SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

B429/10

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
in the cause
MARTIN SMITH
Respondent
against
SECRETARY OF STATE FOR TRANSPORT AND RICHARD McFARLANE, DEPUTY TRAFFIC COMMISSIONER FOR THE SCOTTISH TRAFFIC AREA
	Appellants

Act: Mr Wilson, of Michael S Allan, Solicitors, Aberdeen

Alt: Mr Edward, of Maclay Murray & Spens, Solicitors, Edinburgh

DUMFRIES: 29 June 2011

The Sheriff Principal, having resumed consideration of the cause, (1) adheres to the sheriff's interlocutor of 3 March 2011 to the extent that he found the second appellant was not entitled either in law or in fact to take into account offences not brought before or proved at the driver's hearing and for that reason quashed the decision of the second appellant of 5 October 2010 insofar as disqualifying the respondent from holding or obtaining a large goods vehicle driver's licence for a period of three years; (2) recalls the sheriff's interlocutor of 3 March 2011 whereby, in terms of section 119(3) of the Road Traffic Act 1988, he disqualified the respondent from holding or obtaining a large goods vehicle driving licence for a period of 12 months from 3 March 2011 on the grounds that (i) the sheriff failed to take into account in reaching is decision the provisions of paragraph 23(c) of the Senior Traffic Commissioner's Practice Direction No 3 and (ii) the disqualification of 12 months imposed by the sheriff was inappropriate in all the circumstances (3) having considered the matter anew in terms of section 119(3) of the Road Traffic Act 1988, finds that it is appropriate in all the circumstances that Martin Smith be disqualified from holding or obtaining a large goods vehicle driver's licence for a period of two years; (4) the said Martin Smith was disqualified from holding or obtaining a large goods vehicle driver's licence from 5 October 2010 until 9 November 2010 when the disqualification was suspended ad interim, and was further disqualified in terms of the sheriff's interlocutor of 3 March 2010 until today's date, which two periods of disqualification total 154 days and (5) therefore revokes the licence and disqualifies the said Martin Smith from holding or obtaining a large goods vehicle driver's licence for a period of one year 211 days from this date; finds no expenses due to or by either party in respect of the whole process.

NOTE:

Background to the appeal

1. On 5 October 2010 the second appellant, the Deputy Traffic Commissioner for the Scotland Traffic Area conducted a hearing arising out of an investigation by the Regional Intelligence Unit, Edinburgh, of the Vehicle and Operator Services Agency ("VOSA") into Cameron Young Transport Ltd and its drivers. As a result of the hearing relating to the present respondent the second appellant decided to revoke his entitlement to drive large goods vehicles and disqualified the now respondent from holding or obtaining a large goods vehicle driver's licence for a period of three years.

2. The licensing of drivers of LGVs is dealt with at Part IV of the Road Traffic Act 1988 at sections 110-121. The following provisions are relevant.

Section 115:

"(1) A large goods vehicle or passenger-carrying vehicle driver's licence ...

(b) must be revoked or suspended if his conduct is such as to make him unfit to hold such a licence"

Section 116

"(1) Any question arising-

(a) under section 115(1)(b) of this Act as to whether a person is or is not by reason of his conduct fit to hold a large goods vehicle or passenger carrying vehicle driving licence as the case may be may be referred by the Secretary of State to the Commissioner for the area in which the holder of the licence resides ...

(2) where ... the traffic commissioner determines that the holder of the licence is not fit to hold a large goods vehicle licence or passenger carrying vehicle driver's licence, as the case may be, he shall also determine whether the conduct of the holder of the licence is such as to require the revocation of his licence or only its suspension. Section 119 of the Act gives any person whose licence has been revoked or suspended the right to appeal to the sheriff."

Section 121:

"(1) In this part of the Act-

"Conduct" means-

(a) in relation to an applicant for or the holder of a large goods vehicle driver's licence or the holder of a LGV community licence, his conduct as a driver of a motor vehicle ..."

