THC)11 5HALT NOT
Page 64
Page 65
If you've noticed an error in this article please click here to report it so we can fix it.
AN ABC OF CARRIERS' LICENCE PENALTIES
AS REVOCATIONS and suspensions of carriers' licences sharply increase for vehicle maintenance and other shortcomings, an ABC on this tricky part of licensing law may be helpful for hauliers. Action by Licensing Authorities is unlikely to diminish. On the contrary, it is certain to increase for three reasons. First, because the new Trans port Act spotlights conduct of carriers and maintenance of vehicles. Secondly, because of Parliamentary and public interest in the subject. And thirdly, because more enforcement officers are becoming available.
The continuing drop in the numbers of driving tests is releasing driving examiners who have already been partially trained on enforcement work. While most of them may not be technically qualified to decide on vehicle fitness, they will release others who are.
The LAC thumbscrew lies in Section 178 of the 1960 Road Traffic Act. Put shortly, this gives them power to direct that a carrier's licence may be revoked, suspended or curtailed for, among other things: O breach of any of its conditions; O prohibition on the use of a vehicle; El conviction for failing to maintain vehicles in a fit and serviceable condition, or exceeding speed, weight and loading limits; O excessive hours of driving ard failing to keep required records.
But LAs must first be satisfied that the breaches or convictions or prohibitions were frequent, wilful or created danger to the public.
It has been pleaded in many revocation or suspension cases that an LA, in proposing Section 178 action, ought not to function in the triple capacity of prosecutor, advocate and judge. It has been pleaded that it is wrong for him to announce a proposal to revoke or to suspend a vehicle for a stated period before he has heard what the licence holder has to say; that a direction under the section amounted to penalizing a culprit twice for the same offences; that in the case of prohibitions, failure to call the vehicle examiner concerned to give evidence about them has the effect of making the licence holder prove his innocence, contrary to one of the first principles of our law. This prin ciple is, of course, that in the absence of a finding of guilt by "a court of competent jurisdiction" (i.e. a court of law, not merely an administrative tribunal) or an admission of guilt, the burden of proof lies on the LA.
The Transport Tribunal has made it clear that it rejects such pleadings. Summarized, these are its views: A public inquiry held by an LA is not like a trial on a criminal charge, where the onus of proving a case is on the prosecution. Here there is no prosecutor. The LA himself initiates the proceedings. Clearly he is not going to do so unless he considers there is a case of some sort for so doing.
He is not under an obligation to hold a public inquiry before giving a Section 178 direction unless the licence-holder requests one. The idea is to give the latter an opportunity of showing why the direction which the LA has in mind to give should not be given.
As to the double punishment contention, this has been rejected beyond doubt, first by the Transport Tribunal and further by no less distinguished a body than the Court of Appeal, which pronounced it plain from the Act that, in addition to any fine or punishment by magistrates, an LA could take further disciplinary measures— even if they were called punishments— under Section 178.
Justice When giving notice to a licence-holder that he proposes to make a specific direction under Section 178 (e.g. to suspend a vehicle for a stated period), an LA is entitled to add that if the licence-holder then requests a public inquiry, the specific direction may be cancelled, leaving the matter at large or open.
So, after the inquiry, the LA may then impose a different (and perhaps a heavier) penalty, without being in any way fettered by the original proposal. But the canons of natural justice must always be observed. Thus, in a Scottish appeal, where the LA sent to the Transport Tribunal documents which had never been disclosed to the licence-holder or his advocate, the Tribunal commented severely:
This seems to us to be an irregularity of such gravity as to make it impossible for us to do justice in this matter . . . It is quite wrong for this court to be provided with documents which not only were not referred to at the Inquiry, but which have never been disclosed to the appellants."
In another Section 178 case, where the licence-holder got an unsatisfactory reply from the Traffic Area office when he asked for information about his alleged illegalities, the Tribunal said:
To tell the appellants to pick out the relevant passages from that transcript was not, in our view, informing them of the case they are being called upon to answer with anything like sufficient particularity to enable them to prepare their case. In doing so the clerk to the Licensing Authority cannot be said to have done all that natural justice
required. This was a serious defect in procedure. This lack of precision ... seems to
have befogged the whole of the subsequent
proceedings . which were so unsatisfactory as to constitute a denial of natural justice. For that reason . . . this decision ought not to be allowed to stand."
What an LA ought not to do is to try to redress, by imposing harsh penalties under Section 178, what he might regard as "contemptuous" fines inflicted by magistrates. The matters he should take into account, the Tribunal has held, are: (a) the gravity of the offences; (b) the degree of danger to the public; (c) the degree of moral turpitude on the part of the directors of the company; (d) the necessity for taking action of sufficient severity to act as a deterrent to others.
Apart from vehicle prohibitions, must there have been convictions in a court of law before the LA can take Section 178 action? So far as concerns statutory provisions relating to maintenance of vehicles in
a fit and serviceable condition, and to limits of speed, weight, loading, and drivers' hours and records, the answer is yes.
Two convictions under the Construction and Use Regulations have been sufficient to start such action. LAs can, however, them selves decide whether breaches of licence conditions (e.g. a distance limitation on a B licence) have occurred, provided that the licence-holder is given a proper opportunity of calling evidence in rebuttal, explanation or mitigation, just as he would have if charged with the offence in a court of law.
Vehicle prohibitions So much for the general machinery. Now take prohibitions.
One single immediate prohibition can trigger off Section 178 action, the reasoning being that the prohibition would have been not immediate, but delayed, if public safety had not been involved. Indeed, a vehicle examiner ought not to issue a delayed prohibition if, in his opinion, the defects create immediate risk to public safety.
