Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 46 (AAC)

Fecha: 01-Ene-2024

The TC’s decision

The TC’s decision

27.

The TC’s decision was made on 10^th February 2023. Having summarised the facts and the submissions made on behalf of Mr. Griggs, the TC first reminded himself that “fitness” (i.e., satisfaction of the requirement set out in s.13B of the Goods Vehicles (Licensing of Operators) Act 1995) was held in Redsky Wholesalers Limited T/2013/07, [2013] UKUT 0194 (AAC), not to be a significantly lower hurdle that the requirement of good repute which applies to standard licence holders under s.13A of the Act. He also noted that Mr. Griggs had been convicted of several offences, one of which was a “serious” offence within the meaning of Sch. 3 to the Act because a prison sentence exceeding three months had been passed. Good repute for the purposes of s.13A is to be determined in accordance with Sch. 3.

28.

The TC then turned to consider whether Mr. Griggs had been using Thomas’s tachograph card. He expressed himself concerned by the following matters:

28.1.

The tachograph analysis identified 13 occasions in a four week period on which Mr. Griggs removed his card after having driven for a length of time approaching 4.5 hours and Thomas’s card was put in shortly thereafter. On the one day on which there was evidence of who was in the cab, 21^st July 2021, Mr. Griggs was alone.

28.2.

The TC was not satisfied with the explanation for carrying Thomas’s card in the vehicle. It seemed odd to keep two drivers’ cards mixed up in that way.

28.3.

Mr. Griggs appeared not to be aware of the need to insert his card into Slot 2. Even assuming that his account was correct, supervising driving by a learner should be recorded as “other work” and so Mr. Griggs should not have carried on without a break.

28.4.

The TC accepted that Mr. Griggs did not appear to drive or work for very long hours, but it was not correct to say there could be no reason for using someone else’s card. It would enable him to finish work earlier.

28.5.

The TC did not find Mr. Griggs a very reliable witness. He referred in particular to Mr. Griggs’s evidence in his statement that he had pointed out the L-plates to Sergeant Collins and showed him where they were and to his evidence at the inquiry that he had brought the van to a stop in a hatched area, although the video evidence showed that that was not the case. The TC also referred to Mr. Griggs’s evidence in his statement that the L-plates were behind the passenger seat whereas at the reconvened inquiry he said they were behind the driver’s seat. We pause here to comment that the transcript is not entirely clear in places, but we have not found a point at which Mr. Griggs said the L-plates were behind the driver’s seat, whereas he clearly said at 00.30.00 on the transcript that they were behind the passenger seat.

29.

Having regard to those matters, the TC concluded that on the balance of probabilities it was more likely than not that Mr. Griggs did make use of Thomas’s card, because for his account to be true, “too many unlikely turns of events and too many coincidences have to be accepted”. He nevertheless stopped short of making a formal finding to that effect on the ground that because the consequences would be exceptionally serious, a heavier degree of probability was required for such a finding.

30.

The TC then dealt with Mr. Griggs’s conduct as a driver, a matter with which, as we have said, we are not concerned.

31.

The TC went on to make the following findings relevant to the operator’s licence:

31.1.

Mr. Griggs had failed to fulfil his undertaking to notify convictions to the traffic commissioner within 28 days (a ground for revocation under s.26(1)(f) of the 1995 Act).

31.2.

Mr. Griggs had failed to fulfil his undertaking to ensure that vehicles are driven in a lawful manner, having been convicted of driving without due care and attention.

31.3.

Mr. Griggs had failed to fulfil his undertaking to ensure that the rules relating to drivers’ hours and tachographs are observed. Even if he did not drive using Thomas’s card he failed to insert his own card in Slot 2 and failed to take the required breaks on 13 occasions.

31.4.

Mr. Griggs had been convicted of a serious criminal offence (assault) and several related offences, for which he received three suspended prison sentences and a 100 hour community service order.

31.5.

Because of the convictions there had been a material change to the licence (a ground for revocation under s.26(1)(h) of the 1995 Act).

32.

The TC then conducted a balancing act. On the positive side, he placed the facts that there were no serious compliance issues on the maintenance side and that Mr. Griggs had not committed offences of violence before or since the 21^st July 2021 incident. On the negative side was the fact that that incident “was of an exceptionally serious and shocking nature”, involving the use of his skip lorry “to force another vehicle to stop in a wholly inappropriate location causing danger to other road users”. The TC also referred to “the abuse and violence dealt out by Mr. Griggs” to which other road users should not be subjected “no matter what the excuse”, expressing in parenthesis the view that Mr. Griggs was at least as much to blame for the clash of wing mirrors as the van driver. The negative was very weighty and heavily outweighed the positive factors, leading to the “inescapable conclusion” that Mr. Griggs was not fit to hold an operator’s licence.

33.

The final paragraph of the TC’s reasoning before he gave his decision reads as follows:

“24.
Having seen the way in which Mr. Griggs used the threat of violence as a first resort, I cannot be confident that if the circumstances were repeated he would not act in a similar way. I therefore answer the Priority Freight question in the negative. Mr. Marsh was most eloquent on behalf of his client, but I nevertheless answer the Bryan Haulage question in the positive: the incident of 21 July 2021 was so serious as to merit the operator being put out of business. There is no place on Britain’s roads for a goods vehicle operator behaving like Mr. Griggs did that day.”

34.

The operator’s licence was revoked under s.26(1)(f) and (h) of the 1995 Act. The revocation took effect from 13^th March 2023 to give Mr. Griggs time to recover any skips which needed to be brought back.

35.

The TC went on to state that in deciding whether to disqualify Mr. Griggs from holding or obtaining an operator’s licence and from being the director of any company holding or obtaining such a licence, he had had regard to paragraph 105 of the Senior Traffic Commissioner’s Statutory Guidance Document No. 10. He concluded that disqualification was appropriate because of the exceptionally serious nature of Mr. Griggs’s conduct. It would make little sense to revoke the licence and then immediately entertain a fresh application from him. The TC set the end point of the disqualification order at 13^th March 2024, the date on which the offence of assault by beating would become spent.