute its decision and direct that the appellant has good repute for the purposes of section l 2A(2)(b) of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010.

Alternatively, we ask the Upper Tribunal to suggest a more appropriate duration for Mr Hurley to prove he is fully rehabilitated before reapplying for a licence.

Conclusion

On the basis of the foregoing, to be supplemented in oral submission, the appellant respectfully submits that the above Grounds of Appeal should succeed and that this appeal is accordingly allowed.’

“Standard” and “restricted” licences

On an application for a restricted licence the Department must consider—

Subsections (1) and (2) are subject to sections 10 (publication of application) and 47(2) (payment of application fee).

In considering whether any of the requirements of sections 12A to 12D are satisfied, the Department must have regard to any objection duly made under section 11(1)(a) in respect of the application.

If the Department determines that any of the requirements that it has taken into consideration in accordance with subsection (1) or (2) are not satisfied, it must refuse the application.

‘Some General Principles

An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them]. The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act. The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers.

The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded. In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence. It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended. It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent. The underlining, in each case is ours. First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion. Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.

The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.

It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’

‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again. Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place. For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ. 695. Two other points emerge from these paragraphs. First, the Appellant assumes the burden of showing that the decision under appeal is wrong. Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”. The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’

At paragraph 4, the Upper Tribunal had stated:

‘It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”), and in the Regulations made under that Act. The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain. The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom. It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.’

‘For whatever reason there has been a serious attempt to undermine the system both directly and indirectly perpetrated by Mr Hurley. It would be an affront to the regulatory system for a licence to be granted to an applicant prepared to mislead the regulator in relation to his application as recently as in June 2021.

It has been necessary for me to determine whether this applicant meets the test of repute. The positives are outweighed by the negatives. I find Mr Hurley is without good repute.’

‘In paragraphs 21 to 37 of its decision in NT/2017/16 Damien Toner ([2017] UKUT 0353 (AAC)), the Upper Tribunal reviewed the jurisprudence (both at common law and in the context of the duties of a decision-making authority under the Human Rights Act 1998) relevant to delay in decision-making and the effect of delay on the reliability of the decision when eventually promulgated. This analysis was in a Northern Ireland case where the decision-making authority was the TRU. To avoid prolixity, we do not replicate paragraphs 21 to 37 in this decision.’

‘We direct the Department to note that this is not the first decision in which the Upper Tribunal has commented on the quality of the decision-making within the TRU. It is clear that the lessons which have been outlined in previous decisions have not been learnt and that the present decision-making process is redolent of carelessness and inattention and which appears to be systemic.’

‘Similarly, at [17], the Presiding Officer explains that the process of gaining good repute is not a mathematical one. However, at [18] – [19] a mathematical process of finding the approximate median of three dates is set out.’

‘The decision of the Department was in two parts:

The first was that the application for a restricted licence should be refused as the Appellant could not satisfy the condition of being of good repute. We confirm that part of the decision which is not plainly wrong

The second part was that the earliest date when the Department might legitimately be able to find repute has been demonstrated is not before October 2023. We find that this part of the decision is plainly wrong on the basis of inadequate reasoning, that an extraneous factor was taken into account and the length of the period of deemed lost repute is disproportionate.

We substitute our own decision for the Presiding Officer’s decision on the length of the rehabilitation period. We find that the earliest date when the Department might legitimately be able to find that repute has been established is not before the last day of March 2023.

It is a matter for the Appellant whether he wishes to make a further application for a licence after 1 April 2023. It is our view that if he does and if a standard international licence is granted, then in addition to the usual standard international licence undertakings it would be appropriate that there should be an undertaking that the Appellant will commission an independent audit of his operation six months after the date of the grant of the licence and that a report of that audit will be forwarded to the Head of the TRU for his consideration.'