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Quality of Mercy

4th September 1959
Page 71
Page 71, 4th September 1959 — Quality of Mercy
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Which of the following most accurately describes the problem?

40RANCE is no excuse for breaking the law, but may soften the severity of the punishment. This nciple has several times been put into words in a .tr of different ways by the Transport Tribunal in the of their judgments on appeals against traffic court ms. The latest example is to he found in the reserved ent on the appeal by four hauliers and the British aort Commission against the grant by the Western ing Authority of an A licence for five vehicles to rtnership of B. H. Cecil and Sons, of 13Iakeney, Glos. ehicles had previously been used under a C-hiring flee for a veneer and plywood manufacturer.

Tribunal stated that there were two capital issues: er the vehicles had been used illegally and, if so, er the offence was deliberate. The verdict on the Dint was that the law had been broken, because the s were plainly acting as servants of the partnership )t of the customer. On the second point, the Tribunal to the conclusion that both parties believed they keeping within the law. There was also, in the n of the Tribunal, a need for the services that the rship now proposed to provide under an A

Nevertheless, "the respondents must in way and to some extent suffer for their wrong" The penalty judged appropriate by the Tribunal reduce the grant from five vehicles to four.

naking this mathematical assessment, the Tribunal mind their decision in 1956 on a similar appeal L the grant to Mr. E. E. Burton, of Wisbech, of an rice for six vehicles and two trailers by the Eastern

ing Authority. In this case also the Tribunal d that the law had been broken and that the breach ot been wilful. There was established a need for lye vehicles (and two trailers) as against the six d in the traffic court, and the Tribunal reduced the I by a further two because the application had been ened by illegalities." In exchange, Mr. Burton was a clean record for the future. He had "purged ntempt."

Suspend a Licence?

Tribunal refused to commit themselves to laying any general rule by which the precise punishment be assessed in specific cases. Sometimes a Licensing rity would be justified in ignoring illegal operations .her. At other times, it would be right to reject 3lication or suspend a licence. No one case could authority for another.

}ension was regarded as appropriate in two of I recent appeals against the revocation of special A

s by the Northern Licensing Authority on the Is that the unladen weight of the vehicles concerned !en increased during the currency of the licence. The la] came to the conclusion that both I. B. Hudson, of Mildenthorpe, and Mr. T. A. Metcalfe, of gton, were acting in good faith, and had no intention rig anything they believed contrary to the law. The sion of Hudson's licence ended on August 15, and lfe's punishment was due to expire at the end of t in the case of one vehicle and at the end of lber in the case of the other. Applications by both ors for new licences, instructed the Tribunal, were treated solely on their merits, without reference to evious offences.

it many operators would like to know is whether the reluctance of the Tribunal to lay down hard-and-fast rules for dealing with the unwitting law-breaker will extend to departures from the declaration of normal user. So far, appeals on this subject have been in circumstances where the departure has been virtually complete and the Tribunal has upheld the decision not to renew the A licences. Objectors to renewal applications have understandably, so far without much success, argued that a similar decision should apply where the nature of a haulage business has changed much less drastically. Appeals have already been lodged, and others will follow.

What hauliers have never had is a precise figure for normality. They do not know to what extent they are safe in carrying traffic not referred to in the declaration they made when applying for an A licence. If past experience is anything to go by, the Tribunal may be unwilling to give satisfaction on this point, preferring to leave the precise verdict in each case to the Licensing Authority. There is, however, an important difference between cases involving normal user and those, for example, in which an operator has used vehicles illegally under a C-hiring allowance, or has surreptitiously increased the unladen weight of a vehicle on special A licence.

Normal Proportion There are in theory no restrictions upon an A licence. Implicit in the declaration of normal user is the existence of an " abnormal " user. The appellant in the Knight case appeared to think that he was completely free to choose what proportion of his traffic should be normal and what proportion abnormal; and in particular that there was nothing to stop him as an A-licence holder from entering the long-distance field when the 25-mile limit was lifted at the end of 1954. With their customary skill at putting an issue in a few words, the Tribunal summed up his case for him as follows: "The company departed from their declarations as soon as it was possible to do SD without committing a criminal offence."

The Tribunal went on to say that they regarded the wholesale and continuous breach of faith by Knight as "a flagrant case unaccompanied by any mitigating circumstances"; but it is worth noting that in effect they accepted that Knight was not specifically breaking the law, and had in fact been careful not to do so. In spite of this, the refusal of the West Midland Licensing Authority to renew the A licence was upheld.

The Tribunal were disposed to seek a "mitigating circumstance," and might have found it if there had been any evidence that Knight believed the removal of the 25-mile limit automatically cancelled the declaration of normal user. At the same time the Tribunal gave advice on what the appellants could have done to avoid censure— they could have applied for a new licence with a new declaration in exchange for the old. Failure to do this might conceivably be attributed to ignorance. One cannot help feeling that in some way or another the appellants did not realize the risk they were running, much less visualize how they might avoid it.

Section 9(4) of the Transport Act, 1953—under which there are penalties for false statements made in order to get a licence—did not apply in the Knight case, but will presumably be invoked in all future cases concerned with normal user. It may therefore be necessary, however reluctant the Tribunal may be, to have a ruling on what is meant by " normal."


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