Confidential reports and accusations
Page 44
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FITNESS is a matter of paramount importance when an application is made for an operator's licence. Two aspects of fitness which have been highlighted in traffic courts recently are fitness of premises and of the individual.
The Licensing Authority must be satisfied that there will be satisfactory facilities and arrangements for maintaining the vehicles authorized in a fit and serviceable condition. To this end, the LAs have had their examiners looking at the existing maintenance facilities of operators applying for transitional licences. In many cases, the report to the Licensing Authority has been favourable. In many others, useful advice has been given to the operator by the examiner and, in all but a few cases, it appears that the advice has been acted upon.
Maintenance In the Eastern area recently the question of the maintenance facilities of D. R. Munson Ltd were the subject of lengthy discussion at a public enquiry. According to the transcript of the case, the LA said: "Our examiners cannot tell you what you need to do because they do not know in detail your business." He was referring to maintenance facilities. He went on: "They can only come as my eyes, as it were, and see what your vehicles are like". This makes the point very clearly that the eitaminers judged the maintenance facilities on the end product and not on the equipment which had been installed. It is, therefore, important to note that in addition to satisfactory facilities, there should be satisfactory arrangements; it will not be sufficient to show the examiners a well-equipped workshop alone.
Another interesting point which arose from this hearing was when Mr Geoffrey Leach, the barrister representing the applicant, challenged the right of the LA to use examiners' reports as evidence. Mr Leach submitted that it was contrary to natural justice for documents to be placed before the LA without the applicant's representatives having the opportunity to examine them. It is normal practice at public inquiries for written evidence which is being submitted to the LA also to be made available to others in the case. Mr Leach also contested the right of the LA to examine the applicant and ask questions on the basis of reports which he, the applicant, had never seen. And, finally, Mr Leach made the point that the reports had been made subsequent to the inquiry beginning. The LA agreed that his questions should have been limited to matters arising from earlier reports. Counsel still contested the right to use any report which had not been made available to the applicant. It appears that the deputy LA who was sitting with the LA agreed with Mr Leach. All three were agreed that the reports of civil servants made to a Ministry were confidential and the question, therefore, arose that, if they were confidential, how could they be made available to the applicant?
The case was adjourned on May 8 and reopened on September 22. During the adjournment the LA had taken advice on counsel's application to see the reports. In July the applicant's counsel was advised by letter that the request was refused. So that the position has been established that when considering the adequacy of facilities or arrangements, the Licensing Authority will not make the reports available to the applicant. This, in effect, means that the examiner's judgment of adequacy cannot be challenged to any extent under cross-examination if the LA elects to put him in the witness box.
The Munson licence was granted (CM September 25) but the question still remains: why should operators not be told where their facilities and arrangements are inadequate? Leaving it to examination and cross-examination of the examiners does not produce the detailed information contained in a report.
Responsibility Turning to the fitness of the individual: this does not apply solely to the fitness of the person who is holding the operator's licence but, in fact, to any person who has responsibility for any part of the organization. Section 64 2 (d) of the 1968 Act has already been referred to. The preceding sub-section (c) requires that there shall be satisfactory arrangements for ensuring that the vehicles will not be overloaded. So that, in both of the sub-sections, individuals are involved—one who is responsible for traffic and one who is responsible for maintenance—and this will remain so whether or not the transport manager's licence system is ever introduced.
An applicant for an operator's licence who is called to public inquiry may be challenged on his previous conducL If it can be shown that his vehicles have, in the past, been overloaded or badly maintained the Licensing Authority would certainly want an assurance that such a situation would not continue if a licence were granted.
In giving this assurance, the applicant could claim that the person or persons directly responsible for the misdemeanours of the past is or are no longer in his service. It could be submitted that he, as the owner, paid high salaries to experts and that they had not fulfilled his expectation. Such claims may be justified but, equally, they may be without justification.
Evidence This evidence given before the LA is not under oath and, in any event, is unlikely to be challenged at the hearing since it is improbable that the former employee will have been invited to be present.
Traffic operators and engineers may find themselves in the position of being unable to fulfil their commitment because the proprietor will not make funds available to replace vehicles or provide maintenance facilities.
Where another party is named as having been the person at fault and this goes unchallenged, a serious danger arises in that it may have an effect on the man's reputation and his future in the industry. taking a hypothetical case, let us assume that a traffic operator has left the service of an employer because he disagreed with his employer's unwritten instruction that some section of the law had to be broken, eg he had to overload. Subsequently, the employer is called to a public inquiry concerning unlawful incidents which took place while the former employee was still in his service. The traffic operator is named in court by the proprietor as having been responsible and the LA accepts the accusation in as much that the proprietor goes unpunished but perhaps warned.
In the meantime, the former employee has found alternative employment and his new employer makes application to vary his operator's licence. Objection to the variation could well be made by one of the statutory objectors on the grounds that satisfactory arrangements have not been made to ensure that there is no overloading, since the company is employing a traffic operator who has been named at an earlier public inquiry as the person responsible for breaches of the law with another company.
This could be sufficient to ensure that this "unfit" person is never again employed in a position of authority.
Surely the person who is being accused has the right to defend his position since his whole future depends upon it. Could the LA not adjourn a hearing to eve himself the opportunity to examine the accused person? This would ensure that only fit persons were allowed to continue in business either as employee or employer. It might also protect the "accusers" by forestalling actions for slander or libel.