[2025] UKUT 062 (AAC)

Mr Bain attended the public inquiry, at which he was represented by Mr O’Leary of counsel (who also represents Mr Bain before the Upper Tribunal). VE Mackie and TE Jarvis gave oral evidence, in TE Jarvis’ case remotely.

We set out here those passages from the transcript of the inquiry that are relevant to our determination of this appeal.

“Traffic Commissioner: “…Mr Bain, you will be aware from the call-up letter…the issues which are before me…there are concerns that you’ve not honoured the undertakings on your license, relating to driving and operation of vehicles, observing the rules on drivers’ hours and tachographs, and keeping the vehicles. But there have also been prohibitions issued by…DVSA…the evidence…includes the report and evidence of Examiner Jarvis and the report and the evidence of Examiner Mackie. I’m also aware that you attended, I think it was a preliminary hearing in 2019 before the Deputy Traffic Commissioner, Mr Bain, in relation to the issue of busses and some complaints that we had received from the police in relation to the operation thereof [Commissioner goes on to refer to the 2019 public inquiry and a MOT failure rate double the national average]…

[TE Jarvis’ evidence]

Mr O’Leary (questioning TE Jarvis): …in respect of your interaction with Mr Bain, would it be fair to say that he wasn’t in any way obstructive of the investigation that you were carrying out?

TE Jarvis: …I don’t think that is fair to say. I’m not entirely sure whether he was deliberately obstructive, that he didn’t know how to – uh…asking for the documents and data was quite obstructive because it was never forthcoming. But as to whether Mr Bain had deliberately done that, I can’t answer that.

Mr O’Leary: There’s a difference, isn’t there, though, between being obstructive, and not being able to provide the data required?

TE Jarvis: But if Mr Bain had admitted to me that he was struggling to provide the data provided instead of just not providing the data, then that may have been different.

…Mr O’Leary: I’m just concerned by your use of the phrase obstructive. Because that, of course, is a serious allegation…there’s a difference between obstruction and someone who is unable to provide the data that you want. He did give you access to the systems didn’t he?

TE Jarvis: He did.

Mr O’Leary: Yeah, so that wasn’t being obstructive, was it?

TE Jarvis: I don’t believe I said he was being obstructive.

… Mr O’Leary:…you’ve mentioned in your evidence that documentation continued to be provided [in] dribs and drabs. Is that correct?

TE Jarvis: Yeah.

Mr O’Leary: But Mr Bain continued to engage, didn’t he, with the request? It may not have been to your satisfaction, what you were getting back, but he continued to engage and provide you with data.

TE Jarvis: Eventually, yes.

[VE Mackie’s evidence]

…Traffic Commissioner: ...Examiner Mackie. You attended with Examiner Jarvis at the operator’s premises…Did you have a chance to look at any of the documentation that had been submitted? I don’t know if there was drivers’ hours information, was there?

VE Mackie: I don’t think there was. But I did have a look at what was submitted and most of it was what I’d originally asked for in my first request. So, if the operator had submitted then, we probably wouldn’t be here now.

…VE Mackie:…I carried out an unannounced visit on the 23^rd of September, at the office premises…I did look at the maintenance documentation filed on that visit. And Mr Bain advised that the Transport Advisor Assistant girl, who was filing the paperwork etc, he was actually on a job. So, I left, saying that we would come back…at a later date. So, I carried out a second unannounced visit, on the 5^th of October 2022. And the Transport Assistant was there…So, I…asked him if I could have his documentation to view. Mr Bain wasn’t happy that I’d turned up unannounced…and had asked the Transport Assistant to put the documents back in the files…I left, having agreed to come back at a specified date and time to view the documentation. So, I went back for a third visit on 11^th of November. I examined a further three vehicles, I reviewed the files, and then we completed the MIVR.

…Traffic Commissioner:…Examiner Mackie…You’ve obviously told me about the second unannounced visit…I think you’ve given a view…at the end of the report…

…VE Mackie: Um, well, I got the impression that there was a reason behind Mr Bain maybe not wanting me to see the files when I visited initially. And when I reviewed the files on the third attempt, some of the paperwork – 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. And although they had been completed fully, 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.

…

Mr O’Leary: No questions for Vehicle Examiner Mackie.

…

Traffic Commissioner (to Mr Bain):…can you comment for me, then, on Examiner Mackie’s concerns about the documentation being repaired [UT judge’snote: prepared?] after the event?

Mr Bain: Some of them, this is a workshop, it was all just checking to see if the paperwork was there, but, it’s – I’ve [unintelligible]. It’s done.

Traffic Commissioner: Examiner Mackie has specifically concerns about the fact that documentation has been filled in retrospectively, Mr Bain. What’s your position on that?

Mr Bain: Alright.

Traffic Commissioner: You know how documentation should be filled in, because you’ve just told me that. You’ve told me how you’ve been doing this since 1975. So, what’s your position on Examiner Mackie’s concern? What have I to take from that?

Mr Bain: It’s her job being right all the time.

Traffic Commissioner: I missed that, Mr Bain.

Mr Bain: It’s her job being right all the time, it’s, you’ve got to do her best to make sure it’s right all the time.

Traffic Commissioner: It’s her job being right all the time…

…

Traffic Commissioner:…Any re-examination, Mr O’Leary?

Mr O’Leary: No, that you [sic], ma’am.”