3. The current guidelines set out by the Senior Traffic Commissioner for the benefit of Traffic Commissioners where a determination has been made that a licence requires to be suspended are contained within Practice Direction No 3 (Driver Conduct) effective from June 2008. It is clear in the introduction to the Practice Direction that the guidelines are not prescriptive. It is stated:

"Traffic Commissioners are concerned that their approach when dealing with questions of an individual's fitness to hold vocational entitlement should be consistent. These Guidelines are intended to ensure that consistency of approach but are only to be used as a starting point. These Guidelines are not to be read too prescriptively or too narrowly and Traffic Commissioners have full discretion to move up or down from the recommendation Guideline if their judgement deems it appropriate."

Under the heading "Falsification of Tachograph Charts" at paragraph 23 it is provided:

"(a) Failure to keep a full record of the complete driving period. Formal warning to one month suspension

(b) Deliberate falsification of the chart will result in either suspension of the vocational entitlement or revocation and disqualification dependent upon the scale and degree. Whilst this guideline is not exhaustive it is likely that the Traffic Commissioner will apply a sliding scale of one month's suspension per offence up to three false records' offences and revocation and disqualification for up to six months for up to five offences. Six or more false records will be likely to result in revocation and disqualification for 12 months.

(c) The use of any device to interfere with the recording equipment. Revocation and disqualification for 12 months."

4. It is also noteworthy that in paragraph 22 of the guidelines it is stated:

"In many cases the falsification itself will be an offence of dishonestly for which the driver may have been prosecuted. Traffic Commissioners will regard falsification as more serious than the offence that it may be designed to conceal. Conscientious operators regard falsifications of tachographs and an interference with recording equipment as so serious as to warrant summary dismissal in many cases."

5. In the case of Martin Smith, the Deputy Traffic Commissioner in his decision records inter alia:

"31. A number of charts have fullscale deflections. The chart dated 5 December 2008 has a significant full scale deflection which records that there has been a power interruption to the equipment. ... the traffic examiners have detected five instances of power interruptions. To give driver Smith the benefit of the doubt the remaining false records have been achieved by his failure to make proper use of a chart to record his true duty and/or driving time.

32. There are instances of the power being interrupted whilst the vehicle was in motion ... There are many ways of interfering with the equipment other than simply pulling the fuse out of the electrical circuitry serving the equipment. The aforementioned fullscale deflection and the fact that the power has been interrupted whilst the vehicle is in motion suggest to me that in all probability driver Smith has used a sophisticated interrupter device ..."

6. The Deputy Traffic Commissioner's decision records that of the 21 charts analysed by the traffic examiners, nine false records have been made. He also concludes that a sophisticated interrupter device had been used on five occasions by driver Smith. The Deputy Traffic Commissioner did not find driver Smith to be a credible or reliable witness and made clear in his decision that he did not believe the explanations given by driver Smith.

7. The Deputy Traffic Commissioner referred to paragraph 23 of the Senior Traffic Commissioner's guidelines which I have set out at paragraph 3 hereof and commented as follows:

"42. A difficulty I foresee with these guidelines is that the appropriate period of suspension or disqualification is to be determined with reference to the number of offences held to be established. In this case I am entirely satisfied that as the traffic examiners were not provided with all the records by the operator that they have been unable to determine the true extent of driver Smith's falsifications of his driving records.

43. As driver Smith was paid during the whole period of the VOSA investigation I hold on the balance of probabilities he has created more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator. Accordingly no situation must be allowed to develop whereby operators do anything other than supply VOSA and other enforcement agencies with full and proper records when requested to do so.

44. There must also be a clear message sent out to all drivers that any improper/unlawful use of the tachograph recording equipment will be visited with severe consequences.

45. Operators have duties to drivers. Similarly drivers have duties to the operator who employs them. Both operator and drivers have duties to the public interest in the name of road safety which duties must be respected and upheld at all times.

