Where Ignorance is Bliss
Page 41
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THE precise boundary between legality and illegality in the operation of vehicles under a hiring margin may soon become no longer an important subject of dispute. Abolition of the 25-mile limit and the easing of other licensing restrictions have encouraged hauliers to have licences of their own.
Operators who used the hiring-margin procedure to remain in business after their undertakings were nationalized attracted attention, mostly unfavourable, for a number of reasons. There was resentment that they were in the rare and privileged position of having their cake and eating it, too. There were protests that what seemed to be a road haulage operation in everything but name should escape the restriction of the 25mile limit. There were criticisms of the methods used in an endeavour to keep within the law as well as numerous allegations that these methods were unsuccessful or merely provided a cover for completely illegal activities.
From C to A
Now that circumstances have' changed. the hiring operator who is not merely a supplier of vehicles prefers to switch to an A licence, and, despite the forebodings of many of the expert, he is often able to carry out his wishes, The service he has given his customers is more or less sell-evident proof of their need.
The Transport Tribunal have gone so far as to supply a formula, presumably for the use of Licensing Authorities. It should first be decided which of -the•concerns meeting some or all of their transport requirements by hiring from an applicant wished to discontinue this practice and to be able to employ the applicant to do the work as a haulier. Was it reasonably probable, the Licensing Authority should then ask, that they would employ the applicant if he were in a position to do the wosk? Finally, it was necessary to estimate the amount of the traffic previously carried in hired vehicles that the customers would offer to the-applicant as a haulier.
In the particular case for which the formula was invented, the appellants, Allison's Transport (Contractors), Ltd., were unable to convince the Transport Tribunal that they had a sufficiently strong case on the last point Other applicants, however, have no doubt taken advantage of the formula to ensure their own success.
Ingenious Evasion
What has often damaged an otherwise sound case is the revelation in the traffic courts of the way in which service has been given to the customers while vehicles were on hire. There is nothing illegal in an operator letting out vehicles as chattels, but he has to satisfy certain conditions. In particular, he must not provide drivers for the vehicles who are his agents or servants. Ingenious attempts to overcome this difficulty are now coming to light in traffic courts and before the Tribunal, and it has been held on several occasions that the attempts have failed.
On this point the Tribunal have not been so obliging. They do not think it possible, even if it were desirable, to lay down a general rule for the assessment of the penalty in any particular case. "The matter is one of degree," as they put it in their decision on the Burton appeal.
This idea that the operation of vehicles illegally is, like murder, capable of division into degrees counteracts the impression that may have been given by a passage in the decision on the Allison case. "The question the Licensing Authority ought to have decided," said the Tribunal at that time, "was whether or not the drivers of the vehicles let out on hire by the appellant company were the servants of the company. If they were, the company had been committing a series of criminal offences and the Licensing Authority would have been justified in rejecting their application on this ground."
No General Rule
In the written judgment on the appeal against the grant to Mr. E. E Burton, the Tribunal now say that their earlier remarks must not be construed as laying down a general rule_ They believe that an applicant who is shown to have broken the law should, generally speaking, be in some way penalized for his wrong-doing. There may be cases, however; where a Licensing Authority would be justified in ignoring illegal operations altogether.
One important distinction is that deliberate breaches of the law should be visited more severely than others. Mr. Burton benefits from this. "Having regard on the one hand to the duration and volume of his illegalities. and on the other to the fact that he was innocent of a deliberate intention to break the law," said the Tribunal, "the appropriate course in our view is to reduce the. grant which would, have been made if his application had not been darkened by these illegalities."
The Licensing Authority had granted a licence for six vehicles, two of them articulated, and two trailers. Applying the Allison formula, the Tribunal considered five vehicles were justified, and by way of penalty they reduced the number to three, plus the two trailers. As a result, Mr. Burton had, in an odd phrase borrowed by the Tribunal, " purged his contempt." His alleged past illegalities must not be taken into account in the consideration-of any other application he has already made or may make in the future.
The Hopeful Ones
Ignorance of the law is normally not regarded as an excuse for breaking it, although it is sometimes accepted in mitigation. Some operators on hiring margins, one would have thought, have been neither ignorant nor wicked. They merely hoped for the best. Perhaps an intermediate category ought to be made for them. A Licensing Authority who is asked to confer the substance of an A licence upon marginal vehicles will face a task of some subtlety.
He must not only work his way painstakingly through the Allison formula, but he must attempt to find out whether and to what extent the applicant has been operating outside the law, and (what is perhaps more difficult) to gauge the depth of the applicant's ignorance.
Licensing Authorities have in the past solved even more complicated problems than this, but it is possible that further appeals will be made before there is final agreement on the boundary line between the damned and those applicants who, by appearing in the white sheet of penitence, will be allowed to attain the odour of sanctity. a7