You are on page 1of 34

IN THE SCOTTISH TRAFFIC AREA

UNDER
The Goods Vehicles (Licensing of Operators) Act 1995
(“the Act”)

AND

The Road Traffic Act 1988


(“the Road Traffic Act”)

DECISION

By

RICHARD HAMILTON McFARLANE


DEPUTY TRAFFIC COMMISSIONER FOR THE SCOTTISH TRAFFIC AREA

IN THE CASES

OF

WILLIAM JAMES WILL


TRADING AS
WILLIAM J WILL TRANSPORT

[LICENCE NUMBER OM 26831]

AND

PHILIP GORDON ANDREW

[DRIVER LICENCE NUMBER ANDRE 711035 PG9AD]

DARREN GRAHAM McDONALD

[DRIVER LICENCE NUMBER MCDON 808284 DG9JU]

BILLY JOHN WILL

[DRIVER LICENCE NUMBER WILL9 811021 BJ9ME]

BACKGROUND

1. William James Will (“the operator”) resides at “Roslyn”, Commerce Street, Insch,
Aberdeenshire. He is a sole trader as a haulier. He trades as “William J Will
Transport”. He is the holder of a Standard International Goods Vehicle Operator’s
Licence (“the licence”).

2. He is authorised to operate 3 vehicles and 5 trailers. 2 vehicles are meantime


specified on the licence. He is the nominated transport manager on the licence.
3. In September 2008, the Regional Intelligence Unit of the Vehicle & Operator
Services Agency (“VOSA”) instructed an investigation into the activities of the
operator. Inter alia the investigation involved an analysis of tachograph charts
(“chart” or “charts” where the context admits) and associated documentation for the
period of August to October 2008. The Traffic Examiners involved in the
investigation identified that 14 false records had allegedly been generated by drivers
in the employ of the operator. It also appeared there were 3 occasions of drivers
allegedly failing to take sufficient daily rest. In light of these findings the Traffic
Commissioner directed that the issues identified on behalf of VOSA be considered at
a Public Inquiry.

4. The Secretary of State referred the issue of the conduct of the three divers who were
alleged to have committed drivers’ hours offences and the speeding convictions
involving two of them to the Traffic Commissioner to determine whether they or any
of them were fit to continue to hold the large goods vehicle driving licence
entitlement (“LGV licence”).

THE PUBLIC INQUIRY AND DRIVERS’ CONDUCT HEARINGS

5. On 25th March 2010, I presided over a Public Inquiry and Driver Conduct Hearings at
Aberdeen. The operator was in attendance. He was represented by Mr John
McLaughlin (“Mr McLaughlin”), solicitor, Perth. Mr William Smith, managing
director of Transport Training Scotland Ltd (“Mr Smith”) who had been called as a
witness for the operator was in attendance. Also in attendance as a possible witness
for the operator was Mr Ronald Headley (“Mr Headley”) who is employed by the
operator as a driver.

6. Drivers Phillip Gordon Andrew (“driver Andrew”), 44 Main Street, Rhynie, Huntly,
Aberdeenshire, Darren Graham McDonald (“driver McDonald”), 17, Newton Place,
Mosstodloch, Fochabers, and Billy John Will (“driver Will”), “Roslyn”, Commerce
Street, Insch, Aberdeenshire were in attendance. Mr McLaughlin also represented the
interests of driver Will. Drivers Andrew and McDonald were not represented. The
interests of VOSA were represented by Traffic Examiner Mr Charles Hogg (“Mr
Hogg”). I note here that the VOSA report had been prepared by Mr Michael Dunlop,
a former Traffic Examiner, who retired from the service on 23rd December 2009. Mr
Hogg therefore spoke to Mr Dunlop’s report. As it happened Mr Dunlop was present
to observe the proceedings for his own interest.

7. At the outset of the Public Inquiry and Drivers’ Conduct Hearings (“the Hearings”), I
went over the “call up letters” with the various licence holders and satisfied myself
(a) that the letters had been received and (b) that the recipients of these letters
understood the content of them and the issues that I would be considering. I then
explained the procedure that would be followed. I made it clear to drivers Andrew
and McDonald that if they wished to reconsider their position in respect of
representation they were to let me know. At no time did either of them alert me to
any change of mind relative to representation.

8. I then expressed reservations about conjoining the Public Inquiry and the Hearings.
These reservations continue to concern me and more so in connection with other
cases I have been involved in since this one began. I do not rehearse these
reservations/concerns in this case. I aired them in some detail in my decision in the
case of Cameron Young Transport Ltd, a case I prioritised over this one with regard
to issuing my decision.
9. I did, however, enquire of Mr McLaughlin whether it was his intention to discuss
issues with any of the drivers. He told me that he did have issues he wished to
discuss. In particular, he wished an opportunity to question driver McDonald. I
pointed out to Mr McLaughlin that the “call up” letters sent to each of the drivers
required their attendance solely in connection with their LGV licences. There was
nothing in these letters to put them on notice that their respective hearings were to be
held in conjunction with the Public Inquiry. I was concerned that if I allowed Mr
McLaughlin an opportunity to question the drivers, in the absence of any notice or
forewarning that they might be questioned on behalf of the operator, that the “fairness
ticket” which I zealously subscribe to might be compromised. Accordingly, I
enquired of Mr. McLaughlin on what basis could he be allowed to discuss any issues
with any of the drivers? He submitted that if he was not permitted to put a contrary
issue to a driver it may be impossible to see where the truth of any allegation lay. He
also suggested the alternative might be that the driver gave his version of events and I
then commented on it. He also said that my role was to determine whether the
content of the brief is accepted and said further that I could not take evidence from a
driver that would impact on the operator. He gave notice that he had some questions
for driver McDonald that “may be probing”. He also had some productions that driver
McDonald would not have seen before.

10. I asked driver McDonald if he had understood everything so far. He said “I think
so”. He then repeated a request that he had previously made in writing namely that
his hearing be held in private. I asked Mr McLaughlin where he would find himself
if I heard driver McDonald's case in private. He recognised that he would then have
no locus to ask driver McDonald any questions.

11. I then refused driver McDonald's request that his hearing be held in private. I also
ruled that the drivers would not be cross-examined by Mr McLaughlin on behalf of
the operator. I gave notice that I would take the initiative in the Hearings as the Road
Traffic Act required me so to do.

12. After preliminary issues had been addressed I held the Hearings and then began the
Public Inquiry with all the drivers still in attendance.

13. Regrettably, the Public Inquiry did not conclude. It was adjourned to 15th June 2010
which was the earliest available date to suit all parties. On any view this is far too
long an interval which has a number of consequences. The momentum of the
evidence is lost. Through no fault of their own the uncertainty for all the licence
holders continues which is not fair. It is not helpful in the decision making process.

14. Prior the commencement of the reconvened Public Inquiry I received a letter, dated
29th May 2010, from driver McDonald. Enclosed with the letter was a CD. I read the
letter in which driver McDonald explained that he had had a telephone conversation
with the operator. He had stored the conversation on his mobile ‘phone and thereafter
transferred it to the CD. He believed that the tone and tenor of the conversation was
indicative of the operator’s attitude to him. It also gave some information regarding
the circumstances in which his employment with the operator terminated. I decided
not to listen to the CD.

15. At the commencement of the reconvened Public Inquiry with all the same parties in
attendance (with the exception of Mr Dunlop), I informed Mr Hogg and Mr
McLaughlin of this development. I told them that I had not listened to the CD. I
invited them to listen to the CD on my lap top computer outwith my presence which
they duly did. After they had listened to it I enquired of Mr Hogg whether he wished
the content of the CD to form part of the case for VOSA. He felt that there was
nothing contained in it which would advance the case for VOSA. He believed it
demonstrated the depth of feeling between the parties. VOSA was neutral with regard
to the CD. Mr McLaughlin had no objection to the CD being admitted into the
evidence in connection with driver McDonald’s LGV licence. He thought its content
did not advance matters for either party. I then listened to the CD in open forum.

16. During the course of the reconvened Public Inquiry, a significant difference of
opinion arose between driver McDonald and Mr Headley. The behaviour of Mr
Headley was such that I asked him to leave the room which he did. During a break in
proceedings Mr Headley approached me and apologised for his behaviour. At the
resumption of the Public Inquiry, I allowed Mr Headley to return. He again
apologised for his behaviour. I accepted his apology.

17. At the conclusion of the Public Inquiry and the Hearings, I adjourned to consider the
evidence and issue a written decision which has attracted a further delay as I deemed
it necessary to prioritise the other case as hereinbefore mentioned.

THE DRIVERS’ CONDUCT HEARINGS

18. Section 115 of the Act directs that the only matter that is to be taken into account
when considering the fitness of a licence holder is driver conduct. Matters to do with
individual personal circumstances are irrelevant and are not to be considered.

19. Section 121 of the Road Traffic Act defines conduct as “…his conduct as a driver of
a motor vehicle.” Section 115(1)(b) of the Act states “… a large goods vehicle
driver’s licence must be revoked or suspended if his conduct is such as to make him
unfit to hold such a licence.” Section 116 requires the Secretary of State to refer such
questions to the Traffic Commissioner for the area in which the licence holder
resides.

20. The drivers’ hours rules and regulations were introduced with the sole purpose of
ensuring that drivers of large vehicles do not drive excessive hours. The first EEC
Regulation namely Regulation (3820/85) had to do with the control of drivers hours
inter alia stated “Whereas, with regard to driving periods, it is desirable to set limits
on continuous driving time and on daily driving time but without prejudice to any
national rules whereby drivers are prohibited from driving for longer than they can
with complete safety” (this regulation has been incorporated and developed in EEC
Regulation 561/2006 and the amended version of 3821/85 which details the
regulatory framework to prevent continuous driving whereby drivers are required to
take breaks, and to have daily, weekly and fortnightly periods of rest).

21. It therefore follows that where drivers have driven in excess of the driving time
lawfully available to them or have failed to take the minimum required rest, they have
driven in circumstances where they cannot complete the journey with safety. The
regulations are there 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 can flow from tired drivers driving commercial vehicles.

22. Tiredness is a very real issue for drivers of all classes of vehicles. Recent statistics
tend to suggest that one in every five serious road traffic accidents is caused by driver
tiredness.
23. The licence is very special. It entitles the holder of it to drive a particular size of
vehicle with the potential of a significant increase in income. By their nature and
construction such vehicles are capable of creating or causing very real danger if
driven unsafely. To drive while tired or being prepared to take the risk of driving
tired by driving in excess of the hours prescribed by the legislation is a serious matter.
The potential adverse consequences for the driver and other road users are very
significant.

24. Accordingly, a driver who is prepared to drive tired and to interfere with the proper
operation of tachograph recording equipment indulges in conduct as the driver of a
motor vehicle which impacts adversely on his or her fitness to hold a large goods
vehicle or passenger-carrying vehicle driver’s licence.

25. It also follows that if a driver is driving in excess of the hours lawfully available to
him or her there is likely to be greater financial rewards. Such a driver creates an
unfair advantage over the law-abiding driver. It is unfair competition.

