william j will

8/8/2019 William J Will

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IN THE SCOTTISH TRAFFIC AREA

UNDER

The Goods Vehicles (Licensing of Operators) Act 1995(the Act)

AND

The Road Traffic Act 1988(the Road Traffic Act)

DECISION

By

RICHARD HAMILTON McFARLANEDEPUTY TRAFFIC COMMISSIONER FOR THE SCOTTISH TRAFFIC AREA

IN THE CASES

OF

WILLIAM JAMES WILLTRADING AS

WILLIAM J WILL TRANSPORT

[LICENCE NUMBER OM 26831]

AND

PHILIP GORDON ANDREW

[DRIVER LICENCE NUMBER ANDRE 711035 PG9AD]

DARREN GRAHAM McDONALD

[DRIVER LICENCE NUMBER MCDON 808284 DG9JU]

BILLY JOHN WILL

[DRIVER LICENCE NUMBER WILL9 811021 BJ9ME]

BACKGROUND

1. William James Will (the operator) resides at Roslyn, Commerce Street, Insch,Aberdeenshire. He is a sole trader as a haulier. He trades as William J Will

Transport. He is the holder of a Standard International Goods Vehicle Operators

Licence (the licence).

2. He is authorised to operate 3 vehicles and 5 trailers. 2 vehicles are meantime

specified on the licence. He is the nominated transport manager on the licence.


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3. In September 2008, the Regional Intelligence Unit of the Vehicle & OperatorServices Agency (VOSA) instructed an investigation into the activities of the

operator. Inter alia the investigation involved an analysis of tachograph charts(chart or charts where the context admits) and associated documentation for the

period of August to October 2008. The Traffic Examiners involved in the

investigation identified that 14 false records had allegedly been generated by driversin the employ of the operator. It also appeared there were 3 occasions of drivers

allegedly failing to take sufficient daily rest. In light of these findings the Traffic

Commissioner directed that the issues identified on behalf of VOSA be considered at

a Public Inquiry.

4. The Secretary of State referred the issue of the conduct of the three divers who were

alleged to have committed drivers hours offences and the speeding convictions

involving two of them to the Traffic Commissioner to determine whether they or any

of them were fit to continue to hold the large goods vehicle driving licence

entitlement (LGV licence).

THE PUBLIC INQUIRY AND DRIVERS CONDUCT HEARINGS

5. On 25th March 2010, I presided over a Public Inquiry and Driver Conduct Hearings atAberdeen. The operator was in attendance. He was represented by Mr John

McLaughlin (Mr McLaughlin), solicitor, Perth. Mr William Smith, managing

director of Transport Training Scotland Ltd (Mr Smith) who had been called as a

witness for the operator was in attendance. Also in attendance as a possible witness

for the operator was Mr Ronald Headley (Mr Headley) who is employed by the

operator as a driver.

6. Drivers Phillip Gordon Andrew (driver Andrew), 44 Main Street, Rhynie, Huntly,

Aberdeenshire, Darren Graham McDonald (driver McDonald), 17, Newton Place,Mosstodloch, Fochabers, and Billy John Will (driver Will), Roslyn, Commerce

Street, Insch, Aberdeenshire were in attendance. Mr McLaughlin also represented the

interests of driver Will. Drivers Andrew and McDonald were not represented. The

interests of VOSA were represented by Traffic Examiner Mr Charles Hogg (Mr

Hogg). I note here that the VOSA report had been prepared by Mr Michael Dunlop,

a former Traffic Examiner, who retired from the service on 23 rd December 2009. Mr

Hogg therefore spoke to Mr Dunlops report. As it happened Mr Dunlop was present

to observe the proceedings for his own interest.

7. At the outset of the Public Inquiry and Drivers Conduct Hearings (the Hearings), I

went over the call up letters with the various licence holders and satisfied myself(a) that the letters had been received and (b) that the recipients of these letters

understood the content of them and the issues that I would be considering. I then

explained the procedure that would be followed. I made it clear to drivers Andrew

and McDonald that if they wished to reconsider their position in respect of

representation they were to let me know. At no time did either of them alert me to

any change of mind relative to representation.

8. I then expressed reservations about conjoining the Public Inquiry and the Hearings.These reservations continue to concern me and more so in connection with other

cases I have been involved in since this one began. I do not rehearse these

reservations/concerns in this case. I aired them in some detail in my decision in the

case ofCameron Young Transport Ltd, a case I prioritised over this one with regardto issuing my decision.


