IN THE SCOTTISH TRAFFIC AREA

UNDER THE GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995(“the Act”)

DECISION

BY

RICHARD HAMILTON McFARLANEDEPUTY TRAFFIC COMMISSIONER FOR THE SCOTTISH TRAFFIC AREA

IN THE CASE

OF

CAMERON YOUNG TRANSPORT LIMITED[LICENCE NUMBER OM1063486]

THE PUBLIC INQUIRY

i)                         At Edinburgh on 9th and 10th June 2010 I held a Public Inquiry to consider issues investigated by the Vehicle and Operators Services Agency (“VOSA”) which disclosed allegations that (a) drivers employed by Cameron Young Transport Limited (“the operator”) had committed drivers’ hours and tachograph offences (b) the Standard International Goods Vehicles Operators Licence held by the operator was renewed when the operator was in liquidation (c) the liquidation of the operator had not been notified to the Traffic Commissioner (d) unauthorised vehicular use and (e) unauthorised use of premises as an operating centre.

ii)                       In attendance at the Public Inquiry was Mr Michael S Allan, solicitor, Aberdeen. He had been instructed to represent the interests of Mr Cameron John Young (“Mr Young”) the sole director of the operator and the operator’s Transport Manager, Mr Alexander Clockworthy Young (“Mr Sandy Young”). Neither Mr Young nor Mr Sandy Young were present. Mr Allan explained that he had been principally instructed by both of them to represent their interests at their respective driver conduct hearings, which had been called, to coincide with the Public Inquiry. He was not representing the interests of the operator.

iii)                      Mr Allan explained that Mr Young was “stressed” and considered himself to be unfit to attend. No medical evidence was produced. Mr Allan was able to satisfy me that Mr Young was well aware of the Public Inquiry and the drivers’ conduct hearing and that he had received intimation of the hearings and all the papers. So far as Mr

Sandy Young was concerned the medical certification produced by Mr Allan confirmed his poor state of health and that he was presently medically unfit to attend. He would not be able to understand the proceedings due to vascular dementia. The medical prognosis for Mr Sandy Young is that it is likely that he will never be fit to attend.

iv)                     I accepted the position with regard to Mr Sandy Young. I did not accept the explanation for the non-attendance of Mr Young. From my perusal of the papers there appeared to have been a failure to cooperate with the Traffic Examiners throughout their investigation into the operator. Accordingly, and as provided for in Regulation 5(7) of the Goods Vehicles (Licensing of Operators) Regulations 1995 (“the Regulations”), I informed Mr Allan that the Public Inquiry would proceed in the absence of Mr Young. After an adjournment Mr Allan informed me that he had contacted Mr Young. He had instruction from Mr Young with regard to his repute. Mr Young expected to lose his good repute.

v)                       Mr Allan was also instructed to represent the interests of drivers, Craig Currie, Gilbert Johnstone, Bruce Kirkpatrick, William McKenzie, Robert Pollock, Thomas Paterson and Martin Smith who with the exception of driver Paterson were all in attendance. On their behalf he invited me to adjourn their drivers’ conduct hearings as he had had insufficient time to prepare. The three remaining drivers who were also in attendance namely drivers James Curzon, Luthan McCubbin and Ian Shaw did not wish to be represented. They all wanted to be heard. They did not wish an adjournment. I decided that it was unlikely that the Public Inquiry and the driver conduct hearings for these three drivers would conclude in the two days assigned. I granted Mr Allan’s invitation to adjourn the cases involving his clients. I allowed Mr Allan to withdraw from the Public Inquiry.

vi)                     Driver Anthony Jeffrey had not responded to his “call up” letter. As driver Conway was (now) resident at an address in England, it was not competent for the Secretary of State to refer “his” case to the Traffic Commissioner for the Scottish Traffic Area.

vii)                    Traffic Examiners Mr John Quinn (“Mr Quinn”) and Mrs Evelyn Hill (“Mrs Hill”) were in attendance for VOSA. Mr Michael Fisher, solicitor, Carlisle, represented the interests of VOSA.

viii)                  The Public Inquiry involved Mr Fisher leading evidence from Mr Quinn and Mrs Hill focusing on their reports prepared for the Public Inquiry and the evidence they had obtained in respect of all the said drivers with specific reference to Mr Young and Mr Sandy Young. I then held the driver conduct hearings for drivers James Curzon, Luthan McCubbin and Iain Shaw. Finally, Mr Fisher treated me to his concluding submission on behalf of VOSA. I adjourned the Public Inquiry to consider all issues and to issue a written decision.

ix)                     I formally warned driver Curzon with regard to his conduct as the driver of a motor vehicle. I adjourned the cases of drivers McCubbin and Shaw to consider the evidence and give my decisions in writing. I immediately suspended the large goods vehicle driving licence held by Mr Young pending his appearance before me.

PROCEDURAL CONSIDERATIONS

x)                       Inter alia the call up letter dated 4th May 2010 gave the operator notice that at the Public Inquiry I would also be considering the vocational large goods vehicle driving licences held by 14 drivers. Each driver had received a “call up” letter requiring his attendance at a driver’s conduct hearing. There was no notice given to any of the drivers that their respective hearings were to take place on the same occasion as the Public Inquiry.

xi)                     In recent times, I have had concerns and reservations about “conjoining” Public Inquiries with driver conduct hearings. They involve two separate and distinct jurisdictions. The Act deals with goods vehicles operators’ licences. The Road Traffic Act 1988 deals with vocational driving licences. There is no cross-reference between these two pieces of legislation in respect of these two very distinct and separate licences. Each such licence “stands alone”. Accordingly, when application is made for either type of licence, the application will be considered on its own merits and will be granted or refused in accordance with the criteria for the licence applied for as set out in the relevant legislation.

xii)                    Similarly, if concerns arise with regard to the fitness of a licence holder to continue to hold either type of licence then such issues will be determined in accordance with the relevant legislation.

xiii)                  In the case of HJ Oakes Ltd 25/2002 the Transport Tribunal expressed the preference that a driver’s conduct inquiry should be held at the same time as an operator's inquiry where there was a possibility of conflict in evidence “so that all issues of fact are resolved at the same time.” The Transport Tribunal endorsed this view when it revisited the topic in the case of NR Evans and Son Ltd 2005/56. The last two sentences in that decision read as follows “We do not agree with the submission that s.116 of the Road Traffic Act 1988 precludes questioning otherwise from the Traffic Commissioner. If a driver does refuse to answer a question from an advocate, this can anyway be repeated by the Traffic Commissioner, with the statutory sanction. I appreciate that this decision is binding on traffic commissioners. However I respectfully question whether this is a correct interpretation of the legislation as the role of the traffic commissioner is to ask the holder of the vocational licence such questions as he deems appropriate to make the determination as to fitness to continue to hold the licence.

xiv)                  The starting point for my concerns is the basis upon which a driver called to a driver’s conduct hearing is obliged to participate at such a hearing. It is a statutory basis as provided for in Subsection (3) of Section 116 of the Road Traffic Act 1988 which is in the following terms:-

“A traffic commissioner to whom a reference has been made under subsection (1) above may require the holder of the licence to furnish the commissioner with such information as he may require and may, by notice to the holder, require him to attend before the commissioner at the time and place specified by the commissioner and to furnish the information and to answer such questions (if any) relating to the subject matter of the reference as the commissioner may put to him.”

xv)                     Accordingly, at a driver’s conduct hearing the licence holder is obliged to furnish the traffic commissioner with such information as the traffic commissioner requires to assist the traffic commissioner in determining whether or not the driver is fit to continue to hold the vocational entitlement. It is not an occasion where the driver is open to cross-examination by or on behalf of the operator where the operator is in attendance at Public Inquiry for the operator’s licence. The information obtained by the traffic commissioner can only be used in assisting in the determination as to whether or not the driver is fit to continue to hold the vocational licence. It is not information or evidence that can be properly used in determining issues associated with the operator's licence as there is no opportunity to test that evidence by way of cross-examination. I understand that this was recognised by the Transport Tribunal in the HJ Oakes Ltd case.

xvi)                  It therefore follows that any evidence that is led in connection with the operator's licence cannot be relevant evidence in assisting the traffic commissioner to determine whether or not the driver is fit to continue to hold the vocational licence as the driver has not been called to give evidence at the Public Inquiry. The only information the traffic commissioner is entitled to elicit from the licence holder must relate to the subject matter of the reference.

xvii)                There is also a jurisdictional aspect to all of this. In terms of the Act the traffic commissioner has and continues to have jurisdiction over the operator's licence issued by him or her. The traffic commissioner does not have jurisdiction over the vocational licence granted by the Secretary of State. Any question arising regarding the fitness of a driver to continue to hold a vocational licence may be referred by the Secretary of State to the traffic commissioner for the area in which the holder of the licence resides (Section 116 (1)(b) of the Road Traffic Act 1988). In an extreme situation VOSA may have carried out an investigation in Scotland into an operator's licence which has resulted

in serious alleged offences having been committed by drivers employed by the operator all of who live in England. In such a situation the operator's licence will be considered at a Public Inquiry in Scotland. The Traffic Commissioner for Scotland is in the position whereby she cannot require the attendance of any of the drivers as she does not have jurisdiction over them. They can only be referred by the Secretary of State to the appropriate traffic commissioner south of the border to make a determination regarding their fitness to continue to hold the vocational licence. Driver Conway is a case in point. I appreciate that whilst my Instrument of Appointment allows me to assist in all Traffic Areas in the United Kingdom it does not give me jurisdiction over drivers who are resident furth of Scotland. I cannot prorogate the jurisdiction.

xviii)               The ordering of a Public Inquiry is governed by Section 35(1) and Schedule 4 of the Act which vests the traffic commissioner with discretion to hold such an Inquiry as he thinks necessary for the proper exercise of his functions under the Act. The Regulations govern the ordering of public inquiries. In particular, Regulations 5 the relevant part of which provides:-

5-(1) Except as otherwise provided in this Schedule, the traffic commissioner shall determine the procedure at an inquiry.

