SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

B435/10

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	BRUCE KIRKPATRICK
	Respondent
	against
	SECRETARY OF STATE FOR TRANSPORT AND RICHARD MCFARLANE, DEPUTY TRAFFIC COMMISSIONER FOR THE SCOTTISH TRAFFIC AREA
	Appellants

Act: Mr Wilson, of Michael S Allan, Solicitors, Aberdeen

Alt: Mr Edward, of Maclay Murray & Spens, Solicitors, Edinburgh

DUMFRIES: 29 June 2011

The Sheriff Principal, having resumed consideration of the cause (1) adheres to the sheriff's interlocutor of 3 March 2011 to the extent that he found the second appellant was not entitled either in fact or in law to take into account offences not brought before or proved at the driver's hearing and for that reason he quashed the decision of the second appellant of 5 October 2010 insofar as disqualifying the respondent from holding or obtaining a large goods vehicle driver's licence for a period of five years; (2) recalls that part of the sheriff's interlocutor of 3 March 2011 whereby, in terms of section 119(3) of the Road Traffic Act 1988, he disqualified the respondent from holding or obtaining a large goods vehicle driving licence for a period of 18 months from 3 March 2011 on the grounds that (a) the sheriff had failed to take into account in reaching that decision (i) the fact that the Deputy Traffic Commissioner had considered a total of 24 falsifications, five of which involved the use of an interrupter device and (ii) the provisions of paragraph 23(c) of the Senior Traffic Commissioner's Practice Direction No 3 and (b) the disqualification of 18 months was in all the circumstances inappropriate (3) having considered the matter anew in terms of section 119(3) of the Road Traffic Act 1988, finds that it is appropriate in all the circumstances that Bruce Kirkpatrick be disqualified from holding or obtaining a large goods vehicle driver's licence for a period of four years; (4) the said Bruce Kirkpatrick was disqualified from holding or obtaining a large goods vehicle driver's licence from 5 October 2010 until 9 November 2010 when the disqualification was suspended ad interim, and was further disqualified in terms of the sheriff's interlocutor of 3 March 2010 until today's date, which two periods of disqualification total 154 days and (5) therefore revokes the licence and disqualifies the said Bruce Kirkpatrick from holding or obtaining a large goods vehicle driver's licence for a period of three year 211 days from this date; finds no expenses due to or by either party in respect of the whole process.

NOTE:

Background to the appeal

1.            On 5 October 2010 the second appellant, the Deputy Traffic Commissioner for the Scotland Traffic Area conducted a hearing arising out of an investigation by the Regional Intelligence Unit, Edinburgh of the Vehicle and Operator Services Agency ("VOSA") into Cameron Young Transport Ltd and its drivers. As a result of the hearing relating to the present respondent the second appellant decided to revoke his entitlement to drive large goods vehicles and disqualified the now respondent from holding or obtaining a large goods vehicle driver's licence for a period of five years.

2.            The licensing of drivers of LGVs is dealt with at Part IV of the Road Traffic Act 1988 at sections 110-121. The following provisions are relevant. Section 115:

"(1) A large goods vehicle or passenger-carrying vehicle driver's licence ...

(b) must be revoked or suspended if his conduct is such as to make him unfit to hold such a licence"

At section 116 it is provided:

"(1) In this part of the Act-

"Conduct" means-

(a)       in relation to an applicant for or the holder of a large goods vehicle driver's licence or the holder of a LGV community licence, his conduct as a driver of a motor vehicle ..."

Section 116

"(1) Any question arising-

(a) under section 115(1)(b) of this Act as to whether a person is or is not by reason of his conduct fit to hold a large goods vehicle or passenger carrying vehicle driving licence as the case may be may be referred by the Secretary of State to the Commissioner for the area in which the holder of the licence resides ...

(2) where ... the traffic commissioner determines that the holder of the licence is not fit to hold a large goods vehicle licence or passenger carrying vehicle driver's licence, as the case may be, he shall also determine whether the conduct of the holder of the licence is such as to require the revocation of his licence or only its suspension. Section 119 of the Act gives any person whose licence has been revoked or suspended the right to appeal to the sheriff."

3.            The current guidelines set out by the Senior Traffic Commissioner for the benefit of traffic commissioners where a determination has been made that a licence requires to be suspended are contained within Practice Direction No 3 (Driver conduct) effective from June 2008. It is clear in the introduction to the Practice Direction that the guidelines are not prescriptive. It is stated:

"Traffic Commissioners are concerned that their approach when dealing with questions of an individual fitness to hold vocational entitlement should be consistent. These Guidelines are intended to ensure that consistency of approach but are only to be used as a starting point. These Guidelines are not to be read too prescriptively or too narrowly and Traffic Commissioners have full discretion to move up or down from the recommendation Guideline if their judgement deems it appropriate."

