[2024] UKUT 312 (AAC)

‘Grounds ofAppeal

The Operator appeals the decision of the Presiding Officer in relation to the revocation of his Operator's Licence, his loss of repute and his disqualification.

It is submitted that the Presiding Officer has erred in law in a number of fundamental matters which go to the lawfulness of his Decision.

Firstly at paragraph 64 of the Decision the Presiding Officer states "the critical question is ... having a regard to the long history of MSI's and offences, the inadequate response to these matters and to the W1Satisfactory audit and PRT letter, and, the failure of Mr Convery to satisfy me that his approach to compliance was genuine, positive and would be sustained ... ". It is clear that the Presiding Officer has mistakenly believed that the burden was on the Operator to satisfy him in relation to these matters. This runs contrary to the established law as regards burden of proof, Muck It Ltd and Others -v- Secretary of State for Transport (2005) EWCA Civ 1124, where it is clearly set out that it is not for the licence holder to undertake the burden of satisfying the Presiding Officer.

Further in relation to the finding of the lack of financial standing, the finding that the statutory declaration as provided for within the Department’s own practice guidance was unsuitable for this Operator's family business was entirely without lawful basis and irrational.

The imposition of a disqualification on the Operator without asking the Operator’s representatives to address him on the question of potential disqualification breaches guidelines as set out in the case 2018/072 St Mickalos Company Limited and M Timminis and is therefore unlawful.

It is submitted that the revocation of his Operator's Licence, the finding ofloss of repute and his disqualification were clearly imposed as penalties for past conduct. This clearly breaches the principles in the case law (Robinson - v-The Secretary of State for Environment [1973] 1 WLR 1139) and fails to assess the Operator as he is the date of the hearing. It ignores the improvements made by the Operator prior to the date of hearing. such improvement set out in Annex 4 of the Call Up letter where the Departments stated ''more recently an assessment of material you provided to the Department indicates some improvement but gaps still remain". This being an acknowledge of the Department itself of significant improvement on behalf of the Operator.

In general terms and without going into the minutia of the decision, it is apparent that the Presiding Officer and his attempts to interpret facial gestures and his criticisms of the Operator and his legal representative appears to have moved him away from a proper consideration of the actual evidence. He appears to have embarked upon some form of behavioural interpretation which it is submitted should have no place in any forensic inquiry. The conclusion he appears to draw from these observations is entirely incorrect.

Whilst accepting that a Presiding Officer may of course conduct his hearing in a manner of his own choosing, such a process must however be fair to the Operator. The refusal of the Presiding Officer to allow the Operator to present his case through his legal representative and restrict the legal representative's role to asking questions of the Operator and making submissions as to law at the end of the hearing, does not, we would submit, constitute a fair process. These restrictions it is submitted deprive the Operator of the assistance of his legal representative to firstly set out in a clear and logical manner his response to the assertions and issues of concern highlight by the Department. It deprives him of the facility oflegal advice and assistance during the course of the hearing and in effect essentially deprives him of his right to legal assistance during the course of the Public Inquiry. It further deprives him of an ability to deal with the issues arising from the voluminous documentation that appears in the call up bundle, some of which is set out in an extremely technical and legalistic manner.

For all of the above reasons and those to be set out at the oral hearing of this appeal, the Appellant states that this Decision should be quashed.