(2) Subject to subparagraph (5), a person entitled to appear at an inquiry in accordance with paragraph 3 of this Schedule shall be entitled to give evidence, call witnesses, to cross-examine witnesses and to address the traffic commissioner both on the evidence and generally on the subject matter of the proceeding.

(3) The giving of evidence, the calling of witnesses, the cross-examination of witnesses and the making of such addresses by other persons appearing at an inquiry shall be at the traffic commissioner's discretion.

xix)                  Whilst there is provision in the Regulations for the conjoining of Public Inquiries there is no express provision to conjoin a Public Inquiry with a driver conduct hearing. That said the traffic commissioner has a limited discretion to determine the procedure to be followed at an Inquiry. Inter alia that discretion covers the giving of evidence, the calling of witnesses and the cross-examination of witnesses. Regulation 5(2) permits a person entitled to appear at a public inquiry to give evidence and to call witnesses.

xx)                   In cases involving Sections 26 and 27 of the Act it is the commissioner who must be satisfied of the ground of revocation. It is not for the licence holder to satisfy him to the contrary (Muck It Ltd & Others v Secretary of State for Transport (2005) EWCA Civ 1124). For this to be achieved evidence is invariably led from VOSA. That

evidence is given by VOSA representatives who are available for cross-examination by or on behalf of the licence holder.

xxi)                  In recent years the practice has developed of holding the Public Inquiry and then the driver conduct hearing (or vice versa) and giving decisions at the end of the “conjoined” hearing(s). If I am correct in my approach as hereinbefore discussed I then have concerns as to whether it is in fact possible to resolve all issues of fact where there is conflict in the evidence led at the Public Inquiry and at the drivers’ conduct hearings as the evidence cannot be properly tested by cross examination.

xxii)                Against this background, I have come to the view that the only fair, safe and proper approach in these cases is to consider each licence whether it be an operator's licence or a driver's vocational licence independently and on its own. In this case, the evidence generated by the Traffic Examiners in conjunction with those of the drivers who were interviewed does form part of the case for VOSA.

xxiii)               That said this case brings into sharp focus the weight to be given to information given by drivers when being interviewed by VOSA as part of their investigation into the operator. Invariably, such interviews take place after the licence holder has been cautioned. The drivers who were interviewed in this case were interviewed under caution. When interviewed by the Traffic Examiners drivers Luthan McCubbin and Ian Shaw denied any wrong doing which did not sit easily with the evidence available to the Traffic Examiners. At their respective driver conduct hearings these two drivers readily admitted to me that they had been less than candid with the Traffic Examiners. Their answers were not truthful. They told me that they had committed the offences and created false records all as discovered by the Traffic Examiners. Accordingly I require to look very closely at the VOSA evidence in light of any contrary position adopted by a driver at the time of interview with the traffic examiners.

THE CASE FOR VOSA

xxiv)              Mr Fisher invited that the reports compiled by Mr Quinn and Mrs Hill be accepted as tendered to the Public Inquiry. He led evidence from Mr Quinn and Mrs Hill. I asked such questions as I deemed necessary for clarification of some of the issues spoken to by them.

SUBMISSION ON BEHALF OF VOSA BY Mr FISHER

xxv)                At the outset of his submission Mr Fisher stated that any comments he made about Mr Young also applied to the operator. He submitted that the VOSA investigation raised many significant concerns.

xxvi)              From their initial contact with Mr Young, the Traffic Examiners were greeted by obstruction and prevarication on a grand scale. Mr Young told them that the records they were interested in were at his house. On arrival at his house Mr Quinn was suspicious as he did not see any evidence of record keeping. There were no records there. Mr Young informed the Traffic Examiners that a Mr Ian Nisbet would know where the records were. Mr Fisher queried why Mr Young had told the Traffic Examiners that the records would be at his house when he knew they were not there.

xxvii)             On 2nd April 2009, as agreed, Mr Young attended at the Goods Vehicle Test Station at Bishopbriggs with a box containing a “neat” selection of records. Mr Fisher recalled that Mr Quinn believed that Mr Young had sorted out the records and presented the Traffic Examiners with only the records he wished them to see.

xxviii)           By 22nd April 2009, all the records required by the Traffic Examiners for the period of their investigation should have been with the operator. On attendance at Mr Young's house that day and in the absence of Mr Young they spoke to his wife who was the company secretary. She had no idea as to the whereabouts of the records.

xxix)              Thereafter, Traffic Examiners tried to obtain the records from Mr Young. They telephoned him. They wrote letters to him. All of this was to no avail. They discovered that recorded delivery letters were not collected.

xxx)                Their next contact with Mr Young was on 12th October 2010 when he advised them that the operator may “go under”. Mr Fisher observed the company was already in liquidation at that date. This demonstrated a complete lack of candour on the part of Mr Young which has continued up to the Public Inquiry as evidenced by the assertion made by his lawyer that no vehicles were being used under the licence which was clearly not the case.

xxxi)              None of the convictions sustained against the operator or any of the drivers had been reported to the Traffic Commissioner.

xxxii)             The brief contains details of prohibition notices and fixed penalties being issued for the offence of failing to produce records when required. Mr Fisher submitted that this was highly significant in relation to the period of investigation.

xxxiii)           Mr Young had failed to appear at the Public Inquiry without reasonable excuse.

xxxiv)           Mr Fisher observed that with regard to drivers’ hours offences, the Traffic Examiners had examined 262 records. They had detected 114 false records, 14 drivers’ hours offences, 45 record offences and 43 instances of aiding and abetting the commission of such offences.

xxxv)            The journeys involving the transportation of milk and bananas could not be completed in the time lawfully available to drivers. Drivers were being sent abroad on single manned journeys where the journeys could not be lawfully undertaken by a single driver. The number of false records detected by the Traffic Examiners is a very significant proportion of the number of records examined by them. Mr Fisher submitted that there is always a reason for the falsification of records. Various methods of falsification had been found. The pattern of falsification and, in his opinion, the most sinister was drivers using other drivers’ digital tachograph cards. That practice would not have been instigated by the drivers. The practice had to come from “the top”. He submitted that Mr Young had aided and abetted the drivers concerned in the falsification of their records. His and the view of VOSA in this regard was endorsed with a comment made by driver McCubbin after his formal interview with the Traffic Examiners had concluded when he stated “you’s know fine what's been going on”.

xxxvi)           On the topic of missing mileage the Traffic Examiners concluded that there was a total of 124,641 kms unaccounted for. Any proper system would not allow such a high level of mileage to be unaccounted for. This had not been the first time that Mr Young had been associated with missing mileage. He had previously been spoken to about it by Traffic Examiners, James Sweetin and Alasdair McCormick.

xxxvii)         There was no evidence of Mr Young taking disciplinary action against any of the drivers for any of these matters. Mr Quinn had come across a (disciplinary) letter to driver Carson in connection with a different incident.

xxxviii)        Mr Fisher observed that the Traffic Examiners were missing a lot of information which should have been available from downloads of digital data. There were many instances of drivers failing to use their digital tachograph cards. He posed the question “why?”

xxxix)           Turning to repute, Mr Fisher stated that Mr Young had informed the liquidator that the operator had ceased trading, that all staff had been paid off and that the vehicles had been returned to the finance companies. Mr Fisher submitted that Mr Young had lied to the liquidator. The vehicles had been used by him through 2009 into 2010. He founded this submission on the prohibition notices and fixed penalties that had been issued to vehicles subsequent to the date of liquidation. Further vehicles had been specified on the licence after they had been stopped. Mrs Hill was of the opinion that the operator had been using more vehicles than were permitted for use under the licence. Her opinion was based on the absence of company locks on the digital tachograph recording equipment in the vehicles. There was evidence that vehicles “found their way onto the licence” months after Mr Young had entered into finance agreements. Mr Fisher invited me

to hold that it was unlikely that vehicles which were on finance had not been used from the date of the finance agreement prior to being specified on the licence.

