Some drivers and operators seem unaware of the powers available to Traffic Commissioners to suspend or remove licences. Andrew Woolfall of Backhouse Jones Solicitors explains how the Traffic Commissioners tackle bad behaviour.
Most operators and drivers are well aware of the role played by the Traffic Commissioners (TCs) with regards to operators’ licences, the granting of such authorisations and taking action against them. However, many do not appreciate that the TC also plays a pivotal role with regards to vocational driving licences. Just as TCs regulate operators, TCs are tasked by the Secretary of State for Transport to ensure that all those who hold large goods vehicle (LGV) or passenger carrying vehicle (PCV) licences are fit to do so. While the Driver and Vehicle Licensing Agency (DVLA), through its medical branch, manages those drivers who may have difficulties due to their health or eyesight, the TC is effectively responsible for ensuring that drivers are "morally" fit.
The Road Traffic Act 1988 establishes a system whereby TCs are tasked with ensuring that new applicants for licences, or those already holding them who come to the attention of the authorities, are fit to have vocational licences. The legislation is quite clear that if, through the TC, the Secretary of State is not satisfied that an applicant is fit then a licence must not be issued. Similarly, if the licence holder later becomes "unfit" then action must be taken.
In deciding whether an individual meets the test of "fitness", different criteria are applied depending upon the type of licence under consideration. Where the TC is looking at an LGV driver’s licence then he or she can only consider an individual's conduct as a driver of a motor vehicle. This does not necessarily have to be as the driver of a commercial motor vehicle and can incorporate any type of motor vehicle including cars or motorbikes. However, the conduct is restricted to conduct as a driver or rider.
When, however, the TC is considering a PCV licence, the test is substantially broader. It covers not only the individual's conduct as a driver of a motor vehicle but also conduct "in any other respect relevant to his holding a passenger carrying vehicle driver’s licence". This has been seen to cover a wide variety of actions including dishonesty, violence and sexual offences. The rationale is that as a PCV driver, the individual is coming into close contact with members of the public, some of whom may be highly vulnerable. The public may need protection from the individual and ultimately this might be in the form of refusing or removing the driving entitlement.
Referring cases to the TCs
Cases are referred to TCs by a number of methods. They may come about as a result of information provided directly by the DVLA, the Driver and Vehicle Standards Agency (DVSA) or the police. There are also occasions when cases come to a TC's attention as a result of operators notifying him or her of convictions or behaviour, anonymous complaints being made by others within the transport industry or information provided by members of the public.
Various agreements have been established between the enforcement authorities and the TCs where there will be automatic referrals to consider "fitness". These include, for first-time applicants, those who have accumulated nine penalty points on their ordinary car driving licence over the previous three years or who have been disqualified. Similar agreements are in place for those who already hold vocational licences. Individuals who hold or have previously held licences and then find themselves disqualified by the courts for 56 days or more will receive an automatic referral to the TC. This will see automatic referrals for offences such as drink-driving. Even where there had been no disqualification, or even a prosecution at court, certain fixed penalty offences will also trigger automatic referrals, such as using a mobile phone while driving.
In the past, referrals have been made to the TC where no prosecution has been brought but there is a suspicion that offences have been committed. These have included allegations of serious sexual offences where there has been no conviction or even a prosecution but the enforcement authorities feel that the matter should be investigated for the sake of public protection. While this puts TCs in a very awkward position in terms of managing such a hearing, balancing presumptions of innocence against contrary evidence, the TCs have not shirked their responsibilities and have still tried to investigate the question of "fitness".
It is also relatively common for the DVSA or police to refer "driver’s hours" type matters to the TC even when there has been no prosecution. The lack of a conviction does not make it impossible for the TC to decide that the driver is "unfit". There may be a substantial number of reasons why a prosecution has not been brought. It should always be remembered that the role of the TC is not to punish an individual driver by taking action against the licence or refusing an application but rather to regulate drivers and ensure that those persons are fit to obtain or to continue to hold a vocational licence. This difference can also be seen through the fact that different standards of proof apply in the decision-making process. While in a criminal context, a court has to be "sure" or satisfied “beyond reasonable doubt” that a person is guilty of an offence, the TC makes his or her decision on a much lower standard, namely "the balance of probabilities". This requires them to decide whether it is more likely than not that a person is fit or unfit.
The conduct of hearings
The legislation surrounding driver conduct issues makes it very clear that TCs do not actually have to hold a hearing before taking action in connection with a driving licence. The TC is firstly given the power to require an individual to "furnish… such information as he may require". Furthermore, the TC may then require an individual to attend before him or her to provide the information in person and to answer questions.
It is not uncommon for the TCs, when looking into an application or an existing licence, to simply write to the individual requesting information. Upon receipt of that information the TC will then make a decision and write to the individual explaining it. If the driver is happy to accept the TC's decision then that will be the end of the matter. However, the TC will also often simply call the individual to appear at what is referred to as a "driver conduct hearing".
