SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

B434/10

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 refuses the appeal and adheres to the sheriff's interolocutor dated 3 March 2011 complained of; finds the appellants liable to the respondent in the expenses of the appeal before the Sheriff Principal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report.

NOTE:

Background to the appeal

1. On 5 October 2010 the second appellant revoked the respondent's entitlement to drive large goods vehicles and disqualified the respondent from holding or obtaining a large goods vehicle driver's licence for a period of three years. This was on the basis that Cameron John Young aided and abetted one of his employees, Bruce Kirkpatrick to drive in excess of the hours lawfully available to him as the driver of a large goods vehicle. The essence of the "aiding and abetting" was that the now respondent relinquished control of his tachograph card to his employee Bruce Kirkpatrick who made use of it. That use facilitated the creation of records of driver Kirkpatrick's driving which on the face of it disclosed double-manned journeys which had been lawfully undertaken, whereas the journeys had been undertaken solely by driver Kirkpatrick who had used the now respondent's card to create false records of these journeys thereby disguising the true extent of his driving and/or duty time.

2. The second respondent relied on the terms of section 293 of the Criminal Procedure (Scotland) Act 1995 which is entitled "Statutory Offences: Art and Part and Aiding and Abetting". Section 293 provides:

"(1) a person may be convicted of, and punished for, a contravention of any enactment, notwithstanding he was guilty of such contravention as art and part only.

(2) without prejudice to subsection (1) above or to any express provision and any enactment having the like effect to this subsection, any person, who aids, abets, counsels, procures of incites any other person to commit an offence against the provisions of any enactment shall be guilty of an offence and shall be liable on conviction, unless the enactment otherwise requires, to the same punishment as might be imposed on conviction of the first mentioned offence."

3. The Deputy Traffic Commissioner referred to paragraph 19 of the judgment of Mr Justice Pitchford in Meredith v Traffic Commissioner for the Western Traffic Area [2009] EWHC 2975 (Admin) where he stated:

"It seems to me, however, that the judgment whether the licence holder's conduct as a driver makes him unfit to hold a licence cannot be focused exclusively upon the matters which gave rise to the referral to the Traffic Commissioner, but should embrace the licence holder's conduct as a driver as a whole, good and bad, relevant to the question whether, at the time of making the judgment, the licence holder is unfit. For example, it may be relevant to fitness whether the matters of complaint took place in isolation or against a background of repeated disregard for the law of the road."

4. The second respondent took into account not only the inter-relationship between the now respondent and driver Kirkpatrick as holders of LGV licences, but also the relationship of employer and employee. If an employed driver is working in excess of the hours lawfully available to him or her then there must be commercial benefit to the employer. Accordingly, in aiding and abetting driver Kirkpatrick to work in excess of the hours lawfully available to him, there had been a financial benefit to the now respondent who is the sole director of Kirkpatrick's employers.

5. In particular the second appellant stated as follows:

"41. The interests of road safety demand where a driver has driven whilst tired or is prepared to drive whilst tired and as in this case driver Young has been party to such driving there must be significant and meaningful consequences for the licence holder. The public interest requires and deserves no less.

42. I have no hesitation in deciding that driver Young's LGV licence should be revoked ... The digital tachograph recording equipment was designed to eliminate the abuse by some drivers of its predecessor namely the analogue tachograph. Accordingly, the consequences for driver Young (the now respondent) must be such as to serve as a deterrent to other holders of the card who might consider making unlawful use of it."

6. The second appellant disqualified the now respondent for a period of three years.

7. The current respondent appealed that decision to the sheriff by summary application in terms of section 119 of the Road Traffic Act 1988. On 31 March 2011 the sheriff quashed the decision of the second named respondent insofar as it related to disqualifying the now respondent (the appellant in that procedure) from holding or obtaining a large goods vehicle driver's licence for a period of three years. He further found that the second respondent was not entitled to hold either in law or fact that the appellant's conduct as a driver rendered him unfit to hold an LGV licence. In addition he found the now appellant's liable in the expenses of the appeal.

8. This appeal is of a different nature from those of Martin Smith and Bruce Kirkpatrick (which were heard with this appeal). These gentlemen were both driving vehicles when the offences occurred. In this case Cameron John Young was the sole Director of the company, Cameron Young Transport Ltd. Martin Smith and Bruce Kirkpatrick were drivers employed by that company. Cameron Young also held a licence. The second respondent found that Cameron Young, who was in fact the employer of Bruce Kirkpatrick, allowed his digital tachograph card to be used during driving or duty time to allocate falsely time to Bruce Kirkpatrick. Cameron Young, as the sole Director of Cameron Young Transport Ltd, directly benefited from the use of his digital tachograph card by his employee, Bruce Kirkpatrick. Cameron Young misused his position as a driver with a digital tachograph card to assist Bruce Kirkpatrick to falsify his records.