xl)                     There was evidence of Mr Young acquiring vehicles after the operator had ceased trading. The business had been transferred to Scheleck (UK) Ltd (“Scheleck”), which company Mr Fisher recognised was not the subject of the Public Inquiry. With that in mind he observed that two significant contracts one with NR Evans and and the other with Fyffes were now being fulfilled by Scheleck. The transport manager of that company was Mr Young's brother Mr Jamie Young. The director of that company was Mr Young's father-in-law Mr Matthew Penman. Various addresses had been provided for this company, including the home address of Mr Young. His mobile telephone number and fax number are also associated with that company. He is the main point of contact for each of NR Evans and Fyffes. A letter from Schelek to the Office of the Traffic Commissioner in October 2009 had been an attempt to distance this company from the operator.

xli)                    There had been two instances of vehicles being used outwith the 28 day period of grace, in which period they should have been specified on the licence. The Traffic Commissioner had not been informed of the liquidation of the operator. The medical indisposition of the transport manager which occurred in the second/third week of December 2008 had not been intimated to the Traffic Commissioner. There was evidence of the transport manager driving vehicles in early December 2008. The matter was compounded with vehicles remaining on the licence after the operator had been liquidated when the licence was renewed online in October 2009. The Traffic Examiners had evidence of work being subcontracted to Mr J Murdoch who had his operator's licence revoked in 2006 and was disqualified from holding or obtaining such licence for 10 years.

xlii)                  With regard to drivers’ pay Mr Fisher reminded me that drivers did not receive payslips. He submitted that the method of payment of drivers’ pay and payment for expenses was probably of benefit to the operator with regard to tax. The address at Cargen Bridge Business Park, Dumfries was not an authorised operating centre for the operator.

xliii)                 Mr Fisher questioned what work had been undertaken by the operator subsequent to its liquidation? He submitted that the liquidator would be blissfully unaware of this. He submitted further that on the face of it I had an operator who appeared to be defrauding its creditors.

xliv)                In terms of repute, Mr Fisher submitted that this was an operator who had breached its undertakings with regard to adherence to the drivers’ hours rules and the undertaking to keep proper records

together with the failure to inform the Traffic Commissioner of the indisposition of the CPC holder.

xlv)           He considered that the strongest action against the company available to me should be taken and that I should consider disqualification of Mr Young.

xlvi)         In conclusion, Mr Fisher submitted that the industry must be sent a strong message that the conduct of this operator and in particular that of Mr Young cannot and will not be tolerated. This operator has shown a complete disregard of the rules and regulations which most companies abide by. He renewed his invitation to me that I take the strongest of action against the licence and to disqualify Mr Young.

FINDINGS IN FACT

xlvii)               Having resumed consideration of the Public Inquiry Brief incorporating the various reports from VOSA, the evidence and Mr Fisher’s submission I find the following facts to be established:-

The licence

1.             Cameron Young Transport Ltd (“the operator”) a company incorporated under the Companies Acts with its registered office at 226 King Street, Castle Douglas was granted a Standard International Goods Vehicle Operators Licence (“the licence”) on 14th November 2006.

2.             The sole director of the operator is Mr Cameron John Young (“Mr Young”) 3 Meadowbank, Kirkton Road, Heathhall Road, Dumfries. The principal business activity of the operator is general haulage/distribution.

3.             The nominated Transport Manager on the licence is Mr Alexander Young. The two nominated operating centres on the licence are at DHL, Irongray Road, Newbridge Industrial Estate, Dumfries and Howie Forest Products, 2 Callender Road, Ayr. The licence authorises the use of 16 vehicles and 10 trailers.

4.             The fee for renewal of the licence was paid on 30 th October 2009.

5.             During the currency of the licence 30 vehicles have been specified on it. As at the date of the Public Inquiry, the following vehicles were specified on the licence, the dates in brackets are the dates they were first specified, namely V4 BLS (16th September 2007), S80 RCY (16th September

2007), SY55 CCU (12th November 2008), SY06 AXJ (12th

November 2008), SV08 AYT (12th November 2008), SJ57 GKG (12th November 2008), S80 LAY (12th November 2008), S80 CSY (12th November 2008) SF56 AYC (23rd

January 2007), and FX57 BVL (25th October 2009)

6.             The operator did not own any vehicles. The vehicles were subject to finance agreements with either Haydock Finance Ltd and Cameron Young t/a Cameron Young Transport or Scania Truck Rental and Cameron Young Transport Ltd.

Cessation of trading /liquidation

7.             In July 2009 the operator ceased trading.

8.             On 9th September 2009, a petition on behalf of H M Customs & Revenue was presented to Kirkcubright Sheriff Court for the liquidation of the operator. On 1st October 2009, the crave of the petition was granted. Mrs Alison Anderson, Chartered Accountant, Dumfries was appointed interim liquidator. On 11th November 2009, she was appointed liquidator.

9.             At the meeting of creditors of the operator held on 11th November 2009 inter alia Mr Young informed the meeting that (a) the red tape surrounding the tachograph and drivers’ hours rules attributed to the operator's financial position (b) all employees had been paid off in July 2009 (b) the leases for all vehicles were in his name and not in the name of the operator and (c) all vehicles had been sent back to the finance companies.

10.         In her letter to the Office of the Traffic Commissioner, dated 12th April 2010, the liquidator enclosed form GV80 (Application to Surrender a Licence) inviting that the vehicles with the following registration marks be deleted from the licence namely:- FX57 BVL, S80 GSY, S80 LAY, S80 RCY, SF58 AYC, SJ57 GKG, SV08 AYT, SY06AXJ, SY56GCU, SV53 JVX, V8CJY, V8 RCY, LE52 CAM and V8 CSY. The liquidator declared that the operator licence discs issued in respect of these vehicles had been lost.

Prelude to the VOSA investigation

11.         In February and March 2008, Police Officers of Dumfries & Galloway Constabulary carried out a Special Operation and “silent checked” vehicles used under the authority of the licence in an attempt to ascertain whether the drivers of

these vehicles were adhering to the drivers’ hours rules and regulations.

12.         On 29th May 2008, Traffic Examiner Mr James Sweetin met Mr Young who produced 276 records relating to 17 vehicles used under the licence during February and March 2008. Mr Sweetin observed that a number of records were missing. As at the date of the meeting all records should have been returned to the operator by the drivers in respect of the said period. Mr Sweetin gave appropriate advice to Mr Young who gave an assurance that action would be taken to ensure that all records were returned and a system would be put in place to ensure there was no further recurrence of missing records.

13.         On 5th November 2008, at a spot check of vehicle SY55 CCU Mr Sweetin noticed that it was not displaying an operator's identity disc. It was not specified on the licence. It had been in the possession of the operator since 9th September 2008. On said 5th November 2008 it was specified on the licence.

14.         On 20th January 2009, Mr Sweetin and Traffic Examiner Adrienne Nelson met Mr Young at Cargen Bridge Business Park. Inter alia they required Mr Young to produce records for the period 1st August to 5th September 2008 relating to vehicles MX06 BZF, LE52 BLS, SF04 TVL, V4 BLS and S80 RCY as records for these vehicles provided by the operator at an earlier time were incomplete.

15.         On 24th January 2009, Mr Sweetin and Alasdhair McCormick met Mr Young at Cargen Bridge Business Park. Mr Young produced records referred to in the immediately preceding finding in fact. They were incomplete as there was missing mileage between the records produced. Mr Young did not produce any records for SF04 TVL. Mr Young informed said Traffic Examiners that after the police investigation in May 2008 steps had been taken to identify missing records and prevent any recurrence. He also informed them that the operator used a log sheet/diary to record vehicle movements to assist in identifying which driver drove a particular vehicle all with a view to avoiding missing records in the future.

The VOSA investigation

16.         The investigation was initiated as a consequence of the Regional Intelligence Unit of VOSA receiving information/intelligence that the operator was operating in breach of the drivers’ hours rules and regulations together

with alleged use of an un-authorised operating centre and that more vehicles were being used than the operator was authorised for. In addition, it had been alleged that the operator made use of hire vehicles for short periods and did not keep proper records.

17.         VOSA decided to carry out a check on all drivers employed by the operator between 1st December 2008 and 25th January 2009. The investigation was carried out by Mr Quinn, Mrs Hill and Vehicle Examiner Mr James Reape.