46. The Senior Traffic Commissioner's guidelines are not prescriptive. A discretion is vested in traffic commissioners in the following terms:

"The suggested directions set out in the attached statutory direction should be viewed as a starting point. Traffic commissioners have full discretion to move up or down from a recommended guideline if their judgment deems it appropriate."

47....I am in no doubt in this case that it is appropriate for me to significantly "move up" the recommended guideline in the sincere hope that other LGV licence holders will not think about let alone be tempted to indulge in the activities complained of and is now established involving driver Smith."

Accordingly in terms of section 116(2) the Deputy Traffic Commissioner revoked the large goods vehicle driver's licence held by Martin Smith and in terms of section 117(2) of the Act he disqualified him from holding or obtaining a large goods vehicle licence for a period of three years.

8. The current respondent appealed to the sheriff by summary application in terms of section 119 of the Road Traffic Act 1988 against the decision to disqualify the now respondent from holding or obtaining a large goods vehicle driving licence for a period of three years. On 3 March 2011 the sheriff quashed the decision of the second named respondent insofar as it related to disqualifying the now respondent from holding or obtaining a large goods vehicle driver's licence for a period of three years. In terms of section 119(3) of the Road Traffic Act 1988 the sheriff disqualified the now respondent from holding or obtaining a large goods vehicle driver's licence for a period of 12 months. He found the respondents liable in the expenses of the appeal.

9. The sheriff, inter alia, in his judgment stated:

"[9] In exercising his discretion to disqualify the appellant from holding an LGV licence for a definite period, the deputy traffic commissioner was bound under the legislation to "have regard" to guideline Practice Direction 3 issued by the Senior Traffic Commissioner with effect from June 2008. Paragraph 23 of that guidance, dealing with falsification of tachograph charts, specifies revocation and disqualification for twelve months for the keeping of six or more false records or for the use of any device to interfere with the recording equipment.

[10] Although the guidance states a driver "will be" disqualified for twelve months for falsifying records, this is to be read as meaning "will usually result" in him being disqualified for that period: Meredith v Traffic Commissioner for the Western Traffic Area [2009] EWHC2975 (Admin), Pitchford J at paragraph 23.

[11] The guidance in the Practice Direction itself acknowledges a traffic commissioner has "full discretion to move up or down from the recommended guideline if their judgment deems it appropriate".

[12] The appellant was found in this case to have made 9 false records. He was disqualified from holding an LGV licence for three years. After hearing submissions from the parties' agents I was satisfied that decision fell to be quashed.

[13] It is my opinion that although a traffic commissars has "full discretion" to move up or down from the guideline of twelve months disqualification, it behoves him to give an adequate reason for imposing a period of disqualification substantially in excess of the guideline.

[14] The deputy traffic commissioner concluded that as the appellant was paid during the whole period of the VOSA investigation he created more false records than those identified by the traffic examiners. He stated that no situation must be allowed to develop whereby operators do anything other than supply VOSA with full and proper records. A clear message had to be sent out to all drivers that any improper/unlawful use of the tachograph equipment will be visited by severe consequences. He stated it was appropriate to significantly move up the recommended guideline in the sincere hope that other LGV licence holders will not think about let alone be tempted to indulge in the activities engaged in by the appellant.

[15] In my opinion, this reasoning is fundamentally flawed. The deputy traffic commissioner was bound to act, like any judge, in accordance with the findings of fact.

[16] It was established that the appellant falsified records on nine occasions. The deputy traffic commissioner was not entitled to speculate that there were other falsifications.

[17] Furthermore, the appellant was a driver, not an operator, and therefore it was not relevant to the period of the appellant's disqualification that operators had a duty to provide VOSA with full records.

[18] The deputy traffic commissioner clearly formed the view the appellant should be treated severely, in order to deter other drivers from similar conduct.

[19] Since an LGV licence is to be revoked by reason of the driver's conduct being such as to make him unfit to hold the licence, it seems to me any period of disqualification should be proportionate to his conduct: David Crompton Haulage v Department of Transport [2003] EWCA Civ 64, referred to in Meredith v Traffic Commissioner for the Western Traffic Area at paragraph 32.

