SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
B1942/09
Judgment of Sheriff George Alexander Way
In
Summary Application - Road Traffic Act 1988 section 119(1) (as amended)
SCOTT CRAIG WALKER
4 Wentworth Road Dundee DD2 3SD
APPELLANT
against
(First) The Secretary of State for Transport and (Second) Ms Joan Aitken
Traffic Commissioner for the Scottish Traffic Area, Scottish Traffic Area Office,The Stamp Office, 10 Waterloo Place Edinburgh EH1 3EG
RESPONDENTS
Dundee 25th August 2010
The Sheriff, having resumed consideration of the cause, quashes the Decision of the Traffic Commissioner of 24th August 2009 to the extent of the sanction imposed and remits back to the Traffic Commissioner for re-hearing; finds no expenses due to or by either party.
"George Way"
Sheriff of Tayside Central and Fife.
NOTE:
1. This is an appeal by way of Summary Application in terms of section 119 of the Road Traffic Act 1988 (as amended). The issue between the parties can be quite briefly stated as whether the traffic commissioner left out of account material considerations going to the issue whether the appellants' conduct rendered them unfit to hold large goods vehicle licences and, if so, whether that conduct was such as to require suspension or revocation and, if so, for what period. The appellant invites me to make such order as I think fit to quash, reverse or otherwise de part from a decision of the Traffic Commissioner for the Scottish Traffic Area issued on 24th August 2009 to find that his conduct had rendered him unfit to hold an Large Goods Vehicle (LGV) licence and in consequence of that decision to suspend him from driving large goods vehicles for a period of two months. The Appeal was heard along with those of two of the appellants work colleagues ( Brian Wright and Stephen Nicoll ) who had appeared before the Traffic Commissioner at the same Enquiry held over the 22nd and 23 August 2009. All three Appeals proceeded on the basis of the same Record and agreed Productions and all parties were content that no further evidence required to be led.
2. The Statutory Provisions
Section 115(1) of the Road Traffic Act 1988 provides:
"A large goods vehicle ... driver's licence-(a) must be revoked if there come into existence, in relation to the 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; and where the licence is suspended under para.(b) above it shall during the time of suspension be of no effect."
Section 116 provides:
"(1) Any question arising-(a) under s.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 ... driver's licence ... may be referred by the Secretary of State to the traffic commissioner for the area in which the holder of the licence resides.
(2) Where, on any reference under subs.(1)(a) above, the traffic commissioner determines that the holder of the licence is not fit to hold a large goods vehicle ... driver's licence ... 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; and, if the former, whether the holder of the licence should be disqualified under s.117(2)(a) of this Act (and, if so, for what period) ..."
Section 117(2) provides:
"Where in pursuance of s.115 (1) (b) of this Act the Secretary of State revokes a person's large goods vehicle ... driver's licence, the Secretary of State may-(a) order the holder to be disqualified indefinitely or for such period as the Secretary of State thinks fit ..."
Section 121(1) provides:
"In this part of this Act-'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 ..."
Section 119 provides:
(1) (1) A person who, being the holder of, or an applicant for, a large goods vehicle or passenger-carrying vehicle driver's licence or the holder of a LGV Community licence or a PCV Community licence], is aggrieved by the Secretary of State's-
(a) refusal or failure to grant such a licence in pursuance of section 112 or 113(4) of this Act,
(b) suspension or revocation of such a licence in pursuance of section 115 or 116(4) of this Act, or
(c) ordering of disqualification under section 117(2) [or 117A(2)] of this Act,
or by a notice served on him in pursuance of section 115A(1) or 116(4) of this Act] may, after giving to the Secretary of State and any traffic commissioner to whom the matter was referred notice of his intention to do so, appeal to a magistrates' court or, in Scotland, to the sheriff within whose jurisdiction the holder of or applicant for the licence] resides.
(2) On any appeal under subsection (1) above (except under paragraph (c) of that subsection)] the Secretary of State and, if the matter was referred to a traffic commissioner, the commissioner shall be respondent.
(3) On any appeal under subsection (1) above the court or sheriff may make such order as it or he thinks fit and the order shall be binding on the Secretary of State.