Driver Billy John Will (dob 2nd November 1981)

The case for the Secretary of State

26. Driver Will was on notice that I would be considering three speeding convictions and
an allegation that he had created a false record, the factual basis of which was
detailed in Mr Dunlop’s report attached to the “call up” letter.

27. The chart in the name of driver Will, dated 20th August 2008, records a journey from
Altens to North Shields ending at 0035 hours. The next chart, dated 21 st August 2008,
records a journey from North Shields to Dundee. The journey began at about 1020
hours and finished at about 2125 hours. Mr Dunlop had obtained a driver’s exit pass
from Morrison’s Supermarket at Wakefield, dated 21st August 2008, with a “time in”
of 1130 hours and a “time out” of 1410 hours. It was signed “B Will”. The same
registration mark of the vehicle (P633 UOS) appears on both the chart and the said
driver’s exit pass. Mr Dunlop noted that the chart disclosed short vehicle movements
between 1020 hours and 1115 hours indicative of the vehicle being driven in a yard.
There was little use of the vehicle recorded until about 1410 hours when another
journey began. These times tie in with the exit pass. The journey of 180 kms between
North Shields and Wakefield was not recorded. Mr Dunlop concluded the chart
contained a false record.

28. On 6th November 2009, Mr Dunlop interviewed driver Will under caution.

29. At the interview driver Will confirmed that the chart was his. He denied that the
signature on the exit pass was his. He denied that he had been at Morrison's
Supermarket, Wakefield on 21st August 2008.

The case for driver Will

30. Driver Will is 28 years of age. He has held the LGV licence for 7 years. He continues
to work for his dad – the operator.

31. He accepts he has 3 endorsements on his ordinary driving licence. He presently has 9
“live” points endorsed on that licence. They are all for speeding in large goods
vehicles on roads where the maximum permitted speed is 40 mph. They were all
detected by road traffic policing officers. On each occasion, he was driving at 56
mph. He could not recall the circumstances that gave rise to the first two offences.
The third offence occurred as he had to increase his speed to complete an overtaking
manoeuvre when the vehicle he was overtaking sped up.

32. Mr McLaughlin referred driver Will to the chart dated 21st August 2008 and to the
said Morrisons’ exit pass and asked him to look at them. He confirmed that it was his
chart. He also confirmed that he had been driving vehicle P633 UOS that day. It was
not his normal vehicle. It was his signature on the chart. It was not his signature on
the exit pass. He referred to the questions and answers that were noted by Mr Dunlop
at the time of the interview and to the signature at the end of the note, which driver
Will stated was his normal signature.

33. Driver Will observed that he could have started work on 21st August 2008 at about
09:30 hours. The chart disclosed that he had in fact started at about 10:20 hours at
North Shields. He had had sufficient rest.

34. He was adamant that he had not been at the Wakefield depot of Morrison's that day.
That was the truth.

35. The work for this journey was for Craib Transport (“Craibs”). He had undertaken it
on the operator's licence. It would have been organised by Craibs. The Drivers
Manifest (“the manifest”) generated by Craibs for any given day did not identify the
name of the driver for any of the work detailed therein. He had therefore been unable
to obtain vouching and/or the identity of the driver from Craibs for this particular
journey. He also explained that a driver may start a working period with such a
manifest but not undertake all the work detailed therein. It often happened that he
dropped a trailer and did not continue with the work detailed in the manifest. When
this happened he would leave the manifest with the trailer i.e. the manifest went with
the trailer.

36. The only explanation that driver Will could give for his name appearing on the exit
pass is that he had started the run. He had dropped the trailer. Someone had taken
over and taken his details off the manifest to fill in the exit pass. The practice varied.
Sometimes he would complete the details on the exit pass. At other times the details
would be completed by the person at the gate house.

37. He observed that the exit pass had him entering the premises at 11:30 hours. The
chart discloses that he was on a break at that time which finished at about 11:50
hours. There had been no movement of the vehicle recorded during that time. There
was no way he would be allowed to “sit there blocking the gate”.

38. Driver Will confirmed that all his charts for the period of the VOSA investigation had
been produced. Only one chart had been referred back to him. He had gone on
paternity leave from 29th July 2008. Accordingly, he had not been back to work
much before said 21st August 2008. He received/receives a salary. He had definitely
never been asked to work in excess of the hours lawfully available to him. He had
never been pressurised to do the work either by the operator or Craibs. There would
have been no benefit to him to have worked more hours. He was adamant that he had
been at North Shields on said 21st August 2008. He had not been at Wakefield. He
repeated that he had not created a false record.
Submission by Mr McLaughlin

39. With regard to the 3 convictions for speeding, Mr McLaughlin observed that 2 of
them will be “removed” by the end of the year. He acknowledged that these 3
speeding convictions were unacceptable. Had it not been for the allegation of a false
record he submitted that these 3 convictions would not in themselves have required
driver Will to appear at this hearing.

40. With regard to the said chart of 21st August 2008, he submitted that I had to be
satisfied that it is a false record. Driver Will had given an explanation to me which
was the same explanation he gave at the time of interview. He understood that the
Traffic Examiner believed that the signature made by driver Will in his notebook at
the end of the interview was the same writing as the signature that was on the exit
pass. Driver Will and the operator did not accept this. He had been consistent in this.
He invited me to accept that driver Will had not made a false record and that I should
not take action against his LGV licence.

Considerations and reasons for decision

41. It is of concern to me that driver Will has nine penalty points on his ordinary driving
licence all for speeding. He told me that prior to 2007 he had a “clean licence”. The
only explanation he could give for picking up these three endorsements is that the
trucks he is now driving are more powerful and it is easy to go over the maximum
permitted speed. I note that on each occasion he must have been driving at the
maximum speed of the vehicle which was presumably governed to 56 mph. He told
me the operator had gone “ballistic” when driver Will told him about them. He
assured me that these instances of speeding arose from his incompetence rather being
under pressure to get the work done.

42. I understand why Mr Dunlop believed that the chart, dated 21st August 2008, did not
disclose all the work undertaken by driver Will that day and that had a false record
had been created.

43. I observe the signature on the chart and at the end of the interview is “Billy J Will”.
On the exit pass it is “B Will”. I am not a hand writing expert. No evidence was led
from such an expert. Through the eyes of a layman there appear to be similarities in
the three signatures of the surname “Will”. It is, however, the registration mark of the
vehicle as entered on the chart and the exit pass where there is significant similarity in
the handwriting as seen through the eyes of a layman. In particular, there is a
consistency with the last three letters of the registration mark written in the equivalent
of a “lower case”.

44. On Mr Dunlop's evidence, it appears that 180 kms is otherwise unaccounted for.

45. The difficulty that we all have is that it is now almost 2 years since the date of the
alleged false record. Given the passage of time and again from what I was told it is
unlikely that there are any more records that could be retrieved from Craibs or
elsewhere. The passage of time has also not assisted parties in being able to
remember that far back. That said driver Will was clear about his movements on 21 st
August 2008. He has been consistent with regard to his position in relation to the said
chart and associated documentation namely that he did not make false record. He
has given an explanation.
46. Accordingly, I require to look very closely at that explanation namely that someone
else completed the entries on the exit pass. First and foremost I consider why should
someone else have completed it? There was an explanation that quite often such
information was lifted off documentation such as the manifest or elsewhere and was
either entered by the driver or alternatively the person at the gatehouse on to the exit
pass. I understand that the manifest goes with the trailer.

47. Whilst I may have suspicions about the handwriting, it would be quite improper for
me to make a determination based on suspicion. There are two aspects to driver
Will’s position which require me to make a favourable determination in his case they
are (a) his chart records a break at the time the vehicle is logged in at Morrisons’ and
(b) the possibility that the trailer with the manifest originally associated with driver
Will was taken to Morrison's by another driver.

48. In these circumstances I hold, on the balance of probabilities, that driver Will did not
make a false record in respect of this journey on 21st August 2008.

Driver Philip John Andrew (dob 3rd November 1975)

The case for the Secretary of State

49. Driver Andrew was on notice that I would be considering the report from Mr Dunlop
attached to the “call-up” letter which alleged that he had created 5 false records and
had failed to take sufficient daily rest on two occasions. No convictions or
endorsements are recorded against him.

50. Mr Dunlop determined that the alleged false records were associated with the
following journeys undertaken by driver Andrew:-

a. Chart dated 30th September 2008 records a journey starting from Aberdeen at
13:00 hours and ending at Newark at 22:35 hours. A weighbridge ticket for
the same day puts his vehicle at Inverurie at 11:33 hours. The journey from
Inverurie to the south edge of Aberdeen has not been recorded;

b. Chart dated 9th October 2008 records a journey from St Martins to Frankley
ending at 18:20 hours. A gate pass for the same date puts his vehicle at
Chepstow at 20:16 hours. That part of the journey from Chepstow to
Frankley has not been recorded.

c. Chart dated 14th October 2008 records a journey starting from Aberdeen at
11:45 hours and ending at Tividale at 22:45 hours. A weighbridge ticket for
the same date puts his vehicle at Inverurie at 10:54 hours. The journey from
Inverurie to the south edge of Aberdeen has not been recorded.

d. Chart dated the 16th October 2008 records a journey from Inverness to
Preston ending at 21:00 hours. His vehicle refuelled at Carlisle at 19:03
hours. A vehicle register records his vehicle arriving at Widnes at 22:10 hours
and leaving at 23:15 hours. The journey from Widnes to Preston has not been
recorded. The next chart dated the 17th October 2008 begins at Preston at
06:40 hours. Driver Andrew failed to take sufficient daily rest.

e. Chart dated 20th October 2008 records a journey from Insch to Bolton ending
at 22:25 hours. His vehicle was refuelled at Perth at 15:21 hours. A vehicle
register records his vehicle arriving at Widnes at 22:35 hours and leaving at
24:00 hours. The journey from Widnes to Bolton has not been recorded. The
next chart dated 21st October 2008 begins at Preston at 08:00 hours. Driver
Andrew failed to take sufficient daily rest.

51. On 30th October 2009, driver Andrew was interviewed by Mr Dunlop about these
allegations. Mr Dunlop went through all these charts with driver Andrew and sought
explanations for the discrepancies he had identified between the charts and the
extraneous evidence. In answer to the questions, driver Andrew was either not sure
how it had happened or was unable to explain the inconsistencies in the records. He
conceded that in respect of the charts dated 9th, 14th, 16th and 20th October 2008 he had
done something wrong and had “obviously tipped off the chart”. The last question Mr
Dunlop asked driver Andrew at the end of the interview was “Have you ever done
anything to affect the correct recording of your tachograph, for instance pulling a
fuse?” In reply driver Andrew stated “Yes. You cannae hide it can you? Just to help
myself out really.”

The case for driver Andrew

52. Driver Andrew informed me that he 34 years of age. He has held the LGV licence for
14 years. At the time of his hearing he was employed as a tractor driver. He had
taken up this employment in December 2009 as he understood that he might lose his
LGV licence because of the circumstances that brought him before me.