[20] The appellant's livelihood is at stake. The respondent's duty is to draw a balance between the sanction and the public interest in upholding road safety. Deterrence may have a role to play in selecting the sanction, but it must be an appropriate consideration in a given case, it must not be given excessive weight and the appellant must not be singled out for "severe" treatment to deter others.

[21] The guidance from the Senior Traffic Commissioner as interpreted by Pitchford J in Meredith v Traffic Commissioner for the Western Traffic Area is a period of disqualification of twelve months for six or more falsifications of records will usually result. It was established there were nine such falsifications in this case.

[22] That in my opinion is not significantly more than the "six or more" falsifications referred to in the guideline. I could see no particular reason for the appellant being made the subject of "severe" treatment. The deputy traffic commissioner did not identify in his reasons for his decision what particular factors justified him in departing from the guideline so far as the appellant's conduct was concerned. In these circumstances, I concluded that the appropriate period of disqualification would be twelve months in accordance with the senior traffic commissioner's guidance in Practice Direction 3.

[23] As I was entitled to make any order I thought fit on the appeal, I substituted my own decision for that of the respondent. I believed the deputy traffic commissioner had strayed too far from the guidance to allow the matter to be returned to be same tribunal whose decision had been quashed, and it was also not in the interests of fairness or justice to the appellant to allow further delay or uncertainty in these proceedings. I thought it fair to him and in the interests of justice that he knew with certainty where he stood.

[24] It was submitted by Mr Edward there should be no expenses awarded against the respondents in a regulatory appeal of this nature as they had defended in good faith in the public interest. Whatever may be the legal situation in England and Wales, this is an appeal by summary application and it was not suggested by Mr Edward there was any restriction on the court awarding expenses.

[25] The normal rules as to awarding expenses therefore applied (see Summary Applications and Suspensions at paragraphs 37-02 to 37-05)."

10. Against that decision the then respondents and now appellants appeal.

Submissions for the appellants

11. It was not contested before the Deputy Traffic Commissioner that Martin Smith's licence should be suspended. The only issue was the length of the disqualification.

12. It was submitted by solicitor for the now appellant that the Deputy Traffic Commissioner's decision on the period of disqualification was reached on the basis of a proper application of his discretion. His decision provided adequate reasons for moving up the scale for period of disqualification from the guidelines in Practice Direction No 3 which I have set out at paragraph 3 hereof. It was submitted that the Deputy Traffic Commissioner did not, on a proper reading of his decision, take into account matters he should not have taken into account. He did not act disproportionately in imposing the period of disqualification which he ordered. His decision was within the margin of his discretion and was not "plainly wrong" or "manifestly inequitable". It was submitted in these circumstances the sheriff was not entitled to quash his decision.

13. The findings in fact indicated that from 21 charts analysed by the traffic examiners, nine false records had been made. Included in the false records were five instances of power interruptions. Paragraph (b) of the Practice Direction No 3 stated that six or more false records were likely to result in revocation and disqualification for 12 months. Paragraph (c) provided the use of any device to interfere with the recording equipment would attract revocation and disqualification for 12 months. The Deputy Traffic Commissioner had full discretion to move up and down from the recommended recommendations if his judgement deemed it appropriate.

14. It was submitted that reading the Deputy Traffic Commissioner's decision as a whole, his decision to impose a disqualification of three years recognised (i) significant offences involving both paragraphs (b) and (c) of the guidelines (ii) this was compounded by the fact that he found the driver to be incredible and unreliable and (iii) a marker had to be set down regarding deterrence for this type of offence.