3. The Factual Background
The background to this appeal, which I take largely from the decision of the traffic commissioner, is that the appellant ( and his two colleagues who have also appealed) were professional drivers, holding large goods vehicle licences. They were all employed by TS Transport (Scotland) LTD of Longtown Dundee. The company and it's drivers became the subject of investigation by the Vehicle and Operator Services Agency (VOSA) and alleged shortcomings of the employer and the appellant were referred to the traffic commissioner under s.116 of the Road Traffic Act 1988 for a determination, amongst other things, whether the drivers were fit persons to hold large goods vehicle licences. The precise nature of the allegations (which for reasons that will become clear) are not central to my decision and so I will refer to them only in general terms. In essence the drivers were alleged to have failed to comply with the regulations designed to ensure that drivers do not work excessive hours. They must have adequate rest breaks. They must properly record their time on duty and at rest. In particular there was an allegation that the drivers (and their employers) did not record certain journeys as "on duty" when they should have known that they were obliged to do so. This particular infraction seemed to focus on driving to collect vehicles and the like which was not recorded as "duty". This has the effect of distorting the records so that any external examiner would think that a driver had not been on duty (and hence getting adequate rest) when in fact he was. The appellant and his colleagues had been interviewed, under caution, by examiners from VOSA and accepted that the interpretation of what constituted being "on duty", given to them by their employer, was not correct. They accepted that as qualified large goods vehicle drivers they had a separate duty to be informed as to the regulations and to apply them. They could not simply blindly follow their employers' directions when they knew, or ought reasonably to have known, that those directions did not accurately reflect the relevant regulations. They were in error but culpable none the less.
4. The Traffic Commissioner held that the conduct of the drivers was such that they were not fit persons to hold such licences pursuant to s.115 (1) (b) of the 1988 Act. She did not, however, deem the offences as serious as to warrant revocation of the licences (which entails a full application for a re-grant in due course) but rather suspended the appellant from driving large goods vehicles for two months. (She suspended Mr Wright for two months and Mr.Nicoll for ten weeks all in terms of s.117 (2) (a) ). This would penalise the drivers financially.. In reaching her decision the traffic commissioner stated that she applied Practice Direction 3, (being guidance issued under the aegis of the Senior Traffic Commissioner and applied throughout the UK.) in determining whether to suspend or revoke a licence for a tachograph offence. I have appended a copy of the Practice Note as a Schedule to this judgment for the sake of brevity here.
5. The Traffic Commissioner's decision
The Traffic Commissioner summed up her assessment of the appellant and his colleagues thus :
" Scott Walker accepted the Traffic Examiners Report as fair. He has ten points on his licence. He was not keeping a complete record of his work; he was fuelling off the card (Sheriffs note: this tends to conceal hours driven as the fuel used and charged to the official fuel card by a vehicle is used as a cross check) I find that he is not fit by reason of his conduct to hold the entitlement and I determine that his entitlement be suspended and that for a period of 2 months...."
"Brian Wright, I find that he is not fit by reason of his conduct and I determine that his entitlement will be suspended for a period of two months...my reasons for doing so are that he has failed to provide a full account of his driving and duty.
" Stephen Nicoll was not keeping a full account of his driving and there were discrepancies with the times on his charts and the fuel receipts. I was not persuaded that his fuel receipts were reliable. The charts did not give a true picture of this work and hence the allegations of four false records. There are too many question marks over what he was doing. He has not adhered to the rules as demonstrated by the Traffic Examiner's report. I find he is not fit by reason of his conduct and I determine that his entitlement be suspended for a period of ten weeks..."
6. The Legal Tests
There is a substantial body of case law on the tests to be applied by the Court in appeals of this nature. This matter was touched upon earlier in this process by Sheriff Pyle in his Note attached to the interlocutor of 28th September 2009. The learned Sheriff notes that these appeals arise from a UK statute and that the relevant provision section 119 of the 1988 Act is expressed in the widest possible terms. A person aggrieved may appeal and the Sheriff may make such order as he thinks fit. This has been interpreted in England and Wales as creating an open appeal where there is, in effect, a rehearing of the case. This was addressed by Sheriff Macphail ( as he then was) in the case of Carvana v Glasgow Corporation 1976 SLT (Sh.Ct) 3 where he held that there should be a consistent juridical approach throughout the UK as transport operators and drivers must perforce work throughout the country. Sheriff Pyle agreed with that reasoning and, with respect, I , in principle, concur with both learned colleagues. The question is, however, not quite so simple. I was referred to a substantial body of Scottish authority by both the solicitor for the appellant and that of the respondent including a number of very recent unreported judgments. These were:
McDonald v STAC unreported (Lanark) 25/4/1986; McShane v STAC unreported (Haddington) 17/5/1988; McIntyre v STAC unreported (Perth) 19/3/2001; Ingram STAC unreported (Ayr ) 20/2/2002; McCormick v STAC unreported (Dunfermline) 27/6/2008; Smith v STAC unreported (Stonehaven) 16/11/2009.