9. In these circumstances the sheriff in his opinion stated:

"[9] The appellant was investigated by VOSA for "aiding and abetting" his drivers in falsifying tachograph records. According to section 121(1) of the Road Traffic Act 1988 "conduct" means:

(a) in relation to the holder of a large goods vehicle driver's licence, his conduct as a driver of a motor vehicle, and

(b) in relation to the holder of a passenger-carrying vehicle driver's licence his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying vehicle driver's licence including such conduct in Northern Ireland.

[10] After hearing evidence, the deputy traffic commissioner disqualified the appellant from holding an LGV licence for three years. This in my opinion was not in accordance with the 1988 Act. As section 121(1) makes plain "conduct", in relation to the holder of an LGV licence "means his conduct as the driver of a motor vehicle". It does not include conduct in his capacity as employer. This contrasts with the holder of a PVC licence where "conduct" includes both conduct as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying vehicle driver's licence. As stated by Pitchford J in Meredith v Traffic Commissioner for Western Traffic Area [2009] EWHC 2975 (Admin) at paragraph 17, "there can be no doubt that the "conduct" which is such as to make the driver "unfit to hold" the LGV licence within the meaning of section 115(1)(b) is the conduct of the licence holder as "a driver of a motor vehicle"".

[11] The reasoning of the deputy traffic commissioner for acting as he did appears to be that falsification of tachograph records is a criminal offence and that art and part criminal liability in section 293(1) of the Criminal Procedure (Scotland) Act 1995 could be extended to this case.

[12] In my opinion, that reasoning is fundamentally flawed. Although the 1988 Act creates criminal offences, the respondent was concerned with Part IV of the Act, which primarily relates to LGV licences and their revocation or suspension on conduct grounds. The criminal law is not engaged in that process other than incidentally to create offences such as that in section 118 whereby it is an offence not to return a revoked licence to the Secretary of State in accordance with the section. But otherwise, the procedure for revocation and appeal are civil law procedures.

[13] This is made plain in the Senior Traffic Commissioner's guidance Practice Direction 3 with effect from June 2008 wherein it is stated that: "a Court is punishing a person for an offence, whereas the Traffic Commissioner is considering not whether to punish a person but whether that person is fit to obtain or continue to hold a vocational licence". The deputy traffic commissioner was found to have regard to that guidance in exercising his functions. He does not appear to have had any regard to it in deciding to apply a criminal statute to the exercise of civil law functions.

[14] The deputy traffic commissioner also relied on section 176 of the Road Traffic Act 1972. He realised this had been repealed and not re-enacted in the 1988 Act. But all that did was create the offence in Scotland of aiding and abetting another to "commit an offence against the provisions of this Act or any regulations made thereunder". Once again, this was a criminal offence. It had, and has, no relevance to the statutory scheme for granting and revoking LGV licences.

[15] For the foregoing reasons, I was satisfied the respondents had materially misdirected themselves in law. To revoke the appellant's licence because he was considered by the deputy traffic commissioner to be art and part involved in his drivers falsifying tachograph records was ultra vires the powers of the Secretary of State under the 1988 Act. The appellant's licence could be revoked only by reason of his conduct as a driver, not on the basis of some imagined art and part liability in the conduct of other drivers.

[16] The deputy traffic commissioner appears to have concluded the appellant had aided and abetted driver Kirkpatrick to work in excess of lawful hours because he gained financial benefit from him doing so.

[17] This allowed him to act "within the spirit of ... Mr Pitchford's judgment" and "embrace the whole conduct of driver Young as a driver" and therefore to take into account the appellant having "aided and abetted the commission of a series of serious driver's hours offences by Kirkpatrick". There may be cases where an employer or colleague of a driver acts to assist another driver in falsifying records. That may then be relevant in consideration of that driver's conduct as a driver. But that is the sole legitimate focus of enquiry. An enquiry into "aiding and abetting" as a distinct concept is not authorised by the Act. There has therefore been a fundamental misdirection in this case and I was satisfied the respondents' decision had to be quashed for that reason.

[18] I was empowered to make such order as I thought fit in relation to the appeal. The whole investigation and decision was on the flawed basis of "aiding and abetting". The appellant stated through his solicitor in proceedings before the deputy traffic commissioner that he felt unable to attend a hearing before the deputy traffic commissioner because of stress. This allowed the deputy traffic commissioner to suspend the appellant's licence on the ground that "if driver Young was not fit to attend this hearing he was not fit to drive large goods vehicles".