Under the heading "Falsification of Tachograph Charts is provided:

"(a) Failure to keep a full record of the complete driving period. Formal warning to one month suspension

(b) Deliberate falsification of the chart will result in either suspension of the vocational entitlement or revocation and disqualification dependent upon the scale and degree. Whilst this guideline is not exhaustive it is likely that the Traffic Commissioner will apply a sliding scale of one month's suspension per offence up to three false records' offences and revocation and disqualification for up to six months for up to five offences. Six or more false records will be likely to result in revocation and disqualification for 12 months.

(c) These of any device to interfere with the recording equipment. Revocation and disqualification for 12 months."

4.            It is also noteworthy that in paragraph 22 of the guidelines it is stated:

"In many cases the falsification itself will be an offence of dishonestly for which the driver may have been prosecuted. Traffic Commissioners will regard falsification as more serious than the offence that it may be designed to conceal. Conscientious operators regard falsifications of tachographs and an interference with recording equipment as so serious as to warrant summary dismissal in many cases."

5.            In the case of Bruce Kirkpatrick, the Deputy Traffic Commissioner in his decision records inter alia:

"(iii) "From the records, including digital downloads sourced from the operator, there were 39 instances of ... driver Kirkpatrick using his digital tachograph card in vehicle FX57BVL. Following on from an analysis of the material downloaded from driver Kirkpatrick's card when cross referenced to other documentation and/or information the traffic examiners determined that driver Kirkpatrick was associated with the creation of 16 false records.

(xl) In respect of the offences detected by PC Iverson driver Kirkpatrick was reported for prosecution. He was subsequently convicted at the Carlisle Crown Court of eight charges of knowingly making false records. In respect of each charge he was sentenced to six months' imprisonment suspended for 12 months. These sentences were ordered to be concurrent. He was also ordered to carry out 100 hours unpaid work in the community. In addition he was ordered to £340 costs."

The Deputy Traffic Commissioner accordingly considered a total of 24 false records when considering the case of Bruce Kirkpatrick.

6.            Driver Kirkpatrick informed the Deputy Traffic Commission that he was now 40 years of age. He has held the LGV licence for 17/18 years. This was his first appearance before a Traffic Commissioner. After his drink driving ban expired in 2001, the return of his LGV licence had been postponed by the Traffic Commissioner for three months. The Deputy Traffic Commissioner found inter alia:

"31. This case involves a course of conduct indulged in by driver Kirkpatrick part of which has been judicially determined in a criminal court. It is a very serious case of conduct involving driver Kirkpatrick driving considerably in excess of the driver's hours rules and regulations. In so doing is has deliberately created false records of his true driving and duty time. He has done this, either by not using his card and/or using another person's card and/or interrupting the true operational of the tachograph recording equipment. ...

34. My initial discussion with him focused on the events of 3 December 2009 when he had an encounter with police officers. Thos officers has followed the vehicle on the M6 when it was being driven by driver Ki8rkpatrick. The unit recorded that at the same time the vehicle was at rest. There can only be one explanation for this namely that driver Kirkpatrick had someway interfered with the operation of the unit to prevent it recording the true activities of the vehicle and/or driver. Initially driver Kirkpatrick could give me know explanation. After some probing questions from me he reluctantly conceded he had used a magnet. ...

36. Such a practice is to be deplored and is to be discouraged to the point of elimination. The public interest demands no less.

37. There is one quite unacceptable practice that driver Kirkpatrick indulged in during the period of the VOSA investigation. I am in no doubt that when the traffic examiners found interference of the tachograph recording equipment such a device had been used by him.

38. The other practices is the deliberate use made of other drivers' cards. If the driver Kirkpatrick thought about what he was doing he might have considered that his use of another driver's card would expose that driver to investigation and concerned as to whether or not the driver had been driving lawfully or otherwise. Put simply driver Kirkpatrick had no business to use another driver's card. ...

41. It is clear from some of the findings of the traffic examiners that driver Kirkpatrick has driven considerably in excess of the driver's hours lawfully available to him. It is an established pattern that he has not taken adequate daily, weekly or two weekly rest. On any view he has driven whilst tired and taken the risk of driving whilst tired thereby significantly increasing the risk of causing a significant road accident which would involve not only himself but potentially other road users. Standing the size of the vehicle he was driving on all occasions the adverse consequences for other road users could have been disastrous.

42. There is a very worrying aspect to this case. From at least early October 2009 driver Kirkpatrick knew that the traffic examiners wanted to speak to him. As he continued to be employed by the operator who was under investigation, I am in no doubt that he knew that he wanted what they wanted to speak to him about and that he did not want to speak to them. This is against the background that he continued to drive unlawfully as evidenced by his use of a magnet on 3 December 2009. This however is after his encounter with police officers on 25 October 2009 when he had been prohibited from driving for 45 hours he then continued his journey with no card inserted in the unit. This continued course of unlawful conduct shows a blatant if not contemptuous disregard for the drivers' hours rules and regulations and for the safe use of our roads by other road users."