In each of these cases the presiding Sheriff decided that, not withstanding the broad terms of the section, the appeal was restricted to interfering with the Traffic Commissioners decision only where there was an error in law; a want of natural justice; or on the familiar grounds which have passed into our jurisprudence under the generic term "Wednesbury unreasonableness". The latter being a decision that no reasonable Traffic Commissioner could have reached in all the circumstances of the case; a capricious or arbitrary decision. The underlying reasoning in all those cases appears to flow from the Opinion of the Inner House in Kaye v Hunter 1958 SC 208. In Kaye the Court held that an appeal to the Sheriff under the Firearms Act 1937 was administrative and not judicial. The point at issue for the First Division was whether any appeal lay to the Court of Session from the Sheriff but in ruling that such an appeal was incompetent Lord Clyde opined in general terms that ( at page 211) :
"there is no single criterion which can be regarded as the conclusive test of whether it is the administrative or judicial capacity of the Sheriff which is being invoked. It is, consequently, misleading to search for precise analogies from other statutes, for each one must be considered on its own terms. But from the decisions on this matter one broad distinction seems to me to emerge, which may not be conclusive in all cases, but may well determine the issue in many. It is this. If what is appealed to the Sheriff is in a real sense a true lis between the parties, so that the Sheriff has to pronounce a judgment between the respective claimants, then the appeal involves invoking the Sheriff in his judicial capacity and his decision is subject to review by this Court-see the case of Arcari - and the opinion of the Lord President at the top of p. 68. If, on the other hand, the Sheriff has not really to decide a question of law between the parties, and has not to review the determination appealed to him in the sense of weighing the considerations for and against, and deciding which way the balance inclines, but if he is only entitled to interfere with what has been done provided he is satisfied that a discretion conferred by the statute has not been reasonably exercised, then the appeal to him is in his administrative capacity-see the opinion of Lord Low in the Allen & Sons Billposting case- at p. 76. For in this latter type of case the appeal is given by the statute, not primarily to determine a legal issue which has arisen between two contestants, but to provide machinery to protect the ordinary citizen from a capricious or arbitrary exercise of a discretion conferred on an official or on a public authority"
This seems clear enough. The problem is that the decision in Kaye was overruled by a bench of Five in the case of Rodenhurst v Chief Constable of Grampian (1992) SC.1 The Court held that there was a right of appeal to the Court of Session but also observed that the Lord President (Clyde) had also failed to draw an important distinction in relation to how a court should interpret it's jurisdiction in statutory appeals. The Lord Justice Clerk (Ross) set out the Court's views in these terms at page 10)
"We are also of opinion that Lord President Clyde's judgment is undermined because he did not recognise the important difference which existed between the legislation conferring the right of appeal in Allen & Sons Billposting Ltd. v. Corporation of Edinburgh on the one hand and the legislation under consideration in Kaye v. Hunter on the other hand. In the former the relevant statute-the Edinburgh Corporation Act 1899 as amended by the Edinburgh Corporation Act 1906-expressly provided that in any appeal to the sheriff, the sheriff might "either dismiss the appeal, or if he finds that the Corporation, in refusing the licence, have not reasonably exercised their discretion under this Act, he may grant the licence for a period not exceeding three years, and shall pronounce such order regarding expenses as he may deem just". Accordingly in the former case the legislation allowed appeal to the sheriff only upon one specified statutory ground, namely, whether in refusing the licence the corporation had not reasonably exercised their discretion. In the latter case, on the other hand, the statute did not prescribe for the sheriff any specific test to be applied in the appeal but merely provided that there was a right of appeal. That being so, we are of opinion that Lord President Clyde was not well founded when he stressed that the sheriff was only entitled to interfere with what had been done provided he was satisfied that a discretion conferred by the statute had not been reasonably exercised. In support of that proposition he relied upon Allen & Sons Billposting Ltd. v. Corporation of Edinburgh without apparently realising that the legislation relating to appeals in that case had been markedly different to the legislation with which he was dealing "
7. I can find no reference in any of the sheriff court decisions, to which I was referred above, and that were decided after Rodenhurst, to any criticism of Kaye. The learned Sheriffs in their judgments do not indicate that Rodenhurst had been cited to them and several refer to Kaye with approval. Indeed, it is clear from the Note of Sheriff Pyle in this process, that Kaye was cited to him as being good law. I am forced, therefore, to conclude that the earlier decisions of my learned brother Sheriffs are based upon submissions in law which have been, at best, incomplete.