18.         At the time of the investigation the operator had 15 vehicles in possession and no trailers.

19.         The case for VOSA does not raise any issues associated with maintenance.

20.         The computerised equipment used by the Traffic Examiners to analyse/interrogate the data downloaded from the digital tachograph units in the various vehicles was approved equipment. The digital tachograph units fitted to the vehicles examined by the Traffic Examiners were all in calibration. Such data is true and accurate data.

21.         No drivers’ digital tachograph cards had been reported as lost or stolen during the period of the VOSA investigation.

22.         On 18th March 2009, the Traffic Examiners met with Mr Young at Cargen Bridge Business Park, Dumfries. Initially, they wished to discuss an overloading offence with him. Thereafter, they told him that they required to check all records and documentation for the said period of investigation. He informed them that all such records were retained at his house.

23.         They all travelled to Mr Young's house. The records were not there. The Traffic Examiners issued Mr Young with a formal written demand for the documents/records in terms of Section 99ZA(1)&(2) of the Transport Act 1968. Mr Young explained that he had been having some difficulty obtaining tachograph record charts (“charts”) and digital data from drivers. He informed the Traffic Examiners that Mr Ian Nisbet was assisting him in the collection and retention of drivers’ records following on from his father and transport manager, Mr Sandy Young becoming unwell in December 2008.

24.         Thereafter, the Traffic Examiners travelled to the home address of Mr Nisbet who informed them that the charts were at Tachodata Ltd, Coatbridge for analysis failing

which they would be with drivers who had not returned them or with Kerrs of Dumfries. The Traffic Examiners left with 21 charts together with copies of calendar entries detailing work undertaken by vehicles/drivers during January 2009.

25.         The Traffic Examiners returned to Mr Young's house and left an amended Section 99 Notice requiring all the documentation detailed therein to be produced to VOSA by 31st March 2009. That date was sufficiently far ahead and covered the period when all drivers’ records for the period of investigation should have been with the operator.

26.         On 19th March 2009, the Traffic Examiners collected 44 charts and 9 driver card downloads from Tachodata Ltd. The following day the Traffic Examiners met Mr Nisbet and explained that documents and records were still missing.

27.         On 2nd April 2009, Mr Young met the Traffic Examiners at the VOSA office at Bishopbriggs and delivered a box containing 197 charts. No digital downloads for vehicle units or driver cards were produced by him.

28.         During a telephone conversation on 28th April 2009, Mr Young confirmed that he had received notification of VOSA’s request for copies of all drivers’ licences. He stated that he had written to all drivers. He informed the Traffic Examiner that he had charts for driver Carson and was pursuing other drivers for their records. An incomplete faxed list of drivers was received from Mr Young later that day.

29.         Between that date and 9th October 2009, the Traffic Examiners made repeated requests by letter, fax and e-mail inviting Mr Young to contact them and to produce the outstanding documentation without any response from him.

30.         In his letter to VOSA dated 7th October 2009 (received on 9th October 2009) Mr Young (a) explained that his father had been seriously ill (b) that the Inland Revenue had petitioned for the liquidation of the operator (c) provided details of drivers still employed by him and details of drivers no longer employed (d) made an invitation to be afforded an opportunity to resolve financial issues and (e) an indication that he would “keep you up to speed with what is going on”.

31.         On 12th October 2009, Mr Quinn telephoned Mr Young who advised that “the company may go under” and that he would try and make drivers available for interview.

32.         Despite further written requests to Mr Young, the Traffic Examiners have received no more information or records from him.

33.         The drivers employed by the operator at the time of the VOSA investigation handed all their records into the operator.

34.         The operator has failed to produce all the records lawfully required by VOSA.

Unauthorised use of vehicles

35.         On 11th September 2009, vehicle V80 KER was issued with a prohibition notice. It was displaying an operator licence disc issued to the operator. It was not specified on the licence.

36.         On 12th September 2009, a prohibition notice was issued to the operator in respect of vehicle LE52 CAM. This vehicle was displaying an operator licence disc issued to the operator. It was specified on the licence on 24th March 2007 i.e. 3 months after the operator ceased trading. It was disposed of bearing reg no KX04 XUZ on 25th October 2009.

37.         On 25th October 2009, a prohibition notice was issued to the operator in respect of vehicle FX57 BVL. It was not specified on the licence at the time the prohibition notice was issued. It was specified on the licence later that day. This vehicle is the subject of a lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 26th June 2008. This vehicle has been in use since the date of the finance agreement.

38.         On 7th November 2009, a technical roadside inspection report was issued to the operator for vehicle SV08 AYT. This vehicle was the subject of a lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 2nd September 2008. This vehicle was specified on the licence on 12th November 2008. It had been driven by Mr Young on 22nd and 23rd September 2008. This vehicle has been in use since the date of the finance agreement.

39.         On 20th November 2009, a fixed penalty notice was issued to the driver of vehicle MH55 XLT namely driver Scott McClone who was employed by the operator or Mr Young. A copy of the fixed penalty notice was in the operator’s records. As at the day before (19th November 2009) Mr Young ceased to be the registered keeper. Annandale Transport Co Ltd became the registered keeper of this vehicle that day. This vehicle continues to be the subject of a lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 2nd September 2009. This vehicle had been in use since the date of the finance agreement. It has never been specified on the licence.

40.         On 3rd December 2009, a prohibition notice was issued to the operator in respect of vehicle FX57 BVL. This vehicle was displaying an operator licence disc issued to the operator. It was specified on the licence on 25th October 2009. This vehicle continued to be the subject of the said lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 26th June 2008. This vehicle had been in use since the date of the finance agreement.

41.         On 10th December 2009, a prohibition notice was issued to the operator in respect of vehicle V4 BLS. The driver was Jamie Young a brother of Mr Young. This vehicle was specified on the licence on 16th September 2007. The operator is the registered keeper.

42.         On 11th December 2009, a prohibition notice was issued to the operator in respect of said vehicle FX57 BVL for the same (delayed) defect as found on 25th October 2009. An overloading offence was also detected. This vehicle was displaying an operator licence disc issued to the operator. It was specified on the licence on 25th October 2009. This vehicle continued to be the subject of the said lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 26th June 2008. This vehicle continued to be in use since the date of the finance agreement.

43.         On 14th December 2009, the foregoing prohibition was removed from vehicle FX57 BVL.

44.         On 16th December 2009, a prohibition notice was issued to the operator in respect of vehicle SY06 AXJ. It is the subject of a lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 29th February 2008. This vehicle was specified on the

licence on 12th November 2008. This vehicle has been in use since the date of the finance agreement.

45.         On 22nd December 2009, the prohibition notice previously issued to vehicle SY06 AXJ on 16th December 2009 was removed.

46.         On 24th December 2009, a prohibition notice was issued to the operator in respect of vehicle S80 RCY. The prohibition was removed on 8th January 2010. This vehicle was specified on the licence on 16th September 2007. The registered keeper is the operator.

47.         On 5th January 2010, prohibition notices were issued to the operator in respect of said vehicle V4 BLS. One of the prohibitions was removed the following day.

48.         On 24th January 2010, a prohibition notice was issued to the operator in respect of said vehicle SV08 AYT. It was still specified on the licence. It continued to be subject to the said lease agreement between Haydock Finance Ltd and Mr Young.

49.         On 25th January 2010, inter alia a prohibition notice was issued to the operator in respect of vehicle SJ57 GKG. From 1st November 2008 to 1st February 2010, the registered keeper of this vehicle was the operator. As from 1st February 2010 the registered keeper was Scheleck (UK) Ltd (“Scheleck”). It was specified on the licence on 12th November 2008. It is still specified on the licence.

50.         On 28th January 2010, a prohibition notice was issued to the operator in respect of vehicle SY06 AXJ. This vehicle was specified on the licence on 12th November 2008. It is still specified on the licence. It is the subject of a lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 29th February 2008. It has been in use since the said date of the finance agreement.

51.         On 3rd February 2010, a prohibition notice was removed from the vehicle SV08 AYT. The vehicle was driven by Mr Jamie Young. It was displaying an operator's licence disc issued to the operator.

52.         On 6th February 2010, two prohibition notices were issued to the operator in respect of vehicle SA06 UUL. The registered keeper is the operator. This vehicle has never been specified on the operator's licence. One prohibition

was removed on 8th February 2010 the other was removed on 9th February 2010.

53.         On13th February 2010, a prohibition notice was issued to the operator in respect of said vehicle SV08 AYT.

54.         On 27th February 2010, a prohibition notice was issued to the operator in respect of vehicle SF54 LXZ.

55.         On 2nd March 2010, a prohibition was issued to the operator in respect of said vehicle SV08 AYT.

56.         On 12th March 2010, a prohibition notice was issued to the operator in respect of vehicle SY55 CCU. This vehicle is the subject of a lease agreement Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 29th

February 2008. It was specified on the licence on 12th

November 2008.