7.            In setting out this narrative, it should be noted that at the appeal hearing before me it was submitted on behalf of the now appellants that, read as a whole, the Deputy Traffic Commissioner based his finding in respect of the period of disqualification on (i) 16 instances of falsification identified by the traffic examiners (set out at paragraph 4(ii) to (xxiv) of his decision which covered the period from 28 November 2008 to 22 January 2009 and (ii) eight other instances of falsification (set out at paragraphs 4 (xxvii) to (xl) of his decision which occurred between 22 September 2009 and 2 December 2009. In respect of these eight instances of knowingly making false records the now respondent was reported for prosecution to Carlisle Crown Court. In respect of each of these charges he was sentenced to six months' imprisonment suspended for 12 months. These sentences were ordered to be concurrent. He was also ordered to carry out 100 hours unpaid work in the community. In addition he was ordered to pay £340 costs. Accordingly, it was submitted at the appeal before me the Deputy Traffic Commissioner was dealing with a total of 24 offences, 16 in respect of the VOSA investigation, and eight in respect of the criminal prosecution.

8.            The Deputy Traffic Commissioner did not find driver Kirkpatrick to be a credible or reliable witness and made clear in his decision that he did not believe the explanations given by driver Kirkpatrick. The Deputy Traffic Commissioner referred to the Senior Traffic Commissioner guidelines which I have set out at paragraph 3 hereof and commented as follows:

"48. A difficulty I foresee with these guidelines is that the appropriate period of suspension or disqualification is to e determined with reference to the number of offences held to be established. In this case I am entirely satisfied that as the Traffic Examiners were not provided with all the records by the operator that they have been under able to determine the true extent of driver Kirkpatrick's falsification of his driving records.

49. As driver Kirkpatrick was paid during the whole period of the VOSA investigation I hold on the balance of probabilities he has created more false records than those identified by the Traffic Examiners in light of the limited information provided to them by the operator. I am fortified in this as, again on the balance of probabilities, driver Kirkpatrick continued to drive unlawfully until 3 December 2009. Accordingly no situation must be allowed to develop whereby operators do anything other than supply VOSA and other enforcement agencies with full and proper records when requested so to do.

50. There must also be a clear message sent out to all drivers that any improper/unlawful use of the digital tachograph card will be visited with severe consequences. Any interference with the operation of the digital tachograph must be visited with the most severe of consequences. As cases of this nature are only now coming through the system significant action must be taken in the public interest.

51. Operators have duties to drivers. Similarly drivers have duties to the operator who employs them. Both operator and drivers have duties to the public interest in the name of road safety which duties must be respected and upheld at all times.

52. The Senior Traffic Commissioner's Guidelines are not prescriptive. A discretion is vested in traffic commissioners in the follow terms: "The suggested directions set out in the attached Statutory Direction should be viewed as a starting point. Traffic commissioners have full discretion to move up or down from a recommended guideline if their judgement deems it appropriate."

53. I am in no doubt in this case that it is appropriate for me to significantly "move up" the recommended guideline in the sincere hope that other LGV licence holders will not think about let alone be tempted to indulge in the activities complained of and as now established involving driver Kirkpatrick."

9.            Accordingly in terms of section 116(2) of the 1988 Act the Deputy Traffic Commissioner revoked the large goods vehicle driver's licence held by Martin Smith and in terms of section 117(2) of the Act he disqualified him from holding or obtaining a large goods vehicle licence for a period of five years.

10.        The current respondent appealed to the sheriff by summary application in respect of section 119 of the Road Traffic Act 1988 against that decision. On 31 March 2011 the sheriff quashed the decision of the second named respondent insofar as it related to disqualifying the now respondent from holding or obtaining a large goods vehicle driving licence for a period of five years. In terms of section 119(3) of the Road Traffic Act 1988 the sheriff disqualified the now respondent from holding or obtaining a large goods vehicle driving licence for a period of 18 months. He found the then respondents and now appellants liable in the expenses of the appeal.

11.        The sheriff, inter alia, in his judgment stated:

"[9] In exercising his discretion to disqualify the appellant from holding an LGV licence for a definite period, the deputy traffic commissioner was bound under the legislation to "have regard" to guideline Practice Direction 3 issued by the Senior Traffic Commissioner with effect from June 2008. Paragraph 23 of that guidance, dealing with falsification of tachograph charts, specifies revocation and disqualification for twelve months for the keeping of six or more false records or for the use of any device to interfere with the recording equipment.

[10] Although the guidance states a driver "will be" disqualified for twelve months for falsifying records, this is to be read as meaning "will usually result" in him being disqualified for that period: Meredith v Traffic Commissioner for the Western Traffic Area [2009] EWHC2975 (Admin), Pitchford J at paragraph 23.

[11] The guidance in the Practice Direction itself acknowledges a traffic commissioner has "full discretion to move up or down from the recommended guideline if their judgment deems it appropriate".

[12] The appellant was found in this case to have made 16 false records created by the use of a magnet to interfere with the recording equipment and by using the digital tachograph card belonging to another driver. He was disqualified from holding an LGV licence for five years. After hearing submissions from the parties' agents I was satisfied that decision fell to be quashed.