53. He considered the transcript of the interview that he had had with Mr Dunlop was
accurate. In answer to the questions I put to him he accepted that Mr Dunlop's
findings were accurate. He explained that he had “pulled the fuse” on the five
occasions that Mr Dunlop believed that he had created false records. With regard to
his lack of candour with Mr Dunlop at the time of interview, driver Andrew explained
that he was not sure about his position in relation to some of the matters that were
being raised with him. On receipt of the “call up” letter and having considered the
transcript of the interview attached to it he had a clearer understanding and/or a better
recollection.

54. His explanation for “pulling the fuse” was to give him more time off and spend more
time with his family. He described himself “sneaking home” without the operator
knowing. It was done solely for his own benefit. He denied that there was any
pressure on him from the operator to get the job done. He maintained that when he
was driving with the “fuse pulled” he was driving sensibly.

55. He had been employed by the operator for three or four months. He would like to
return to driving large goods vehicles. He accepted that he had done wrong. He was
anxious to do the best for his wife and three children.

Considerations and reasons for decision

56. I am always concerned when a driver is interviewed under caution by a representative


of VOSA and the driver is less than candid in his or her answers to the questions.
Driver Andrew agreed with me that he had been less than candid with Mr Dunlop. I
note that as the interview developed he became more candid and came closer to
telling the truth. His answer to the last question as recorded above makes the point.

57. During the course of my discussion with him, driver Andrew made reference to
difficulties with the manifests and changing trailers. On occasion, he would leave a
manifest with his name on it with a trailer. Whatever difficulties this may have
caused him he maintained his position namely that he created false records to disguise
the fact that he had gone home unknown to the operator. There are two journeys from
Aberdeen to Inverurie that are not accounted for. The other three journeys have been
undertaken when 130kms, 60kms and 45kms have not been recorded respectively.

58. When challenged, driver Andrew was at pains to assure me that he was telling me the
truth. Accordingly, I hold that Mr Dunlop's findings are established and that driver
Andrew created five false records. He achieved this by “pulling the fuse”. This means
he has removed the fuse from the electrical power supply to the tachograph recording
equipment. With the fuse removed the tachograph is inoperative. Such conduct
cannot be condoned - it must be discouraged.

59. By definition the creation of false record means that driver Andrew has driven in
excess of the hours lawfully available to him in respect of these five journeys. He has
taken insufficient daily rest on two occasions. He has therefore taken the risk of
driving tired thereby compromising or potentially compromising road safety, not only
for himself, but more importantly in respect of other road users. Such conduct renders
him unfit to continue to hold the LGV licence.

Driver Darren John McDonald (dob 28th August 1984)

The case for the Secretary of State

60. Driver MacDonald was on notice that I would be considering three speeding
convictions and allegations that he had created five false records and committed two
daily rest offences.

61. Mr Dunlop determined that the alleged false records were associated with the
following journeys undertaken by driver McDonald:-

a. Chart dated 4th August 2008 records a journey from Birmingham to


Cumbernauld. The next chart, dated 5th August 2008, records a journey
starting at 10:25 hours from Cumbernauld to Rugby. His vehicle was fuelled
at Dyce at 09:30 hours. This is not recorded.

b. Chart dated 6th August 2008 records a journey from Rugby to Rothes ending
at 21:30 hours. The speed trace discloses consistent driving on the speed
limiter (56mph) for the last two hours of the journey. The local roads to
Rothes would not allow such sustained speeds.

c. Chart dated 11th August 2008 records a journey from Insch to Walsall ending
at 21:00 hours. His vehicle was fuelled at Dundee at 14:56 hours. The chart
discloses the vehicle to be in motion from 13:45 hours to 17:10 hours.

d. Chart dated 17th August 2008 records a journey from Insch to Stockport
ending at 21:00 hours. His vehicle was fuelled at Dundee at 15:31 hours. The
chart discloses driving for the next four hours during which time his vehicle
covered 350 kms. The distance from Dundee to Stockport is 450 kms and
would take in excess of 4 1/2 hours.

e. Chart dated the 20th August 2008 records a journey from Erith to
Cumbernauld. Annotated on the reverse of this chart are the words “Been
having problems with batteries. Treasure Transport from Grantham came
out to the A1 at Newark to sort it but the same problem happened at
Penrith”. Full scale deflections are recorded on the chart at 14:50 and 17:50
hours. His vehicle was fuelled at Carlisle at 22:05 hours. The distance and
journey time from Penrith to Carlisle are consistent with a stop recorded on
the chart at 19:10 hours and the onward journey to the removal of the chart at
21:20 hours is consistent with a journey from Carlisle to Cumbernauld. If the
whole journey had been properly recorded the correct finishing time would be
22:05 hours +2 hours driving i.e. sometime after midnight. There is no
record/comment about this on the reverse of the chart. The next chart, dated
21st August 2008, starts at 07:15 hours. A daily rest offence has been
committed.

f. Chart dated 26th August 2008 records a journey from Stracathro to Burton on
Trent ending at 22:10 hours. The next chart, dated 27 th August 2008, starts at
0850 hours at Burton on Trent. A weighbridge ticket records his vehicle
entering the premises of Roger Bullivant Limited, Burton on Trent at 22:03
hours that day. His vehicle left those premises at 08:44 hours on 27th August
2008. The unloading of his vehicle is not accounted for. It is recorded as a
rest period.

g. Chart dated 16th October 2008 records a journey starting at 11:25 hours from
Aberdeen and ending at Warrington at 23:20 hours. A weighbridge ticket
puts his vehicle at Inverurie at 10:41 hours. This is not recorded. The total
mileage recorded on this chart is 693 kms. The true mileage from Aberdeen
to Birmingham is 679 kms. The onward journey to Warrington is a further
125 kms. These parts of the journey have not been recorded.

62. On 30th October 2009, driver McDonald was interviewed by Mr Dunlop about these
allegations of false records and daily rest offences. He invited explanations from
driver McDonald regarding the inconsistencies between the charts and the extraneous
evidence.

63. In respect of the charts dated 4th/ 5th August 2008, Mr Dunlop was concerned that the
end destination of the last of these two charts was Cumbernauld when he had
evidence to suggest that the vehicle arrived at Dyce. Driver McDonald explained he
had made a mistake and had entered Cumbernauld instead of Dyce on the charts.

64. He was unable to explain the speeds recorded on the chart dated 6th August 2008.

65. He attributed inconsistencies associated with the chart of 11th August 2008 to battery
problems.

66. He accepted that he had not recorded the entire journey on his chart dated 17th
August 2008. He could not recall how he achieved this. He explained that he had
been forced to do it by the operator. He told Mr Dunlop that it was his livelihood and
that he was not proud of doing it. He had been told by the operator “do the work or
you’re no use to me.”

67. He also accepted that his chart, dated 20th August 2008, was not a complete record of
his driving that day. His explanation was that there had been continuing problems
with the battery which were known to the operator. Driver McDonald had told the
operator when his “spreadover” would be up. He told Mr Dunlop that the operator
had told him that his chart would appear to show the correct journey because of the
battery problems and that he should “get up the road”. The next day he had ‘phoned
Craibs for his next job and told them that he would not be able to start until 9am as he
had not finished until about midnight the day before. Shortly thereafter he had
received a ‘phone call from the operator telling him in no uncertain terms that he had
to begin the journey now or he was of no use to him. Driver McDonald began the
journey at about 0715 hours (instead of waiting until 0900 hours).

68. He accepted that his chart, dated 27th August 2008, was also not a complete record.
He had been short on time and part of the journey would be “off the record”.

69. He also accepted that his chart, dated 16th October 2008, did not disclose the full
journey for that day. He explained that he sometimes drove “off the record” to enable
him to complete the journey later on in the day.

70. During the course of the interview he explained to Mr Dunlop that he had been
constantly under pressure to complete the jobs. There were several occasions when he
informed Craibs of constraints on the time lawfully available to him to complete
some of the journeys when he was given instruction which would allow him to work
lawfully. Invariably, those instructions were countermanded with instructions from
the operator insisting that the journeys were completed in the knowledge that they
could not be completed lawfully. He told Mr Dunlop that the charts he had falsified
only had short journeys missing as he “detested running without a card”. He was not
proud of what he had done. He had done it to pay the bills -- he needed a job to bring
in a wage.

The case for driver McDonald

71. Driver McDonald told me he is 25 years of age. He had held the LGV licence for just
over three years. He began working for the operator in or about Spring 2008. He
remained with the operator for five/six months.

72. It was some two/three weeks after he had begun work for the operator that he was
asked to produce his driving licence. Comments had been made with regard to the
number of penalty points on his licence. Those were the same points as detailed in
the “call up” letter.

73. The first and last speeding convictions were in large goods vehicles. The other one
had been in a car. They had all been dealt with by fixed penalties. He explained that
he had been new to the job and was trying to impress his then boss by trying to get
the job done more quickly. He was at pains to point out that he had been able to drive
in the last three years without picking up any more speeding offences.

74. He agreed that he had been interviewed by Mr Dunlop. He accepted that the charts
Mr Dunlop discussed with him were his. He developed his position to me in relation
to these charts as follows:-

i. Chart dated 4th/5th August 2008 - he explained that he


had been parked up at Dyce that night. He had been on private property. He
did not know that it was a legal requirement to use a chart on private
property. It had been a genuine mistake which he attributed to a lack of
knowledge and being new to the job. He had not been given any training;

ii. Chart dated 6th August 2008 - he did not know what was
wrong with this chart. He had a chart in all day. He believed that the
recorded mileage was correct. He could not understand why the speeds
recorded on the chart could not be achieved/sustained on the roads that he
had driven on;

iii. Chart dated 11th August 2008 - he explained that there


had been battery problems with the vehicle ever since he started with the
operator. He had told the operator about this. The operator had not treated
the problem as a priority. Driver McDonald had been told to “work away
with it.”

iv. Chart dated 17th August 2008 - he recalled that he had to


complete this journey and only had a short period of time left. He had been
told by the operator that if he did not do the journey in the required time “I
was of no use to him.” To overcome this and to produce a chart that would
look legal he had “pulled the fuse”. He had been shown how to do this both
by the operator and driver Will. He had been under a lot of pressure and
needed to lose about two hours. He stated that he was paid a salary and
there was therefore no benefit to him in pulling the fuse. He needed the job
at the time;

v. Chart dated 20th August 2008 - the day had started at


Erith. He had a break at Newark of 45 minutes. After the break he could not
restart the lorry. The operator had arranged for Treasure Transport Ltd to
sort the problem out. That had been achieved. The clock, however, was not
at the right time as the battery had been disconnected. Driver McDonald
finished the journey at Cumbernauld. He was not happy with his
spreadover. The next day he had ‘phoned Craibs who understood the
difficulty he was having with his daily rest. They were prepared to
accommodate him. Shortly thereafter the operator ‘phoned and told him to
get on with the journey. He felt pressurised into doing the journey even
although he knew that he did not have sufficient daily rest. In the morning
he re-set the time on the clock. On the face of the chart it disclosed that he
had the required nine hours off;

vi. Chart dated 27th August 2008 - driver McDonald


explained that there had been no interference with this chart. He drove into
Roger Bullivant’s yard to be unloaded. He removed the straps from the
load. It was a requirement of the yard that the driver remained within his
cab. He remained within the cab where he had slept overnight. When he
woke up in the morning the trailer had been emptied. He resumed his
journey with this (new) chart.

vii. Chart dated 16th October 2008 - he had picked up a trailer


from International Paper at Inverurie. He did not understand that he
required to use a chart whilst on private property. When he spoke to Mr
Dunlop he had not remembered about picking up the trailer and driving “off
road”.

