Taxi Driver Online

In 1989 Traffic commissioner John Pugh wrote an article titled Advocacy and the traffic commissioners.

The article encompassed the workings of the then Traffic Commissioner and it set out certain parameters by which the Traffic Commissioner had to abide. One such parameter was in respect of Natural Justice and procedures that must be performed and followed by tribunals and administrative bodies in order that those who are a party to such tribunals and appeals can be afforded Natural Justice.

The observations and comments of Mr Pugh are just as relevant today as they were in 1989 and they may help some who find themselves in a situation whereby they feel Natural Justice was not applied.
____________________________

8 November 1989

TITLE: ROAD TRAFFIC - Advocacy and the traffic commissioners

John Pugh, traffic commisioner

John Pugh considers the work of traffic courts and those who practice in them

Every operator of a goods vehicle (with the usual exemptions) exemptions has a plated gross weight of more than 3.5 tonnes, and every public service vehicle which carries more than eight passengers -- for hire or reward -- requires an operator's licence. These licences are granted by the traffic commissioner for the relevant traffic area and generally last for a period of five years. The majority of such licences are granted in office, although a number of applications are called by the traffic commissioner to a public inquiry. Operators may also be called to a public inquiry, during the period of their licence, for the consideration of disciplinary action by the traffic commissioner.

Traffic courts are a specialist field and one does not have to be a qualified lawyer to appear as an advocate. It is noticeable that the number of lawyers who have acquainted themselves with the legislation to advise their clients, is comparatively few. In disciplinary cases, the operator frequently has much to lose. His business can be closed down, the number of his authorised vehicles can be reduced, his licence can be suspended or the period of the licence can be shortened. Any of these actions could, and often does, have a devastating effect. With the cost of goods and passenger vehicles often in excess of £ 100,000 each, it is obvious what is at stake. The traffic commissioner also deals with complaints following the deregulation of local bus services -- he has wide powers under the Transport Act 198 5.

Reporting cases

The work of the traffic courts, as they are called, are covered in the trade press. Commercial Motor and Motor Transport report on the goods cases and Coachmart and Bus Business on the passenger cases. Transport Week covers both fields. The trade associations (the Road Haulage Association, the Freight Transport Association and the Bus and Coach Council) each have their own journal. Appeals to the Transport Tribunal are reported in Road Law (see below).

Some local newspapers do report public inquiries, but they rarely hit the headlines of the national press. The work of the traffic commissioner is not well-known outside the industry. Many solicitors, who already specialise in traffic court work, are instructed by one of the associations on behalf of their members. Similarly, members of the Bar are sometimes instructed through the association's solicitor. There are transport consultants, who are not necessarily lawyers, who frequently appear on behalf of operators. Historically, in some areas of the UK, members of the legal profession have regularly appeared in traffic courts but, in other areas, the operator frequently appears for himself.

The commissioners

There are nine traffic areas in the British Isles but only eight traffic commissioners -- the West Midlands and South Wales traffic areas share a commissioner but each of the other areas has its own. Appointments for a vacancy, which are made by the Secretary of State for Transport, follow advertisements in the national press by way of open competition, conducted by the Civil Service Commission. In its advertisement it states: 'Ideally you will be in your fifties and have considerable management, legal or administrative experience. A legal qualification would be an advantage.'

Whereas two of the present commissioners have law degrees, only one is a solicitor. Historically the balance of appointments has been much as it is today. Applicants generally have to be between the ages of 50 and 55 and be successfully established in a first career. The system works and is accepted by the industry as a whole.

Decisions of traffic commissioners relating to operator licensing can, in most instances, be challenged by way of an appeal to the Transport Tribunal. The current president of the tribunal is circuit judge J Hampden Inskip. Judicial members, being judges, barristers and solicitors, are appointed by the Lord Chancellor. Lay members are appointed by the Secretary of State for Transport. The Transport Tribunal sits as and when necessary, all cases from England and Wales being heard in London. The Scottish cases are heard in Edinburgh. Road Law (published eight times a year by Barry Rose) includes detailed road law reports on all the Transport Tribunal decisions which are prepared by Randall Thornton, the former eastern traffic commissioner.

The work conducted by a traffic commissioner includes both operator licensing and vocational driving licensing. HGV and PSV driving licences will be consolidated into the new pink EC driving licence after 1991, issued by DVLC in Swansea. At present the HGV and PSV licences are issued by traffic commissioners who, after 1991, will continue to discipline drivers. It is considered that the skills required by a vocational driver should be so much higer than those required by the ordinary driver -- when four or more penalty points are endorsed upon a vocational driver's licence, he becomes liable to disciplinary action by the traffic commissioner.