[13] It is my opinion that although a traffic commissars has "full discretion" to move up or down from the guideline of twelve months disqualification, it behoves him to give an adequate reason for imposing a period of disqualification substantially in excess of the guideline.

[14] The deputy traffic commissioner concluded that as the appellant was paid during the whole period of the VOSA investigation he created more false records than those identified by the traffic examiners. He stated that no situation must be allowed to develop whereby operators do anything other than supply VOSA with full and proper records. A clear message had to be sent out to all drivers that any improper/unlawful use of the digital tachograph card will be visited with the most by severe consequences. He stated it was appropriate to significantly move up the recommended guideline in the sincere hope that other LGV licence holders will not think about let alone be tempted to indulge in the activities engaged in by the appellant.

[15] In my opinion, this reasoning is fundamentally flawed. The deputy traffic commissioner was bound to act, like any judge, in accordance with the findings of fact.

[16] It was established that the appellant falsified records on 16 occasions. The deputy traffic commissioner was not entitled to speculate that there were other falsifications.

[17] Furthermore, the appellant was a driver, not an operator, and therefore it was not relevant to the period of the appellant's disqualification that operators had a duty to provide VOSA with full records.

[18] The deputy traffic commissioner clearly formed the view the appellant should be treated severely, in order to deter other drivers from similar conduct. While I do not say deterrence is irrelevant to the period of disqualification, the deputy traffic commissioner has not given enough weight to the legislation.

[19] Since an LGV licence is to be revoked by reason of the driver's conduct being such as to make him unfit to hold the licence, it seems to me any period of disqualification should be proportionate to his conduct: David Crompton Haulage v Department of Transport [2003] EWCA Civ 64, referred to in Meredith v Traffic Commissioner for the Western Traffic Area at paragraph 32. The appellant's livelihood is at stake. The respondent's duty is to draw a balance between the sanction and the public interest in upholding road safety. Deterrence has a role to play in selecting the sanction, but it must not be given excessive weight and the appellant must not be singled out for "severe" treatment to deter others.

[20] The guidance from the Senior Traffic Commissioner as interpreted by Pitchford J in Meredith v Traffic Commissioner for the Western Traffic Area is a period of disqualification of twelve months for six or more falsifications of records will usually result.

[21] It was established there were 16 such falsifications in this case. The digital tachograph is a relatively new device. There is a compelling case for deterrence in this case. There were ten more falsifications than the six that trigger a twelve month disqualification. In these circumstances, this was a more serious case meriting a longer period of disqualification. But in my view five years was not sufficiently proportionate to the conduct or guideline sanction. In my opinion, a more appropriate period of disqualification was eighteen months.

[22] As I was entitled to make any order I thought fit on the appeal, I substituted my own decision for that of the respondent. I believed the deputy traffic commissioner had strayed too far from the guidance to allow the matter to be returned to be same tribunal whose decision had been quashed, and it was also not in the interests of fairness or justice to the appellant to allow further delay or uncertainty in these proceedings. I thought it fair to him and in the interests of justice that he knew with certainty where he stood.

[23] It was submitted by Mr Edward there should be no expenses awarded against the respondents in a regulatory appeal of this nature as they had defended in good faith in the public interest. Whatever may be the legal situation in England and Wales, this is an appeal by summary application and it was not suggested by Mr Edward there was any restriction on the court awarding expenses.

[24] The normal rules as to awarding expenses therefore applied (see Summary Applications and Suspensions at paragraphs 37-02 to 37-05). The pursuer was not legally assisted. He was funding his own appeal. It fundamentally affected his livelihood. I saw no reason for departing from the normal rule that expenses followed success."

12.        Against that decision the then respondents and now appellants appeal.

Submissions for the appellants

13.        It was not contested before the Deputy Traffic Commissioner that Bruce Kirkpatrick's licence should be suspended. The only issue before me was the length of the disqualification.

14.        It was submitted by the solicitor for the now appellants that the Deputy Traffic Commissioner's decision on the period of disqualification was reached on a proper application of his discretion and his decision provided adequate reasons for moving up the scale for the period of disqualification from the guidelines in Practice Direction No 3 which I have set out in paragraph 3 hereof. It was submitted that the Deputy Traffic Commissioner did not, on a proper reading of his decision, take into account matters he should not have taken into account. He did not act disproportionately in imposing a period of disqualification which he ordered. His decision was within the margin of his discretion and was not "plainly wrong" or "manifestly inequitable". It was submitted in these circumstances the sheriff was not entitled to quash his decision. It was submitted that the findings in fact indicated that from the 39 charts analysed by the traffic examiners during the VOSA investigation, 16 false records were made. Included in the false records were five instances of power interruptions. In addition to the VOSA investigation, there were eight other falsifications to which the now respondent pled guilty in Carlisle Crown Court and was sentenced as set out in paragraph 8 hereof. The Deputy Traffic Examiner was accordingly dealing with a total of 24 falsifications. Paragraph 23(b) of the Practice Direction No 3 provided that six or more false records were likely to result in revocation and disqualification for 12 months. Paragraph 23(c) provided the use of any device to interfere with recording equipment would attract revocation and disqualification for 12 months. The Deputy Traffic Commissioner had full discretion to move up and down from the recorded recommendations if his judgement in the exercise of his discretion.