The Scope of the Appeal
8. Kaye is no longer good law and therefore, any conclusion that the court's jurisidiction in appeals of this kind is limited to interfering with what has been done only if satisfied that a discretion conferred by the statute has not been reasonably exercised as indicated by Lord Clyde is no longer valid. This, of course, begs the question as to the true scope and extent of Appeals such as these. The position in England and Wales is quite straightforward: the appeal to the Magistrates is a full re-hearing. I do not consider that an examination of the jurisprudence that has emerged in England and Wales is of much assistance as it has developed along radically different lines. I, for my part, find the comments of the late Lord MacPhail in Carvana ( cited above at Page 5) on this point highly persuasive:
" But although there is, in my opinion, an unrestricted right of appeal to the sheriff, the sheriff should not, I think, vary or reverse the decision of the magistrates committee unless he is satisfied that their decision was wrong, and he should pay due regard to the competence of the magistrates in arriving at their decision. In Stepney Borough Council v. Joffe [1949] 1 K.B. 599, Lord Goddard, C.J., having said that there was an unrestricted right of appeal, and it was for the court of appeal to substitute its opinion for the opinion of the borough council, continued (at pp. 602-603): "That does not mean to say that the court of appeal, in this case the metropolitan magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter, and it ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right." In Prise v. Aberdeen Licensing Court, 1974 S.L.T. (Sh.Ct.) 48, Sheriff Principal G. S. Gimson, Q.C., stated (at p. 50) that where the licensing court's reasons for refusal of an application for a gaming machine permit conformed to standards which he had specified, "and particularly where they involve matters of local opinion and knowledge, they will be given full weight in an appeal, even where the sheriff treats the appeal as an application de novo.
I, accordingly, propose to approach the appeal in manner indicated by Lord MacPhail in Carvana.
Discussion and Decision.
- As the appellants argument developed it became apparent that they had two points to advance. The first concerned the sufficiency of the evidence before the Traffic Commissioner to justify her finding that the alleged behaviour of the drivers rendered them unfit; the second that she failed to take account of material considerations when assessing the appropriate sanction. In consequence it was submitted that the sanctions imposed were disproportionate and, therefore, subject to review. The solicitor for the respondent invited me to accept that there was sufficient evidence of the drivers misbehaviour , as set out in the Commissioners decision and that, in relation to sanction, even if the suspension periods for each driver were on the severe side they were well within the guidelines set out in Practice Direction 3 which sought to provide a measure of consistency throughout the various traffic areas of the United Kingdom. Road safety was paramount; any failure, particularly a repeated failure, to comply with the important rules relating to recording duty time and proper rest periods was potentially highly dangerous to both drivers and other road users. The sanctions imposed on the appellants were proportionate.
- In my judgment, paras 2 and 3 of Practice Direction 3, as they apply to the holder of a large goods vehicle licence, accurately reproduce the effect of ss.116 and 121(1)(a) of the 1988 Act. The personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as driver. Thus, personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention ) would be relevant to the question of fitness to hold the licence, while personal circumstances which would, in the ordinary sentencing exercise, go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence holder), would not. 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 fitness whether the matters of complaint took place in isolation or against a background of repeated disregard for the law of the road as is suggested in this case.
11. Judgment of the conduct itself is only the first stage of the decision maker's task. The second stage involves the application of s.116(2) of the 1988 Act. Where the traffic commissioner has determined that the conduct of the driver makes him unfit to hold the licence, he or she
"... 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 ..."
