[2024] UKUT 46 (AAC)

The provisions of the Goods Vehicles (Licensing of Operators) Act 1995 which are relevant to this appeal are as follows:

“8.(4) A person applying for an operator’s licence shall … give to the traffic commissioner any further information which the commissioner may reasonably require for the discharge of his duties in relation to the application, and in particular shall, if required by the commissioner to do so, give to him any of the information specified in paragraph 1 of Schedule 2.

13.(1) On an application for a standard licence a traffic commissioner must consider-

(a)

whether the requirements of sections 13A and 13C are satisfied; …

(2)

On an application for a restricted licence a traffic commissioner must consider –

(a)

whether the requirements of sections 13B and 13C are satisfied …

13A.(2) The first requirement is that the traffic commissioner is satisfied that the applicant –

…

(b)

is of good repute (as determined in accordance with paragraphs 1 to 5 of Schedule 3), …

13B. The requirement of this section is that the applicant is not unfit to hold an operator’s licence by reason of –

(a)

any activities or convictions of which particulars may be required by virtue of paragraph 1(e) or (f) of Schedule 2;

(b)

any conviction required to be notified in accordance with section 9(1) (convictions etc. required to be notified subsequent to the making of an application).

26.(1) Subject to the following provisions of this section … a traffic commissioner may direct that an operator’s licence be revoked, suspended or curtailed … on any of the following grounds -

…

(f)

that any undertaking recorded in the licence has not been fulfilled;

…

(h)

that since the licence was issued or varied there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation of the licence …

27.(1) A traffic commissioner shall direct that a standard licence be revoked if at any time it appears to him that –

(a)

the licence-holder no longer satisfies one or more of the requirements of section 13A; …

28.(1) Where, under section 26(1) or 27(1), a traffic commissioner directs that an operator’s licence be revoked, the commissioner may order the person who was the holder of the licence to be disqualified (either indefinitely or for such period as the commissioner thinks fit) from holding or obtaining an operator’s licence …

(4)

Where a traffic commissioner makes an order under subsection (1) in respect of any person, the commissioner may direct that if that person, at any time or during such period as the commissioner may specify –

(a)

is a director of, or holds a controlling interest in –

(i)

a company which holds a licence of the kind to which the order in question applies, or

(ii)

a company of which such a company is a subsidiary, or

(b)

operates any goods vehicle in partnership with a person who holds such a licence,

that licence of that company or, as the case may be, of that person, shall be liable to revocation, suspension or curtailment under section 26.

Schedule 2, paragraph 1. The information referred to in section 8(4) is the following –

…

(e)

particulars of any relevant activities carried on, at any time before the making of the application, by any relevant person;

(f)

particulars of any notifiable convictions which have occurred during the five years preceding the making of the application

2.

In this Schedule “relevant person” means … the applicant …

3.

In paragraph 1(e) “relevant activities” means any of the following:

(a)

activities in carrying on any trade or business in the course of which vehicles of any description are operated;

…

[Notifiable convictions are convictions of offences set out in paragraph 5 of Schedule 2. Those offences are essentially offences arising under the goods vehicle regulation system and do not include the offences of which Mr. Griggs was convicted.]

Schedule 3, paragraph 1.(1) In determining whether an individual is of good repute, a traffic commissioner may have regard to any matter but shall, in particular, have regard to –

(a)

any relevant convictions of the individual …

(3)

For the purposes of this paragraph, the relevant convictions of any person are –

…

(b)

any conviction of that person of a serious offence within the meaning given in paragraph 3; …

3.(1) A person is convicted of a “serious offence” if –

(a)

he has been convicted of any offence under the law of any part of the United Kingdom …, and

(b)

on such conviction there was imposed on him for that offence a punishment falling within sub-paragraph (2).

(2)

The punishments are –

(a)

a sentence of imprisonment for a term exceeding three months …”

It will be observed that there are some significant differences between restricted licences and standard licences. In particular, “fitness” under s.13B is to be judged by reference to the matters there set out, while in judging “good repute” under s.13A the commissioner may have regard to any matter, although specific matters are then identified. Further, a restricted licence is liable to revocation under s.26 only, which gives a power to revoke but does not oblige the commissioner to exercise the power, whereas a standard licence is also liable to revocation under s.27, which provides for mandatory revocation where, among other matters, the requirements of s.13A are not satisfied. We return to this when discussing the Redsky case referred to by the TC in paragraph 46 below.