15. There was a specific finding by the Deputy Traffic Commissioner that there were five instances of power interruptions by the traffic examiners and that in all probability a sophisticated interrupter device had been used. This was sufficient to establish contravention of paragraph (c) on the balance of probabilities. It was submitted that, taking the Deputy Traffic Commissioner's decision as a whole, he had not placed undue weight on possible other false verifications because of lack of records being produced by the operator. It was accepted by solicitor for the appellant that the Deputy Traffic Commissioner could not rely on any such speculation. It was, however, conceded that the Deputy Traffic Commissioner had found in his decision as follows:

"42. A difficulty I foresee with these guidelines is that the appropriate period of suspension or disqualification is to be determined with reference to the number of offences held to be established. In this case I am entirely satisfied that as the traffic examiners were not provided with all the records by the operator that they have been unable to determine the true extent of driver Smith's falsifications of his driving records.

43. As driver Smith was paid during the whole period of the VOSA investigation I hold on the balance of probabilities he has created more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator. Accordingly no situation must be allowed to develop whereby operators do anything other than supply VOSA and other enforcement agencies with full and proper records when requested to do so."

16. It was further conceded that, if I were to take the view that the Deputy Traffic Commissioner had taken into account the fact that there were more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator, I would be obliged to come to the conclusion that the sheriff was correct in finding the Deputy Traffic Commissioner had taken into account matters that he should not have taken into account, namely further offences which had not been proved and were only the subject of speculation.

17. If I took that view and held that the sheriff was in fact entitled to quash the Deputy Traffic Commissioner's decision on the basis that he took into account offences not brought before or proved at the driver's hearing, I was asked, in that event, to quash the sheriff's decision on the basis that he did not take into account material which he ought to have taken into account in reaching his own decision, namely the terms of paragraph 23(c) of the Practice Direction No 3. It was explained to me that at the appeal hearing before the sheriff solicitor for the now appellants had invited the sheriff, if he was prepared to quash the decision of the Deputy Traffic Commissioner to remit the case to him for reconsideration. Accordingly solicitor for the now appellant did not address the sheriff on what was an appropriate period of disqualification. He now sought to make these submissions.

18. It was submitted to me that, if I was prepared to quash the sheriff's decision, I should look at the matter of new and I should take into account the following factors:

(1) The Deputy Traffic Commissioner found there were nine false records out of 21 charts examined. Paragraph 23(b) of the Practice Direction No 3 indicated "six or more false records would be likely to result in revocation and disqualification for 12 months".

(2) The Deputy Traffic Commissioner found there were five instances of power interruptions. At paragraph 32 the Deputy Traffic Commissioner concluded: "The aforementioned fullscale deflection and the fact that the power had been interrupted while the vehicle is in motion suggests to me that in all probability driver Smith had used a sophisticated interrupter device ...". It was submitted that in addition to disqualification in terms of paragraph 23(b) of Practice Direction No 3, there also required to be further disqualification in terms of paragraph 23(c) in respect of the use of any device to interfere with the recording equipment. It was accepted that paragraph 23(c) did not define the number of uses of a device to interfere with the recording equipment which would attract disqualification of 12 months. He submitted that this was a matter of discretion, and disqualification of 12 months or beyond would depend on the number of times the device was used.

(3) The fact that the Deputy Traffic Commissioner found Martin Smith to be incredible and unreliable. He took the view that a marker had to be set down regarding deterrence in respect of this type of offence.

19. In these whole circumstances, having quashed the sheriff's decision I was invited to consider the matter anew and to find that a period of three years disqualification would be reasonable in the exercise of my discretion.

Submissions for the now respondent Martin Smith

20. It was submitted by solicitor for the now respondent that an appeal to the sheriff stands or falls by the factual basis set out in the Deputy Traffic Commissioner's decision. It was submitted that it was clear that in reaching his decision the Deputy Traffic Commissioner had misdirected himself in law. He was not entitled to speculate. In particular I was referred to paragraph 42 and 43 of the Deputy Traffic Commissioner's decision which I have set out in paragraph 15 hereof where he concluded that:

"I hold on the balance of probabilities he has created more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator."

21. It had been conceded on behalf by solicitor for the appellant that there was no basis for that finding. It was pure suspicion and conjecture. The Deputy Traffic Commissioner had taken into account material which he was not entitled to consider. The sheriff had accordingly been correct to quash the Deputy Traffic Commissioner's decision.