57.         On 29th March 2010, a prohibition notice was issued to the operator in respect of said vehicle V4 BLS. The operator was still registered as the keeper.

58.         The operator had on hire from Scania Truck Rental Vehicle SF06 FZS since 2nd September 2009 and vehicle SF54 LXZ since 20th March 2009 to the present time. They have not been specified on the licence.

59.         Between 2nd December 2008 and 19th January 2009, the operator and/or Mr Young hired vehicle SF07 BYR from Scania Rentals Ltd. At no time was it specified on the licence during this period.

Convictions and Fixed Penalties

60.         On 8th November 2006, Mr Young was convicted of tachograph offences at a court in Penrith. He was fined £450.

61.         On 19th March 2008, driver James Laurie was convicted of making a false record, exceeding 10 hours driving, exceeding 41/2 hours driving and failing to take sufficient daily rest. He was fined £1,000.

62.         On 14th April 2008, driver Christopher Henderson was convicted of failing to use a chart (3 charges) and an overload on the unit. He was fined £200.

63.         Fixed Penalties were issued as follows:- 25th October 2009 to driver Bruce Kirkpatrick for exceeding 41/2 hours

driving, 20th November 2009 to driver Scott McClone for exceeding the overall length of the vehicle, 10th December 2009 to driver Jamie Young for not having paper for the digital tachograph, on 11th December 2009 to driver Bruce Kirkpatrick for excess weight, on 5th January 2010 to driver Martin Smith for missing registration plate, on 5th January 2010 to driver Michael Smith for defective suspension, on 25th January 2010 to driver Ryan McCallie for gross and axle overweights and on 28th January 2010 to driver Robert Pollock for failure to produce charts/driver card/print out.

64.         These convictions and/or fixed penalties were not reported to the Office of the Traffic Commissioner.

The involvement of Scheleck (UK) Ltd

65.         Scheleck c/o Moody International, Plot 31, Estate Road, No 5 South Humberside Industrial Estate, Grimsby has held a Standard International Goods Vehicle Operator’s Licence (“the Scheleck licence”) since 23rd May 2001. 6 vehicles are authorised for use under this licence.

66.         On 7th July 2009, (a) Mr Matthew Penman (Mr Young’s father in law) was appointed director to Scheleck in place of Mrs Annette Moody and (b) the correspondence address for this company was changed to Unit 2a, Abercromby Industrial Estate, Castle Douglas.

67.         On 8th July 2009, Mr Jamie Young, brother of Mr Young, was nominated the transport manager on the Scheleck licence in place of Mrs Annette Moody.

68.         Intimation of these changes was given to the Office of the Traffic Commissioner by Mrs Annette Moody by fax using the fax number of Moody International.

69.         Prior to July 2009, N R Evans subcontracted work to the operator. Since then the same work has been subcontracted and invoiced to Scheleck. Their main point of contact continues to be Mr Young.

70.         Work previously subcontracted by Fyffes to the operator is now subcontracted to Scheleck. Their main point of contact continues to be Mr Young.

71.         On 1st February 2010, Scheleck was the registered keeper of vehicle SJ57 GKG. Previously the registered keeper of this vehicle was the operator who acquired it on 1st

November 2008. It was previously specified on the licence on 12th November 2008.

72.         At a meeting with the liquidator on 2nd February 2010, Mr Young informed her that he was employed by Scheleck as their transport manager.

73.         As at 3rd March 2010, vehicles MV08 AYH and SA06 UUL were specified on the Scheleck licence.

74.         Vehicle MV08 AYH and trailer C239480 are the subject of a lease agreement between Mr Young trading as Cameron Young Transport and Haydock Finance Ltd dated 14th

August 2009. This vehicle has not been specified on the licence. It was specified on the Scheleck licence on 3 rd

March 2010.

75.         On 1st April 2010, Scheleck was registered as the keeper of vehicle SY55 CCU. The address of the registered keeper is Mr Young’s home address. It is still specified on the operator’s licence.

76.         On 1st April 2010, Scheleck was registered as the keeper of vehicle SV08 AYT. The address of the registered keeper is Mr Young’s home address. It is still specified on the operator’s licence.

77.         The registered keeper of vehicle SA06 UUL is the operator.

78.         Vehicle PX57 EHL is the subject of a lease agreement between Mr Young t/a Cameron Young Transport and Haydock Finance Ltd dated 1st December 2009. On 12th

January 2010 Scheleck was registered as the keeper of this vehicle.

79.         As the fee for the variation application was not timeously paid no vehicles have been specified on the Scheleck licence since 5th May 2010.

Drivers’ Remuneration

80.         The majority of the drivers were paid £335 for a 5 day week plus (a) £66 for 1 extra shift (b) £100 for 5 nights out (i.e 5 x £20) (c) £45 meal allowance (i.e. 5 x £9) and (d) £30 expenses.

81.         On occasion a driver worked 5 days and was paid for 5 nights when he would have only worked 4 nights. There are

occasions when drivers were paid more meal allowances than days worked.

82.         Where a driver worked 3 or 4 days he received the same weekly pay.

83.         Mr Young supplied the drivers with cash to cover road tolls in the United Kingdom and abroad.

84.         Money for nights out, meal allowance and expenses are not liable to tax. The drivers were not entitled to these payments or some of them when they had not worked all the days they were paid for. By paying the drivers this way reduced the liability to tax and national insurance contributions thereby denying the authorities of the amounts properly due.

85.         The drivers did not receive payslips. They were content as long as their wages were paid into their respective bank accounts.

Drivers and Journeys

86.         On 11th September 2009, vehicle V80 KER was driven by driver Martin Paterson who was employed by the operator at the time of the VOSA investigation.

87.         On 25th October, 3rd and 11th December 2009, vehicle FX57 BVL was driven by driver Bruce Kirkpatrick who was employed by the operator at the time of the VOSA investigation.

88.         On 7th November 2009, vehicle SV08 AYT was driven by driver Kevin McIntosh who was employed by the operator at the time of the VOSA investigation.

89.         On 20th November 2009, vehicle MH55 XLT was driven by driver Scott McClone who was employed by the operator at the time of the VOSA investigation.

90.         On 10th December 2009, Mr Jamie Young was driving vehicle V4 BLS when it was checked by VOSA. It was displaying a licence disc issued to the operator. It was specified on the operator's licence.

91.         On 16th December 2009, vehicle SY06 AXJ was driven by driver Thomas Patterson who was employed by the operator at the time of the VOSA investigation

92.         On 22nd December 2009, vehicle SY06 AXJ was driven by Mr Young.

93.         On 24th December 2009 and 8th January 2010, vehicle S80 RCY was driven by driver Scott McClone.

94.         On 5th and 6th January 2010, vehicle V4 BLS was driven by driver Martin Smith.

95.         On 28th January 2010, vehicle SY06 AXJ was driven by driver Robert Pollock who was employed by the operator at the time of the VOSA investigation

96.         On 15th May 2010, Traffic Examiner Robert Carson had an encounter with vehicle V4 BLS. It was being driven by Mr Young.

97.         On 2nd June 2010, Traffic Examiner Brian Newton had an encounter with vehicle SVO8 AYT. It was being used by the operator.

98.         On 6th June 2010, Traffic Examiner James Buckley had an encounter with vehicle MX07 WGA at the VOSA site at Sawtry. It was displaying an operator’s licence disc issued to Scheleck. As the licence fee had not been timeously paid no vehicles had been specified on this licence since 5th May 2010.

99.         From Automatic Number Plate Recognition (“ANPR”) data the following vehicles have been “sighted” on the dates stated:-

a.         MVO8 AYH on 1st , 7th (x 4), and 13th (x 4) May 2010;

b.        S80 LAY on 3rd, 5th 9th, 15th 16th, 23rd , 26th, 27th

May and 6th June 2010;

c.         S80 RCY on 4th (x 3), 5th (x 2), 6th, 7th, 12th (x 2), 14th (x 3), and 15th ( x 3) May 2010;

d.          FX57 BVL on 11th (x 2) and 12th May 2010;

e.          SV08 AYT on 5th, and 12th (x 2) May 2010; and

f.            SY06 AXJ on 26th May 2010.

Drivers’ hours and records

100.     Drivers employed by the operator and/or Mr Young made false records using a variety of means to disguise their true duty and driving times. Had their duty and/or driving times been faithfully and properly recorded, the records would have disclosed that the drivers had breached the daily rest requirements, the daily, weekly and fortnightly driving limits during the months of December 2008 in January 2009.

101.     Inter alia this had been achieved by drivers using digital drivers’ cards that had been issued in the name of another driver or drivers. Falsification of drivers records had also been achieved by winding back the tachograph clock, ghost drivers, “pulling the fuse” and interference with the workings of the analogue and digital tachograph recording equipment.

