Last reviewed 30 January 2018
Postings on social media that cause considerable distress and upset affect an operator’s repute and can lead to licence revocation and disqualification from holding an operator’s licence even if the post is not unlawful. Michael Jewell reports on an appeal decision of the Upper Tribunal in December 2017 which has ramifications for haulage and public service vehicle (PSV) operations.
General introductory points
A Traffic Commissioner must have regard to all the relevant evidence and that can include evidence of conduct which is not unlawful. In this specific case, the question was whether the Deputy Commissioner was entitled to take account of Philip Higgs’ conduct as being relevant to the issue of good repute.
The tribunal upheld the decision of Deputy Traffic Commissioner John Baker that Philip Higgs, a Director and sole shareholder of Blackpool-based Catch22Bus Ltd (formerly known as Oakwood Travel) had lost his repute for posting a video on YouTube which allegedly showed former Senior Traffic Commissioner Beverley Bell committing speeding offences, disqualifying him from holding a PSV operator’s licence for 12 months. The tribunal also upheld the Deputy Commissioner’s decision to revoke the eight vehicles PSV operator’s licence held by the company.
In 2016, Mr Higgs had become very upset by adverse findings made by Mrs Bell, when acting as North Western Traffic Commissioner, after his company had been called to a public inquiry. Her findings were subsequently quashed on appeal, the tribunal directing that the matter be reconsidered by a different Traffic Commissioner. Meanwhile, feeling aggrieved, Mr Higgs then instructed a private investigator who for three days had followed the Senior Traffic Commissioner and filmed her driving her personal vehicle. Under an assumed name, Mr Higgs had posted that video on YouTube including footage taken without Mrs Bell’s permission. The police had been involved in detecting the person responsible for the video. On the advice of the Crown Prosecution Service, the Lancashire Constabulary issued Mr Higgs with a Police Harassment Information Notice.
Evidence was given by the police that actions such as tracking vehicles and filming people without their permission were not unlawful. If a device was attached to a car and damage was caused as a consequence this could be criminal damage and in this instance, Mrs Bell had said that she had found evidence of such damage. In the event, it could not be shown that the damage was linked to the people involved in the process of compiling and making the video and therefore the matter was not pursued. Mr Higgs was traced using IT technical services at the police’s disposal. They also had knowledge of what had been filmed for a possible second video. Mr Higgs had said that someone else had made the video footage but that he was not prepared to implicate this person as they were acting on his instructions.
Mr Higgs said that copies of the video had been sent to the Police and Crime Commissioner for Lancashire, the Department for Transport, the Upper Tribunal, other Traffic Commissioners and editors of relevant trade magazines. He had felt it was right to expose someone who was blatantly ignoring the rules of the road and on the other hand telling others not to. He was not sure if he would do anything differently in the same circumstances although he did think the same circumstances would be most unlikely to arise in the future. He said that the hard data relating to the video and anything that was held on his laptop had been destroyed or deleted.
The Deputy Commissioner’s decision
The Deputy Commissioner found that what Mr Higgs chose to do amounted to a serious invasion of privacy and inevitably led to the “considerable upset and distress” reported to the police. It was not unreasonable or surprising that Mrs Bell was worried that her home had been identified and/or under surveillance. He did not accept that Mr Higgs’ intention in posting the video on YouTube and sending copies to the range of people and bodies was merely for her to be held to account for her alleged behaviour. He believed that Mr Higgs was at best uncaring as to the impact on Mrs Bell and more likely than not to have wanted to cause her distress and was acting out of malice. He noted that when questioned by the police he referred to the consequences of Mrs Bell’s decision in relation to his company’s licence and that gave an insight into his motive. His actions were made worse — leading the Deputy Commissioner to conclude that he knew what he was doing was wrong — by the fact that he posted the video using a false identity and was only discovered after specially trained police officers were able to trace him. It was telling and significant that he “couldn’t say” if he would do the same thing again in the same circumstances. He expressed no remorse at causing distress or for any other aspect of his conduct.
The Upper Tribunal’s determination
The tribunal considered that it was clear from the legislation that the Deputy Commissioner must have regard to “all the relevant evidence” and that might include evidence of conduct which was not unlawful. The surveillance was not lawful if it actually amounted to harassment. There could be no rational argument that the conduct was not connected to the regulatory regime and the operation of the company’s licence. Mr Higgs had admitted the relevant conduct and therefore any argument that the Police Harassment Information Notice had no probative value was of very limited relevance. The argument that there could be no attempt to influence the Senior Traffic Commissioner because she had not to involve herself further in the company’s case also had very little merit. Such conduct could be intended to create an intimidating atmosphere for others involved in traffic adjudication. Even if not actually intended to do so, it could result in the feeling that it was so intended.
The admitted conduct in the present case was a direct attack on the very essence of an independent judicial process. It was directed at the Senior Traffic Commissioner because of her official position and function. They considered that the sanctions imposed by the Deputy Commissioner were the very least that could reasonably be imposed in the circumstances of this case.
In what is regarded as an important test case affecting the holders of both HGV and PSV operator’s licences, the tribunal made it plain that actions outside those directly involved with the operations under the licence, whether or not illegal, can affect the repute and fitness required to hold an operator’s licence.