Rights of appeal against a decision under s.26(1) and s.28(1) are given by s.37(1) and (4) respectively of the 1995 Act. The powers of the Upper Tribunal on an appeal are set out in paragraph 17 of Schedule 4 to the Transport Act 1985, which reads as follows, so far as material:

“17.(1) The First-tier Tribunal and the Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport. In the case of the Upper Tribunal, this is subject to sub-paragraph (3).

(2)

On an appeal from any determination of a traffic commissioner …, the Upper Tribunal is to have power –

(a)

to make such order as it thinks fit; or

(b)

to remit the matter to –

(i)

the traffic commissioner who made the decision against which the appeal is brought; or

(ii)

as the case may be, such other traffic commissioner as may be required by the senior traffic commissioner to deal with the appeal,

for rehearing and determination by the commissioner in any case where the tribunal considers it appropriate;

and any such order is binding on the commissioner.

(3)

The Upper Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal.”

It is well established that the task of the Upper Tribunal when considering an appeal from a decision of a traffic commissioner is to review the material before the traffic commissioner, and the Upper Tribunal will only allow an appeal if the appellant has shown that “the process of reasoning and the application of the relevant law require the tribunal to take a different view”, as explained in Bradley Fold Travel Limited and Peter Wright v. Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R. 13, at paragraphs 30-40. This is sometimes summarised as requiring the Upper Tribunal to conclude that the traffic commissioner was plainly wrong. 

It is also well established that when considering mandatory revocation of a standard operator’s licence the questions a traffic commissioner will need to consider will include how likely the operator is to operate in compliance with the licensing regime in future and whether the conduct which has taken place is such that the operator should be put out of business. The first of those questions was identified in Priority Freight Limited and Williams 2009/225 and is commonly referred to as “the Priority Freight question” and the second was identified in Bryan Haulage Limited (No. 2) 217/2002 and is commonly referred to as “the Bryan Haulage question”. It is clear from the decision in Bryan Haulage that the question was framed in the light of the need for a relationship of proportionality between the conduct found to have occurred and the sanction necessarily to be imposed. If a positive answer is to be given to the question, it is because revocation is a proportionate response to the relevant conduct. The Priority Freight question is regarded as a preliminary question, to be asked before the Bryan Haulage question is asked, because, as explained in Priority Freight, if the evidence demonstrates that the operator is very likely to be compliant in future, that may indicate that the case is not one in which the operator should be put out of business.

Both the Bryan Haulage and the Priority Freight questions were framed in the context of revocation of a standard licence, in relation to which one of the conditions to be satisfied on application is that the applicant is of good repute: see s.13A(2)(b) of the Goods Vehicles (Licensing of Operators) Act, set out above. Sch. 3 makes provision for how it is to be determined whether an applicant is of good repute. Sch. 3 does not apply to applicants for a restricted licence, who have to satisfy the different “fitness” requirement set out in s.13B. It was decided, however, in Redsky Wholesalers Ltd. that the Bryan Haulage and Priority Freight questions might appropriately be asked. The Tribunal put the position as follows:

“18.

We disagree that, in this case, the “Priority Freight” and “Bryan Haulage” questions were inappropriate. In our view, they were helpful. Although the “Priority Freight” and “Bryan Haulage” cases relate to repute, the fundamental analysis arises from the fact that an operator’s licence (whether restricted or standard) is a possession and, as a matter of compliance with [the European Convention on Human Rights], a proportionate approach is required, and consideration of the likelihood of future compliance should inform the approach taken.

19.

Although, in the absence of argument on the point, we draw back from holding that the “Priority Freight” approach is a requirement when considering the question of fitness to hold a restricted operator’s licence, we consider that the [Deputy Traffic Commissioner’s] approach was not inappropriate in the circumstances of this case. In particular, the “Priority Freight” question concerning future compliance (or otherwise) is very likely to be relevant to fitness in most cases. We do not think that fitness is a significantly lower hurdle than the requirement to be of good repute, it is simply a different requirement. An operator putting badly maintained vehicles on the road represents an equal menace to public safety, whether or not they hold a restricted licence or a standard licence. If an operator (even a restricted licence holder) cannot be trusted to comply in future, we do not see how any such operator can hope to be regarded as fit to hold an operator’s licence.