75. In conclusion, driver McDonald accepted the findings of Mr Dunlop. He knew had
done wrong. He appreciated the seriousness of his wrongdoing. There had been
limited use of “pulling the fuse” as he had tried to do the work within the time
allowed. He did not like doing it. He did not wish to change anything that he had said
to Mr Dunlop or to me. He explained that he had been under a lot of pressure from
the operator. He denied blaming the operator for his wrongdoing to save his own
skin. He assured me that he had not told me a pack of lies to save his own skin.
Driving is what he wished to pursue as a career. He had organised CPC training to
improve his knowledge of the drivers’ hours rules and regulations.

Considerations and reasons for decision

76. There was a consistency in what driver McDonald told me about his admitted “wrong
doing” in relation to what he had said to Mr Dunlop. He did, however, volunteer
further information which on any view aggravated his situation namely his confession
that he had occasionally “pulled the fuse”. This revelation came about during the
course of my discussion with him. It came at a time before I had embarked upon an
in-depth cross-examination of him with regard to any methods he may have
employed to falsify his records.

77. At the time of the commission of these offences he was a relatively inexperienced
driver of large goods vehicles. He had a lot to learn. I have no doubt that he received
no training from the operator. I am concerned to note that the operator did not
examine driver McDonald’s driving licence prior to employing him as the operator
may well have reconsidered employing him with the then nine “live” penalty points
endorsed on the licence – that said his son driver Will has the same number of points
endorsed on his licence all for speeding.

78. In telling me that he had “pulled the fuse” I do not believe that he was pre-empting
my predictable enquiry into any methods he might have employed to falsify his
charts. Making a false record is a serious matter. His explanation for indulging in this
course of conduct, namely that he needed the job is not acceptable. The reality of the
situation is that he has prioritised his own personal circumstances ahead of the safety
of other road users. He was prepared to take the risk of driving whilst tired as
evidenced by his driving in excess of the hours lawfully available to him and failing
to take sufficient rest. Conduct of this nature renders driver McDonald unfit to
continue to hold the LGV licence.

THE PUBLIC INQUIRY – THE CASE FOR VOSA

79. The case for VOSA principally focused on the findings of Mr Dunlop and the
allegations that the aforementioned three drivers had between them generated 14 false
records together, with three instances of drivers failing to take sufficient daily rest all
as detailed in his report dated 16th November 2009. For ease of reference, as I am
now considering a separate licence in a different jurisdiction, I have “cut and pasted”
the summary of the findings for each driver as hereinbefore scripted for each of the
drivers’ cases. Additionally, the report referred to a prohibition being issued to the
operator on 30th September 2009 for a tachograph not being fitted as per the
regulations.

80. The chart in the name of driver Will dated 20th August 2008 records a journey from
Altens to North Shields ending at 0035 hours. The next chart dated 21 st August 2008
records a journey from North Shields to Dundee. The journey began at about 1020
hours and finished at about 2125 hours. Mr Dunlop had obtained a driver’s exit pass
from Morrison’s Supermarket at Wakefield dated 21st August 2008 with a “time in”
of 1130 hours and a “time out” of 1410 hours. It was signed “B Will”. The same
registration mark of the vehicle (P633 UOS) appears on both the chart and the said
driver’s exit pass. Mr Dunlop noted that the chart disclosed short vehicle movements
between 1020 hours and 1115 hours indicative of the vehicle being driven in a yard.
There was little use of the vehicle recorded until about 1410 hours when another
journey began. These times tie in with the exit pass. The journey of 180 kms between
North Shields and Wakefield was not recorded. Mr Dunlop concluded the chart
contained a false record.

81. On 6th November 2009, Mr Dunlop interviewed driver Will under caution.

82. At the interview driver Will confirmed that the chart was his. He denied that the
signature on the exit pass was his. He denied that he had been at Morrison's
Supermarket, Wakefield on 21st August 2008.

83. Mr Dunlop determined that the alleged false records were associated with the
following journeys undertaken by driver Andrew:-

a. Chart dated 30th September 2008 records a journey starting from


Aberdeen at 13:00 hours and ending at Newark at 22:35 hours. A
weighbridge ticket for the same day puts his vehicle at Inverurie at 11:33
hours. The journey from Inverurie to the south edge of Aberdeen has not
been recorded;

b. Chart dated 9th October 2008 records a journey from St Martins to


Frankley ending at 18:20 hours. A gate pass for the same date puts his
vehicle at Chepstow at 20:16 hours. That part of the journey from
Chepstow to Frankley has not been recorded.

c. Chart dated 14th October 2008 records a journey starting from Aberdeen
at 11:45 hours and ending at Tividale at 22:45 hours. A weighbridge
ticket for the same date puts his vehicle at Inverurie at 10:54 hours. The
journey from Inverurie to the south edge of Aberdeen has not been
recorded.

d. Chart dated the 16th October 2008 records a journey from Inverness to
Preston ending at 21:00 hours. His vehicle refuelled at Carlisle at 19:03
hours. A vehicle register records his vehicle arriving at Widnes at 22:10
hours and leaving at 23:15 hours. The journey from Widnes to Preston
has not been recorded. The next chart dated the 17th October 2008 begins
at Preston at 06:40 hours. Driver Andrew failed to take sufficient daily
rest.

e. Chart dated 20th October 2008 records a journey from Insch to Bolton
ending at 22:25 hours. His vehicle was refuelled at Perth at 15:21 hours.
A vehicle register records his vehicle arriving at Widnes at 22:35 hours
and leaving at 24:00 hours. The journey from Widnes to Bolton has not
been recorded. The next chart dated 21st October 2008 begins at Preston
at 08:00 hours. Driver Andrew failed to take sufficient daily rest.

84. On 30th October 2009, driver Andrew was interviewed by Mr Dunlop about these
allegations. Mr Dunlop went through all these charts with driver Andrew and sought
explanations for the discrepancies he had identified between the charts and the
extraneous evidence. In answer to the questions, driver Andrew was either not sure
how it had happened or was unable to explain the inconsistencies in the records. He
conceded that in respect of the charts dated 9th, 14th, 16th and 20th October 2008 he had
done something wrong and had “obviously tipped off the chart”. The last question Mr
Dunlop asked driver Andrew at the end of the interview was “Have you ever done
anything to affect the correct recording of your tachograph, for instance pulling a
fuse?” In reply driver Andrew stated “Yes. You cannae hide it can you? Just to help
myself out really.”

85. Mr Dunlop determined that the alleged false records were associated with the
following journeys undertaken by driver McDonald:-

86. Chart dated 4th August 2008 records a journey from Birmingham to Cumbernauld.
The next chart, dated 5th August 2008, records a journey starting at 10:25 hours from
Cumbernauld to Rugby. His vehicle was fuelled at Dyce at 09:30 hours. This is not
recorded.

i. Chart dated 6th August 2008 records a journey from Rugby


to Rothes ending at 21:30 hours. The speed trace discloses consistent driving
on the speed limiter (56mph) for the last two hours of the journey. The local
roads to Rothes would not allow such sustained speeds.

ii. Chart dated 11th August 2008 records a journey from Insch
to Walsall ending at 21:00 hours. His vehicle was fuelled at Dundee at 14:56
hours. The chart discloses the vehicle to be in motion from 13:45 hours to
17:10 hours.

iii. Chart dated 17th August 2008 records a journey from Insch
to Stockport ending at 21:00 hours. His vehicle was fuelled at Dundee at
15:31 hours. The chart discloses driving for the next four hours during which
time his vehicle covered 350 kms. He distanced from Dundee to Stockport is
450 kms and would take in excess of 4 1/2 hours.

iv. Chart dated the 20th August 2008 records a journey from
Erith to Cumbernauld. Annotated on the reverse of this chart are the words
“Been having problems with batteries. Treasure Transport from Grantham
came out to the A1 at Newark to sort it but the same problem happened at
Penrith”. Full scale deflections are recorded on the chart at 14:50 and 17:50
hours. His vehicle was fuelled at Carlisle at 22:05 hours. The distance and
journey time from Penrith to Carlisle are consistent with a stop recorded on
the chart at 19:10 hours and the onward journey to the removal of the chart at
21:20 hours is consistent with a journey from Carlisle to Cumbernauld. If the
whole journey had been properly recorded the correct finishing time would be
22:05 hours +2 hours driving i.e. sometime after midnight. There is no
record/comment about this on the reverse of the chart. The next chart dated
21st August 2008 starts at 07:15 hours. A daily rest offence has been
committed.

v. Chart dated 26th August 2008 records a journey from


Stracathro to Burton on Trent ending at 22:10 hours. The next chart, dated
27th August 2008, starts at 0850 hours at Burton on Trent. A weighbridge
ticket records his vehicle entering the premises of Roger Bullivant Limited,
Burton on Trent at 22:03 hours that day. His vehicle left those premises at
08:44 hours on 27th August 2008. The unloading of his vehicle is not
accounted for. It is recorded as a rest period.

vi. Chart dated 16th October 2008 records a journey starting at


11:25 hours from Aberdeen and ending at Warrington at 23:20 hours. A
weighbridge ticket puts his vehicle at Inverurie at 10:41 hours. This is not
recorded. The total mileage recorded on this chart is 693 kms. The true
mileage from Aberdeen to Birmingham is 679 kms. The onward journey to
Warrington is a further 125 kms. These parts of the journey have not been
recorded.

87. On 30th October 2009, driver McDonald was interviewed by Mr Dunlop about these
allegations of false records and daily rest offences. He invited explanations from
driver McDonald regarding the inconsistencies between the charts and the extraneous
evidence.

88. In respect of the charts dated 4th/ 5th August 2008, Mr Dunlop was concerned that the
end destination of the last of these two charts was Cumbernauld when he had
evidence to suggest that the vehicle arrived at Dyce. Driver McDonald explained he
had made a mistake and had entered Cumbernauld instead of Dyce on the chart.

89. He was unable to explain the speeds recorded on the chart dated 6th August 2008.

90. He attributed inconsistencies associated with the chart of 11th August 2008 to battery
problems.

91. He accepted that he had not recorded the entire journey on his chart dated 17th
August 2008. He could not recall how he achieved this. He explained that he had
been forced to do it by the operator. He told Mr Dunlop that it was his livelihood and
that he was not proud of doing it. He had been told by the operator “do the work or
you’re no use to me.”