22. It was further submitted that the sheriff was thereafter perfectly entitled to substitute his own decision for that of the Deputy Traffic Commissioner. He was not obliged to return the case for reconsideration.

23. I was referred to paragraph 23(b) of the Practice Direction No 3 which stated:

"six or more false records will be likely to result in revocation and disqualification for 12 months."

It was submitted that on any view nine could be considered within the definition of "six or more". It was submitted this was in the range contemplated by the authors of the Practice Direction. It was submitted that the question of potential catastrophic consequences for road users was taken into account in the recommendations of the Practice Direction. I was referred to paragraph 22:

"In many cases the falsification itself will be an offence of dishonestly for which the driver may have been prosecuted. Traffic commissioners will regard falsification as more serious than the offence that it may be designed to conceal. Conscientious operators regard falsifications of tachographs and interference with recording equipment as so serious as to warrant summary dismissal in many cases.

and a paragraph 21:

"The traffic commissioners take particular account of the fact that these rules are designed to ensure road safety, to protect drivers from fatigue and from exploitation by unscrupulous employers as well as to protect other road users from the consequences, which inevitably flow from tired drivers in commercial goods and passengers vehicle."

It was suggested accordingly that this issue was already factored into the recommended scale.

24. It was accepted that the Deputy Traffic Commissioner was entitled to have regard to the demeanour and perceived lack of honesty of the driver at the hearing. However the difficulty with the Deputy Traffic Commissioner's decision was that he has seen as an aggravating factor, and by inference factored into this penalty, his finding that there were more records than those identified by the traffic examiners. I should accordingly find that the sheriff's decision was correct.

25. It had been argued on behalf of the appellant that the penalties for falsification under paragraph 23(b) and for use of a device to interfere with the recording equipment under paragraph 23(c) should be seen as separate matters attracting separate and consecutive disqualifications. It was submitted that the guidelines were at best ambiguous. At paragraph 23(c) there were no words such as "in addition to paragraph 23(b)". This issue had not been argued before the sheriff.

26. It was submitted that if the question of the speculative additional offences were left out of account, the situation was that there was no suggestion of previous adverse conduct. The respondent was what might be described as a first offender. It was found he had made nine falsifications. In terms of paragraph 23(b) six or more false records attracted 12 months' disqualification. Although the Deputy Traffic Commissioner was allowed to move up and down it was submitted that 12 months for nine offences was within his reasonable discretion.

27. It was the position of the solicitor for the respondent that the sheriff was entitled to quash the Deputy Traffic Commissioner's decision and the determination of 12 months' disqualification was within his reasonable discretion. It was submitted I was not entitled to interfere with that decision.

Decision

28. As set out in Macphail on Sheriff Court Practice paragraphs 18.111 and 18.112, the sheriff was only entitled to intervene in respect of the decision made by the Deputy Traffic Commissioner only if he was satisfied that the Deputy Traffic Commissioner did not exercise his discretion at all, or in exercising it misdirected himself in law or misunderstood or misused the evidence or material facts or took into account an irrelevant consideration or failed to take into account some relevant consideration or otherwise exercised his discretion wrongly. In my opinion the sheriff was entitled to intervene in respect of the decision of the Deputy Traffic Commissioner. In the decision section of his full decision the Deputy Traffic Commissioner stated:

"42. ... In this case I am entirely satisfied that as the traffic examiners were not provided with all the records by the operator that they have been unable to determine the true extent of driver Smith's falsifications of his driving records.

43. As driver Smith was paid during the whole period of the VOSA investigation I hold on the balance of probabilities he has created more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator. ..."