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9. I did, however, enquire of Mr McLaughlin whether it was his intention to discussissues with any of the drivers. He told me that he did have issues he wished to

discuss. In particular, he wished an opportunity to question driver McDonald. I

pointed out to Mr McLaughlin that the call up letters sent to each of the drivers

required their attendance solely in connection with their LGV licences. There wasnothing in these letters to put them on notice that their respective hearings were to be

held in conjunction with the Public Inquiry. I was concerned that if I allowed Mr

McLaughlin an opportunity to question the drivers, in the absence of any notice or

forewarning that they might be questioned on behalf of the operator, that the fairness

ticket which I zealously subscribe to might be compromised. Accordingly, I

enquired of Mr. McLaughlin on what basis could he be allowed to discuss any issues

with any of the drivers? He submitted that if he was not permitted to put a contrary

issue to a driver it may be impossible to see where the truth of any allegation lay. He

also suggested the alternative might be that the driver gave his version of events and I

then commented on it. He also said that my role was to determine whether the

content of the brief is accepted and said further that I could not take evidence from a

driver that would impact on the operator. He gave notice that he had some questionsfor driver McDonald that may be probing. He also had some productions that driver

McDonald would not have seen before.

10. I asked driver McDonald if he had understood everything so far. He said I thinkso. He then repeated a request that he had previously made in writing namely thathis hearing be held in private. I asked Mr McLaughlin where he would find himself

if I heard driver McDonald's case in private. He recognised that he would then have

no locus to ask driver McDonald any questions.

11. I then refused driver McDonald's request that his hearing be held in private. I alsoruled that the drivers would not be cross-examined by Mr McLaughlin on behalf of

the operator. I gave notice that I would take the initiative in the Hearings as the RoadTraffic Act required me so to do.

12. After preliminary issues had been addressed I held the Hearings and then began thePublic Inquiry with all the drivers still in attendance.

13. Regrettably, the Public Inquiry did not conclude. It was adjourned to 15th June 2010which was the earliest available date to suit all parties. On any view this is far too

long an interval which has a number of consequences. The momentum of the

evidence is lost. Through no fault of their own the uncertainty for all the licence

holders continues which is not fair. It is not helpful in the decision making process.

14. Prior the commencement of the reconvened Public Inquiry I received a letter, dated29th May 2010, from driver McDonald. Enclosed with the letter was a CD. I read the

letter in which driver McDonald explained that he had had a telephone conversation

with the operator. He had stored the conversation on his mobile phone and thereafter

transferred it to the CD. He believed that the tone and tenor of the conversation was

indicative of the operators attitude to him. It also gave some information regarding

the circumstances in which his employment with the operator terminated. I decided

not to listen to the CD.

15. At the commencement of the reconvened Public Inquiry with all the same parties inattendance (with the exception of Mr Dunlop), I informed Mr Hogg and Mr

McLaughlin of this development. I told them that I had not listened to the CD. Iinvited them to listen to the CD on my lap top computer outwith my presence which


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they duly did. After they had listened to it I enquired of Mr Hogg whether he wished

the content of the CD to form part of the case for VOSA. He felt that there was

nothing contained in it which would advance the case for VOSA. He believed it

demonstrated the depth of feeling between the parties. VOSA was neutral with regard

to the CD. Mr McLaughlin had no objection to the CD being admitted into the

evidence in connection with driver McDonalds LGV licence. He thought its content

did not advance matters for either party. I then listened to the CD in open forum.

16. During the course of the reconvened Public Inquiry, a significant difference ofopinion arose between driver McDonald and Mr Headley. The behaviour of Mr

Headley was such that I asked him to leave the room which he did. During a break in

proceedings Mr Headley approached me and apologised for his behaviour. At the

resumption of the Public Inquiry, I allowed Mr Headley to return. He again

apologised for his behaviour. I accepted his apology.

17. At the conclusion of the Public Inquiry and the Hearings, I adjourned to consider theevidence and issue a written decision which has attracted a further delay as I deemed

it necessary to prioritise the other case as hereinbefore mentioned.

THE DRIVERS CONDUCT HEARINGS

18. Section 115 of the Act directs that the only matter that is to be taken into accountwhen considering the fitness of a licence holder is driver conduct. Matters to do with

individual personal circumstances are irrelevant and are not to be considered.

19. Section 121 of the Road Traffic Act defines conduct as his conduct as a driver ofa motor vehicle. Section 115(1)(b) of the Act states a large goods vehicle

drivers licence must be revoked or suspended if his conduct is such as to make himunfit to hold such a licence. Section 116 requires the Secretary of State to refer suchquestions to the Traffic Commissioner for the area in which the licence holder

resides.

