Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 47 (AAC)

Fecha: 01-Ene-2024

Ground 1: the finding of fact that Mr. King pressured Mr. Day into using two digital tachograph cards was wrong, arrived at in error and was based on a lack of procedural propriety

Ground 1: the finding of fact that Mr. King pressured Mr. Day into using two digital tachograph cards was wrong, arrived at in error and was based on a lack of procedural propriety.

36.

Under this head it is contended in the skeleton argument that:

36.1.

As respects procedural impropriety:

36.1.1.

Mr. Day was making an allegation against Mr. King and Ms. Wallace which ought to have been put into a written statement in good time before the inquiry so that they could prepare their defence. In addition, Mr. Day changed a critical element of his story at the hearing, namely, that rather than being given the card by Mr. King, he was given it by Ms. Wallace.

36.1.2.

The TC did not distinguish between the driver conduct hearings and the operator licensing hearings. It ought to have been made clear that evidence from Mr. Day in his driver conduct hearing was to be used against Mr. King in the operator licensing hearing.

36.2.

The error in making the finding of fact arose because:

36.2.1.

The TC was wrong to find that Mr. King had failed to co-operate with the DVSA investigation. He had co-operated apart from the three occasions on which, having panicked, he failed to attend for interview. He had in fact provided the data which showed Mr. Day’s use of his card.

36.2.2.

The TC failed to deal in any way with the change in Mr. Day’s evidence as to who gave him Mr. King’s card. This was a change in a pivotal element of Mr. Day’s evidence. The TC made no finding of fact as to how Mr. Day came to be in possession of the card.

36.2.3.

The TC failed to take adequate account of three points from Ms. Groom’s evidence, namely (i) that she stated that Mr. Day knowingly used a second card but made no mention of his being pressured to do so, (ii) she did not put Mr. Day’s allegations to Mr. King in interview and (iii) she concluded that Mr. King was not aware that his card was being used.

36.2.4.

The TC found no motive for Mr. Day to lie, but ought to have had regard to the fact that a driver facing a driver conduct hearing could rely by way of mitigation on proving that the employer caused or permitted the falsification and offending.

36.2.5.

The TC did not take account of Mr. King’s lack of motivation for making Mr. Day use two cards, bearing in mind his comfortable financial situation and the fact that the earnings of the vehicle did not increase.

37.

The supplementary written submissions were made when the appellants had received the transcript of the inquiry. Under this ground of appeal attention is drawn to the specific passages in Mr. Day’s evidence dealing with how he acquired Mr. King’s card. The point is also made that Mr. Day’s evidence that Mr. King was easily able to hire a second driver supports the argument that double-carding was not necessary for commercial reasons.

38.

Mr. Finnegan put the reliability of Mr. Day at the forefront of his oral submissions. He drew attention to Mr. Day’s evidence that “if” Ms. Wallace had given him the card, it would have been on Mr. King’s orders, which he described as equivocal rather than resolute. He submitted that in saying at the inquiry that Ms. Wallace had given him the card on Mr. King’s orders, Mr. Day had been groping for a way to justify what he had untruthfully said at his DVSA interview. This, he said, was a material point impugning Mr. Day’s credibility. Despite that, the TC’s decision gave the impression that there had been no change in Mr. Day’s evidence.

39.

Mr. Finnegan also referred to paragraph 8(b) of the TC’s decision granting the stay. That paragraph addressed the point about the change of evidence as follows:

“The fact that I found Mr. Day to be plausible when he stated that Debbie Wallace was acting as an intermediary between him and Mr. King whilst Mr. King was in hospital and that Mr. King “gave” him the card through Ms. Wallace is again a matter of assessment of the evidence heard in its overall context.”

It is said that this confirms that Mr. Day had changed a material part of his evidence and had confirmed that his original evidence was not correct, which is the hallmark of the unreliable witness. Mr. Finnegan submitted that no reasonable decision maker could have made the assessment which the TC made and it satisfied the test of Wednesbury unreasonableness. That was a shorthand reference to the decision of the Court of Appeal in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. 223, in which the court accepted that a decision of a local authority could successfully be challenged if it was established that the decision was so unreasonable that no reasonable authority could ever have come to it.

40.

Mr. Finnegan pointed out that the question whether Mr. King put Mr. Day under pressure was separate from the question whether Mr. King, albeit through Ms. Wallace, gave Mr. Day his card. He argued that there was little of substance to show pressure and little reasoning in the decision about pressure and the TC’s conclusion was similarly tainted by his assessment of Mr. Day. The DVSA had interviewed Mr. Day first and he had made his accusation then, but the DVSA had concluded that the card had been left in the lorry and made no reference to pressure on Mr. Day. It was not put to Mr. King that it was not normal practice to leave the driver’s card in the lorry.

41.

Mr. Finnegan further submitted that it was not clear where the TC’s conclusion as to Mr. King’s and Ms. Wallace’s preference for their commercial interests over public safety had come from and that the commercial necessity had not been proved. He repeated the point that there had been no increase in earnings per vehicle and suggested that Mr. Day might have chosen to miss rest breaks in order to get home early.