102.     In respect of the period of the VOSA investigation 114 false records have been made by drivers, 14 drivers’ hours offences have been committed, 45 record offences have been committed together with 43 instances of aiding and abetting the commission of some of these offences.

103.     An analysis of the digital downloads of the vehicles fitted with digital tachographs disclosed 28 occasions when the two hire vehicles SF08 AEC and SF07 BYR were driven with no drivers’ card inserted. In respect of the other two vehicles SF56 AYC and SJ57 GKG there were 15 occasions when they were driven without a drivers, card inserted.

104.     Specifically, the two journeys undertaken by driver Bruce Kirkpatrick in vehicle FX57 BVL on 1st/2nd January 2009 and 6th/7th January 2009 were undertaken by him alone when he used Mr Young's card to record parts of the journeys. Driver Bruce Kirkpatrick created false records in respect of these journeys to disguise his true duty/driving time. In the 24 hour driving period commencing at 20:07 hours on 6th January 2009 the most daily rest taken by him in that 24 hour period was 2 hours. Mr Young aided and abetted driver Bruce Kirkpatrick to commit these offences and others.

Aiding and abetting the commission of drivers’ hours offences

105.     Data down loaded from the unit in vehicle FX57 BVL discloses that a driver’s card in the name of Mr Young was

inserted into the unit at 1131 hours on 1st January 2009. It was withdrawn on 2nd January 2010 at 0700 hours.

106.     A driver’s card in the name of Bruce Kirkpatrick was inserted into the same unit from 1024 to 20:15 hours on 2nd

January 2009.

107.     Records held by Sainsbury’s at their Crick depot disclose that vehicle FX57 BVL and driver Bruce Kirkpatrick were at their premises between 0715 hours and 1026 hours on 2nd

January 2009.

108.     A chart dated 2nd January 2009 in the name of Mr Young discloses a journey in vehicle S80 CSY from Dumfries to Dumfries commencing at 1655 hours. The recording of this journey ends with a full scale deflection on the chart at 19:05 hours on the same day.

109.     Records from Milklink, The Creamy, Kirkcudbright disclose that Mr Young, driving vehicle S80 CSY, signed for a load on 2nd January 2009 at 09:43 hours

110.     Data down loaded from the unit in vehicle FX57 BVL for 2nd January 2009 disclose driving recorded on a card in the name of Mr Young between 11:31 hours on 1st January 2009 and 07:00 hours on 2nd January 2009.

111.     Data downloaded from the unit in vehicle FX57 BVL discloses that a driver’s card in the name of Mr Young was inserted into the unit at 20:07 hours on 6th January 2009.

112.     Vehicle FX57 BVL began a journey from Folkestone to Calais using the Channel Tunnel at 07:22 hours on 7th

January 2009.

113.     The driver’s card in the name of Mr Young was withdrawn at 07:25 hours on 7th January 2009.

114.     A driver’s card in the name of driver Bruce Kirkpatrick was inserted into the same unit at 08:21 hours on 7 th

January 2009. It was withdrawn at 17:39 hours on 9 th

January 2009.

115.     P & O Ferries records disclose that driver Bruce Kirkpatrick was the driver of vehicle FX57 BVL on a ferry crossing from Calais to Dover commencing at 19:45 hours on 7th January 2009.

116.     On 1st December 2008, a driver's card in the name of Mr Sandy Young was inserted into the unit of vehicle SF07

BYR at 20:40 hours. It was withdrawn at 20:46 hours. It was inserted again at 20:47 hours and withdrawn at 00:51 hours on 2nd December 2008. It was withdrawn at 06:22 hours on 2nd December 2008. There was no driver's card in the unit between 07:55 hours on 08:04 hours on 2nd December 2008 when the vehicle was driven. Vehicle SF07 BYR with Mr Sandy Young's card in the unit sailed from Portsmouth to Oustreiham at 08:30 hours on 2nd December 2008.

117.     Mr Sandy Young failed to make a true record of his driving/duty time associated with his journey on 1st/2ndDecember 2008. He did not take proper breaks or rest periods. He has knowingly made a false record.

118.     Mr Sandy Young was involved in a road traffic incident on said 1st December 2008. On 15th April 2009, he was convicted at Hamilton Sheriff Court of driving without due care and attention and for failing to stop after an accident. He was fined £100 in respect of each charge. 8 Penalty points were ordered to be endorsed on his driving licence. There is no record of these convictions being reported to the Traffic Commissioner.

Prohibition Notices and Fixed Penalties

119.     On 12th September 2009, a prohibition notice was issued to the operator for the driver of vehicle LE52 CAM namely driver Terence Stewart failing to produce charts and/or print out.

120.     On 25th October 2009, a prohibition notice was issued to the operator for the driver of vehicle FX57 BVL namely driver Bruce Kirkpatrick exceeding 4.5hours driving and/or failing to use a chart or driver card.

121.     On 3rd December 2009, a prohibition notice was issued to the operator for the driver of vehicle FX57 BVL namely driver Bruce Kirkpatrick using the vehicle with a defective exhaust system.

122.     On 10th December 2009, a prohibition notice was issued to the operator for the driver of vehicle V4 BLS namely driver Jamie Young failing to ensure the digital tachograph was supplied with paper.

123.     On 11th December 2009, a prohibition notice was issued to the operator for the driver of vehicle FX57 BVL namely

driver Bruce Kirkpatrick driving the vehicle when it was overloaded and with an insecure exhaust.

124.     On 16th December 2009, a prohibition notice was issued to the operator for the driver of vehicle SY06 AXJ namely driver Thomas Patterson driving the vehicle when a seat belt was inoperative and a wing was badly holed.

125.     On 24th December 2009, a prohibition notice was issued to the operator for the driver of vehicle S80 RCY namely driver Scott McClone using the vehicle with a tachograph not sealed in accordance with the regulalations.

126.     On 5th January 2010, a prohibition notice was issued to the operator for the driver of vehicle V4 BLS namely driver Martin Smith for towing a trailer with a deflated suspension unit.

127.     On 24th January 2010, a prohibition notice was issued to the operator for the driver of vehicle SV08 AYT namely driver Graeme Cowan using the vehicle when the dipped headlights were inoperative.

128.     On 25th January 2010, a prohibition notice was issued to the operator for driver Ryan McCallie driving vehicle SJ57 GKG whilst overloaded.

129.     On 28th January 2010, a prohibition notice was issued to the operator for the driver of vehicle SY06 AXJ namely driver Robert Pollock failing to produce charts and/or printouts.

130.     On 6th February 2010, prohibition notices were issued to the operator for the driver of vehicle SA06 UUL namely driver William Nicol using the vehicle when (a) the tachograph was not lawfully fitted and (b) a brake disc was fractured.

131.     On 13th February 2010, a prohibition notice was issued to the operator for the driver of vehicle SV08 AYT namely driver Jon Linton failing to produce documents.

132.     On 27th February 2010, a prohibition notice was issued to the operator for the driver of vehicle SF54 LXZ namely driver Jon Linton failing to make a record.

133.     On 2nd March 2010, a prohibition notice was issued to the driver of vehicle SV08 AYT namely driver Scott McClone failing to ensure that the digital tachograph was supplied with paper.

134.     On 12th March 2010, a prohibition notice was issued to the operator for the driver of vehicle SY55 CCU namely driver Graeme Cowan making a false record.

135.     On 29th March 2010, a prohibition notice was issued to the operator for the driver of vehicle V4 BLS namely driver James Wright failing to ensure proper use of a driver’s card.

136.     On 12th May 2010, a prohibition notice was issued to the operator for driver Alan Forlow using a trailer with an excessively worn brake pad (there is no record of the identity of the towing unit).

Failure to keep proper Records

137.     The drivers produced all their records to the operator.

138.     The operator failed to keep and retain proper records and to produce all the records lawfully required by the Traffic Examiners. From the charts examined by them there is missing mileage in respect of various of the vehicles used by the operator as follows:- vehicle AY06 AEW – 10,846 kms, vehicle LE52 CAM – 15,066 kms, vehicle S80 LAY – 23,866 kms, vehicle SV53 JVX -11,032 kms, vehicle SF04 TVL 5,747 kms, vehicle SY55 CCU – 8,844 kms, vehicle S80 CSY – 15,252 kms, and vehicle S80 RCY – 12,4641 kms. Vehicle KX06 AWH - no charts produced although the operator used the vehicle in December 2009 and January 2010.

Failure to notify additional/alternative operating centre

139.          On or about 31st August 2008, the operator terminated its lease with DHL in respect of the premises at Irongray Road, Dumfries and relocated to premises at Cargen Bridge Business Park, Dumfries. The operator did not apply to the Traffic Commissioner for these alternative premises to be specified on the licence as an operating centre.

