[2024] UKUT 22 (AAC)

Mr Adams adopted the terms of the Notice of Appeal to the Upper Tribunal and his written skeleton argument.

He submitted that there had been a general failure by the DTC to apply the rules of natural justice and follow fair procedure. The DTC had considered the issue of fronting at the 2021 PI. While he determined that CHL was not a front for James Strathearn and that the second and third appellants retained their good repute, he had criticised them and James Strathearn. He suspended James Strathearn from occupational driving for a period for a driver conduct issue.

Thereafter, James Strathearn went to DVSA and made allegations of, essentially it was submitted, a criminal conspiracy to pervert the course of justice. In presiding over the second PI the DTC was acting as a repeat fact finder on the same facts; and, if he concluded that the appellants had lied at the 2021 PI, then he was a witness to crime. As a witness to a crime, this put him in an onerous position.

Mr Adams submitted that by failing to recuse himself, the DTC had tainted the proceedings with apparent bias. It was inappropriate for him to sit in the 22/23 PI which caused him to revisit the findings of fact and law he had made after the 2021 PI. He was in effect, judging his own cause. The risk of appearing to have formed views was too great (R v A (Harold) [1999] Crim LR 420, Dar Al Arkan Real Estate Development Co v Majid Al-Sayed Bader Hashim Al Refai [2014] EWHC 1055 (Comm), [32] to [37]).

The DTC erred when he concluded that there were not “real grounds for doubt” about the risk of perceived bias. There was a real risk that the fair-minded and informed observer, having considered the facts, would have concluded that there was a real possibility that the DTC was biased given his previous involvement in assessing the same witnesses about the same matters on which he had already made findings in fact and law, including adverse comments about the appellants (Porter v Magill [2002] 2 AC 357, [102] – [103], HCA International Ltd v Competition and Markets Authority [2015] 1 WLR 4341, [62], [64], [68] to [71]). The DTC ought to have taken a cautious approach in such circumstances (P Elsagood Transport Service Ltd, Appellant [2019] UKUT 0117 (AAC), [17]).

By failing to take such a cautious approach and electing to preside over the second PI, there was a violation of the appellants’ rights under Article 6(1) as the DTC lacked the requisite impartiality and independence given that he had reached final findings in fact and law in relation to the same matters at the 2021 PI (Gerovska Popčevska v Macedonia (2018) 66 EHRR 12, [43] – [56]).

Furthermore, the gravamen of Mr Strathearn’s allegations amounted to a crime that the Commissioner was a witness to. It was inappropriate for him to assess the same witnesses and the same body of facts anew in those circumstances.

The DTC erred by giving undue weight to the concession made by the appellants’ counsel on 15 November 2022 that the assessment of a witness’ credibility is about more than what a witness says. That was a trite acceptance of known judicial practice. It did not amount to a suggestion that, the DTC having previously seen and heard the second and third appellants and Mr Strathearn give evidence, that overrode the undermining of the principles of fairness and natural justice caused by apparent bias.

Regarding the second ground of appeal and the inconsistent treatment of James Strathearn before the second PI, this was unfair and contravened the rules of natural justice. The procedure adopted contravened the appellant's rights under Article 6(1) of the ECHR.

The appellants had a reasonable expectation that the procedure adopted by the Commissioner at the second PI would constitute a fair hearing conform to the rules of natural justice (2003/094 Dawlish Coaches Ltd, [4]). Similarly, the appellants had a reasonable expectation that the procedure adopted by the DTC at the second PI would comply with section 6 of the Human Rights Act 1988 and Article 6(1) of the ECHR (R (Al-Le Logistics Ltd) v Traffic Commissioner for South Eastern & Metropolitan Traffic Area [2010] EWHC 134 (Admin), [92]).

Standing (i) the approach taken by the DTC at the second PI, and (ii) the terms of his decision of 23 April 2023, Mr Strathearn’s status was properly that of a witness, he was not, for the purposes of paragraphs 3 and 5 to schedule 4 of the Goods Vehicles (Licensing of Operators) Regulations 1995 (“the Regulations”), a “person entitled to appear” at the second PI. Therefore, he had no entitlement to sight of the briefs produced by the OTC and the documentation and statements lodged by the appellants. The same applied to his partner, Hana Simpson.

While public inquiry proceedings are inquisitorial in nature, they perform a regulatory function. The determination made by a commissioner has regulatory consequences that, such as in the instant case, may put an operator out of business. They are not, therefore, akin to proceedings under the Inquiries Act 2005 or the Inquiries into Fatal Accidents and Sudden Death etc. (Scotland) Act 2016.

In that context, parties to a public inquiry have separate, and competing, interests. A party has the right to cross examine witnesses and make submissions to the commissioner at the conclusion of the evidence (paragraph 5(2) to schedule 4 of the Regulations). Disclosure of evidence is also made to a party to the proceedings. Those rights do not extend to witnesses. Indicating that Mr Strathearn was a witness, but providing him with materials lodged on behalf of the appellants to the inquiry, the Commissioner (or the OTC acting under his direction) acted inappropriately and inconsistently. Mr Strathearn and Ms Simpson were able to gain access to material that, as witnesses, they should not have had access to. They were thus able to tailor their evidence and prepare for cross-examination in a manner which a witness would ordinarily be unable to do. Moreover, they were able to do so without fear of regulatory sanction.

As Mr Strathearn and Ms Simpson have (i) had sight of all the material lodged on behalf of the appellants, including their statements, and (ii) been cross-examined by counsel for the appellants and the DTC it is submitted that, where either ground of appeal is upheld, the appellants cannot receive a fair re-hearing before an alternative commissioner. That is because both Mr Strathearn and Ms Simpson had access to all the materials put to them at the second PI and an awareness of the likely lines of examination that would be put to them. Thus, they could be aware of the likely future line of cross-examination they would face at any re-hearing and tailor their evidence accordingly.

Through his inconsistent treatment of Mr Strathearn’s status, the DTC has erred. In so doing, the appellants received an unfair hearing which went against the principles of natural justice and contravened their rights under Article 6(1) of the ECHR.