This highlights the fact that it is equally important to the proper exercise of judgment whether the conduct must lead to revocation and disqualification (and therefore the requirement to re-apply for the licence at the end of the period of disqualification) or only to suspension (which does not). At this second stage of decision making, personal circumstances may well be relevant. It is trite that the purpose of the legislation concerning LGV drivers is to ensure their compliance with the laws of the road. Compliance is necessary to keep the public safe from large vehicles. A licence holder whose conduct has amounted to deliberate and persistent flouting of his responsibilities as a driver will be at risk of revocation and disqualification. However, if the experience of referral and the risk of revocation have sufficiently brought home to the licence holder that his livelihood is in jeopardy, such that the traffic commissioner is persuaded that further offences are unlikely, it seems to me that it is open to her to conclude that the sanction of revocation is not required. This is analogous to the position of the employer of the appellants who were permitted by the traffic commissioner to retain its operator's licence, but subject to conditions and restrictions, under the equivalent statutory scheme for operators.
12. Paragraph 4 of Practice Direction 3 makes clear the objective of consistency of approach but emphasises that the guidelines should only be used as a starting point, and "Traffic Commissioners have full discretion to move up or down from the recommended guideline if their judgment deems it appropriate". However, para.23(b) of Practice Direction 3 is couched in mandatory terms:
"Deliberate falsification of the chart will result in either suspension of the vocational entitlement or revocation and disqualification dependent on scale and degree." (my emphasis added).
13. I am satisfied that the Traffic Commissioner had ample evidence before her to justify her conclusion that the appellant drivers had behaved in a manner which raised concern as to their fitness. There was, clearly, a culture relating to various aspects of driving which was engendered by the employers. The interpretation of what constituted "duty" time is a good example. The VOSA report makes it abundantly clear that the drivers followed their employers lead in the interpretation of these vital regulations when their own training and experience should have lead them to conclude that their employers were wrong. In some cases it was not possible for the VOSA examiner to ascertain whether the off-chart distance was driven during what should have been a period of rest. In others there was undoubtedly driving during a period of rest but there was additional travel at a time which may or may not have included a period of rest. Never the less there was quite compelling evidence of inadequate record keeping, failure to record "duty" driving periods properly and driving off chart. Furthermore, on a fair reading of the VOSA brief each of the appellants accepted a measure of culpability. The traffic commissioner was entitled to conclude that the behaviour of each appellant amounted at the least to a reckless disregard for the drivers' obligations under the Regulations. The effect that unrecorded "duty" driving on a journey may have had upon the continuing and cumulative requirement for rest periods is unknown. I accept the appellants submission that while many of these journeys were of a comparatively short distance that fact did not entitle the appellants to assert that these were minor breaches. As Practice Direction 3 points out it is the concealment of evidence required for effective regulation of drivers' hours which, in my view rightly, causes the traffic commissioners to take a serious view.
14. The offending behaviour and it's relative seriousness were fully described in the traffic commissioner's report and in the VOSA brief produced with the papers. In my judgment the appellants all conceded that they had accepted the interpretation placed on issues such as the correct interpretation of "duty" time so as to exclude, for example, journeys made in non commercial vehicles to remote pick up points or using the detached LGV cab as if it were a private vehicle to source better refreshment facilities during rest periods. The drivers were, however, all well aware of their obligations to properly interpret the regulations as they applied to them. They cannot abrogate their personal responsibility by merely stating that they bowed to their employers dictats on such issues. All the relevant material was before the Traffic Commissioner and I do not consider the absence of specific reference by her to a detailed assessment of seriousness demonstrates that she was acting in ignorance of its true perspective. I am, therefore, unable to accept the appellants primary submission that the Traffic Commissioner did not have sufficient evidence before her, bearing in mind her core competences in the field of road transport safety, to conclude that the appellants behaviour rendered them unfit. This conclusion does not, however, in my opinion dispose of the Appeal.