[19] I do not follow the logic of that conclusion. In any event, it had nothing to do with the appellant's conduct as a driver. I do not think it would be fair to the accused or in the interests of justice for him to be subjected to what inevitably for anyone whose business is at stake to be a stressful experience in being subjected to a new investigation. He has gone through it once and in my opinion that is enough in the circumstances of this case. I therefore quashed the respondents' decision and did not think it appropriate to remit for a re-hearing.

[20] 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. The normal rules as to awarding expenses therefore applied (see Summary Applications and Suspensions at paragraphs 37-02 to 37-05). The pursuer was not legally assisted. He was funding his own appeal. It fundamentally affected his livelihood. He has been subjected to an investigation and decision that proceeded on a seriously mistaken view of the law. In all these circumstances, I saw no reason for departing from the normal rule that expenses followed success.

10. Against that decision the then respondents and now appellant appeals.

Submissions for the appellant

11. Solicitor for second appellant referred to paragraph 34 of the Deputy Traffic Commissioners' decision which stated:

"Taking all of these factors together I am firmly of the view that on the balance of probabilities driver Young deliberately relinquished control of his card in the knowledge that it would be used by driver Kirkpatrick to disguise the true extent of his driving and/or duty time."

12. He also referred to paragraph 36:

"The traffic examiners concluded that driver Young has aided and abetted driver Kirkpatrick in the commission of these various drivers' hours' offences. The reference by the Secretary of State to the Traffic Commissioner is made in terms of the Act (1988 Act). Section 176 of the Road Traffic Act 1972 which created the offence of aiding and abetting. This offence is not repeated or specifically incorporated in the Act. In terms of section 293(1) of the Criminal Procedure (Scotland) Act 1995 an accused in any case may be guilty either as principal actor or art and part as implied in all charges brought in Scotland as is aiding and abetting, counselling or procuring or inciting a contravention of any enactment. Any accused found guilty of art and part is liable to the same penalties as the principal actor. I cannot see why this concept cannot be properly extended to and applied to the circumstances of this case."

Solicitor for the second appellant conceded that there was no justification for the Deputy Traffic Commissioner applying this criminal law concept to this civil case. He accepted that the Deputy Traffic Commissioner was wrong to do so. The only ground of appeal on which he relied was that the judgment of the Deputy Traffic Commissioner, properly read, was that driver Cameron Young's actions in allowing his digital tachograph card to be misused by another driver fell within "conduct as a driver".

13. I was referred to the judgment of Mr Justice Pitchford in the case of Meredith v Traffic Commissioner for the Western Traffic Area ([2009] EWHC 2975 (Admin) where he said at paragraph 19:

"It seems to me, however, that the judgment whether the licence holder's conduct as a driver makes him unfit to hold the licence cannot be focused exclusively upon the matters which gave rise to the referral to the Traffic Commissioner, but should embrace the licence holder's conduct as a driver as a whole, good and bad, relevant to the question whether, at the time of making the judgment the licence holder is unfit. For example, it may be relevant to witness whether the matters took place in isolation or against a background of repeated disregard for the law of the road."

14. It was submitted that, within the spirit of that extract from Mr Justice Pitchford's judgment, the Deputy Traffic Commissioner had "embraced the whole conduct of driver Young as a driver". The Deputy Traffic Commissioner stated at paragraph 39 of his decision:

"I embrace the whole conduct of driver Young as a driver and I hold it to be a relevant consideration in making the determination as to whether or not he is fit to continue to hold LGV licence in that he has aided and abetted the commission of a series of serious driver's hours offences by driver Kirkpatrick. I therefore determine that driver Young is not longer fit to continue to hold the LGV licence."

15. It was further submitted that the record produced by the digital tachograph chart showed Cameron Young as the driver of the vehicle assigned to driver Kirkpatrick. This was accordingly "conduct as a driver".

16. In the whole circumstances, the Deputy Traffic Commissioner had reached the correct decision. I should quash the decision of the sheriff and uphold the decision of the Deputy Traffic Commissioner.

Submissions for the respondent (the appellant before the sheriff)

17. Solicitor for the now respondent noted the concession which had been made on behalf of the appellant that he was no longer arguing a quasi criminal involvement on an "aiding and abetting" basis. He emphasised that what the Deputy Traffic Commissioner required to establish, in terms of the Road Traffic Act, was that the respondent's conduct was "as a driver of a motor vehicle". I was referred to section 115 of the Road Traffic Act 1988 which provides:

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

(a) must be revoked if there come into existence, in relation to its holder, such circumstances relating to his conduct as may be prescribed

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

Section 121 provides:

"(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 an LGV community licence, his conduct as a driver of a motor vehicle and

(b) in relation to an applicant for or the holder of a passenger-carrying vehicle driver's licence or the holder of a PCV community licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying driver's licence or (as the case may be) his authorisation by virtue of section 99(a)(i) of this Act to drive in Great Britain a passenger-carrying vehicle of any class ..."