92. He also accepted that his chart, dated 20th August 2008, was not a complete record of
his driving that day. His explanation was that there had been continuing problems
with the battery which were known to the operator. Driver McDonald had told the
operator when his “spread over” would be up. He told Mr Dunlop that the operator
had told him that his chart would appear to show the correct journey because of the
battery problems and that he should “get up the road”. The next day he had ‘phoned
Craibs for his next job and told them that he would not be able to start until 9am as he
had not finished until about midnight the day before. Shortly thereafter he had
received a ‘phone call from the operator telling him in no uncertain terms that he had
to begin the journey now or he was of no use to him. Driver McDonald began the
journey at about 0715 hours (instead of waiting until 0900 hours).

93. He accepted that his chart, dated 27th August 2008, was also not a complete record.
He had been short on time and part of the journey would be “off the record”.

94. He also accepted that his chart dated 16th October 2008 did not disclose the full
journey for that day. He explained that he sometimes drove “off the record” to enable
him to complete the journey later on in the day.

95. During the course of the interview he explained to Mr Dunlop that he had been
constantly under pressure to complete the jobs. There were several occasions when he
informed Craibs of constraints on the time lawfully available to him to complete
some of the journeys when he was given instruction which would allow him to work
lawfully. Invariably, those instructions were countermanded with instructions from
the operator insisting that the journeys were completed in the knowledge that they
could not be completed lawfully. He told Mr Dunlop that the charts he had falsified
only had short journeys missing as he “detested running without a card”. He was not
proud of what he had done. He had done it to pay the bills -- he needed a job to bring
in a wage.
96. On 11th November 2009, Mr Dunlop interviewed the operator under caution in
connection with his findings.

97. The operator confirmed that he was the CPC holder for and sole owner of the
business. He confirmed that he is employed full time by Craibs in their transport
office. He has a responsibility to “make up loads going south, put it on a trailer and
meet the delivery.” His vehicles work exclusively for Craibs. At the start of any
working week his drivers will know their duties for the first day (Monday).
Thereafter, their duties for the remainder of the week are scheduled by Craibs. He
analyses charts himself using a handheld analyser. If need be he firmly reprimands
drivers for any infringements. He had identified problems in the past for incorrect
use of the mode switch and recording work as required by the Working Time
Directive. His drivers are all salaried. There is no overtime.

98. With reference to all of the alleged offences detected by Mr Dunlop the operator
commented on four of them. In respect of driver Wills chart, dated 21 st August 2008,
he said “I’ve nae information on how that happened.”

99. The other three charts were all in the name of driver McDonald. In respect of the
chart dated 11th August 2008 he said “I’m aware of this card and I took issue with
the driver. It seemed to be he took into his own head to meet up with mates at
Penrith. He did something to the tachograph to do with his three-quarter hour break
between Insch and Penrith I'm led to believe.” With regard to the chart of 17th August
2008 he said “It looks as though this driver has a grudge as I actually dismissed him.
There's only ever once he took a load from Craibs and then realised he didn't have
time to complete the whole journey back to base at Insch. He phoned and made me
aware of this and I said to him because you have committed to this job you will easily
have time to do the job and get back to Craib's depot, Cumbernauld. I said to him
you can get the train up the road and I would even pay for it, don't worry about the
truck. I'm absolutely shocked he can even refer to me asking him to break the law.”
Finally in respect of the chart dated 20th August 2008 he said “That phone call never
took place and I would have told him to wait 2 hours. I was well aware of the
breakdown on the A1 but at no time did he tell me he didn't have time to complete the
journey.”

100. At the conclusion of the interview, the operator asked for an opportunity to make
written representations. These were faxed to Mr Dunlop that day.

101. The only other aspect of Mr Dunlop's investigation that caught his attention was that
the operator had copies of the driving licences for all drivers except driver Andrew.
There was no procedure/register in place for checking these licences.

102. Mr Dunlop records that the operator and his drivers were helpful and had been willing
to be interviewed. The operator supplied all documents requested by Mr Dunlop.

103. Mr Dunlop concluded that the operator appeared to have put too much trust in his
drivers. He had not undertaken proper checks of the charts. Had he done so the
many problems discovered by Mr Dunlop might otherwise have been detected. He
was also firmly of the view that the operator’s “habit” of leaving the daily running of
his vehicles to Craibs was incorrect and poorly judged.

104. In cross-examination, Mr Hogg confirmed to Mr. McLaughlin that former Traffic


Examiner Miss Margaret Munro (“Miss Munro”) called at the operator's house to
obtain charts for one month. She had been unable to speak to the operator. A written
request was mailed to him for the charts. They were subsequently submitted. In
response to follow-up requests further charts, bank statements and payslips were also
received from the operator. The operator complied with all requests at all times. Mr
Hogg also confirmed that VOSA obtained information from third parties and, in
particular, gate passes. He agreed with Mr McLaughlin that of the 152 charts that
were examined the “problem” charts related to the three said drivers. There was a
fourth driver namely driver Headley. Mr. Hogg understood that drivers Will and
Headley were the mainstay drivers for the operator -- the other two not being long-
term. He also agreed with Mr McLaughlin that an examination of the charts in
isolation did not disclose anything untoward i.e. it was not possible to determine if a
fuse had been pulled or the like.

The evidence of Mr William Will (“the operator”)

105. The operator confirmed that he is 49 years of age. He has held the licence since 2nd
March 1994. He has had 22 years experience of running the transport business. He is
the CPC holder. This is his first time at a Public Inquiry. He is authorised for three
vehicles and five trailers. At present, two vehicles are specified on the licence. He
employs two full-time drivers namely his son driver Will and driver Headley. He
confirmed that he had also employed drivers Andrew and McDonald. He explained
that driver Andrew joined him when his son was on paternity leave.

106. He is employed full-time with Craibs at Aberdeen in their transport office. He is


salaried. He has responsibility for making up loads for the trailers going south. He
collates the pallets. He makes up the manifest with particular reference to
weights and times for the load to be transported on the trailer. The
trailer number is put on the manifest. His job is to ensure that each driver
has enough time to make all the “drops”.

107. The name of the driver and registration mark of the vehicle is the added to the
manifest when the driver attends at the office to pick it up. There are occasions when
the manifest is issued without the name of the driver and registration mark of the
vehicle entered on it. When this happens the name of the driver and vehicle
registration mark is entered on the manifest once the job has been completed. There
are also occasions where a driver gets held up and it is necessary to change trailers.
When this happens the manifest will remain with the trailer - he explained that there
was a pocket at the front of each trailer for the manifest.

108. In 2008, only the names of drivers employed by Craibs were kept on computer for
each job. Since then the system has changed and the names of all drivers are recorded
on computer for each job. He was not in a position to retrieve information regarding
specific work undertaken in 2008 by his drivers as no records were kept.

109. He recalled being approached by Miss Munro in 2008. At their first meeting he gave
her one month's records which she picked up from Craibs’ yard. She came back to
his house and said that she had found a few discrepancies but there was not too much
to worry about as in her opinion everything was okay. Thereafter, Miss Munro and
Mr Dunlop met him at Craib's. Mr Dunlop indicated that he had concerns regarding
some of the charts. He asked for charts for another two months, together with proof of
delivery vouchers (“PODs”) and payslips.

110. The operator complied with all requests. He did not hold anything back from VOSA.
He did not think that there would be any problem. His drivers were paid a salary.
There was no benefit for them to work overtime.
111. The operator explained that driver McDonald had held onto some of his charts. He
did, however, retrieve them and they were made available to Miss Munro. He had
withheld paying driver McDonald his severance pay pending the return of the charts.
He had no opportunity to inspect these charts before handing them over to Miss
Munro. There had been a lot of issues with driver McDonald, including him causing
significant damage to a trailer.

112. Mr McLaughlin asked the operator about driver McDonald's chart dated 16th October
2008. He recalled that Miss Munro had discussed this chart with him. She had some
concerns that driver McDonald had not recorded refuelling. Thereafter. The operator
spoke to driver McDonald about this. He had told the operator that he did not know
what was happening. Shortly thereafter driver McDonald's employment was
terminated.

113. The operator agreed that he had been interviewed by Mr Dunlop on 11th November
2009.

114. He had not terminated driver Andrew's employment which continued through to early
2009. He had no idea that there was a question mark over his charts until the
problems were pointed out to him by Mr Dunlop. Had he been aware of any
problems he would have looked at how serious any problem was. Had they been
serious he would probably have terminated his employment.

115. The operator acknowledged driver McDonald's statement that he had received no
training. He accepted that there had been no driver training and no training on
tachographs. He described this as a “downside” on his part. He assumed that the
drivers knew what was required.

116. He explained that each week drivers handed in their charts. The operator checked
them with his hand held analyser. He ensured that each driver had time off every
second weekend.

117. With regard to the three months charts that VOSA had analysed, he had not found any
drivers’ hours problems. He had not checked any of the charts with any external
evidence. He had not realised that one could check the charts against fuel receipts.
Mr McLaughlin asked him how Craibs checked their charts. The operator understood
that the Freight Transport Association selected charts at random for checking. He did
not think that their charts were cross referenced to fuel receipts.

118. In 2008, a maintenance investigation was carried out by VOSA. It had been classed
as “satisfactory”. The one prohibition notice issued in 2008 had been for the
tachograph not being fitted as per the regulations.

119. Mr McLaughlin then discussed with the operator the occasions when driver Andrew
“pulled the fuse”. The operator believed that driver Andrew would have had sufficient
time to do the job legally on 30th September 2008. There was nothing to say he had to
go to Newark. He could still have done the job in 10 hours. Similarly, with his chart
of 14th October 2008, the operator believed that driver Andrew could have completed
this job legally. As he had not spoken to driver Andrew since he had ceased working
for the operator he was unable to assist with regard to any problems that driver
Andrew had experienced with the manifest

120. The operator was adamant that at no time had he instructed or pressurised driver
Andrew to make false records. He was not aware that driver Andrew had not
properly recorded all of his journeys. Similarly, he was not aware that driver Andrew
had “pulled the fuse”. There was no need to “pull a fuse”.

121. With regard to the one chart that Mr Dunlop had discussed with his son, driver Will,
the operator still did not know what the problem was. He could not speak to
signatures. He recognised his son's signature where it appeared at the end of the
interview written as “Billy J Will”. He has not seen his son's signature written as “B
Will” as it had been on the Morrison’s exit pass. It was not his son's signature on the
exit pass. He did not think that the other writing to the right of the signature on the
exit pass was his son’s. He acknowledged that he was not a handwriting expert. He
had checked the fuelling of the vehicle for 21stAugust 2008. It was consistent with
what was recorded on the chart for that day.

122. Mr McLaughlin had then asked the operator about the “problem charts” in the name
of driver McDonald.

123. The operator stated that the explanation that driver McDonald had entered Dyce on
his chart dated 5th August 2008 was understandable. Craibs also had depots at
Cumbernauld and Dyce.