15.        It was submitted that, reading the Deputy Traffic Commissioner's decision as a whole, his decision to impose a disqualification of five years recognised (i) significant offences involving both paragraph 23(b) and (c) of the guidelines (ii) this was compounded by the fact that he found the driver to be incredible and unreliable and (iii) a marker had to be set down regarding deterrence for this type of offence.

16.        There were five falsification through use of an interrupter device (set out in paragraph 4(iii), (v), (vii) (vii) and (ix) of the Deputy Traffic Commissioner's decision). At the driver's conduct hearing the now respondent admitted that he used a magnet on "at least one occasion". In paragraph 37 of his Decision the Deputy Traffic Commissioner stated:

"I am in no doubt that where the traffic examiners found interference of the tachograph recording equipment such a device had been used by him"

There were five instances where traffic examiners found interference with the tachograph recording equipment. The reasonable conclusion from these parts of his decision was that he was satisfied that a magnet had been used on five occasions.

17.        It was submitted that, taking the Deputy Traffic Commissioner's decision as a whole, he had not placed undue weight on possible other falsifications because of lack of records being produced by the operator. It was accepted by solicitor for the appellants that the Deputy Traffic Commissioner could not rely on any such speculation. It was conceded that the Deputy Traffic Commissioner had found in his decision as follows:

"48. A difficulty I foresee with these guidelines is that the appropriate period of suspension or disqualification is to e determined with reference to the number of offences held to be established. In this case I am entirely satisfied that, as the Traffic Examiners were not provided with all the records by the operator, that they have been under able to determine the true extent of driver Kirkpatrick's falsification of his driving records.

49. As driver Kirkpatrick was paid during the whole period of the VOSA investigation I hold on the balance of probabilities he has created more false records than those identified by the Traffic Examiners in light of the limited information provided to them by the operator. I am fortified in this as, again on the balance of probabilities, driver Kirkpatrick continued to drive unlawfully until 3 December 2009. ..."

18.        It was further conceded that, if I were to take the view that the Deputy Traffic Commissioner had in fact taken into account the fact that there were more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator, I would be obliged to come to the conclusion that the sheriff was correct in finding that the Deputy Traffic Commissioner had taken into account matters that he should not have taken into account, namely further falsifications which had not been proved and were only the subject of speculation.

19.        If I took the view that the sheriff was in fact entitled to quash the Deputy Traffic Commissioner's decision on the basis that he took into account offences not brought before or proved at the driver's hearing, I was asked, in that event, to quash the sheriff's decision on the basis that he did not take into account material which he ought to have taken into account in reaching his own decision, namely (a) that there were 24 falsifications before the Deputy Traffic Commissioner, not 16 as recorded in paragraph 21 of his Note, as set out in paragraph 3 of the Deputy Traffic Commissioner's decision and a further eight in respect of the prosecution in Carlisle Crown Court and (b) the sheriff had not taken into account the provisions of paragraph 23(c) of Practice Direction No 3 in reaching his decision on the period of disqualification. It was explained to me that, at the appeal hearing before the sheriff, solicitor for the now appellants had invited the sheriff, if he was prepared to quash the decision of the Deputy Traffic Commissioner, to remit the case to him for reconsideration. Accordingly solicitor for the now appellant did not address the sheriff on what was an appropriate period of disqualification. He now sought to make these submissions.

20.        It was submitted to me that, if I was prepared to quash the sheriff's decision, I should look at the matter of new and take into account the following factors:

(i)            The Deputy Traffic Commissioner had in fact taken into account a total of 24 false records. Paragraph 23(b) of the Practice Direction No 3 indicated six or more false records would be likely to result in revocation and disqualification for 12 months. I had a discretion to move up from that figure.

(ii)          The Deputy Traffic Commissioner found there were five instances of power interruptions. It was submitted that in addition to a consideration of disqualification in terms of paragraph 23(b) of Practice Direction No 3, there also required to be a consideration of further disqualification in terms of paragraph 23(c) in respect of the use of any device to interfere with recording equipment. The use of an interrupting device should be seen as an aggravating feature of any period of disqualification imposed in terms of paragraph 23(b). It was submitted the application of paragraph 23(c) was a discretionary one and the disqualification could be increased by such period beyond 12 months as was considered appropriate.

(iii) The facts that the Deputy Traffic Commissioner had found Bruce Kirkpatrick to be incredible and unreliable and a marker that a marker had to be set down regarding deterrence in respect of this type of offence.