29. I take the view, from a consideration of the decision of the Deputy Traffic Commissioner as a whole, that one of the significant factors which he took into account in imposing a period of three years disqualification was that Martin Smith had created more false records than those identified by the traffic examiners. There was no evidence on which such a finding could be made. It was sheer speculation. In my opinion the sheriff was correct to find that the Deputy Traffic Commissioner was not entitled either in law or in fact to take into account offences not brought before or proved at the driver's hearing. The Deputy Traffic Commissioner took into account an irrelevant consideration. His decision accordingly falls to be quashed. The sheriff was correct so to do.

30. The sheriff was entitled either to substitute his own decision for that of the Deputy Traffic Commissioner, or to return the case for reconsideration. The sheriff stated:

"[23] As I was entitled to make any order I thought fit on the appeal, I substituted my own decision for that of the respondent. I believed the Deputy Traffic Commissioner had strayed too far from the guidelines to allow the matter to be returned to the same tribunal whose decision had been quashed, and it was also not in the interests of fairness or justice to the appellant to allow further delay or uncertainty in these proceedings. I thought it fair to him in the interests of justice that he knew with certainty where he stood."

31. The sheriff, as he was entitled to do, then proceeded himself to assess of new the appropriate period of disqualification. He said:

"[21] The guidance from the Senior Traffic Commissioner as interpreted by Pitchford J in Meredith v Traffic Commissioner for the Western Traffic Area is a period of disqualification of twelve months for six or more falsifications of records will usually result. It was established there were nine such falsifications in this case.

[22] That in my opinion is not significantly more than the "six or more" falsifications referred to in the guideline. I could see no particular reason for the appellant being made the subject of "severe" treatment. The deputy traffic commissioner did not identify in his reasons for his decision what particular factors justified him in departing from the guideline so far as the appellant's conduct was concerned. In these circumstances, I concluded that the appropriate period of disqualification would be twelve months in accordance with the senior traffic commissioner's guidance in Practice Direction 3."

32. The sheriff in reaching that conclusion, has clearly only taken into account paragraph 23(b) of the Practice Direction No 3 which states:

"Six or more false records will be likely to result in revocation and disqualification for 12 months."

It appears to me that he has not taken into account the terms of paragraph 23(c) of Practice Direction No 3 which states:

"The use of any device to interfere with the recording equipment - revocation and disqualification for 12 months."

Nowhere in his note does the sheriff deal with this part of the Practice Direction and the effect it might have on the penalty imposed.

33. In my opinion, it is quite clear that the Practice Direction attaches substantial weight, first in paragraph 23(b), to the number of false records and, secondly, in paragraph 23(c) to a particular way in which this might be achieved, namely by the use of any device to interfere with the recording equipment. In my opinion the only proper interpretation of these two paragraphs is that paragraph 23(c) is to be seen as an aggravation of paragraph 23(b). There are no doubt many ways in which false records can be made, but the particular evil which paragraph 23(c) strikes at is the use of any device to interfere with the recording equipment. Such activity attracts additional penalty.

34. In this case the Deputy Traffic Commissioner has found:

"31. ... the traffic examiners have detected five instances of power interruptions. To give driver Smith the benefit of the doubt the remaining false records have been achieved by his failure to make proper use of a chart to record his true duty and/or driving time.

32. ... There are many ways of interfering with the equipment other than simply pulling the fuse out of the electrical circuitry serving the equipment. The aforementioned fullscale deflection and the fact that the power has been interrupted whilst the vehicle is in motion suggest to me that in all probability driver Smith has used a sophisticated interrupter device."

35. In my opinion this is the type of mischief to which paragraph 23(c) refers. I consider the proper interpretation of paragraph 23(c) is that it applies if a device has been used to interfere with the recording equipment. In this case the Deputy Traffic Commissioner was satisfied that driver Smith had used a sophisticated interrupter device. Any use of such a device attracts disqualification of 12 months in terms of paragraph 23(c). Discretion is given to the Deputy Traffic Commissioner to move up or down the recommended scale. In my opinion, the Deputy Traffic Commissioner would be entitled to move up that scale, in a similar manner to a situation where there were more than six false records in terms of paragraph 23(b), if there were a series of uses of such a device to interfere with the recording equipment. In my opinion the Deputy Traffic Commissioner is entitled, in the exercise of his discretion, to select a period of disqualification in respect of the number of false records in terms of paragraph 23(b). He is, in the further exercise of his discretion, then entitled to impose a further period of disqualification in terms of paragraph 23(c) in respect of the use of any device to interfere with the recording equipment. The number of occasions in which a device is used to interfere with the recording equipment will determine whether the Deputy Traffic Commissioner will impose a further disqualification of more or less than 12 months.

