UK: Notification Of Offences To The Traffic Commissioner

As with many licensing regimes, a goods vehicle operator's licence is subject to certain ongoing mandatory conditions. Among the most important of these conditions are those that relate to the licence holder's "good repute" or "fitness". The Goods Vehicle (Licensing of Operators) Act 1995 makes it clear that a Traffic Commissioner must revoke a standard operator's licence if he or she determines that the holder of the licence is no longer of good repute.

So how does the Traffic Commissioner decide whether an operator is of good repute?

The answer to this is found in another licence condition: after a licence has been granted, operators have an ongoing duty to inform the Office of the Traffic Commissioner within 28 days of any events or matters affecting good repute or fitness.

Matters which affect good repute or fitness include:

1. Any relevant convictions of the company or any of its officers, servants or agents; and
2. Any other information as to the previous conduct of any of the company's officers, servants or agents, or any of its directors, in whatever capacity, if that conduct appears to relate to the company's fitness to hold a licence.

This is a very widely drafted definition. It not only includes criminal convictions but also wider matters of conduct. The Court of Appeal has confirmed that the conduct does not need to be unlawful to be relevant but must merely have some connection to the fitness to hold a licence.

What "relevant convictions" must be notified?

The definition of "relevant convictions" which must be notified is again very widely drafted. Crucially, it is not limited to convictions sustained by the company that holds the licence but extends to convictions of any company director, employee or agent, any company linked with its directors and any parent company.

The 1995 Act sets out certain classes of offences which must always be notified. These include, for example:

• offences relating to the plating certificates and goods vehicle test certificates,
• offences relating to maintenance, overloading and the licensing of drivers,
• operator licensing offences,
• offences relating to the unlawful use of rebated fuel oil,
• road transport offences relating to drivers' hours, the weights or dimensions of commercial vehicles, road or vehicle safety, the protection of the environment and any other offence concerning professional liability.

The Traffic Commissioner must also be notified of any conviction of a person for a "serious offence". The definition of a serious offence includes any offence which resulted in:

• a sentence of imprisonment for a term exceeding three months,
• a fine above a certain amount,
• a community order involving more than 60 hours.

Certain matters will however be excluded under the Rehabilitation of Offenders Act 1974 and so appropriate advice should be sought in all cases.

What other matters may be relevant to the question of good repute and fitness?

The Senior Traffic Commissioner has also made it clear in statutory directions that when considering any application, Traffic Commissioners may at their discretion take into account certain offences that come to their attention which arise from other regulatory jurisdictions. These include for example:

• convictions under the Health and Safety at Work etc. Act 1974, resulting from an incident at a work site,
• any convictions for environmental offences,
• any other "no fault" offences, (e.g. where a water company has taken control of unknown and unidentifiable sections of sewers and an environmental offence becomes apparent),
• offences by employees who hold vocational licences. These include offences for drink/drug driving, dangerous driving, death by dangerous driving and mobile phone abuse.

There is no exhaustive list of which matters of conduct may be relevant to the question of good repute and fitness. However, guidance indicates that these may include:

• Deliberate attempts to circumvent the operator licensing system,
• Loan of operator licence and/or licence discs,
• Use of out of date or forged operator licence and/or discs,
• Previous or current unauthorised operation or operation in excess of current authority,
• Failure to comply with a statutory or other recognised Code of Practice within the last 5 years,
• Failure to comply with a civil penalty within the last 5 years,
• Tax evasion of any kind including non-payment of or avoidance of Vehicle Excise Duty, fuel tax and HMRC payments regarding employee tax and National Insurance contributions within the last 5 years.

Notifying the Traffic Commissioner: a practical approach

A central principle of the operator licensing regime is that it is one built on trust. Operators will be in breach of the conditions of their licence if they fail to notify the Traffic Commissioner within 28 days of matters which affect their good repute or fitness, and will be at risk of regulatory action. This could be in the form of a regulatory investigation, a written explanation request or even a direction to attend a Traffic Commissioner's Public Inquiry or preliminary hearing.

Operators must have robust policies and procedures in place to govern notifications to the regulator. These should be sufficiently defined to ensure all mandatory notifications of relevant convictions are made but should be wide and flexible enough to assess and decide which other wider matters of conduct fall to be notified. Individual consideration also needs to be given to previous convictions which may be 'spent' under the provisions of the Rehabilitation of Offenders Act 1974.

Crucially, given the breadth of the duty, notifications of this kind should usually be handled at board level rather than operational or transport manager level. In many companies it is unlikely that a transport manager alone would have the necessary knowledge of their employer's wider business practices, staffing information and conduct and conviction history to be able to ensure mandatory notifications requirements are met.

When it comes to company drivers and staff, questions often arise over whether conduct matters which do not result in convictions or even criminal investigation should be notified. These may include, for example, internal company drug testing, tachograph infringements, overspeed or near miss events, speeding in a private car, etc. Such issues should be handled extremely carefully, particularly if the alleged poor conduct is being denied or if there are any questions over the integrity of the data or information. Reporting a vocational driver to the Traffic Commissioner can often lead to the driver being summonsed to a driver conduct hearing at which the Traffic Commissioner has the power to suspend or revoke their HGV licence. In some circumstances, the evidence given by a driver at such a hearing can result in further regulatory investigation being considered for the operator.

Great care should also be taken over the manner in which any such notification is made, particularly in circumstances when there has been a late notification.

Conclusion

Any time a company notifies the Traffic Commissioner of a matter affecting good repute or fitness, it places itself and its practices under the spotlight of the regulator. Similarly, operators who fail to notify or who make an inadequate notification will expose themselves to the risk of damaging regulatory action. Unsurprisingly, many operators will, as a matter of course, take legal advice both when drafting a notification policy and at the point of any notification. Legal input is also important any time a notification results in a driver conduct hearing, particularly when there is a disgruntled employee or some other dispute over the circumstances that led to the notification.

At Weightmans, our transport regulatory team specialises in assisting operator licence holders with all aspects of transport regulatory compliance, including:

• notifying matters affecting good repute and fitness,
• responding to any DVSA or police investigation arising out of an incident involving the operation of a company goods vehicle,
• representing a company driver, employee or manager during any interview under caution conducted by either the police, DVSA or other enforcement body,
• assisting a company in responding to any DVSA or police record production request,
• representing a company during any DVSA traffic examiner or vehicle examiner investigation or remote desk-based assessment audit,
• representing a company in any proceedings before the Office of the Traffic Commissioner, including any Public Inquiry hearing, preliminary hearing or driver conduct hearing,
• providing a transport compliance training and "health check" service with a view to identifying and closing any areas of risk or exposure.