21.        In these circumstances I was invited to consider the matter anew and conclude that a total period of five years disqualification would be reasonable. I should quash the sheriff's decision as he had not taken into account the matter which he should have taken into account, namely the fact there were 24 false records, rather than 16, and secondly that he had not considered any additional disqualification in terms of paragraph 23(c) of the Practice Direction No 3. I was asked to determine that a disqualification of five years was reasonable.

Submissions for the now respondent

22.        It was submitted by solicitor for the now respondent that an appeal to the sheriff stood or fell by the factual basis set out in the Deputy Traffic Commissioner's decision. It was submitted that it was clear that in reaching his decision the Deputy Traffic Commissioner had misdirected himself in law. He was not entitled to speculate. In particular I was referred to paragraph 42 and 43 of the Deputy Traffic Commissioner's decision which I have set out in paragraph 15 hereof where he concluded that:

"I hold on the balance of probabilities he has created more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator."

It had been conceded on behalf by solicitor for the appellant that there was no basis for that finding. It was pure suspicion and conjecture.

23.        The Deputy Traffic Commissioner had taken into account material which he was not entitled to consider. The sheriff had accordingly been correct to quash the Deputy Traffic Commissioner's decision. It was further submitted that the sheriff was thereafter perfectly entitled to substitute his own decision for that of the Deputy Traffic Commissioner. He was not obliged to return the case for reconsideration.

24.        I was referred to paragraph 23(b) of the Practice Direction No 3 which stated:

"six or more false records will be likely to result in revocation and disqualification for 12 months."

The sheriff had proceeded on the basis of 16 falsifications. He had pointed out that the digital tachograph was a relatively new device. There was a compelling case for deterrence in this case. There were 10 more falsifications than the six that triggered a 12 month disqualification. In these circumstances the sheriff had held that this was a more serious case meriting a longer period of disqualification. He took the view that five years was not sufficiently proportionate to the conduct or guideline sanction. He had considered a more appropriate period of disqualification to be one of 18 months.

25.        He submitted that the sheriff was correct not to have regard to the eight falsifications which were the subject of prosecution in Carlisle Crown Court. He submitted it was not sufficiently clear from the Deputy Traffic Commissioner's decision that these eight offences were additional to the 16 falsifications identified. In addition it was clear the sheriff had recognised that a magnet had been used. While it was accepted that the provisions of paragraph 23(c) of the Practice Direction No 3 could be construed as aggravating the terms of paragraph 23(b), it was suggested that the guidelines where at best ambiguous. Paragraph 23(c) did not include the words "in addition to paragraph 23(b)". The question of the period of disqualification was one at large for the sheriff. I was asked to take the view that a period of disqualification of 18 months was not so unreasonable as to justify interference by myself.

26.        It was submitted that the question of potential catastrophic consequences for road users was taken into account in the recommendations of the Practice Direction. I was referred to paragraph 22:

"In many cases the falsification itself will be an offence of dishonestly for which the driver may have been prosecuted. Traffic commissioners will regard falsification as more serious than the offence that it may be designed to conceal. Conscientious operators regard falsifications of tachographs and interference with recording equipment as so serious as to warrant summary dismissal in many cases.

And a paragraph 21:

"The traffic commissioners take particular account of the fact that these rules are designed to ensure road safety, to protect drivers from fatigue and from exploitation by unscrupulous employers as well as to protect other road users from the consequences, which inevitably flow from tired drivers in commercial goods and passengers vehicle."

It was suggested accordingly that this issue was already factored into the recommended scale.

27.        It was accepted that the Deputy Traffic Commissioner was entitled to have regard to the demeanour and perceived lack of honesty of the driver at the hearing. However the difficulty with the Deputy Traffic Commissioner's decision was that he has seen as an aggravating factor, and by inference factored into this penalty, his finding that there were more records than those identified by the traffic examiners. I should accordingly find that the sheriff's decision was correct.

28.        While it had been argued by the appellants at this appeal that the penalties for falsification under paragraphs 23(b) and (c) should be seen as separate issues, with paragraph 23(c) aggravating paragraph 23(b) and attracting a separate and additional disqualification, this had not been argued before the sheriff. The position of solicitor for the appellants before the sheriff was that the sheriff should remit the cause to the Deputy Traffic Commissioner for consideration.

29.        It was submitted that, if the question of speculative additional offences was left out of account, and there was no question of previous adverse findings, 16 falsifications could reasonably attract a period of disqualification of 18 months. That was within the sheriff's reasonable discretion.

30.        I was invited to hold that the sheriff was entitled to quash the Deputy Traffic Commissioner's decision and the determination of a period of 18 months disqualification was within his reasonable discretion. I should not interfere with his decision.

