Last reviewed 18 January 2012
In December 2011, the Acting Senior Traffic Commissioner, Beverley Bell, issued 10 Guidelines, providing information as to the way she believes that Commissioners should interpret the law. In this article, Michael Jewell summarises the salient points in each of the Guidelines.
The decision to call an operator to a public inquiry falls to the Traffic Commissioner, not to officials, and it is part of their independent judicial function.
The legal principle of proportionality requires a Traffic Commissioner to make decisions that are commensurate with the circumstances of each individual case. The primary factor to be considered is the impact on road safety and fair competition arising from the alleged breaches of the legislation by the operator. They must also have regard to the impact upon an operator of any regulatory action which might be taken in cases of non-compliance.
The Traffic Commissioner is entitled to determine the structure of a public inquiry and the evidence that is to be called, provided that the rules of natural justice are safe-guarded.
Staff cannot exercise delegated functions unless the individual has been specifically authorised in writing by the relevant Traffic Commissioner, and only to the extent indicated by that instrument.
The matters that cannot be delegated are:
disciplinary/regulatory directions and decisions
the decision to hold a public inquiry
the decision to adjourn a public inquiry
decisions on stays
the acceptance of surrender of licences, where there are outstanding compliance issues
decisions on impounded vehicles
the decision to review an operating centre
an agreement that the requirement for professional competence be temporarily unfilled pending a new appointment as transport manager
dispensation regarding the requirement of professional competence.
The conduct of an applicant for, or the holder of, a vocational licence is referred to the relevant Traffic Commissioner in the following cases.
Where a person has been convicted of an endorsable offence.
Where the police or other enforcement agency notifies in writing that a person has been convicted of a non-endorsable offence that would call into question his or her fitness to hold a vocational licence.
Where a person is reported in the media or by an employer or any other source to have been convicted of a non-endorsable offence that would call into question his or her fitness to hold such a licence.
Where a person has been reported by the police or other enforcement agency alleged to have been guilty of conduct that would call into question his or her fitness to hold such a licence, even though that person has not been prosecuted for an offence (in such cases, a Traffic Commissioner would need to be satisfied that the evidence is sufficient for action to be considered against the licence holder).
Impounding might happen in one of the following circumstances (but will not always be limited to these circumstances).
The operator has had its licence revoked by a traffic commissioner.
The operator has been warned or prosecuted by the enforcement agencies for operating without a licence.
There have been repeat applications for a licence but no authority to operate has given by the traffic commissioner.
The operator is using a foreign-registered vehicle, not authorised on a GB licence, and is engaged in an operation outside the scope of the Cabotage rules.
The operator has used an operators’ licence identity disc issued to another operator.
The operator has displayed a document which purports to be an operator’s licence identity disc, with intent to deceive.
The operator has the right to apply to a Traffic Commissioner for the vehicle’s return, subject to proof that the operator is the lawful owner of the vehicle.
Traffic Commissioners have to notify an applicant for the return of an impounded vehicle of their decision in writing within 21 days of receipt of the application (if there is no hearing), or within 14 days of the conclusion of the hearing. In either case, the decision must specify the ground/s upon which the application either succeeds or fails. If there has been a hearing, full written reasons should also accompany the decision. The Traffic Commissioner may extend these times where an individual case requires more time to be dealt with fairly and justly.
Both parties have a right of appeal and so the Office of the Traffic Commissioner must ensure that both parties are made aware of these appeal rights, and so should not direct the return of the vehicle to VOSA until the expiry of that appeal period. If there is no appeal against a decision not to return a vehicle or the appeal is unsuccessful, the vehicle can be sold or crushed with the proceeds of any sale returned to the rightful owner, less any costs.
Traffic Commissioners need to be satisfied as to the legal status of an applicant or operator. A company or other corporate body has a distinct legal personality from its members (shareholders), officers or directors. In other cases, it may be necessary to determine the individual(s) responsible for the undertaking, for example the partners in a partnership, where restrictions might apply or the relationship with another corporate body.
A Traffic Commissioner’s jurisdiction in respect of an operating centre is limited to vehicles authorised by the O-licence which are kept there and does not extend to visiting vehicles. The issue of where a vehicle is normally kept when not in use is a question of fact and degree in each case. A site must actually be available at the date of determination, not at a date in the future.
It is regarded as essential for a Traffic Commissioner to conduct a site visit before presiding over any public inquiry convened with regard to the suitability of the proposed operating centre.
Where it is established that the holder of a standard licence fails to meet the requirement to have a stable establishment it is open to the Traffic Commissioner to allow the operator a period of up to six months to rectify the situation.
Traffic Commissioners have power to have regard to any matter in determining whether individuals or companies are of good repute either upon application or at any time during the life of the licence. The minimum requirement of good repute cannot be reduced by reference to “proportionality”.
A transport manager must have a genuine link to the undertaking.
If the proposed suitability of a transport manager is called into question, then that person and the relevant operator will be given an opportunity to state their case at a public inquiry or by issuing a notice and considering rehabilitation messages for the transport manager and giving the operator time to rectify any professional competence failings.
A Traffic Commissioner cannot make an adverse finding against an existing transport manager’s repute or professional competence unless a notice has been properly served on that transport manager.
Traffic Commissioners need to ensure there is sufficient detail to allow a person with experience of the transport industry to understand the basis upon which the decision was arrived at.
Where a decision is reserved, Traffic Commissioners should endeavour to publish full written reasons no later than 28 days from the date of the final hearing, except in cases where a full transcript or part transcript is required. In the latter case, the target date for publication is 28 days after the transcript becomes available.
These Guidelines are to be reviewed again in six months.