FINDINGS IN FACT AND LAW

xlviii)             The case for VOSA is established.

xlix)                Mr Young has been deliberately obstructive throughout the VOSA investigation.

l)                         He has misrepresented the true trading position of the operator to the liquidator.

li)                       He gave untrue information to the liquidator when he informed the meeting of creditors that the leased vehicles had been returned to the finance companies.

lii)                      He failed to inform the Traffic Commissioner of (a) the cessation of the business of the operator in July 2009 and (b) the liquidation of the operator in September 2009.

liii)                    Any use made of vehicles by the operator since July 2009 has been unauthorised use.

liv)                    He has continued to operate a haulage business without the authority of an operator’s licence, with vehicles displaying operator licence discs issued under the licence.

lv)                     The licence discs declared “lost” by the liquidator are not lost. Mr Young has continued to use them on the vehicles he continues to operate.

lvi)                    The operator has failed to keep proper records.

lvii)                  Had the operator kept and produced all records more drivers’ hours offences would have been discovered by the Traffic Examiners.

lviii)                 The operator is no longer of good repute.

lix)                    Mr Sandy Young has been medically indisposed since at least December 2008. He has been able to exercise continuous and effective control over the business as the nominated transport manager. The operator is not professionally competent.

lx)                     The operator ceased to be of appropriate financial standing on from July 2009.

CONSIDERATIONS, DISCUSSION AND REASONS FOR DECISION

lxi)                    As Mr Young in his capacity as sole director of the operator did not attend the Public Inquiry and in the absence of competing evidence I hold that the case as presented by VOSA is established.

lxii)                  The peculiarity in this case is that during the investigation of this case the operator was formally liquidated.

lxiii)                 The Act is written in such a way that when the holder of an operator’s licence, in this case a private limited company, goes into liquidation that event in itself does not terminate the licence. When the relevant regulations are invoked the traffic commissioner is vested with discretion as to whether or not to permit the person carrying on the trade or business of the operator is to be treated for the purposes of the Act as if he were the holder of the operator's licence. The relevant regulations have not been invoked in this case.

lxiv)                Section 26(1)(g) of the Act also vests the traffic commissioner with discretion to revoke, suspend or curtail the licence where the licence holder, again in this case a private limited company, has gone into liquidation other than voluntary liquidation for the purpose of reconstruction. Thus, far that discretion has not been exercised in this case. That said there is no reference to this Section in the call up letter to the operator dated 4th May 2010.

lxv)                  No evidence has been produced to demonstrate that the operator continues to be of appropriate financial standing. No such evidence can be properly produced as the operator was formerly liquidated in September 2009. The licence is therefore exposed and subject to revocation in terms of Section 27(1)(b) of the Act.

lxvi)                There are, however, other issues associated with good repute and professional competence which I require to consider.

lxvii)               To all intents and purposes the operator is Mr Young. I agree with Mr Fisher's comment that Mr Young is “the man at the top”.

lxviii)             I regard Mr Young as a person who has had many years of experience in the haulage industry, both as a driver and as the holder of an operator's licence through the medium of “his” private limited company.

lxix)                It seems that the operator was incorporated and became the holder of the licence following on from the apparent failure, for whatever reason, of the business previously conducted by his father Mr Sandy Young. This may be a situation where there was a seamless change of ownership of the business which continued to provide the same customers with the same service.

lxx)                  How Mr Young arranges/administers his business is entirely a matter for him. There are, however, constraints on a director of a private limited company. There are further constraints associated with running the transport side of the business associated with the undertakings that were given at the time of application for the

licence. The director of a private limited company is in a fiduciary position. The holder of a goods vehicle operator’s licence is in a relationship of trust with the Traffic Commissioner to ensure that all the undertakings given at the time of application for the licence are fulfilled and that there are proper arrangements in place to ensure fulfilment of those undertakings.

lxxi)                I therefore note with interest and concern that Mr Young attributes “the red tape surrounding the tachograph and drivers’ hours rules” as one of the reasons for the financial failure of the business. In light of my determination that the VOSA case is established, this comment is entirely misplaced. Mr Young has deliberately ignored the drivers’ hours’ rules and regulations. By ignoring them he has not been constrained by them. He has had an unfair advantage over commercial competitors who pay due obedience to the operator licensing regime. This comment does, however, give an insight into Mr Young’s attitude to these all-important rules and to the whole concept of operator licensing. It is an attitude of complete and utter disregard and even contempt for operator licensing.

lxxii)               Mr Young was properly and lawfully required to attend the Public Inquiry. He instructed Mr Allan to inform me that he was “too stressed”. He did not feel able to attend. There was no medical vouching produced that might otherwise have substantiated his reason for not attending. I am in no doubt that he chose not to attend and that he had absolutely no intention of attending.

lxxiii)             I was interested in the reaction of the drivers as Mr Allan was explaining the reasons for Mr Young’s non attendance. Clearly, they were not impressed with his absence nor were they surprised. When Mr Allan informed me Mr Young was no longer operating lorries there was an air of disbelief at what he was saying. That air of disbelief carried an element of hostility with it.

lxxiv)             I suspended Mr Young's LGV licence on the basis that, if he was too stressed to attend the Public Inquiry and his driver’s conduct hearing, he was not fit to be driving large goods vehicles. Mr Allan assured me that Mr Young's licence would be delivered to the Office of the Traffic Commissioner within 48 hours. To date he has failed to deliver his licence for endorsement.

lxxv)              The situation as I hold it to be is that the VOSA investigation which focused on the period of 1st December 2008 to 25th January 2009 revealed a number of significant departures from what is expected of a responsible and compliant operator.

lxxvi)             First and foremost, Mr Young failed to make proper arrangements that the rules on drivers’ hours and tachographs are

observed, proper records are kept and that these are made available on request. This is one of the undertakings he gave when he signed the application for the licence on behalf of the operator on 29th August 2006. He was reminded of his obligation in this regard when he met Traffic Examiners in May and November 2008 and in January 2009. At each meeting he gave assurances that proper systems would be put in place. The VOSA investigation disclosed that notwithstanding the undertaking he gave and his subsequent assurances he did not have proper systems in place in the said period of 1st December 2008 to 25th January 2009. The situation was compounded by his failure to comply with all the reasonable and lawful requests made time and again of him by Mr Quinn and Mrs Hill. Their initial meeting with him got off to a sinister start when he took them to his house after he had told him that the records would be there. It was quite clear that there were no records there and Mr Young must have known that.

lxxvii)           I am in no doubt that Mr Quinn is correct in his belief that the records delivered to him by Mr Young on 2nd April 2009 were a selection of records chosen by Mr Young. I am also in no doubt that the drivers had returned all their records to Mr Young and he was therefore in a position to deliver many more records than he chose so to do to the Traffic Examiners. Had all the records been delivered some of the missing mileage might have been accounted for but again I agree with Mr Quinn that in all probability many more drivers’ hours offences would have been detected.

lxxviii)          With regard to the drivers’ hours offences I have not made detailed findings in fact. Having carefully considered the evidence I am satisfied on the balance of probabilities that in the period of the VOSA investigation 114 false records had been created, 14 drivers hours offences committed, 45 record offences together with 43 instances of aiding and abetting the commission of such offences. This is a very worrying situation. Whilst there is evidence that the driver's records were sent for analysis, there is no evidence of any analysis being carried out let alone any alleged infringements being brought to the attention of the drivers concerned. This is not surprising in light of the evidence Mr Fisher led from the Traffic Examiners in respect of Mr Young and Mr Sandy Young as detailed in my findings in fact. That evidence clearly demonstrates that Mr Young was actively involved in requiring drivers to undertake journeys which could not be completed within the time constraints of the drivers’ hours rules and regulations. He arranged for drivers to use his and other drivers’ cards in an attempt to generate records which might tend to suggest double manned journeys when in reality only a single driver was involved. Other methods of creating false records were used.

lxxix)             The significant number of prohibition notices issued to drivers

for failing to produce driving records and/or failing to have sufficient paper for the digital tachograph is another feature of an operator and drivers knowingly involved in a culture of non-compliance with the drivers’ hours rules and regulations.

lxxx)              The bottom line in all of this is that Mr Young promoted the very real risk of drivers driving whilst tired thereby compromising road safety for other road users. There is the extreme and wholly unacceptable situation of driver Bruce Kirkpatrick having only two hours rest in a 24 hour driving period. This was a situation that was without precedent for Mr Quinn. He was very concerned about it. This all impacts on the good repute of the operator, a topic I return to later on.

lxxxi)             There are further instances of Mr Young failing to fulfil the undertakings he gave on behalf of the operator at the time the licence was applied for. Inter alia these include (a) the failure to ensure that vehicles and trailers were not overloaded (b) the unauthorised use of Cargen Bridge Business Park as an operating centre (c) the failure to notify the Traffic Commissioner of convictions and (d) the failure to ensure that the Traffic Commissioner was notified within 28 days of the change in the financial status of the operator with specific reference to the cessation of the business and liquidation of the operator.