Decision

31.        As set out in Macphail on sheriff Court Practice paragraphs 18.111 and 18.112, the sheriff was only entitled to intervene in respect of the decision made by the Deputy Traffic Commissioner if he was satisfied that the Deputy Traffic Commissioner did not exercise his discretion at all, or in exercising it misdirected himself in law or misunderstood or misused the evidence or material facts or took into account an irrelevant consideration or failed to take into account some relevant consideration or otherwise exercised his discretion wrongly. In my opinion the sheriff was entitled to intervene in respect of the decision of the Deputy Traffic Commissioner. In the decision section of his full decision the Deputy Traffic Commissioner stated:

"48. ... In this case I am entirely satisfied that as the traffic examiners were not provided with all the records by the operator that they have been unable to determine the true extent of driver Kirkpatrick's falsifications of his driving records.

49. As driver Kirkpatrick was paid during the whole period of the VOSA investigation I hold on balance of probabilities that he has created more false records than those identified by the traffic examiners in light of the limited information provided to them by the operator. ..."

32.        I take the view, from a consideration of the decision of the Deputy Traffic Commissioner as a whole, that one of the significant factors which he took into account in imposing a period of five years disqualification was that Bruce Kirkpatrick had created more false records than those identified by the traffic examiners. There was no evidence on which such a finding could be made. It was sheer speculation. In my view the sheriff was correct to find that the Deputy Traffic Commissioner was not entitled either in law or in fact to take into account offences not brought before or proved at the driver's hearing. The Deputy Traffic Commissioner took into account an irrelevant consideration. His decision accordingly falls to be quashed. The sheriff was correct so to do.

33.        The sheriff was entitled either to substitute his own decision for that of the Deputy Traffic Commissioner, or to return the case for reconsideration. The sheriff stated:

"[22] As I was entitled to make any order I thought fit on the appeal, I substituted my own decision for that of the respondent. I believed the Deputy Traffic Commissioner had strayed too far from the guidelines to allow the matter to be returned to the same tribunal whose decision had been quashed, and it was also not in the interests of fairness or justice to the appellant to allow further delay or uncertainty in these proceedings. I thought it fair to him in the interests of justice that he knew with certainty where he stood."

34.        The sheriff, as he was entitled to do, then proceeded himself to assess of new the appropriate period of disqualification. He said:

"[20] The guidance from the Senior Traffic Commissioner as interpreted by Pitchford J in Meredith v Traffic Commissioner for the Western Traffic Area is a period of disqualification of twelve months for six or more falsifications of records will usually result

[21] It was established there were 16 such falsifications in. The digital tachograph is a relatively new device. There is a compelling case for deterrence in this case. There were 10 more falsifications and the six that trigger a 12 months disqualification. In these circumstances, this was a more serious case meriting a longer period of disqualification. But in my view five years was not sufficiently proportionate to the conduct or guidelines sanctioned. In my opinion, a more appropriate period of disqualification was 18 months."

35.        In two respects, in my opinion, the sheriff has failed to take into account material which he ought to have taken into account in reaching his decision. These are:

(1) While the decision by the Deputy Traffic Commissioner records at paragraph (3) of his decision that the traffic examiners determined that driver Kirkpatrick was associated with the creation of 16 false records, it is clear, reading the decision as a whole, that this relates only to the VOSA investigation. Paragraph 4(ii) to (xxiv) of the Deputy Traffic Commissioner's decision makes it clear that the 16 false records relate to the period from November 2008 to January 2009. Paragraph 4(xxv) to (xl) indicate that the falsifications of which he was convicted at Carlisle Crown Court relate to the period from September 2009 to December 2009. These falsifications are separate from and additional to the 16 false records which were ascertained in the VOSA investigation. In assessing an appropriate period of disqualification, the sheriff accordingly should have considered a total of 24 falsifications rather than 16.

(2) The sheriff did not take into account the terms of paragraph 23(c) of Practice Direction No 3 which provides:

"The use of any device to interfere with the recording equipment - revocation and disqualification for 12 months.

He only took into account the terms of paragraph 23(b) which states:

"Six or more false records will be likely to result in revocation and disqualification for 12 months"

There were five occasions when such interference was found by the traffic examiners. These are set out at paragraph 4(iii), (v), (vii), (viii) and (ix) of the Deputy Traffic Commissioner's decision.

At the additional hearing which was convened on 20 June 2011 parties were agreed that there were five falsifications through use of an interrupter device. The now respondent admitted before the traffic examiners that he had used a magnet on "at least one occasion" and at paragraph 37 of his decision the Deputy Traffic Commissioner concluded

"Where the traffic examiners found interference of the tachograph recording equipment, such a device had been used by him."

36.        In my opinion these are significant matters which the sheriff did not take into account in reaching his decision. Twenty four instances of falsification is a material increase over the 16 on which the sheriff based his decision. Additionally, it is quite clear that the Practice Direction attaches substantial weight, first in paragraph 23(b) to the number of false records and, secondly, in paragraph 23(c) to the particular way in which this might be achieved, namely by the use of any device to interfere with recording equipment. In my opinion the only proper interpretation of these two paragraphs is that paragraph 23(c) is to be seen as an aggravation of paragraph 23(b).