Any new entrant into the industry, who has four or more penalty points on his ordinary driving licence, may well have to be seen by the traffic commissioner so that he can consider whether or not the applicant is a fit and proper person to hold a vocational licence. The need for an advocate in such disciplinary inquiries is generally recommended by traffic area offices to the driver when he is called before the traffic commissioner. The decision of a traffic commissioner may mean the revocation of, or the refusal to grant, the vocational licence which could result in loss of employment. Many drivers are represented by their unions. Few solicitors, and even fewer barristers, have taken it upon themselves to become aware of the requirement for such specialised advocacy. Appeals lie for magistrates.

Terms of office

Whereas the traffic commissioner is known by that title, he is referred to as the 'licensing authority' in the Transport Act 1968 (as amended). Ultimately the description 'licensing authority', or LA as he is generally referred to, may be changed in legislation and the single title of traffic commissioner will apply.

The differentiation arose as a result of the difference between goods vehicle operator licensing and public service vehicle operator licensing. In goods, he was always the LA and sat alone, whereas all passenger cases were heard by a panel of traffic commissioners, of whom the LA was the chairman. The panel was abolished under the Transport Act 1985, and the traffic commissioner now sits alone (though visitors to traffic courts may still hear the traffic commissioner being referred to by an advocate as chairman).

Each traffic commissioner has a deputy or deputies. Deputy traffic commissioners are not involved in any way in the day-to-day running of the traffic area offices. They merely sit at public inquiries as and when requested. Deputy traffic commissioners are appointed by the Secretary of State, upon the recommendation of the traffic commissioner in whose area a vacancy falls. All traffic commissioners appointed since 1985 must retire at 65 but deputies are allowed to continue until 72.

Traffic commissioners hold office during the Queen's pleasure and are subject to the terms of their appointment. They are independent of the Department of Transport and of each other; and, subject to any decision they make being overturned by the Transport Tribunal, they are independent in their decisions. Deputy traffic commissioners are periodic appointments, generally the first appointment being for two years.

Hearings

When an operator is before a traffic commissioner, and he has been there before, it is in everyone's interest that a transcript of the event should be available to all parties. Most public inquiries are recorded on tape and the rest are attended by a short-hand writer -- thus a transcript of every word uttered is available. They become essential for an appeal, but the percentage of cases that actually go to the Transport Tribunal from those heard by traffic commissioners is minimal although the transcripts are frequently called for by interested parties and traffic commissioners themselves.

There is no oath. The witnesses always sit down, hearsay evidence is allowed as is secondary evidence, leading questions can be put, and the proceedings have a general air of informality. The evidence must of course be truthful -- its credibility becomes a matter for the traffic commissioner to assess. Similarly, the weight attached to hearsay and secondary evidence is again for the commissioner to decide. T he paramount difference between a traffic court and other courts is that the burden of proof required is 'on the balance of probabilities' not 'beyond all reasonable doubt'.

Decisions are generally given verbally at the end of the hearing, but the traffic commissioner may reserve his decision and can call the parties together at a later date to give the decision or can give the decision in writing. When an aggrieved party appeals to the Transport Tribunal, the traffic commissioner has the opportunity of giving the reasons for his decisions to the tribunal in writing. Every operator, called before a traffic commissioner at a public inquiry, has the right to know what it is that is alleged against them or, where there are objections and/or representations about the application, what those objections and/or representations are. Traffic commissioners must not fetter their own discretion by stating, in advance, general provisions which are not contained in statute law, and the rules of 'natural justice' apply.

Natural justice

Natural justice was recently defined in a decision by the deputy traffic commissioner for the Scottish traffic area, Ramsay Dalgety QC, in an appeal by Brian G O'Neill, the appellant, against a decision of the City of Aberdeen District Council under s.18 of the Civic Government (Scotland) Act 1982 (as amended).

Mr Dalgety said: ' . . . the requirements of natural justice necessarily must depend on the particular circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth -- (Russell v Duke of Norfolk [1949] 1 All ER 109 at 118). Nevertheless the right to a "fair hearing", at least since the decision of the House of Lords in Ridge v Baldwin [1964] AC 40, has become established as an essential requirement of administrative law throughout the UK, and any significant degree of procedural unfairness enables the disadvantaged party to avail himself of the remedy of judicial review, in the absence of any other appeal procedure.'