124. He recognised that there was something definitely wrong with the chart of 6th August
2008. There had been no delivery to Rothes. He could not understand it. He did not
think that he had been at work that day as he had been away in France for 10 days. In
support of this he produced an itemised account for his mobile ‘phone which
disclosed calls being made from abroad from 4th to 13th August 2008. He recognised
that driver McDonald required to retain his charts for 28 days. Miss Munro came for
the charts in early September. Had the operator seen Rothes as the end destination on
this chart he would have checked driving times, spreadover, rest and speed traces. He
could not account for this chart.

125. Mr McLaughlin stated to the operator that driver McDonald attributed the problems
on the chart dated 11th August 2008 to a battery fault. The operator did not disagree.

126. The chart dated 11th August 2008 records a trip from Insch to Walsall. The operator
refuted the allegations made by driver McDonald that he had pressurised him to keep
going with the journey. He had not told him to “get up the road”. Mr McLaughlin
asked the operator what the position was with Craibs when a problem arose with a
journey. He explained that the driver would ‘phone the “delay desk” where the
information was collated and the customer was alerted to a potential problem. That
information would not come to the operator in the first instance. Any difficulty with
one of his drivers was dictated to by the amount of time he had available to do the
job. Craibs would not become involved with his drivers. They would sort out any
such problem. In any event, there was no record on the said itemised mobile phone
account of him phoning driver McDonald that day.

127. The operator also strongly refuted any suggestion that he had instructed driver
McDonald to “get the load up the road” on 17th August 2008. In support of this he
referred to the itemised mobile ‘phone account in respect of the ‘phone used by driver
McDonald when he was employed by the operator. There was no record of any
‘phone calls being made on the operator's mobile ‘phone and received on driver
McDonald’s mobile ‘phone. The three calls made by the operator that day were one
to his wife and the other two to driver Headley.

128. With reference to the chart dated 20th August 2008, he again confirmed that there had
been difficulties with the battery in the vehicle driven by driver McDonald. This
lasted for some time. He denied that he had ignored it. He had tried to identify the
source of the problem so too had outside maintenance providers. Eventually, he
discovered a broken fine wire in the wiring loom. He referred to the various invoices
he had incurred for the costs associated with the eventual repair. One invoice was
from Treasure Transport Serv Ltd with a charge for a callout to the A1 North
Balderton on 20th August 2008 for a “non-start” and affecting a temporary repair. On
the issue of driver McDonald's allegation that the clock was out on 20th August 2008
and he had lost time the operator recalled that he had merely told him to try and make
it back to Cumbernauld. He recognised that there could have been safety issues with
a faulty battery such as a failure of the lights. Mr McLaughlin then asked the operator
if a driver finished his shift and was then not able to start until midday how did Craibs
know this? The operator told him that the driver would ‘phone Craibs. Drivers would
not call him. The driver would be told to ‘phone in when he was in a position to
resume driving. If a load was missed the driver would get the next one. He would
not be allowed by Craibs to browbeat one of his drivers to taking a load up the road
illegally. If he did he would lose his job. The operator, with reference to the itemised
mobile phone accounts, observed that he had not made any calls to driver McDonald
and driver McDonald had not made any calls to him during this period. He also
observed that driver McDonald had made six calls to an Edinburgh number on the
morning of 1st August 2008. He recalled that driver McDonald had told me that he
had telephoned the operator at 07:00 hours that day. There was no evidence of such a
call on the itemised account. The account discloses that driver McDonald telephoned
him at 17:35 hours that day. Mr McLaughlin recalled that driver McDonald stated
that he had phoned in to Craibs at 07:00 hours that day. The operator was certain that
he had not told driver McDonald to drive illegally. He had not used any other phone
to speak to driver McDonald.

129. The operator then referred to further productions associated with driver McDonald's
work on 20th/21st August 2008 namely delivery notes from which the progress of
“his” load of 24 pallets on trailer T0212 can be ascertained. He drove the load north
to Cumbernauld. He was too late to take the load to East Kilbride were it was due at
16:00 hours. The trailer is then taken to East Kilbride by another driver.
There was no rush at all.

130. The operator stated that any loads delivered to the yard of Roger
Bullivant Ltd were always oil drilling pipes. He maintained that
there is no unloading during the night at their yard. Work starts at
07:30 hours each day. He agreed that it was possible that driver
McDonald had been in his cab. He could not agree that he had slept
in his cab during the very noisy unloading process. He never
advised driver McDonald that it is legal to drive a lorry on private
property without a chart. He disagreed with driver McDonald's
explanation relative to the chart dated 26th August 2008.

131. The operator was unable to explain the findings of Mr Dunlop in


relation to the chart dated 16th October 2008. He accepted that
trailers were dropped at Warrington from time to time.

132. The operator is adamant that he had never shown driver


McDonald how to “pull the fuse”. He is also adamant that he had
never pressurised driver McDonald to do the work he stated “I
never did that, I'm telling the truth, I could get Craibs to vouch it.”
With reference to the transcript of the interview he had with Mr
Dunlop, the operator explained that he had heard from other drivers
that driver McDonald made arrangements to meet up with his
mates and believed that the six calls made on 21st August 2008
were in connection with this. He also understood that driver
McDonald did not like to work on Fridays.

133. At the conclusion of his interview with Mr Dunlop, the operator


requested an opportunity to submit written representations to
VOSA. These are set out in his letter, dated 11th November 2009,
(the day of the interview).

134. Mr McLaughlin asked the operator about the substantial damage that he alleged driver
McDonald had caused to one of his trailers as referred to in his letter, the aftermath of
which was also discussed between the two of them as recorded on the CD. The
operator explained that driver McDonald was driving a load from Baxters when the
trailer detached from the unit. Later on driver McDonald admitted that had not
engaged the fifth wheel properly. Damage had been sustained to the unit (£400) and
to the trailer (£1200). The load was subsequently rejected (£3600). He had not
involved his insurers as he had not expected the losses to be so great. He had been
very angry with driver McDonald. He terminated driver McDonald's employment. He
told him he would be responsible for paying for the costs of the damage he caused.
The telephone exchanges as recorded on the CD were on this topic. Driver McDonald
was looking for his lights back and £2,700. Driver McDonald was paid the money
due to him after he had returned his charts to the operator. Driver McDonald has not
reimbursed him for any of his financial losses.

135. The operator was not aware that driver McDonald had “pulled the fuse”. As far as he
was concerned driver McDonald had enough time to do the job without needing to
“pull a fuse”.

136. Mr McLaughlin then referred the operator to driver McDonald’s chart dated 16th
October 2008 and his explanation that he was under constant pressure to complete the
journey hence his reason for driving “off the record”. Since the first day of the Public
Inquiry the operator had taken the opportunity of considering this. He explained that
where a load of paper for International Paper is “tipped” the driver is required to text
them. He produced a copy of Craib’s “On Time Instructions for Drivers”. During the
period of the adjournment, the operator had checked driver McDonald's itemised
mobile ‘phone accounts. He found evidence that driver McDonald had regularly
complied with the requirements to text International Paper. There was, however, no
evidence that such a text had been made on either 16th or 17th October 2008 in
respect of that load. The operator acknowledged that the absence of the required text
could be explained in that he did not drop that particular load - the missing part of the
journey could be attributed to the manifest problems i.e. the trailer had been changed
and the drop made by another driver. Driver McDonald had been wrong with the
explanation he had given Mr Dunlop. The explanation he had given me is one that the
operator could accept.

137. The operator repeated that at no time did he instruct driver McDonald to “pull the
fuse” or do anything contrary to the drivers’ hours rules and regulations. He strongly
resisted any suggestion that he had shown driver McDonald how to pull a fuse.

138. The operator explained that at the time of the VOSA investigation his practice was to
analyse the charts with a hand held device. Neither he nor VOSA had discovered
anything amiss with the charts until VOSA carried out a more in depth analysis which
included reference to external documentation such as fuel and weighbridge receipts.
He realised that his practice was not “good enough”. He accepted that there were
shortcomings in his system. Since the VOSA investigation he has been checking
charts against fuel receipts. He sought expert advice and turned to Mr Smith who
produced his report based on the systems that the operator had in place for
February/March 2010. He accepted the advice of Mr Smith as to how to improve his
systems and the need to train his drivers. Previously, the operator assumed that
professional drivers knew the drivers’ hours rules and regulations and abided by
them. He also accepted that this was an incorrect assumption. That was why he had
arranged for himself and his two drivers to be participate in driver training. They all
participated in a training course held by Mr Smith in March 2010.

139. Again, during the period of the adjournment the operator commissioned Mr Smith to
carry out a tachograph analysis for the period February to April 2010. The various
minor infringements identified by Mr Smith had been acted upon. He had discussed
them with his drivers and given them appropriate instruction.

140. In conclusion, the operator confirmed that he was in full-time employment with
Craibs. He employs drivers Will and Headley. He does not employ casual drivers. He
has held the licence since December 2003. He is authorised to operate three vehicles
and five trailers under the licence. Two vehicles are specified on licence. One trailer
is in use.

141. In answer to Mr McLaughlin, the operator stated that if the licence was curtailed any
driver affected would be laid off. If the licence was suspended both drivers would be
laid off for the period of suspension. If the licence was revoked the operator would
not have any work for them. He could not say whether it would be available for them
at Craibs. As the nominated transport manager on the licence he had learnt a great
deal from the VOSA investigation and the Public Inquiry. He had appreciated the
excellent training he had received from Mr Smith. The required driver training would
benefit himself and his drivers and “keep them up to speed” with changes in the
legislation. If he did not continue to hold the licence and he was disqualified from
holding or obtaining such a licence it would be trouble for himself and the drivers.
He has lived and breathed lorries since the age of 21.

142. Finally, he again refuted any suggestion that he had bullied driver McDonald into
doing any work. He had seen no evidence of that during the course of the Public
Inquiry.

The evidence of Mr William Smith

143. As instructed by the operator Mr Smith examined the systems that were in place to
ensure drivers adhered to the drivers’ hours rules and regulations. He identified a
number of aspects of the systems that required to be revisited. His findings are set out
in his first report.

144. He recommended that the operator should check the charts against an independent
checkpoint such as fuel receipts. He also recommended that the operator should
analyse a whole week’s charts rather than random charts. He understands that the
operator now analyses all charts. He had recommended driver training. That had gone
very well.

145. His report, dated June 2010, details his findings of his independent analysis of the
operator’s charts for February to April 2010. This had been carried out with reference
to fuel receipts supplied by the operator. Whilst a few minor infringements had been
detected, there had been an improvement. Some of the infringements had been picked
up using more sophisticated equipment than that used by the operator. There was no
missing mileage and no indication of fuelling “off the card”.

The evidence of Ronald Headley

146. Driver Headley has worked as an LGV driver for approximately 14 years. He has
been employed full-time by the operator for five years.

147. He was working for the operator at the time of the VOSA investigation. So far as he
is aware his charts for the period of the VOSA investigation were analysed. He was
not told of any infringements. He understood that none had been identified in the
Public Inquiry brief.

