[2025] UKUT 062 (AAC)

The Appellants argue that the Traffic Commissioner’s finding that Mr Bain had acted dishonestly, by falsifying vehicle maintenance documents, was based on an inaccurate and unjustified interpretation of the evidence. Mr Bain did not at any stage accept that he falsified documents, nor did the Commissioner put the question directly to Mr Bain. The finding of dishonesty was integral to all decisions taken and the Commissioner’s flawed approach undermined each decision.

The dishonesty finding arose, argue the Appellants, from VE Mackie’s ‘suspicion’, first voiced at the public inquiry, that, since some paperwork appeared cleaner than others, it must have been post-dated that is marked as completed on an earlier date than the actual date of completion. However, no specific examples of such suspicious paperwork were identified or brought to the Traffic Commissioner’s attention. VE Mackie’s suspicion or impression that certain paperwork was ‘too clean’ was an insufficient evidential basis for such a damaging finding as dishonesty.

The dishonesty finding was mainly based on Mr Bain’s supposed failure to deny in oral evidence that documents had been falsified. However, the public inquiry transcript demonstrates that Mr Bain was never asked directly whether he falsified, or allowed to be falsified, documents. The Appellants submit that it is clear that Mr Bain did not accept falsifying, or allowing falsification of, documents. Moreover, the Traffic Commissioner failed to make her own inquiries into the documentation considered ‘too clean’ by VE Mackie. Some four months elapsed between the public inquiry hearing and the Commissioner’s decision, which meant there was ample time available in which the Commissioner could, and should, have investigated the documentation considered suspicious by VE Mackie.

The Traffic Commissioner asked Mr Bain a very general question and his response (‘it’s her job to be right all the time’) was an insufficient basis for an inference to be legitimately drawn that Mr Bain failed to deny, or accepted, the allegation of dishonesty. The Commissioner could, and should, have asked Mr Bain these direct questions: (1) did you falsify documentation by completing reports after the stated date of completion? (2) if not, did you allow someone else to do so?

The Traffic Commissioner relied on the falsification finding to conclude that none of Mr Bain’s evidence could be considered reliable (see paragraph 46 of the Commissioner’s reasons). In those circumstances, it was incumbent on the Commissioner to have clearly and unambiguously asked Mr Bain whether he had falsified, or allowed falsification of, documents. Simply asking Mr Bain to comment on VE Mackie’s concerns, or state his position regarding those concerns, was insufficient because it did not give him the opportunity ‘to explicitly refute the allegation’.

The Appellants argue that the Traffic Commissioner’s approach was inconsistent with the Upper Tribunal’s design in Leafy Designs Ltd [2023] UKUT 111 (AAC), in which the Tribunal said:

“25…we accept that, generally speaking, there normally has to be an evaluation as to the substance, nature and degree of any dishonesty before a properly informed decision as to regulatory action may be taken. But where matters are straightforward that need not be a lengthy evaluation and need not generate a lengthy written explanation. It will depend on the circumstances.”