Last reviewed 15 June 2021

The content, scope and documents being considered at preliminary hearings and public inquiries is changing and, with those changes accelerating though the Covid-19 pandemic, the nature of public inquiries may soon be very different to those being undertaken 10 years ago. Here, Andrew Woolfall, of Backhouse Jones Solicitors, considers what operators need to be aware of and how these changes will impact the way they manage their “paperwork”, the systems they choose to adopt, and their expectation of ever coming face to face with the regulator.

The growing reliance on technology and data

We are clearly in the midst of a technological revolution with data increasingly considered one of the most important assets a business or organisation possesses. Electronic data is easily searchable and artificial intelligence means not only operators, but also enforcement agencies, can monitor vehicles and drivers. While operators may enjoy the benefits that data from digital tachographs, electronic maintenance systems or vehicle telematics deliver, this information is also invaluable to the likes of the Driver and Vehicle Standards Agency (DVSA).

DVSA is now heavily using data in such schemes as Earned Recognition and, increasingly, in its enforcement strategies. For example, the use of Automatic Number Plate Recognition (ANPR) technology not only helps determine which vehicles are stopped at the roadside for inspection but also helps in the analysis of tachograph information. While a vehicle may then say it is stationary when the driver is at rest, this can quickly be checked against ANPR records which might find it was driving on the roads — leading to the suggestion of falsified records.

Public inquiries have been similarly caught up in these changes and Traffic Commissioners are wanting operators to supply more and more data in the “run-up” to a hearing and, while much of this is currently reviewed manually, it will not be long before this becomes computerised.

Providing information to the Traffic Commissioner

For some time now, the Traffic Commissioners have been requesting that those operators who are called to a hearing produce various documents, including maintenance records, drivers’ hours infringement reports, unknown driver reports and training and disciplinary documents. In some traffic areas, it was sufficient to bring these documents to the hearing for review on the day — if they were reviewed at all. However, the Covid-19 pandemic has seen new guidelines introduced, requiring this information to be submitted at least seven days before the hearing to allow proper time for its analysis. Even though the burden is upon the Traffic Commissioner to justify taking regulatory action, operators are now being required to produce documentation even if it is detrimental to their case.

When the Traffic Commissioner’s office is analysing the operator’s data and information, it is looking at several things including the dates on which electronic reports have been produced. Issues are now often arising where operators have not been running reports as frequently as they should and automatic date stamps on documents show that they have only just been produced. Operators need to make sure that they are producing these reports at proper frequencies and that there is evidence to say they have been examined.

Where there are issues arising from an operator’s own evidence, the operator and transport manager are expected to have a detailed explanation. This again means operators must regularly review their “data” and account for issues.

Is there an increased likelihood of a regulatory hearing?

Many operators who believe they have good maintenance or drivers’ hours systems feel that it is highly unlikely they will ever get called to a regulatory hearing. However, while virtually all inquiries 10 years ago included elements involving maintenance failings or drivers’ hours mismanagement, we have now entered an age of “single issue” preliminary hearings and public inquiries which are often the result of one-off events. These include wheel loss incidents, bridge strikes or insecure loads.

The reality is that almost any single event that is potentially high profile or in the local press now leads to an appearance before the Commissioner. Often there is no maintenance investigation associated with the hearing, and it is simply triggered by the incident that has occurred. However, once the process has started, the operator is required to produce all the information mentioned above. At this point, when the information is scrutinised, other issues from the operator’s own paperwork then come into play. For example, it might be spotted that maintenance inspections have been stretched or that drivers have not been performing proper daily defect inspections.

Operators can no longer assume that just because they have a good OCRS score or MOT test history, that they will not face enforcement action. A single mistake by a driver, despite otherwise good systems, might lead to them appearing before the Commissioner and then all their documentation coming under scrutiny. Operators should therefore work on the basis that on any day an incident may happen and that their data will then be requested.

All of this means that operators need to be fully on top of their systems and paperwork. They need to be reviewing their data regularly and making good notes of events that might cause issues in the future. This might then just be considered good management practice and not something that is only done for fear of the Traffic Commissioner’s intervention. Digital systems will also certainly make this a lot easier, with data analysis being done automatically and managers informed of issues by computer generated email.

Understanding the future of regulatory change

When it comes to holding preliminary hearings and public inquiries, the Traffic Commissioners are following the lead set by the civil and criminal courts in holding these events both “in person” and “virtually”. Virtual hearings, utilising Microsoft Teams, are then likely to continue at some level well into the future.

Additionally, we are also likely to see an increased use of information technology by the Traffic Commissioners and their offices. The civil courts have many trial projects underway which are likely to spill over into other jurisdictions. These include the use of using artificial intelligence to undertake process management, for example making sure that the parties meet deadlines for the submission of documents and, where there is default, issuing relevant orders.

In civil work, there is also the use of computer technology to draft documents and to analyse them. This could easily be adapted to analysing anything from maintenance records or training matrices to drivers’ hours infringement reports and could provide a thorough review of the information submitted by an operator within minutes so that nothing gets missed and the Commissioner has the most up-to-date information before them as is possible.

As a final thought, studies and experiments are now underway into the use of artificial intelligence to predict the outcome of trial hearings. While it is then unlikely that the Traffic Commissioners themselves will be replaced by technology, the pace of change in and reliance on technology is increasing and who knows where we will be in 20 years’ time.