[2025] UKUT 062 (AAC)

We have not found the determination of Ground 1 straightforward, in particular because Mr Bain’s counsel at the public inquiry hearing decided not to cross-examine VE Mackie about the suspiciously ‘clean’ reports nor to address the issue in closing submissions at the inquiry. Nevertheless, we decide that Ground 1 is made out and that the Traffic Commissioner’s dishonesty finding was flawed by errors of law.

The public inquiry call-up letter and associated documentation contained no indication that VE Mackie thought that maintenance documents looked suspiciously ‘clean’ (as if prepared after the ostensible date of preparation). The issue therefore arose for the first time during oral evidence given at the public inquiry hearing. That did not, as a matter of principle, prevent the Traffic Commissioner from making findings on the issue. However, the fact that Mr Bain could not have come to the public inquiry prepared to deal with the allegation that he had fabricated maintenance reports had a bearing on what was necessary to ensure that any such findings were made fairly. In this case, we decide that the procedure whereby the Commissioner found that Mr Bain had acted dishonestly was unfair, for the following reasons:

VE Mackie’s oral evidence was that “generally, the paperwork completed by the mechanic at the time of the inspection was fairly grubby. And some of the records, the files, were very, very clean. I suspected that they may have been inserted later on. However, had I been able to view the files on the first attempt, I would have known whether that was correct or not”. If the records were suspiciously clean, as compared to other ‘fairly grubby’ records, we do not understand why VE Mackie’s written report, within the public inquiry call-up brief, failed to articulate these suspicions;

the Commissioner asked Mr Bain three questions about VE Mackie’s suspicions. However, his answers left, in our view, some doubt as to whether he had understood the allegation made. The first question is described in the transcript as a request for comment on “documentation being repaired after the event”. The Commissioner may in fact have said ‘prepared’ but Mr Bain’s response suggested that he might have misunderstood. He said, “this is a workshop, it was all just checking to see of the paperwork was there”. Mr Bain then answered “alright” when asked for his ‘position’ on VE Mackie’s concerns that documentation had been filled in retrospectively. The question was effectively repeated, and Mr Bain replied, “it’s her job being right all the time” (which the Commissioner’s reasons recounted as ‘it’s a job being right all the time’);

Mr Bain’s answers to the Commissioner’s questions left, in our judgment, reasonable doubt as to whether he understood what he was being asked to address. For that reason, we do not think it is safe to assume that his counsel’s conduct of Mr Bain’s case at the inquiry hearing (in particular, declining to re-examine VE Mackie) amounted to a concession that Mr Bain accepted that VE Mackie’s suspicions were well-founded;

since this was an issue that arose at the inquiry hearing, we consider that a direct question should have been asked before the Commissioner could fairly make, and rely on, a finding that Mr Bain did not refute VE Mackie’s allegation, something along the lines of, ‘Did you, or someone acting under your instruction, date maintenance documents before the date on which they were actually completed?’ We consider that fairness required such a direct question because the stakes were so high for Mr Bain. His business (his livelihood), which he had developed over many years, was at risk and this is why fairness required that Mr Bain was not left in any doubt that he was being asked to confirm or deny that he had falsified maintenance documentation;

there is no indication in the Commissioner’s reasons that she carried out her own comparison of the suspiciously clean documents against the ‘fairly grubby’ ones referred to in VE Mackie’s evidence.