20. The drivers hours rules and regulations were introduced with the sole purpose ofensuring that drivers of large vehicles do not drive excessive hours. The first EEC

Regulation namely Regulation (3820/85) had to do with the control of drivers hours

inter alia stated Whereas, with regard to driving periods, it is desirable to set limitson continuous driving time and on daily driving time but without prejudice to anynational rules whereby drivers are prohibited from driving for longer than they canwith complete safety (this regulation has been incorporated and developed in EEC

Regulation 561/2006 and the amended version of 3821/85 which details theregulatory framework to prevent continuous driving whereby drivers are required to

take breaks, and to have daily, weekly and fortnightly periods of rest).

21. It therefore follows that where drivers have driven in excess of the driving timelawfully available to them or have failed to take the minimum required rest, they have

driven in circumstances where they cannot complete the journey with safety. The

regulations are there 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 can flow from tired drivers driving commercial vehicles.

22. Tiredness is a very real issue for drivers of all classes of vehicles. Recent statistics

tend to suggest that one in every five serious road traffic accidents is caused by drivertiredness.


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23. The licence is very special. It entitles the holder of it to drive a particular size ofvehicle with the potential of a significant increase in income. By their nature and

construction such vehicles are capable of creating or causing very real danger if

driven unsafely. To drive while tired or being prepared to take the risk of driving

tired by driving in excess of the hours prescribed by the legislation is a serious matter.The potential adverse consequences for the driver and other road users are very

significant.

24. Accordingly, a driver who is prepared to drive tired and to interfere with the properoperation of tachograph recording equipment indulges in conduct as the driver of a

motor vehicle which impacts adversely on his or her fitness to hold a large goods

vehicle or passenger-carrying vehicle drivers licence.

25. It also follows that if a driver is driving in excess of the hours lawfully available tohim or her there is likely to be greater financial rewards. Such a driver creates an

unfair advantage over the law-abiding driver. It is unfair competition.

Driver Billy John Will (dob 2nd November 1981)

The case for the Secretary of State

26. Driver Will was on notice that I would be considering three speeding convictions andan allegation that he had created a false record, the factual basis of which was

detailed in Mr Dunlops report attached to the call up letter.

27. The chart in the name of driver Will, dated 20th August 2008, records a journey fromAltens to North Shields ending at 0035 hours. The next chart, dated 21st August 2008,

records a journey from North Shields to Dundee. The journey began at about 1020

hours and finished at about 2125 hours. Mr Dunlop had obtained a drivers exit pass

from Morrisons Supermarket at Wakefield, dated 21st August 2008, with a time in

of 1130 hours and a time out of 1410 hours. It was signed B Will. The same

registration mark of the vehicle (P633 UOS) appears on both the chart and the said

drivers exit pass. Mr Dunlop noted that the chart disclosed short vehicle movements

between 1020 hours and 1115 hours indicative of the vehicle being driven in a yard.

There was little use of the vehicle recorded until about 1410 hours when another

journey began. These times tie in with the exit pass. The journey of 180 kms between

North Shields and Wakefield was not recorded. Mr Dunlop concluded the chart

contained a false record.

28. On 6th November 2009, Mr Dunlop interviewed driver Will under caution.

29. At the interview driver Will confirmed that the chart was his. He denied that thesignature on the exit pass was his. He denied that he had been at Morrison's

Supermarket, Wakefield on 21st August 2008.

The case for driver Will

30. Driver Will is 28 years of age. He has held the LGV licence for 7 years. He continuesto work for his dad the operator.

31. He accepts he has 3 endorsements on his ordinary driving licence. He presently has 9live points endorsed on that licence. They are all for speeding in large goods


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vehicles on roads where the maximum permitted speed is 40 mph. They were all

detected by road traffic policing officers. On each occasion, he was driving at 56

mph. He could not recall the circumstances that gave rise to the first two offences.

The third offence occurred as he had to increase his speed to complete an overtaking

manoeuvre when the vehicle he was overtaking sped up.

32. Mr McLaughlin referred driver Will to the chart dated 21 st August 2008 and to thesaid Morrisons exit pass and asked him to look at them. He confirmed that it was his

chart. He also confirmed that he had been driving vehicle P633 UOS that day. It was

not his normal vehicle. It was his signature on the chart. It was not his signature on

the exit pass. He referred to the questions and answers that were noted by Mr Dunlop

at the time of the interview and to the signature at the end of the note, which driver

Will stated was his normal signature.

33. Driver Will observed that he could have started work on 21st August 2008 at about09:30 hours. The chart disclosed that he had in fact started at about 10:20 hours at

North Shields. He had had sufficient rest.