He continued: 'An important aspect of the right to a fair hearing is the requirement that fair notice be given to affected persons of the terms of any report and all evidence in the possession of the deciding authority upon which they intend to place reliance. In all cases there must be substantial fairness to the person adversely affected. This issue is too well-established to merit detailed comment and for present purposes is adequately illustrated by cases such as R v Huntingdon DC, ex p. Cowan [1984] 1 WLR 501 -- where failure by the licensing authority to disclose to the applicant objections lodged with them to his application for an entertainments licence led to their refusal of his application being quashed -- and Lakin Ltd v Secretary of State for Scotland (unreported: Lord Davidson, 1 May 1987) where the Secretary of State for Scotland was criticised for making use of information available to him without allowing the developer an opportunity to lead evidence and submit arguments to the reporter at a public inquiry.

'In the context of Scottish appeals against the scale of taxi fares set by a local licensing authority, the same approach was taken, albeit obiter, by Lord Prosser in Hanlon Petr. That was a case in which the traffic commissioner relied upon written information available to him without allowing the petitioners to make representations in respect thereof. At pages 16 and 17 of his opinion, Lord Prosser described the situation thus: "In the presen t case the right which was denied [the petitioners] was an important and substantive right . . . if the present petitioners had not lost their rights by their own taciturnity and acquiescence, I see no reason why their abiding rights should be rendered worthless on such a basis . . . if the petitioners were not barred I would have upheld their claim to the remedy of reduction without hesitation".'

Mr Dalgety continued and pointed out the traffic commissioner's duty to act with substantial fairness towards the appellant: 'An authority is not entitled to make use of its own knowledge and experience as to general questions unless, before taking a decision, this knowledge is put to (in this case) the appellant for consideration by him. This was an issue considered, in the context of liquor licensing, by the second division in Freeland v City of Glasgow District Licensing Board 1980 SLT 101. Lord Kissen, when delivering the opinion of the court at page 104 (col 2) enunciated the applicable principle thus: "All we are saying is that the rules of natural justice preclude a (licensing) board from taking a decision against the party to be applicant, objector or complainer, which is based either wholly or partly, upon a fact or facts within the knowledge of the board" without disclosure of that fact or those facts to that party for his comment. We do not think that giving the opportunity to an applicant to answer the material facts which might result in a decision being given against him should unduly lengthen the proceedings. In any event, we consider it to be contrary to natural justice that a decision should be rendered without an applicant or objector being given that opportunity"

Looking at the work of the traffic commissioner in this context, one can appreciate why, over all the years, there has been so little complaint about the way that traffic commissioners have conducted their inquiries.

Sequence of proceedings

The sequence of proceedings is constant throughout each traffic area. At that beginning of an inquiry, the traffic commissioner generally explains how he proposes to conduct the inquiry, and he will ask the parties or their representatives how they would like him to do so. The order of witnesses is discussed. In environmental cases, the Transport Tribunal have recommended that objectors and/or representors should give their evidence before the applicant -- Appeal 1985 No. Wll Raymond Garfield Brimley, T/A Retailset and reiterated in Appeal 1987 No.Y12 Mid-Suffolk District Council v A Dowell Junior, T/A A Dowell & Sons (Bury).

When an applicant, an objector or representor, is represented, their advocate is generally asked to outline the client's case before any evidence is called. In disciplinary cases, the order of witnesses is similarly discussed by the parties in public. Permission is frequently sought to re-examine or recall a witness to rebut some particular point that has been made -- invariably permission is given. At the end of the evidence, the applicant or advocate is invited to address the traffic commissioner further.

The whole approach is one of courtesy, mingled with fairness. Frequently, when objectors and/or representors appear, even if they are not legally represented, the traffic commissioner will go out of his way to explain to them the law as it affects them. The commissioner will in particular point out what matters he is entitled to deal with and what matters do not lie within his orbit. The most frequent matters referred to a traffic commissioner, over which he has no power, are those relating to the environmental provisions of goods operators licensing where the arguments are put forward about the volume of traffic on roads -- other than those subject to the applicant's licence -- and planning matters.

Consultation papers are now in circulation with a view for possible changes in the law, including continuous licensing. (The views expressed in this article are those of the author and not necessarily those of the Department of Transport.)
_____________________________________