18. It was submitted that, from a consideration of paragraphs 37 and 38 of the Deputy Traffic Commissioner's decision it was clear that he had accepted that Cameron Young was not driving any vehicle at the relevant time. At paragraph 29 the Deputy Traffic Commissioner stated:

"Essentially I have been asked to consider the fitness of a holder of an LGV licence, namely driver Young, in respect of his allegedly aiding and abetting another holder of an LGV licence, namely driver Kirkpatrick, to drive in excess of the driver's hours rules and regulations and to disguise this activity by driver Kirkpatrick making false records with the use of driver Young's card."

19. It was submitted there was no doubt that on the basis of the findings in fact of the Deputy Traffic Commissioner such conduct was reprehensible, but it was not a transgression of section 115 of the 1988 Act as it was not conduct as a driver.

20. Reference was made to the judgment of Mr Justice Pitchford in the Meredith case. It was submitted that he exhorted that the driver's conduct "as a driver" should be taken into account. This did not include the situation where driver Young was facilitating driver Kirkpatrick to commit a transgression.

21. Solicitor for the appellant noted that the digital tachograph card had come into being in 2006. It was only after that time that one driver was able to facilitate another's falsification of records by allowing the other driver to use his card. Parliament had not taken steps to alter the 1988 legislation. It would have been a simple matter for section 121(1) to be amended to allow the Traffic Commissioners to consider the conduct of a holder of a large goods vehicle driver's licence both as a driver of a motor vehicle and in any other respect relevant to his holding of a large goods vehicle driver's licence (as was the case in terms of section 121(1)(b) of the 1988 Act with the holder of a passenger-carrying vehicle driver's licence). The fact that this had not been done was fatal to the Deputy Traffic Commissioner's case in this instance. I should refuse the appeal.

Decision

22. In my opinion the decision of the sheriff and the submissions on behalf of the now respondent, Cameron John Young, are well founded. Solicitor for the appellant properly accepted that there was no justification for the appellant to apply the criminal law concept of aiding and abetting to this civil case. His appeal was restricted to the submission that the judgment of the Deputy Traffic Commissioner, properly read, was that the respondent's action in allowing his digital tachograph card to be misused by another driver fell within "conduct as a driver".

23. As solicitor for the respondent properly pointed out, the terms for the provisions of sections 115 and 121 of the Road Traffic Act 1988 are fatal to the appellant's case. The relevant provisions are:

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 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 an LGV community licence, his conduct as a driver of a motor vehicle and

(b) in relation to an applicant for or the holder of a passenger-carrying vehicle driver's licence or the holder of a PCV community licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying driver's licence or (as the case may be) his authorisation by virtue of section 99(a)(i) of this Act to drive in Great Britain a passenger-carrying vehicle of any class ..."

24. The 1988 Act clearly draws a distinction between conduct as a driver of a motor vehicle and conduct in any other respect relevant to his holding a driver's licence. In section 121(1)(a), which relates to the holder of a large goods vehicle driver's licence, only conduct as a driver of a motor vehicle is relevant. In terms of section 121(1)(b) in relation to a passenger-carrying vehicle driver's licence both his conduct as a driver of a motor vehicle and his conduct in any other respect relevant to his holding a ... licence are relevant.

25. In this case the findings in fact of the Deputy Traffic Commissioner make it clear that the offending conduct by the respondent related to his allowing driver Bruce Kirkpatrick to use his digital tachograph card. He thus aided and abetted the commission of a series of driver's hours offences by driver Kirkpatrick. This conduct on the part of the respondent was reprehensible, but it is not relevant to the provisions of section 121(1)(a) of the 1988 Act. It is not conduct by the respondent as a driver of a motor vehicle. It is conduct "in any other respect relevant to his holding a large goods vehicle driver's licence". The provisions of section 121(1)(b) do not apply to the holder of a large goods vehicle driver's licence, which is what the respondent was at the relevant time.

26. For these reasons the appeal against the sheriff's decision fails. Parties agreed that, if I took that course, I should award the expenses of this appeal to the respondent. This I have done.

27. It respectfully appears to me that consideration might be given by the authorities to amending the provisions of section 121(1)(a) of the 1988 Act to the effect that "conduct" in relation to an applicant for or the holder of a large goods vehicle driver's licence or the holder of an LGV community licence would relate to conduct both as a driver of a motor vehicle and in any other respect relevant to the driver's holding of a large goods vehicle driver's licence.