148. At no time, during his employment with the operator, has he been bullied to
undertake journeys with insufficient time. Similarly, at no time has he been instructed
to falsify his charts. At no time had he been shown how to “pull the fuse” by either
the operator or driver Will.

149. If he was assigned a job that he could not complete in time he would contact the
operator and ask him to inform Craibs for them to sort out. If he was grossly late
with a timed delivery he would contact Craibs and let them know. He was not
assigned further work until he had completed the job he was on. He agreed with Mr
McLaughlin that if one did the same job regularly it was possible to put a wrong
location on a chart.

150. At the paper mill at Inverurie he always used a chart. He estimated it could be ½ a
mile from the gate house to where he used to drop a trailer. When the mill was
operational he recorded all the movements of “his” vehicle within the mill.

151. He spoke to the operator being very particular about his vehicles. He recalled an
occasion when the operator was at Craibs trying to change an ignition switch on the
vehicle assigned to driver McDonald being the vehicle that had battery problems. He
resisted any suggestion from Mr McLaughlin that the operator would not be attentive
to any such issues.

152. On the topic of training, driver Headley had gained certification whereby he is now
qualified for the carriage of livestock. The training for this had been paid for by the
operator. He had also received information from Craibs about the changes in the
drivers’ hours rules and regulations. He had participated in the training provided by
Mr Smith which he described as “very good”. He explained how the few
infringements identified by Mr Smith in the second report had come about. Two of
them involved problems with deliveries at Regional Distributional Centres which
difficulties, consistent with his established practice, he had recorded on the reverse of
the relevant charts. He has implemented all advice given by Mr Smith.

153. In relation to the completion of paperwork associated with the delivery and uplift of
loads he explained that every location had its own system. He agreed with Mr
McLaughlin that it was possible that driver/vehicle details are sometimes entered on
the paperwork by the gate house keeper.

Submission by Mr McLaughlin
154. Mr. McLaughlin stated that it had been identified that the checking of the charts for
the period of the VOSA investigation had not been sufficient. The operator accepted
that checking the face of the charts was not enough. However, he had not missed the
obvious. Without reference to independent documentation he had not picked up the
alleged offences detected by VOSA.

155. In developing his submission he put to one side the issue involving driver Will and
concentrated on the other two drivers. Driver Andrew had admitted “pulling the fuse”
on two occasions. This could not be picked up from an examination of the charts. He
had done it for his own ends, to get himself home. He did not speak to being under
any pressure to do this. At his interview in respect of his chart, dated 9th October
2008, he admitted “tipping off the chart” yet in his evidence he spoke of it being a
“manifest problem”. In respect of his charts dated 16th and 20th October 2008, he did
not speak about doing anything illegal at his interview. He had not been very clear
about what had happened yet in his evidence he referred to manifest problems. He
acknowledged that it would be a matter for me to determine on the evidence what I
made of these issues. The corollary to that was if I “knocked out” these two matters
then the vulnerability of the licence was reduced. That would then leave me with the
two charts dated 30th September and 14th October 2008, where driver Andrew had
“pulled the fuse”.

156. In respect of driver McDonald and with reference to his chart,dated 4th August 2008,
Mr McLaughlin submitted that there was evidence from other drivers that a mistake
could be made when entering information on the centerfield of a chart where a driver
was regularly working between the same two locations. The other explanation was his
misunderstanding about the requirement to have a chart inserted when he was
refuelling.

157. Mr McLaughlin then referred to driver McDonald’s chart dated 16th October 2008
where the explanation was a lack of knowledge and/or misunderstanding. He
observed, given the breakdown in relationship between the operator and driver
McDonald that it was interesting to note that there was support from the operator who
acknowledged that the explanation regarding the destinations given by driver
McDonald in his evidence could be correct and erroneously attributed to driver
McDonald because of the manifest problems. He submitted that if I accept that there
were problems with the manifest when I look at driver McDonald's interview he
blames the operator as a first stop. Maybe he is person to be blamed when things went
wrong. He then referred to driver McDonald's chart dated 11th August 2008 and the
explanation given at interview for the problems associated with it namely problems
with the battery and that the operator had not addressed them. Mr McLaughlin
recalled that the evidence disclosed there were at least three occasions when the
operator had sourced assistance to fix the battery. He had changed the ignition
system. He drew support for the operator from the reaction of the VOSA witnesses
who were present and who nodded “sagely” as the operator described how he had
worked his way through a wiring loom before he found a broken wire. He submitted
that driver McDonald's assessment of the operator's attitude to this problem was not
correct.

158. With reference to driver McDonald's assertion that on the occasion he had been
required to commence work at 07:00 hours rather than 09:00 hours, did not make any
sense. Mr McLaughlin recalled that Craibs would give a driver work when he was
able to take it. Accordingly, there would be no necessity in ‘phoning a couple of
hours ahead of starting work.
159. Mr McLaughlin acknowledged that the operator had not come across particularly
well during the course of driver McDonald's phone call to him as recorded on the
CD. He questioned why would driver McDonald record a telephone conversation
with his former boss when he was trying to recover money and property after an
accident unless he was expecting some reaction? The operator accepted he had been
angry and should not have dealt with the situation as he had. Mr McLaughlin
described it as a “human situation”. The issue to do with the accident had been
previously raised in the operator’s letter to VOSA dated 11th November 2009.

160. Mr McLaughlin submitted that there has been a consistency in the operator's
position. He had consistently denied putting pressure on any of his drivers when
working for him. With the exception of driver McDonald there was no evidence from
any other drivers that they had been pressurised to do work for him. He also
submitted that there was a lot of information available to support the operator in this
regard. He considered it to be significant that if driver Headley was working for the
operator during the time of the VOSA investigation that nothing adverse had been
discovered. That left the two drivers who had been with the operator for shorter
periods of time who had been associated with drivers’ hour’s infringements.

161. Since 2008, the operator had taken the “hint” and had used independent examination
techniques. Although the operator had not achieved a “perfect score” with the
assistance of Mr Smith and drivers attending a training course there has been a
significant improvement in his systems to verify what is recorded on the charts.

162. Mr McLaughlin reminded me that I was to assess and determine matters as at the date
of the inquiry. He also reminded me of the various recent decisions which directed
me to consider whether there was a prospect of the operator being compliant in the
future. In this regard, he commended Mr Smith's second report which contained
evidence of compliance. There was an absence of any further adverse reports from
VOSA. He also reminded me that the operator had been in the haulage business for
22 years and this was his first time at a Public Inquiry. He invited me to balance the
positives against the negatives and to determine that the operator can be trusted and
did not require to be put out of business. He also pointed out that it was almost the
second anniversary of the VOSA investigation.

163. In conclusion, Mr McLaughlin invited me not to take any action against the licence
or against the operator in his capacity as transport manager. This was not a case
where the licence holder had “taken his eye off the ball”. It was a situation in which
he did not know or understand that he should have been cross-referencing the
information on the charts with extraneous documentation. An unusual aspect in this
case was that the operator had a full-time job and if I took regulatory action against
the licence the persons who would suffer would be his drivers.

Considerations and reasons for decision

Delay

164. I am very conscious of the very considerable delay that has occurred in the
finalisation of these cases. The licence holders have no doubt lived with uncertainty
about the future of their respective licences since the VOSA investigation began in
September 2008.
165. The period of the VOSA investigation is August to September 2008. Two traffic
examiners were involved in the investigation, both of whom retired prior to the
instruction being passed to Mr Dunlop in September 2008. He has also retired and it
fell to Mr Hogg to present the VOSA case at the Public Inquiry.

166. The Public Inquiry and the hearings had to be adjourned as recorded in paragraph 13
above.

167. At the conclusion of the Public Inquiry and the hearings, I indicated that I would
issue my written decision at the earliest of opportunities. Regrettably, the finalisation
of these decisions has taken longer than I would have wished. I apologise for the
delay. I make no excuses. I do however record that these cases have caused me
considerable anxiety as I have not found it easy to determine where the truth of the
competing situations as they developed during the course of the evidence truly lies. I
have stood back from the evidence and tried to view it objectively. I have referred to
my notes and the notes taken by my clerk Mr David Morrison. I have listened to the
recording of the proceedings held on 15th June 2010. Matters were not helped as the
recording of the first day's evidence on 25th March 2010 failed. I recognise that I have
gone into some very considerable detail in rehearsing the cases for the various parties
and the evidence. I have done so in the hope that it has assisted me in my search for
the truth.

168. I have also taken the unusual step and certainly not one encouraged by the former
Transport Tribunal by seeking clarification from VOSA after the Public Inquiry and
the hearings had concluded of one aspect of Mr Dunlop’s report. Mr McLaughlin was
copied in to this request.

169. The issue upon which I sought clarification had been touched on towards the end of
the Public Inquiry. It was to do with the charts associated with driver Headley. Mr
Dunlop's report did not make any reference to driver Headley. There was no
information as to whether he had examined driver Headley's charts. In an e-mail
dated 9th September 2010, Mr Hogg confirmed that Mr Dunlop had examined charts
in the name of driver Headley. His charts were either in order or disclosed insufficient
problems too include in his report to the Traffic Commissioner. This coincided with
driver Headley's understanding of the situation. I return to this topic later on.

The Issues I require to address

170. The call up letter put the operator on notice that I would make determinations as to
whether or not he had failed to adhere to the Undertakings he gave on the application
form for the licence, his good repute, his financial standing and his professional
competence.

The Undertakings

171. The specific undertaking referred to in the call up letter is:-

“I will make proper arrangements so that:- The rules on


drivers’ hours and tachographs are observed and proper
records kept.”

172. On the positive side there is no complaint from VOSA regarding the operator's record
keeping. There is no suggestion of any missing records/charts and/or missing
mileage. The operator complied fully and readily with all requests made of him by
the various traffic examiners assigned to this case. He was able to produce all
documentation as and when requested.

173. On the negative side, once Mr Dunlop had carried out an in-depth analysis of the
charts for the period August to October 2008, there were problems for the operator.

174. I am satisfied that on the information available to him Mr Dunlop was to determine
that the three drivers employed by the operator at that time had created 14 false
records. On the evidence, however, I determine as a matter of fact that 12 false
records were made. As hereinbefore stated I am not satisfied the chart, dated 21st
August 2008, in the name of driver Will is a false record. I am also prepared to accept
driver McDonald’s explanation that he mistakenly entered Cumbernauld rather than
Dyce, it was for this reason that I wished to double-check the position with regard on
his chart dated 5th August 2008.

175. I am also satisfied as a matter of fact that Mr Dunlop's determination that the three
occasions of drivers failing to take sufficiently daily rest is correct.

176. I accept that the operator had a system for analysing charts. I also accept that the
limited analysis he previously made of the charts would not have disclosed offences
such as those detected by Mr Dunlop. The operator explained that he did not realise
that to carry out a meaningful check it was necessary to cross refer the information on
the charts to other documentation such as fuel and/or gate house receipts. He
recognised that this was the “downfall” in his systems.

