Tim Ridyard of Woodfines Solicitors considers the role of the professional driver in the freight and PCV sectors, and the disciplinary measures that can be imposed upon them.
Not only do goods and passenger operators have to be fit to obtain and retain a licence but so do professional drivers. The role of a Traffic Commissioner is to issue and — where necessary — take action against holders of goods and passenger operator’s licences and police-registered bus routes. However, they also manage the fitness of persons to hold LGV or PCV driver’s licences.
The area of vocational driver conduct may be one which is less familiar to commercial drivers (and indeed operators) who need to be aware of the consequences of committing a wide range of offences and how this may impact on them acquiring a licence, having one returned to them or losing their vocational entitlements.
Traffic Commissioners are engaged by the Secretary of State for Transport to determine whether applicants for vocational licences or existing vocational licence holders are fit to hold such entitlements. They do not personally process every application or consider every single adverse offence which occurs; however, they do become involved where fitness issues arise of a certain nature and above a certain offending threshold.
By virtue of the Road Traffic Act 1988 s.112, an LGV or PCV licence cannot be granted unless the Secretary of State is satisfied, “having regard to the applicants conduct”, that he or she is a fit person to hold the licence.
Conduct under scrutiny
The conduct under scrutiny area differs slightly, depending on whether the individual is an applicant or holder of an LGV licence (or LGV community licence) or a PCV licence (or PCV community licence). In LGV cases, this relates to a person’s conduct “as a driver of a motor vehicle”. In PCV cases, it is the same criterion but also conduct “in any other respect relevant to the holding of a PCV licence”.
The reason for the distinction between LGV and PCV licence applicants and holders is because PCV licence holders are engaged in the carrying of passengers who are “entitled to place their trust in the driver of that passenger carrying vehicle” (as stated in the Senior Traffic Commissioner Statutory Document No.6: Vocational Driver Conduct, 2013).
Of relevance to the question of fitness to drive are the recent amendments to the provisions of the Rehabilitation of Offenders Act 1974. This Act determines when a person can be treated as a rehabilitated person and when their convictions are “spent”, ie to be disregarded except in certain circumstances (eg in respect of those who work with children, in legal services, the police, etc), and in which case they are not regarded as spent. The system is based on the outcome of the case, ie the type of sentence rather than the nature of the offence.
The changes came into force on 10 March 2014 via the Legal Aid Sentencing and Punishment Act 2012, and amend the periods of time before which convictions can be spent. For example, an offence which is dealt with by way of a fine is now “spent” after 12 months (previously 5 years). Similarly, community orders and shorter custodial sentences are reduced. (Licence endorsements remain unspent for five years for rehabilitation purposes, though of course they only count for three years for “totting up” purposes in the magistrates’ court.) Therefore, these legislative changes may affect the speed with which a driver is to be regarded as being of good character, compared to the previous position.
When considering “spent” convictions, Traffic Commissioners must have regard to the provisions of this legislation, but also other circumstances when they must have regard to what would otherwise be spent convictions (this is a complex area in itself which cannot be detailed here).
When applications have been made for LGV and PCV licences, the DVLA may refer the applicants to the Traffic Commissioners if it regards this as appropriate. In addition, Commissioners may be notified of any adverse conduct of existing drivers. Information of this nature may have been communicated to the Office of the Traffic Commissioner through notification of fixed penalties or convictions by the Driver and Vehicle Standards Agency (DVSA), the police or indeed by operators under their licence obligations, which require them to notify the Commissioner of certain events (failing which they breach the terms of the licence).
Once the Traffic Commissioner receives a case referral from the DVLA (for an application or an existing licence holder) or information with regard to an existing driver entitlement, a driver will be contacted by the Office of the Traffic Commissioner setting out the Traffic Commissioner’s view of the case. This may be in the form of a letter indicating that the Commissioner is “minded to refuse” a new licence application, in which case the applicant/licence holder can agree to this, make written representations or request a driver conduct hearing with the Commissioner. Alternatively, the Traffic Commissioner may simply indicate that a hearing is to be convened for consideration of the application or for driver conduct issues if a licence is already in force.