15. The second submission for the Appellants was that there had been no repetition of regulatory offences during the period following the investigation, when they continued to drive commercially, to the date of the traffic commissioner's decision. The Traffic Commissioner had before her the audit report of Mr William Smith dated 12th June 2009. This was production 3 in the appellants Inventory. The appellants at the original Enquiry relied upon this report and it's description of their post investigation training. The report makes it clear that the appellants had extensive additional training and that it had had good effect. All the signs were that the appellants would perform well hereafter. In the event that they did not it would not be for want of training and understanding of the relevant issues and their personal obligation to comply with the regulations. ;It is a well-recognised principle of assessment by the traffic commissioner in the case of an operator that the question whether the operator is fit to hold a licence must be judged as at the date of consideration. That renders relevant and admissible evidence of steps taken by the operator since notification of referral to the traffic commissioner to ensure compliance with its regulatory responsibilities. The Traffic Commissioner stated in her Decision that she had regard to the important principle enunciated in Bryan Haulage Ltd v Vehicle Inspectorate (No.1) (217/2002) (TT No. 1 of 2002). In that case the Transport Tribunal applied the decision of the Court of Appeal in Crompton (t/a David Crompton Haulage) v Department of Transport North Western Traffic Area [2003] R.T.R. 517 . The court in Crompton had found that there must be a relationship of proportionality between a finding of unfitness to hold a licence and the sanction imposed. The President of the Court, Mr Hugh Carlisle Q.C., in Bryan Haulage , observed at [11] that the question was whether the conduct is so serious that it requires revocation of the operator's licence. He continued,
"Put simply, the question becomes 'Is the conduct such that the operator ought to be put out of business?' In Priority Freight Ltd v Paul V Williams (2009/225) Judge Brodrick, in applying the Bryan Haulage question, referred specifically to the period between the "conduct" and the date of the public inquiry leading to revocation. He said: "In our view before answering the ' Bryan Haulage question' it will often be helpful to pose a preliminary question, namely: How likely is it that this operator will in future operate in compliance with the operator's licensing regime? If the evidence demonstrates it is unlikely then that will of course tend to support a conclusion that the operator ought to be put out of business. If the evidence demonstrates that the operator is very likely to be compliant in the future then that conclusion may indicate that it is not a case where the operator ought to be put out of business........In the present case the appellant company was entitled to rely on that old saying that 'actions speak louder than words'. By the date of the public inquiry it had already taken actions which enabled it to demonstrate that it was again substantially compliant. In our judgment had the traffic commissioner considered the question of whether it was likely that the appellant company would have been compliant in the future it is inevitable that he would have concluded that it was very likely that it would be ................... If it were right to give credit to the operator for taking steps to regularise its training and supervision of drivers, and thus to conclude that reputation had not been lost entirely then why should the drivers not be equally given credit for the improvement they had made in compliance through personal effort and appropriate training. "
I respectfully agree with the President ( Carlyle QC) in that analysis. There is nothing I can see, in principle, which distinguishes the policy considerations to be applied to mitigating post investigation conduct to Operators who employ drivers and the drivers themselves.
16. The Traffic Commissioner at paragraph 86 ( Page 20) of her Decision makes very positive reference to the efforts made by the appellant's employers and indeed, she refers obliquely to the drivers efforts to improve their behaviour :
" However there are positive features.......Mr Smith was brought in July 2008 to examine, to audit, to train, to test, to audit again and again..... to be a source of advice. All the evidence points to [ the operator] heeding Mr.Smith's advice and to the drivers changing their ways (my emphasis added)...."
There is, however, nothing in the traffic commissioner's report to indicate that a prolonged period of post-offence good conduct was taken into account when her judgment was made. On the contrary, the traffic commissioner's reasons concentrate exclusively upon the adverse behaviour which was referred to her and say nothing about the intervening period. It could be observed, as Judge Brodrick in Priority Freight that the prospect of an inquiry is likely to concentrate minds, but the same observation could have been made about the operators. The fact is the drivers were entitled to and did rely upon their post-investigation conduct. Consideration of the licence holder's "conduct as a driver" in the round is a matter of such importance it is my view that, had the traffic commissioner given it due consideration, she would have said so in her report. There is no indication to what extent, if at all, the Traffic Commissioner treated the appellants' "conduct as drivers" since the investigation as material to question posed by s.116 of the 1988 Act.
17. The Traffic Commissioner's decision in the case of each of the appellants will be quashed to the extent of the sanction imposed only. I consider that these matters retain a sufficiently serious public interest to require the Traffic Commissioner to re-address the issue of sanction in the light of the contents of this judgment. I shall remit the matter for a rehearing to this extent.
18. The question of expenses is a difficult one. The appeal raised interesting points of law and at the end of the day the appellants have secured an element of success. I am, however, of the view that success was divided. I was invited to quash the decision of the Traffic Commissioner on all points. I, for the reasons given, have not been persuaded to do so. Equally, I was urged, for the Traffic Commissioner, to dismiss the appeals as without merit. I have declined to adopt this submission. I, accordingly, consider that the fair approach is for each side to bear their own costs. I will make a finding of no expenses due to or by any party.