177. The operator has now taken advice from Mr Smith and has implemented his
recommendations. Mr Hogg accepted that “things had been tightened up quite a bit”.
VOSA had nothing adverse to report since its investigation had been completed.

178. The false records are prima facie evidence that the operator has failed to fulfil the
said undertaking. The factual basis for my finding in this regard is also relevant to
the next topic I now consider namely good repute.

Good Repute

179. Again with reference to the call up letter the operator was on notice that “In
determining whether a licence holder is of good repute, a Traffic Commissioner shall
have regard to all material evidence including -- Allegations of non-compliance with
drivers hours and tachograph regulations and any associated breach of licence
undertaking”.

180. Accordingly, I require to consider the “good repute” of the operator in the context of
two of his drivers being involved in the creation of false records.

181. Any licence holder who is knowingly involved in or should know that a driver
employed by him is making false records is exposing the licence to significant
regulatory action. A false record is made to cover up a driver driving in excess of the
hours lawfully available to him or her. That means a driver has taken a calculated risk
to drive tired thereby putting other road users in danger.

182. There is always a reason why a driver makes a false record. Invariably, there is some
gain or benefit derived by either the operator and/or driver. If a driver works in excess
of the hours lawfully available to him or her then there must be commercial benefit to
the operator. There are, however, instances of drivers creating false records for their
own reasons unknown to their employer and of no commercial benefit to the
employer.

183. It therefore follows that all licence holders must go out of their way to have
meaningful checks made of the charts to ensure that the aforementioned undertaking
is fulfilled at all times.

184. The operator made an assumption that he should never have made. He assumed that
all professional LGV drivers knew the drivers’ hours rules and regulations. As this is
such an important matter the operator would be well advised not to rely on such an
assumption and prior to employing any other drivers he must satisfy himself that they
really do understand these all important rules and regulations.

185. The operator is “stuck with” the 12 false records. A curious feature of this case is
that these false records were created by drivers Andrew and McDonald who were
employed by the operator for relatively short periods of time. It was for this reason
that I wished to double-check the position with regard driver Headley.

186. Driver Headley has been employed by the operator for some five years. It is
reassuring to note that his charts which were analysed by Mr Dunlop did not disclose
anything of concern. As hereinbefore discussed, only one chart in the name of driver
Will concerned Mr Dunlop. None of his other charts analysed by Mr Dunlop raised
any concerns.

187. Why then is it drivers Andrew and McDonald created false records?

188. In his interview, driver Andrew more or less admitted “pulling the fuse” to Mr
Dunlop “just to help himself out really”. Driver McDonald admitted driving “off the
record”.

189. As part of the evidence in their respective hearings, drivers Andrew and McDonald
volunteered that they had both indulged in “pulling the fuse”. Driver Andrew was
quite clear that he had done this so that he could spend more time with his family. He
was also quite clear that the operator did not know about this. Driver McDonald was
adamant that he had done it because he had no alternative. He knew that there were
various jobs that he could not complete within the time lawfully available to him and
that the operator was well aware of this yet the operator insisted that the jobs were
completed. His sole motivation was to retain the job so that he could support his
family.

190. Standing the position I adopted at the outset of the Public Inquiry and hearings, I now
require to be very careful as to what I do with the evidence adduced in the two
jurisdictions. The evidence of drivers Andrew and McDonald was not tested by way
of cross-examination from Mr McLaughlin. In particular, the assertion made by
driver McDonald that the operator countermanded instructions previously given to
him by Craibs thereby requiring him to complete a job in the knowledge that it could
not be lawfully completed was not challenged. Accordingly, I will confine myself to
the evidence adduced during the course of the Public Inquiry in working my way
towards my determination.

191. The operator's position has been consistent throughout. At his interview with Mr
Dunlop he robustly resisted any suggestion that he had required driver McDonald to
break the law. He maintained this position throughout the Public Inquiry.
192. Whilst he appeared to give his evidence in a very straightforward manner, there was
an aspect of it that caught my attention. As I discussed with him he seemed to have a
complete answer for each and every aspect of the VOSA investigation to the point
that I considered he was being somewhat smug. Having carefully reviewed his
evidence I accept his comment to me that he had been able to provide answers based
on records many of which he had produced and spoken to during the course of the
Public Inquiry. I also take into account the speed with which he produced an
informed written follow-up to his interview with Mr Dunlop. I am prepared to
reconsider my initial assessment of his evidence which I now withdraw.

193. There is clearly no love lost between the operator and driver McDonald. The
operator, however, has good reason for being upset with driver McDonald in view of
his financial losses arising from the damage sustained to one of his trailers when
being hauled by driver McDonald. Driver McDonald no doubt has good reason to be
bitter about the circumstances in which he ceased to be employed by the operator.
The level of feeling between them is indeed captured on the aforementioned CD.

194. In my continuing quest to find where the truth lies with regard to, in particular, the
competing positions adopted by the operator and driver McDonald, somewhat
surprisingly I find myself turning to the evidence of driver Headley. On the first day
of the Public Inquiry I required him to leave when he had an outburst at driver
McDonald who had made one or two disparaging/negative remarks about the
operator. Driver Headley gave evidence on behalf of the operator on the second day
of the Public Inquiry. His evidence was given in a measured and candid manner.
Whilst he undoubtedly had self evident reasons for being supportive of the operator
he came across as an individual who thrives on lorry driving and was keen and
anxious to learn at every opportunity. He had been attracted to working for the
operator as he got every second weekend off. For all the time he had worked with the
operator he had never been pressurised into undertaking work that could not be
lawfully completed. He spoke about the recent difficulties he had experienced at
regional distribution centres and the occasions, as identified by Mr Smith, where he
had overrun his time which he had recorded on the reverse side of his charts. He also
spoke to having tried to help driver McDonald who he described as being resistant to
such overtures. By the same token driver McDonald had spoken to feeling he was
excluded from the operator, driver Will and driver Headley - he had felt that he was
not part of “the family”. Notwithstanding his continuing relationship with the
operator, driver Headley gave his evidence without bias.

195. There are 12 false records. Driver Andrew is associated with five of them. There is
nothing in the evidence to suggest that he created these false records as result of
pressure from the operator. His position is that the false records were made for his
own ends and that the operator did not know about them. He did not appear to have
any axe to grind with the operator. In the absence of competing evidence I accept his
position in this regard.

196. Driver McDonald is associated with the other 7 false records. His position is very
clear namely that he was pressurised into making them by the operator. It appears
that he and he alone is the only driver making such allegations against the operator.
Standing the state of the relationship between the two of them he perhaps does have
an axe to grind.

197. I am satisfied that there was no culture of falsification of charts by drivers employed
by the operator. Such activities are confined to drivers Andrew and McDonald and
are not associated with his long-term and continuing employees. In these
circumstances, I am forced to the conclusion that the operator’s position prevails over
the position adopted and maintained by driver McDonald.

198. In these circumstances, I do not make an adverse finding with regard to the operator's
good repute.

Appropriate Financial Standing

199. Finance was discussed in private. The operator continues to meet the requirement to
be of appropriate financial standing.

Professional Competence

200. Another unusual and perhaps unique aspect to this case is that the operator as the
transport manager nominated on the licence is in full time employment with Craibs in
their transport office. The vehicles he operates under the licence appear to work
exclusively for Craibs. Looking at the Craibs duty roster produced by the operator, I
note that the three drivers employed by the operator at the time of the VOSA inquiry
appear under the heading of “Traction subcontractors”.

201. It is not for me to comment on the working relationship between the operator and
Craibs. I have endeavoured to write this decision with as little reference as possible
to Craibs as they are not a party to the proceedings. To ensure that no adverse
interpretation is taken from any aspect of this decision, I record that at no time during
the course of the evidence was anything negative or untoward suggested about the
operation of Craibs or their working relationship with the operator.

202. The one aspect that Mr Dunlop picked up on in the conclusion to his report was the
orchestration of the drivers’ duties by Craibs. This too concerned me as the evidence
developed so far as the operator is concerned.

203. As I understand the position, his drivers would receive their instructions from him at
the beginning of the week. Once they had completed their first task the work for the
rest of the week would be directed by Craibs.

204. In the context of operator licensing this is not desirable as the operator as transport
manager did not have effective and continuous control over, in this context, his
drivers. He was not directly involved in the scheduling of the drivers duties as the
week went on. Yet he has the responsibility of ensuring that the drivers observe the
drivers’ hours rules and regulations at all times. I understand that he is now
addressing this issue.

205. In his first report Mr Smith recognised that the operator took his role as transport
manager “very seriously”.

206. There are no issues associated with maintenance. The explanation for the prohibition
notice was that he had changed the wheels and tyres from an old lorry onto a newly
acquired lorry not realising that that was a difference in the sizes of them. The
different tyres required the tachograph to be recalibrated. He had not realised this.

Decisions

Driver Billy J Will


207. I warn him that I expect him and all holders of the LGV licence to always drive at a
safe speed dictated to by the prevailing road traffic conditions and within the
maximum permitted speed for the vehicle and the class of road it is being driven on. I
also warn driver Will regarding his future conduct as the driver of a motor vehicle.

Driver Philip Gordon Andrew

208. Driver Andrew has made 5 false records and failed to take sufficient daily rest on two
occasions. I have already determined this conduct renders him unfit to continue to
hold the LGV licence.

209. Accordingly, in terms of Section 116 of the Road Traffic Act I suspend his LGV
licence for a period of four months.

Driver Darren Graham McDonald

210. Although there are now no “live” penalty points on his ordinary driving licence I
warn driver McDonald that I expect him and all holders of the LGV licence to always
drive at a safe speed dictated to by the prevailing road traffic conditions and within
the maximum permitted speed for the vehicle and the class of road it is being driven
on.

211. On the evidence, I hold that driver McDonald has made 7 false records and failed to
take sufficient daily rest on one occasion. There are no “live” penalty points on his
ordinary driving licence. As I have already determined this conduct renders him unfit
to continue to hold the LGV licence.

212. Accordingly, in terms of Section 116 of the Road Traffic Act I suspend his LGV
licence for a period of six months.

The operator - William James Will

213. I am satisfied that there has been a positive and sustained response by the operator to
the VOSA investigation. He has addressed the shortcomings identified by VOSA in
his systems. He and his drivers have participated in a training course provided by Mr
Smith. There is nothing in the evidence to suggest that this operator cannot be trusted
to comply with the operator licensing regime in the future.

214. The operator continues to be of good repute, of appropriate financial standing and
professionally competent.

215. With regard to the failure to fulfil the undertaking to ensure that the rules on drivers’
hours and tachographs are observed and proper records are kept I take no action
against the licence. I do, however, warn the operator with regard to his future conduct
as the holder of the licence.

216. The effect of these orders/determinations were appropriate will come into effect on
8th October 2010 at 23:59 hours.
…………………………………………………………
Richard Hamilton McFarlane
Deputy Traffic Commissioner for the Scottish Traffic Area
16th September 2010