36. It is clear that the sheriff has not taken into account paragraph 23(c) in his determination that 12 months is a reasonable period of disqualification in all the circumstances. He makes no reference in his note to the application of paragraph 23(c) to the length of the disqualification which should be imposed. In my view, in failing so to do, the sheriff has failed to take into account some relevant consideration and has accordingly exercised his discretion wrongly. In these circumstances I consider I am entitled to intervene. I accordingly quash the decision which the sheriff made on 3 March 2011 to impose disqualification for a period of 12 months.

37. In the whole circumstances I take the view that it is preferable that I determine the appropriate period of disqualification rather than return the case to the Deputy Traffic Commissioner in view of the lapse of time which has taken place. I consider I am entitled to consider the findings in fact of the Deputy Traffic Commissioner and, having regard to the provisions of paragraphs 23(b) and (c) of Practice Note No 3, exercise my discretion in determining the total period of disqualification which should be imposed.

38. I take into account the fact that the Deputy Traffic Commissioner found Martin Smith to be an incredible and unreliable witness. I take into account that he took the view that a marker had to be set down regarding deterrence in respect of this type of offence. I also take into account the fact that I am dealing with a large goods vehicle driver whose livelihood depends on having a licence. The loss of licence as a result of his falsification of records will materially affect his ability to earn a livelihood.

39. This case involves nine false records, five of which involved the use of a sophisticated interrupter device. I take the view that a total period of disqualification of two years is, in the whole circumstances, appropriate. In the view of the fact that I am also proposing to impose an additional sentence under paragraph 23(c) of Practice Direction No 3, I allocate 12 months disqualification under paragraph 23(b) which provides "six or more false records will be likely to result in revocation and disqualification for 12 months". I impose a further and consecutive period of 12 months under paragraph23(c) which provides "the use of any device to interfere with the recording equipment, revocation and disqualification for 12 months". There were five instances of such a device. I impose the period of disqualification of two years against a background where the Deputy Traffic Commissioner has properly emphasised that these are significant offences which are compounded by the fact that he found Martin Smith to be incredible and unreliable and that a marker requires to be set down regarding deterrence.

40. I accordingly adhere to the sheriff's interlocutor of 3 March 2011 to the extent that he found the Deputy Traffic Commissioner was not entitled either in fact or in law to take into account offences not brought before or proved at the driver's hearing and for that reason he quashed the decision of the Deputy Traffic Commissioner dated 5 October 2010 in respect of the appellant. However I recall the part of the sheriff's interlocutor of 3 March 2011 whereby, in terms of section 119(3) of the Road Traffic Act 1988, he disqualified the respondent from holding or obtaining a large goods vehicle licence for a period of 12 months from 3 March 2011 on the grounds that (i) the sheriff failed to take into account in reaching his decision the provisions of paragraph 23(c) of the Senior Traffic Commissioner's Practice Direction No 3 and (ii) the disqualification of 12 months imposed by the sheriff was inappropriate in all the circumstances. Having considered the matter anew in terms of section 119(3) of the Road Traffic Act 1988, for the reasons stated above I revoke the respondent's large goods vehicle driver's licence and disqualify the respondent from holding or obtaining a large goods vehicle driver's licence for a period of two years. I have taken into account the periods of disqualification to which he has already been subject. I have accordingly disqualified Martin Smith for one year 211 days from this date.

41. Parties were agreed that, if I took that view, I should find no expenses due to or by either party in respect of the whole process. This I have done.