While the legislation is silent as to whether driver conduct hearings should be held in public or private, the practice has developed of holding them in an open forum unless there are specific reasons for them to be behind closed doors. The Senior Traffic Commissioner Statutory Document No. 6: Vocational Driver Conduct (the STC Guidelines) supports this approach and says that hearings should be in public, though an individual TC may direct that the whole or any part of the proceedings are held in private if he or she is satisfied that it would be just and reasonable to do so by reason of:
the likelihood of disclosure of intimate personal or financial circumstances
the likelihood of disclosure of commercially sensitive information or information obtained in confidence
exceptional circumstances not falling within the above.
While many driver conduct hearings simply relate to one individual by reference to offences such as drink-driving or using a mobile telephone, it is not uncommon for several to be heard together where all the drivers work for a common employer. This might take place when, for example, there has been substantial offending in terms of driver’s hours or there have been maintenance failings when drivers have not conducted proper daily vehicle inspections. Here the driver conduct hearings can actually be subsumed within the operator’s public inquiry hearing. The TCs will hear all the evidence together before making separate decisions in relation to drivers and the operator’s licence. This can sometimes be controversial and can lead to problems given the fact that there are separate routes for appealing a TC's decision but nevertheless it is something that does occur on a regular basis.
If an individual does not co-operate with the TC's request for information or fails to attend a driver conduct hearing then, in the case of an applicant for a new licence, the application will usually be refused. If, though, the individual already holds a licence it is not uncommon for the authorisation to be suspended pending full co-operation. This means the individual cannot drive commercial vehicles until he or she appears before the TC.
The powers of the TCs
Having obtained information, whether by correspondence or through a driver conduct hearing, and having finally made a determination as to fitness, the TCs have a range of options available. These include granting or refusing an application or, alternatively, taking action against an existing licence. This might include “suspending” the licence for a period of time by imposing a disqualification. This can be for a set period or indefinitely. If it appears appropriate, the TCs can also disqualify an individual from holding a full vocational licence until he or she passes the relevant driving test again.
The STC Guidelines remind TCs that this requirement should not be imposed as a punishment but they may take such steps so as to ensure that a qualified testing officer is satisfied that "the individual still meets the appropriate standards in the interests of road safety".
The STC Guidelines also list suggested courses of action that TCs should take in common circumstances. This is designed to ensure consistency among the various TCs and send a clear message to drivers as to the action they will face in certain circumstances. For example, with regards to endorsable offences, individuals who already hold a licence but find themselves disqualified for drink-driving, can expect to be called to a driver conduct hearing when the starting point will be that they will be refused the return of their vocational licence for one month beyond the time the car licence would be restored. For longer bans this might be increased by one month for every year the court imposed as a disqualification. For second or subsequent disqualifications the vocational licence might be removed for an additional three to six months — or more in extreme cases.
The use of a mobile telephone while driving will again see the individual called to a driver conduct hearing and the starting point will be the “suspension” of the vocational entitlement for 14 days. If the offence was committed in a commercial vehicle the starting point increases to 21 days. On a second or subsequent offence the period can be doubled or trebled.
Where a driver has deliberately falsified tachograph charts then it is likely that the licence will be “suspended” on a sliding scale of one month per offence for up to three false records. Four or five records would ordinarily see the licence being revoked and the individual disqualified for up to six months. More than 6 offences would see revocation and a disqualification for 12 months.
The failure to keep a full record of driving, whether by way of a tachograph or logbook, can see anything from a formal warning to a one-month disqualification. Over the years the TCs have heard all sorts of excuses for the failure to keep records, including them being destroyed in the washing machine or the driver's wife throwing them away not knowing how important they were. These rarely "wash" with the TC!
The STC Guidelines only provide a starting point for TCs. Action will often differ from the guidelines as a result of aggravating or mitigating features. There are also many circumstances not covered by the guidelines. For example, drivers who repeatedly cause operators problems with regards to defect reporting may simply be called to attend a hearing to receive a formal warning. However, it has been known in the past for TCs to accompany the warning with a threat that anyone thereafter driving a vehicle that incurs a prohibition, which should have been detected by the driver, will face severe action including the suspension of his or her licence.
Given the number of cases now being referred to the TC’s office, which appear to be increasing by virtue of offences such as using a mobile telephone while driving, consultation has been held with regards to potential new methods of dealing with drivers. A number of suggestions have been put forward.
The DVLA has favoured a method whereby, for initial offences, drivers are simply sent a warning letter and only second or subsequent convictions see the matter being referred to the TCs. However, the TCs themselves have sought much stronger powers, which would see automatic disqualifications being imposed for first offences and the issues only being given detailed scrutiny for second or subsequent convictions. The adoption of either of these approaches will see a significant change in how drivers are regulated.
Drivers should always be aware that the criminal courts are not the only means by which action can be taken against driving licences. It can often be in the interests of operators to remind their drivers of the powers held by the TC. Many drivers think that if the DVSA or police choose not to prosecute then they are "untouchable". If they do not conduct proper driver defect reports or comply with driver’s hours legislation, then in the absence of criminal proceedings, there is nothing anyone can do. This is entirely incorrect.
While TCs may not be tasked with punishing drivers, the suspension or removal of a driving licence by the TC can have the same effect.
The relevant STC Guidelines can be found at www.gov.uk.