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One Offence Two Convictions

23rd June 1961, Page 50
23rd June 1961
Page 50
Page 51
Page 50, 23rd June 1961 — One Offence Two Convictions
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Which of the following most accurately describes the problem?

What has happened to Dents is common knowledge among the majority of hauliers. They applied for additional facilities some two years ago. After several adjournments Mr. Hanlon, who more or less accused them of constantly switching and " promoting " vehicles so as to gain increases in weight, refused their application.

From then onwards Dents have had numerous prosecutions and prohibitions recorded against them, which culminated in the revocation inquiry, wherein Mr. Hanlon. accused them of (and took into consideration) some 35 offences relating to drivers' records and vehicle maintenance since . the formation of the company in 1955, and also 24 prohibition notices.

Prior to that inquiry, Mr. Hanlon gave notice that he would investigate three further breaches of licence conditions involving the use of a vehicle in August. September and October, 1960. Having satisfied himself, after hearing evidence, that the allegations were true, Mr. Hanlon proceeded to take these three specific breaches into account in coming to his decision to revoke.

Since this decision (which the Tribunal. in their written judgment, say was "too harsh ") there has been much activity between London and the Northern area. Mr. Wardlaw appeared before the Tribunal, in chambers, to stay the decision, and was successful. Mr. Hanlon attempted to counter this by sending an affidavit to the Tribunal; but no action was taken. The appeal was then hurried forward and resulted in the reinstating of the vehicles with certain nominal suspensions.

The company has since appeared before the magistrates in Spennymoor and Darlington, to answer further charges brought on behalf of the Northern Licensing Authority.

It is at Darlington where the interest lies, because here the company were charged with the very same offences that Mr. Hanlon inquired into and took into consideration, during the revocation inquiry. Mr. Wardlaw, before pleading guilty—he had no option, in view of the evidence given to the L.A.—submitted to the magistrates that the matters raised in the information were res judicata and the magistrates had no jurisdiction to deal with the charges.

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Not only had Mr. Hanlon dealt with the matter but the Tribunal had heard the appeal and pronounced their judgment, and Mr. Wardlaw stressed that it was important that the court should he aware of the facts, that whereas the Licensing Authority was purely an administrative official, the Transport Tribunal was a Court of Law; in fact, not only a Court of Law but a Court of Record. After hearing Mr. B. G. Montgomery, who had prosecuted Dents on behalf of the L.A. right the way through, say that this was not so under the Magistrates' Courts Act, the magistrates overruled Mr. Wardlaw and proceeded to hear the case. Mr. Wardlaw, I understand, is considering whether or not to put his legal opinion to the test by appealing to the High Court. It is certainly worth a try because, as things stand at present, it does seem that the haulage contractor can be punished doubly for the one offence which, using words so often quoted in the courts, would be a travesty of British justice.

Drivers Who Break the Law

AN application by A. Fletcher and Co., Ltd., of lbstock, Leicester, heard by the East Midland Licensing Authority last month, revives once more the vexed problem of the automatic prosecution of hauliers whose drivers are found to be breaking the law with respect to the keeping of records.

In the case of Fletcher's, it was stated during the hearing that between June. 1959, and February, 1960. the concern had been fined a total of £245 for such offences. It was said, on their behalf by Mr. A. C. G. Rothera, presumably in mitigation, that very great endeavours were being made to ensure that there was no repetition. " We arc devising entirely new schedules to allow such a margin of time that if these offences are committed again by our drivers, we should be able to prove that it was entirely their fault."

This perhaps, will give the Authority and the company some satisfaction, but it will not prevent their automatic prosecution in the future if their drivers err; nor will it prevent them from being convicted the moment the driver concerned pleads "guilty."

It is common practice for drivers o take their vehicles home with them at night and to set off early the following morning. Yet, if a discrepancy is discovered and the driver admits a wrong entry, his employer is convicted. How can it be possible for the employer to exercise control over drivers who may not even start off in the morning from their depot?

The law, which embarrasses even the. advocates who are prosecuting, is harsh and should surely be changed.

Mr. Hodgson's Dangerous Afterthought

NO one can dispute that the Conway grant is a novel one. What exactly does it amount to? It means that Conway Sand and Gravel, Ltd., of Rushden, have been granted a 8 licence to operate 30 vehicles of no greater unladen weight than 4 tons each, with a normal user enabling them to carry "excavated road making and

building materials suitable for haulage only by tipping vehicle S to and from sites of motorways, new or diverted main roads, power stations and build* sites within 150 miles of Rushden."

Already the company were operating a :otal of 21 vehicles-12 in the West Midland traffic area, -and nine in the North Western area—and Mr. C. R. Hodgson. the East Midland Licensing Authority, ordered these to be surrendered. So the grant is in respest of an additional nine vehicles only but with an extremely wide and, in one respect, loose set of conditions. The radius in itself, despite the fact that it was cut from the' 250 -miles as prayed, is a good one. It covers many of the areas where vast construction works are going on.

The only danger—with a capital "D" —is the last named commodity in the conditions, which seems to have been put in as an afterthought but which, really, on its own covers all the other commodities mentioned—" building sites." Here, surely, is a big loophole.

Mr. Hodgson, in his decision, said: " I am relying on the undertaking given by Mr. Conway that he would use his vehicles in connection with large building sites only." Well. . . . How big is a " large " building site?

The line should be drawn somewhere. How is an enforcement officer, a policeman or an official in the L.A.'s office really going to be able to decide. Here, the only comeback, if something were found to be wrong, would be a false "declaration of intention" clause.