On the other hand, not all defects listed in an immediate prohibition need necessarily involve public danger. Each defect will be looked at on its merits by LAs. What is quite clear from an analysis of appeal cases is that steering and braking defects are regarded as the most serious, with tyre defects a close runner-up.
Two courses are open to a licence-holder served with an immediate prohibition: (a) He can question the prohibition by applying to any LA to have the vehicle examined by a certifying officer. If the latter refuses to remove the prohibition, the licence-holder has a right of appeal to the Minister of Transport.
(b) He can remedy the defects. If the LA then gives a direction under Section 178 (on the ground that there was danger to the public), the licenceholder can appeal to the Transport Tribunal against the direction.
The Transport Tribunal has shown a marked reluctance to put a licence-holder out of business entirely by revocation or a long period of suspension. For instance, while holding that substantial penalties were justified, it has altered:
(i) suspension of two months on all 12 vehicles in a fleet of tippers to four months on six of the 12 vehicles;
(ii) revocation of a coal merchant's 12 vehicles for eight months and another three vehicles for six months.
(iii) suspension of six months on all three vehicles of a C licence to suspension of two vehicles for nine months each. What constitues a proper system of vehicle maintenance has been raised time after time, as the following illustrations show: 1. One system was described as "a general inspection made on Saturdays by the drivers of the vehicles, who then reported to a foreman fitter if they found anything wrong, whereupon the forman fitter would inspect it and do what was necessary. All that happened in addition to this inspection by the drivers was that sometimes during the week a vehicle might come in and the managing director would instruct the foreman fitter to look at it." The managing director regarded this as a proper system. The tribunal did not.
2. On an inspection of a company's premises, a vehicle examiner found what he considered no satisfactory system of maintenance. Eight months later a further inspection revealed no improvement in the workshop facilities, but the company thereafter appointed a transport manager who brought about an improvement "in the deplorable state of affairs which had previously existed". Nevertheless, the LA felt that some punishment was warranted by what had happened in the past. On appeal he was upheld in this view.
3. The following extract from the judgment in the third case is self-explanatory:
". . . . the appellants possessed maintenance facilities of their own and a staff of fitters, and spent a considerable amount of money on maintenance and repairs. Their troubles seem to have been brought about by faulty administration, Mr. — expressed himself ready to introduce an improved system. If this is done, and it proves to be effective, these proceedings will have served a very useful purpose. This does not, however, absolve the appellants from suffering any penalty......
4. In another case a company was held to have paid scant regard to maintenance. At a Section 178 Inquiry, evidence was given of a new system introduced by a new man who had since taken charge. He handed in a schedule setting out the matters which were to be given daily and weekly attention. He also handed in a copy of the Operator's Manual for the type of trucks in use. The Tribunal commented:
"One inference to be drawn from what happened may be that he (the witness) himself had not read this Operator's Manual. and that handing it in to the LA was no more than a piece of window-dressing."
5. Here a Section 178 Inquiry was devoted mainly to tyres. A director of the company concerned explained that worn tyres had been found on rear wheels because he had been advised by a representative of the tyre manufacturers that if he paired up a tyre with canvas showing, he could put it on the back of a lorry since it would not be carrying the full weight.
The vehicle examiner also said there was nothing dangerous in marrying up a worn tyre with a good one on a rear wheel, provided no damage had been done to the canvas. But the LA thought that "it would be insanity" to put on to a vehicle a tyre which already had the canvas showing. He revoked the licence and an appeal followed. The appeal Tribunal said that
although it appeared that the representative of the tyre manufacturers did in fact give the advice which the director had quoted, it is equally clear that the director regarded that advice with a certain amount of scepticism. In our view it was not advice which justified him in departing from the assurance which he gave at an earlier inquiry that he was replacing tyres straight away when the canvas was showing.
Substituting for the revocation a less harsh penalty, the Tribunal added, however, that if the company did not mend its ways, there might be no alternative to revocation in the future.
Previous conduct Riding tandem with revocations and suspensions is the action which LAs may take on the previous conduct of an applicant in the capacity as a carrier of goods, whether at licence renewal time or on an A or B variation application which the LA is not bound to grant (for example, an application for an additional vehicle).
It was previous conduct which led, on renewal, to refusal of two applications for 12 vehicles. Apart from a list of convictions and prohibitions, the LA took into account an obstructive attitude towards his examiners and a scheme for falsifying drivers' records. But not wishing to put the company out of business altogether, he said that if applications for new licences were made later, he would consider them on their merits, ignoring the previous conduct aspect, the practical effect thus being to suspend the vehicles for a period of two months.
The next case was very different. An objector who appealed against a grant argued that the applicants "did not care a fig for licensing law" and that their undertakings for the future were worthless. But the grant was upheld.
The third case concerned renewal for 10 vehicles. Although the application was unopposed, the LA took it to a public inquiry because of the company's previous conduct. This led to a grant of only six of the vehicles, with an indication that the other four would be added at the end of 12 months. On appeal, one of the arguments was that the LA had not had regard to the interests of the public generally, including primarily those of persons requiring transport, as he was required to do under the Act. But that argument failed.
The fourth case was more recent still. A family company (four sons as shareholders with the father as manager) applied for renewal of t,wo licences. At the hearing a list of convictions recorded against the applicant company and associated licence-holders was read out. The LA, refusing the applications, said that the applicant company was a mere cypher in the hands of the father, an undischarged bankrupt. Apart from the convictions, the maintenance of the vehicles was "nebulous and completely unsatisfactory", said the LA.
The new Transport Act puts added emphasis on safety, and quality licences will weed out irresponsible operators at an earlier stage, but otherwise the picture presented above is not likely to change a great deal during the next few years, however quickly or slowly the new licensing system comes into force.