20.

So far as the “Bryan Haulage” question is concerned, many holders of a restricted licence will not go out of business if their operator’s licence is revoked … In our view, having asked the “Priority Freight” question relating to future compliance, a Traffic Commissioner cannot be criticised for asking himself, in the context of assessing fitness, whether an operator’s conduct is such that they deserve to lose their restricted operator’s licence, whatever the consequences.”

We think some care has to be exercised in the application of Redsky. The effect of s.27 of the 1995 Act combined with s.13A is to give rise to a continuing obligation on the holders of a standard licence to ensure that the s.13A requirements are met, as explained in Arnold Transport & Sons Limited v. Department of Environment Northern Ireland, NT/2013/82, [2014] UKUT 0162 (AAC), in which the equivalent provisions of the Goods Vehicles (Licensing of Operators) Act 2010 (Northern Ireland) were considered. There is nothing comparable in relation to restricted licences and s.13B and Schedule 2 are framed with reference to information relating to activities or convictions prior to the application for a licence or convictions subsequent to the application for a licence but before a decision on the application is made. It is not easy to see how fitness expressed in those terms can be a continuing requirement in the same way as the s.13A requirements. To that extent it is difficult to equate the requirements of fitness and good repute. In Redsky itself the traffic commissioner had found several grounds of revocation under s.26 were established and the Upper Tribunal rejected a ground of appeal asserting that the decision did not specify which subsections of s.26 were relied on, stating that if necessary reference to the call-up letter would lead to identification of the specific statutory provisions. It is clear from paragraph 2 of the Upper Tribunal’s decision that fitness was considered in the context of a material change in circumstances under s.16(1)(h). Given that context, we think that the references to an assessment of fitness must be taken as requiring an assessment of whether the fitness test would be satisfied if it were applied again at the date of the public inquiry or whether, since the original application was granted, there had been material changes in the circumstances that originally led to the conclusion that the requirement was satisfied. The assessment would still have to be carried out by reference to information and convictions specified in paragraphs 1(e) and (f) of Schedule 2, but to information and convictions at the date of the assessment rather than at the date of the application or before the application was decided.

In drawing this distinction, we certainly do not intend to depart from the statement in Redsky that fitness is not a significantly lower hurdle than repute. The information relevant to the fitness requirement is wide-ranging, covering as it does information about activities in carrying on any trade or business in the course of which vehicles of any description are operated and convictions in respect of a large number of offences relating to road traffic and transport matters. We note the case of Ingram (trading as T.I.P. Skips) T/2018/10, [2018] UKUT 0353 (AAC), in which the Upper Tribunal pointed out that the 1995 Act does not draw a watertight distinction between good repute and fitness considerations, since fitness is an integral part of good repute. It was also pointed out that the purpose of s.13B is to limit the matters which may be relied on in determining whether an applicant is unfit, but the wording of paragraph 1(e) of Schedule 2 does not require that information about the relevant activities has in fact been required. Further, we share the view of the Upper Tribunal in Redsky that the Priority Freight and Bryan Haulage questions are likely to be helpful to traffic commissioners in making a discretionary decision under s.26 whether a licence ought to be revoked.

The relevant law relating to drivers’ hours is to be found in Regulation (EC) No.561/2006, which forms part of EU retained law following the United Kingdom’s withdrawal from the European Union, but subject to amendments made by the Drivers’ Hours and Tachographs (Amendment etc.) (EU Exit) Regulations 2019, S.I. 2019 No.453. Art. 6(5) requires a driver to record as “other work” any time spent as described in art. 4(e), which defines “other work” as all activities which are defined as working time in reg. 2 of the Road Transport (Working Time) Regulations 2005, S.I 2005 No. 639, except driving. The definition is very wide and would include supervising a learner driver. Art.4(d) also defines “break”, which means any period during which a driver may not carry out any driving or other work. Art. 7 requires the driver to take a break of at least 45 minutes after a driving period of four and a half hours (or alternatively 15 minutes during the period followed by 30 minutes afterwards). It follows that, as the TC said, it is a breach of the drivers’ hours requirements for a person to cease driving and then almost immediately to start supervising a learner, if the total time taken exceeds 4½ hours.