In view of the evidence that came out during the case—from John Laing and Tarmac Civil Engineering, Ltd., who used such terms as, "This is the thing we have been waiting for for years," and, " If the large people were not available, we would do it ourselves "—and further having regard to the objectors who, in evidence, confirmed their unwillingness to go long distances for loads: all in all, despite the uniqueness of it and despite, I repeat, the unfortunate last two words in the comm-odites to be carried, this grant can really be said to be one of immense value—to help along the progress of such modern developments that are taking place today.

Because of the very nature of their work, tipper operators are tough, hardworking individualists. They fear very much this type of open licence, hut unless and until they can form themselves into larger syndicates (some are attempting to do this) they can never successfully compete with applications such as the Conway one, which, remember, was originally for 52 vehicles operating within a radius of 250 miles.

Revision of t he Law

DUNSTABLE CORPORATION, who appealed against a decision by the Metropolitan Traffic Commissioners (in October they granted Luton Corporation consent to run public service vehicles "on certain roads within

• the Metropolitan Traffic Area, hut beyond the boundary of Luton ") did

not, on the whole, come off too badly, despite the fact that their: appeal was dismissed.

Their appeal took the form of a series of challenges against certain principles laid down by the statutes Mr. J. Smith, Dunstable's town clerk, raised certain general points.

He challenged the validity of document PSV/C (the memorandum on appeals" which is issued for the guidance of appellants). He said that there was no authority for the statement in paragraph 9 that an inquiry " does not take the form of a re-hearing of the application and, as a general rule, additional evidence is not admitted." He asked that this should be brought to the notice of the Minister and that he (the Minister) should be asked to quote the statutory authority for the statements contained in the memorandum.

Another thing he wanted to make clear was that his council felt that the present legislation was quite inadequate to provide them and other councils with art opportunity for giving their views on the adequacy of transport within their area; to protect, or to allow the travelling public to protect themselves; or to get an adequate service.

In the Minister's decision on the case, based upon recommendations made by the Inspector who heard the appeal, he said that the Commissioners' decision would stand and that it was remiss of the Luton Corporation that they had only belatedly applied for consent. The decision went on to say that, with regard to the remarks about paragraph 9 of the memorandum: "As the inspector had a verbatim shorthand note of the proceedings before the Commissioners, it would be unnecessarily prolonging the proceedings if the evidence were repeated." Since the appeal was against the decision reached on the evidence, it would be wrong for the Minister to take account of additional evidence; but additional evidence was •not rigidly excluded.

The decision went on to say that the Minister accepted that the prime motive of the Luton Corporation in lodging the appeal was to draw attention to its position that, as a local authority in the Metropolitan area, it had no rights of representation. "He (the Minister) is not unaware of that point and will keep it in mind for father consideration when suitable opportunity arises for possible revision of the law."

Dunstable will have to pay the costs of the appeal, but. after all, they achieved their object.

Rise and Fall Clause Important

WHEN he was told that employees to be. carried on works services would be requested to contribute towards their fares after a period of 12 months, Mr. Idris Owen, chairman of the South Wales Traffic Corn

• missioners, very wisely—after granting the applications of Saith Jones (Tours), Ltd., of Aberaman, and Miss Margaret Roberts, of Maerdy Rhondda—said that he was concerned with the responsibility for the carriage of employees and would "look again" at the position in a year's time.

This very point was argued before the Northern Commissioners when Graham Brothers, of Blaydon, appeared to Make a short-term application for road service licences to carry workmen from the surrounding area to the site of the Sunderland-South Shields Water Board's new reservoir at Edmundbyers.

Mr. J. R. C. Samuel-Gibbon, for

Graham Bros., opened the case by saying that, after careful consideration, he had decided that what his clients. wanted was straight-forward contract carriage operation. He then gave his reasons.

The men were employed by John. Mowlem's, who paid them allowances and gave conditions in accordance with the Working Rule Agreement of the Civil Engineering Construction Conciliation Board for Great Britain, which laid.down that it was a long-standing principle of the industry that a man was normally taken on at the job.

However, under a clause headed "Transport provided free by employers," it stated that a certain sum would be paid for travelling to and from work a distance in excess of four miles, and stated that the provision of free transport by the employer in addition to the appropriate monthly allowance "shall be deemed to he a payment for travelling allowance to the workmen within the meaning of the Rule."

As it was clear that transport was provided free by employers, how could it be said that there was a separate payment in any shape or form made for the carriage of individual passengers? The question was whether the payment (3d. per mile) in excess of the four miles, to which the employee was not entitled if he got free carriage, constituted a payment. Mr. Samuel-Gibbon did not think so.

Coming to the crux of the matter, the Chairman, Mr. Hanlon said that in the agreement Mowlem's had with the Water Board, there was a " rise and fall " clause. If that were invoked in respect of the travelling allowance, Mowlem's would certainly claim an increase from the Water Board, which meant there must be a payment. • Mr. Samuel-Gibbon, adhering to his contention that' no road service licence was needed, said that unless and until the rise and fall clause was invoked there was nothing to indicate that there was anything in the way of direct payment per passen2;er in the agreement. If circumstances changed, his clients would have to make an application for a licence.

Suffice it to say that the daily carriage of these workmen has gone on since then and, despite the Commissioners' opinion that a licence is needed, no substantive application has been made and no proceedings instituted against Graham Brothers for illegal operation.


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