lxxxii)           It is clear that from at least July 2009 the operator was not of appropriate Financial Standing. From that moment in time the licence was exposed to revocation. Mr Young knew that. Instead of informing the Traffic Commissioner he put in place arrangements for the business to continue. That business was to continue to provide a transport service to existing customers of the operator. An operator's licence was required. Instead of coming clean with the Traffic Commissioner, Mr Young continued to use vehicles under the guise of the licence. He had the audacity to renew the licence online on 30th October 2009 approximately 7 weeks after a provisional liquidator had been appointed to the operator. Since the cessation of the business and the liquidation of the operator Mr Young has continued to use vehicles displaying licence discs issued under the authority of the licence. This is evidenced by the many encounters such vehicles have had with VOSA as detailed in my findings in fact. I believe that these vehicles continue to operate notwithstanding the unequivocal statement to the contrary given by Mr Allan at the beginning of the Public Inquiry.

lxxxiii)          It appears that Mr Young has been less than candid with the liquidator. At the meeting of the creditors of the operator held on 11th November 2009 inter alia he informed the meeting that all

staff were paid off in July 2009. This is not a true statement as a number of drivers, including drivers Bruce Kirkpatrick, Kevin McIntosh, Scott McClone, Thomas Paterson, Robert Pollock, Martin Smith and Jamie Young, who were employed by the operator at the time of the VOSA investigation, were still driving vehicles associated with the operator subsequent to the liquidation as evidenced from encounters with VOSA which invariably resulted in prohibition notices being issued in the name of the operator. He also advised that all the vehicles which had been leased in his name had been returned to the finance companies. Again, this is not true, as the vehicles continued to be used after the liquidation as evidenced from further encounters with VOSA. Haydock Finance Ltd confirmed to the Traffic Examiners that that the only vehicle that had been leased from them and no longer in the possession of Mr Young was vehicle MH55 XLT. The agreements in respect of all other leased vehicles are still current. In her application for the surrender of the operator's licence dated 9th April 2010, the liquidator declared that the licence discs for the vehicles detailed in the application form had been lost. This information could only have been provided by Mr Young. I do not accept that the licence discs have been lost. Since the said application form was submitted to the Office of the Traffic Commissioner there have been sightings/encounters by or with VOSA of some of the vehicles detailed in that form namely vehicles S80 LAY, S80 RCY, FX57 BVL, SV08 AYT and SY06 AXJ. Mr Young's apparent lack of candour with the liquidator might be a matter the liquidator may care to investigate.

lxxxiv)         It is not obvious to me why the vehicles were leased by Mr Young and not the operator. I note with interest that in each lease agreement he designs himself trading as Cameron Young Transport not the limited company and not as an individual. Notwithstanding that the leased vehicles had been capitalised on the operator's balance sheet, he took on a personal financial responsibility for maintaining payment of the contracted for lease payments. Accordingly, with the cessation of the business Mr Young had a vested interest in continuing the business as a source of income to pay the instalments due under the leases. He also took on new leases well after the liquidation – vehicle PX57 EHL is an example.

lxxxv)           There are, however, other issues associated with the leases. As detailed in my findings in fact almost without exception Mr Young entered into a lease for a vehicle and it was sometime thereafter before the vehicle was specified on the licence. I do not accept that Mr Young would enter into a lease with a contracted for financial commitment and not immediately make use of the leased vehicle. He/the operator has made unauthorised use of such vehicles. Invariably, such a vehicle was specified on the

licence after an encounter with VOSA. I do not see the point in doing this as the use continued to be unauthorised, as the business of the operator had ceased months previously and the operator was in liquidation.

lxxxvi)         Vehicles hired by the operator were not specified on the licence within the 28 day period of grace. The digital tachograph units in hired vehicles were never “locked” with the operator’s card so that any data downloaded would not disclose the use made of the vehicle by the operator.

lxxxvii)        Invariably, it is a requirement of any lease or rental agreement involving a large goods vehicle that the vehicle is used under the authority of an operator’s licence. If such use is unauthorised there may be issues arising associated with insurance.

lxxxviii)      Then there is the involvement of Scheleck. Following on from the cessation of the business of the operator in July 2009 this company picked up or took over two substantial contracts that had previously been between the operator and NR Evans and Fyffes respectively. So far as NR Evans and Fyffes were concerned there was no difference in the trading pattern. The only difference was that Scheleck and not the operator were providing transportation services. Mr Young continued to be the point of contact. The telephone and fax numbers remained the same. Vehicles were registered in the name Scheleck at Mr Young’s home address. When Mr Young met the liquidator on 2nd

February 2010 he informed her that he was now employed with Scheleck as transport manager. Scheleck is the holder of an operator's licence. Two vehicles were specified on the licence as at 3rd March 2010. As the fee for a variation application was not paid no vehicles have been specified on the licence since 5th May 2010. I am in no doubt that Mr Young has continued the business of the operator using Scheleck as the trading entity and that he has used vehicles under his control in the furtherance of the business including vehicles associated with the operator.

lxxxix)         I have said little about professional competence. There is little to be said about professional competence. The transport manager Mr Sandy Young has not featured in the VOSA investigation. This is explained by a very significant deterioration in his health, which I am sorry to note. However Mr Young took no steps to address the situation and in particular he took no steps to find a replacement for his ailing father. From at least December 2008, the operator has not had an appropriately qualified person who has had continuous and effective responsibility for the management of the transport operations of the operator. The licence also falls to be revoked, as it is no longer professionally competent.

xc)                   Finally, there is the all-important issue of good repute. In considering whether the operator is of good repute I require to have regard to all the material evidence, with particular reference to relevant convictions and any other information in my possession as to the previous conduct of the companies officers servants or agents or any of its directors in whatever capacity if that conduct appears to relate to the operator's fitness to hold a licence. In my view, the conduct of in particular Mr Young and the drivers impacts adversely on the good repute of the operator.

xci)                  If the only issue I required to consider in this case was good repute, prior to determining whether the licence should be revoked, I would require to consider how likely it was that this operator would operate in compliance with the operator's licensing regime in the future. I am in no doubt that this operator is highly unlikely to comply with the operator’s licensing regime. This operator and/or Mr Young cannot be trusted. If the operator was not already out of business it would deserve to be as a consequence of the acting’s of Mr Young which make the loss of the licence inevitable. The operator is no longer of good repute.

xcii)                The public interest and other road users require protection in the future from Mr Young and the wholly irresponsible and deliberate actings he has indulged in as hereinbefore discussed. He must be disqualified from any future involvement in any capacity in operator licensing.

xciii)               The only saving grace in this wholly unacceptable situation is that I did not have a report from VOSA raising concerns regarding the maintenance of the vehicles.

DECISION

1.      As the operator is no longer of good repute, of appropriate financial standing or professionally competent in terms of Section 27(1) of the Act I hereby revoke the Standard International Goods Vehicles Operator’s Licence OM 1063486 held by Cameron Young Transport Ltd with immediate effect.

2.      In terms of Section 28(1) of the Act I disqualify Cameron Young Transport Ltd from holding or obtaining an operator's licence in any Traffic Area indefinitely.

3.      In terms of Section 28 of the Act I disqualify Mr Cameron John Young (dob 18:06:74) from holding or obtaining an operator’s licence in any capacity and in any Traffic Area indefinitely.

4.      In accordance with Article 8(2) of EEC Council Regulation 881 of 1992 I withdraw the operator’s Community Authorisation Certificates.

……………………………………………………………….Richard Hamilton McFarlane

Deputy Commissioner for the Scottish Traffic Area30th July 2010

Footnote:-

In all the time I have been privileged to serve as the Deputy Traffic Commissioner in the Scottish Traffic Area (14 years) I cannot recall a case as bad as this.

As a direct consequence of Mr Young failing to cooperate with the reasonable and lawful requests made of him by the Traffic Examiners they have had to make extensive enquiries involving a very considerable amount of time and travel. The end product of their endeavours has been the compilation of very extensive reports. I have never had so many files of papers and documents to consider.

I wish to record my heartfelt gratitude to Mr John Quinn and Mrs Evelyn Hill for their diligence and perseverance in this case. They have taken a very considerable amount of time and trouble to put together comprehensive and detailed reports which they have clearly checked and cross checked. The reports as presented to me were in a very user-friendly layout. During the Public Inquiry, both Mr Quinn and Mrs Hill spoke to their reports in a very fair and measured manner. It was clear to me that in preparing their reports if there was any doubt with regard to the factual material they were dealing with the benefit of the doubt was given to the operator and/or drivers. They have been excellent ambassadors for VOSA in this case.