37.        There are no doubt many ways in which false records can be made, but the particular evil which paragraph 23(c) strikes at is the use of any device to interfere with the recording equipment. I consider the proper interpretation of paragraph 23(c) is that it applies if a device has been used to interfere with the recording equipment. In this case the Deputy Traffic Commissioner was satisfied that driver Smith had used a sophisticated interrupter device. Any use of such a device attracts disqualification of 12 months in terms of paragraph 23(c). Discretion is given to the Deputy Traffic Commissioner to move up or down the recommended scale. In my opinion, the Deputy Traffic Commissioner would be entitled to move up that scale, in a similar manner to a situation where there were more than six false records in terms of paragraph 23(b), if there were a series of uses of such a device to interfere with the recording equipment. In my opinion the Deputy Traffic Commissioner is entitled, in the exercise of his discretion, to select a period of disqualification in respect of the number of false records in terms of paragraph 23(b). He is, in the further exercise of his discretion, then entitled to impose a further period of disqualification in terms of paragraph 23(c) in respect of the use of any device to interfere with the recording equipment. The number of occasions in which a device is used to interfere with the recording equipment will determine whether the Deputy Traffic Commissioner will impose a further disqualification of more or less than 12 months.

38.        As the sheriff has not taken into account the fact that there were 24 falsifications and has not applied the provisions of paragraph 23(c) to his decision, I take the view that he has failed to take two relevant considerations into account and has accordingly exercised his discretion wrongly. I accordingly quash his decision made on 3 March 2011 to impose a disqualification for a period of 18 months.

39.        In the whole circumstances I take the view that it is preferable that I determine the appropriate period of disqualification rather than returning the case to the Deputy Traffic Commissioner in view of the lapse of time that has taken place. I consider I am entitled to consider the findings in fact of the Deputy Traffic Commissioner, having regard to the provisions of paragraph 23(b) and (c) of Practice Direction No 3 and exercise my discretion in determining the total period of disqualification which should be imposed. I take into account the fact that the Deputy Traffic Commissioner found Bruce Kirkpatrick to be an incredible and unreliable witness. I take into account that he took the view that a marker had to be set down regarding deterrence in respect of this type of offence. I also take into account the fact that I am dealing with a large goods vehicle driver whose livelihood depends on having a licence. The loss of licence as a result of his falsification of records will materially affect his ability to earn a livelihood.

40.        This case involves 24 false records, five of which involve the use of an interrupter device. I take the view that a total period of disqualification of four years is, in the whole circumstances appropriate. I have exercised my discretion in the following way:

(i) Paragraph 23(b) of the Practice Direction No 3 provides:

"that six or more false records will be likely to result in revocation and disqualification for 12 months. Discretion is given in terms of the Practice Direction to move up that scale."

A total of 24 false records in my view must attract a very substantial increase in that period of disqualification. I consider disqualification under that head alone of three years to be appropriate.

(ii) Paragraph 23(c) provides:

"the use of any device to interfere with recording equipment, revocation and disqualification for 12 months"

There are five instances of the use of such a device. I impose a further and consecutive period of 12 months disqualification in terms of paragraph 23(c). I do not increase the period of 12 months in view of the fact that I have imposed a three year disqualification in terms of paragraph 23(b). I impose a total period of disqualification of four years against a background where the Deputy Traffic Commissioner has properly emphasised that these are significant offences which are compounded by the fact that Bruce Kirkpatrick was found to be incredible and unreliable and a marker requires to be set down regarding deterrence.

41.        I accordingly adhere to the sheriff's interlocutor of 3 March 2011 to the extent that he found that the second appellant was not entitled either in law or in fact to take into account offences not brought before or proved at the driver's hearing and for that reason quashed the decision of the second appellant of 5 October 2010 insofar as disqualifying the respondent from holding or obtaining a large goods vehicle licence for a period of five years. However I recall that part of the sheriff's interlocutor of 3 March 2011 whereby, in terms of section 119(3) of the Road Traffic Act 1988 he disqualified the respondent from holding or obtaining a large goods vehicle licence for a period of 18 months from 3 March 2011 on the grounds that (1) he took into account 16 instances of false records instead of 24 instances, five of which involved the use of an interrupter device, which are fully set out in the Deputy Traffic Commissioner's decision and paragraphs 7 and 16 hereof (2) the sheriff failed to take into account in reaching his decision the provisions of paragraph 23(b) of the Senior Traffic Commissioner's Practice Direction No 3 and (3) the disqualification of 18 months imposed by the sheriff was inappropriate in all the circumstances. Having considered the matter anew in terms of section 119(3) of the Road Traffic Act 1988, for the reasons stated above, I disqualify the respondent Bruce Kirkpatrick from holding or obtain a large goods vehicle licence for a period of four years. I have taken into account the periods of disqualification to which he has already been subject. I have accordingly disqualified Bruce Kirkpatrick for a period of three years 211 days from this date.

42.        Parties were agreed, if I took that view, I should find no expenses due to or by either party in respect of the whole process. This I have done.