One example of applicants who may face a hearing are those applying for a licence for the first time who have nine or more penalty points on their licence, and where any points penalties or disqualification have occurred within the preceding two years. These hearings are convened at the Office of the Traffic Commissioner in the traffic area where the driver resides. At the hearing, the applicant driver (or the existing licence holder who has committed offences) has to satisfy the Commissioner that he or she is a fit person to hold the licence.
What is confusing to many drivers is that a driver conduct hearing is not akin to a sentencing hearing in the magistrates’ court. A Traffic Commissioner cannot take personal mitigation into account, eg that the driver’s family will suffer financially if an application is not granted or their vocational driving entitlement is revoked. Instead, the Commissioner has to consider fitness to hold the licence, eg a driver who has attended a speed awareness course or a drink-driving rehabilitation course and derived benefit from it.
Having heard evidence from the driver, a Traffic Commissioner can decide to take no action, issue a warning letter or take formal action against the licence by suspending or removing it.
Where there is an application for a new or returned licence, the Commissioner may decide not to allow it to commence for a specified period of time. The Commissioner may also order a disqualification from the driver holding the full vocational licence until there is a retest; indeed, where drivers have not driven on a vocational licence for five or more years, or there are other concerns, then Traffic Commissioners are encouraged to consider the requirement to take a retest.
The Senior Traffic Commissioner Statutory Document No. 6: Vocational Driver Conduct sets out in detail starting points and guidelines for Traffic Commissioners when dealing with applicants or existing vocational licence holders. These provide a useful insight into the sort of approach that Commissioners may take when considering new applications and existing drivers, as the below examples show.
First-time applicants and renewals: where nine or more penalty points have occurred in the last six months, the driver will be sent a “Minded to Refuse” letter for a period of six months.
Drink/drive disqualification: if the disqualification is for more than 12 months, a further disqualification of 1 month per year of disqualification may apply before the vocational element of the licence can be restored.
Mobile phone misuse: a driver can be expected to be called to a hearing to show cause as to why a licence suspension should not be made (a 14-day suspension starting point can apply if the driver was driving a commercial vehicle). (The issue of mobile phone use by commercial drivers is one of extreme concern for Traffic Commissioners and drivers facing conduct hearings should be under no illusions that licence suspension may well follow for committing such offences.)
Falsification of tachograph records: where this is deliberate, penalties can start at one month’s suspension per offence (up to three offences), and include revocation/disqualification for up to five offences.
Drivers’ hours offences: if committed infrequently or on isolated occasions, a formal written warning may apply. If the offence is frequent and not isolated, a summons to a driver conduct hearing may occur with potential for a minimum 28-day suspension period.
Driver conduct hearings: representation
Drivers can be, and often are, represented at driver conduct hearings by solicitors or barristers (although this may be less usual as the cost of this may be limited due to personal financial circumstances, unless the operator is prepared to assist with such costs).
Operator/driver prosecutions and public inquiry
Where operators face criminal proceedings for road traffic offences and/or they face a Traffic Commissioner Public Inquiry for non-compliance, they should also bear in mind that the Commissioner may ultimately decide to hold driver conduct hearings conjoined with the Public Inquiry.
If the Traffic Commissioner wishes to consider, say, drivers’ hours non-compliance, then drivers will be required to attend a conduct hearing after which the Commissioner will conduct the related Public Inquiry for the operator. Following the hearing, the Commissioner may then make orders against the drivers individually as well as action (such as revocation, suspension or curtailment) against the operator’s licence holder.
It can therefore be understood that action can be taken against a business on two fronts: against the operator’s licence and against the drivers through scrutiny of their fitness to hold a LGV or PCV driving entitlement.
The temporary suspension or removal of drivers’ licences may well not only cause personal loss to drivers but also be highly disruptive for operators. As we approach what may be a period of potential driver shortages, it will be necessary more than ever for drivers to avoid offences that can give rise to licence loss or suspension.