34. He was adamant that he had not been at the Wakefield depot of Morrison's that day.That was the truth.

35. The work for this journey was for Craib Transport (Craibs). He had undertaken iton the operator's licence. It would have been organised by Craibs. The Drivers

Manifest (the manifest) generated by Craibs for any given day did not identify the

name of the driver for any of the work detailed therein. He had therefore been unable

to obtain vouching and/or the identity of the driver from Craibs for this particular

journey. He also explained that a driver may start a working period with such a

manifest but not undertake all the work detailed therein. It often happened that he

dropped a trailer and did not continue with the work detailed in the manifest. When

this happened he would leave the manifest with the trailer i.e. the manifest went with

the trailer.

36. The only explanation that driver Will could give for his name appearing on the exitpass is that he had started the run. He had dropped the trailer. Someone had taken

over and taken his details off the manifest to fill in the exit pass. The practice varied.

Sometimes he would complete the details on the exit pass. At other times the details

would be completed by the person at the gate house.

37. He observed that the exit pass had him entering the premises at 11:30 hours. Thechart discloses that he was on a break at that time which finished at about 11:50

hours. There had been no movement of the vehicle recorded during that time. Therewas no way he would be allowed to sit there blocking the gate.

38. Driver Will confirmed that all his charts for the period of the VOSA investigation hadbeen produced. Only one chart had been referred back to him. He had gone on

paternity leave from 29th July 2008. Accordingly, he had not been back to work

much before said 21st August 2008. He received/receives a salary. He had definitely

never been asked to work in excess of the hours lawfully available to him. He had

never been pressurised to do the work either by the operator or Craibs. There would

have been no benefit to him to have worked more hours. He was adamant that he had

been at North Shields on said 21st August 2008. He had not been at Wakefield. He

repeated that he had not created a false record.


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Submission by Mr McLaughlin

39. With regard to the 3 convictions for speeding, Mr McLaughlin observed that 2 ofthem will be removed by the end of the year. He acknowledged that these 3

speeding convictions were unacceptable. Had it not been for the allegation of a falserecord he submitted that these 3 convictions would not in themselves have required

driver Will to appear at this hearing.

40. With regard to the said chart of 21st August 2008, he submitted that I had to besatisfied that it is a false record. Driver Will had given an explanation to me which

was the same explanation he gave at the time of interview. He understood that the

Traffic Examiner believed that the signature made by driver Will in his notebook at

the end of the interview was the same writing as the signature that was on the exit

pass. Driver Will and the operator did not accept this. He had been consistent in this.

He invited me to accept that driver Will had not made a false record and that I should

not take action against his LGV licence.

Considerations and reasons for decision

41. It is of concern to me that driver Will has nine penalty points on his ordinary drivinglicence all for speeding. He told me that prior to 2007 he had a clean licence. The

only explanation he could give for picking up these three endorsements is that the

trucks he is now driving are more powerful and it is easy to go over the maximum

permitted speed. I note that on each occasion he must have been driving at the

maximum speed of the vehicle which was presumably governed to 56 mph. He told

me the operator had gone ballistic when driver Will told him about them. He

assured me that these instances of speeding arose from his incompetence rather being

under pressure to get the work done.

42. I understand why Mr Dunlop believed that the chart, dated 21st August 2008, did not

disclose all the work undertaken by driver Will that day and that had a false record

had been created.

43. I observe the signature on the chart and at the end of the interview is Billy J Will.On the exit pass it is B Will. I am not a hand writing expert. No evidence was ledfrom such an expert. Through the eyes of a layman there appearto be similarities inthe three signatures of the surname Will. It is, however, the registration mark of the

vehicle as entered on the chart and the exit pass where there is significant similarity in

the handwriting as seen through the eyes of a layman. In particular, there is a

consistency with the last three letters of the registration mark written in the equivalentof a lower case.

44. On Mr Dunlop's evidence, it appears that 180 kms is otherwise unaccounted for.

45. The difficulty that we all have is that it is now almost 2 years since the date of thealleged false record. Given the passage of time and again from what I was told it is

unlikely that there are any more records that could be retrieved from Craibs or

elsewhere. The passage of time has also not assisted parties in being able to

remember that far back. That said driver Will was clear about his movements on 21st

August 2008. He has been consistent with regard to his position in relation to the said

chart and associated documentation namely that he did not make false record. He

has given an explanation.


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46. Accordingly, I require to look very closely at that explanation namely that someoneelse completed the entries on the exit pass. First and foremost I consider why should

someone else have completed it? There was an explanation that quite often such

information was lifted off documentation such as the manifest or elsewhere and was

either entered by the driver or alternatively the person at the gatehouse on to the exit

pass. I understand that the manifest goes with the trailer.

47. Whilst I may have suspicions about the handwriting, it would be quite improper forme to make a determination based on suspicion. There are two aspects to driver

Wills position which require me to make a favourable determination in his case they

are (a) his chart records a break at the time the vehicle is logged in at Morrisons and

(b) the possibility that the trailer with the manifest originally associated with driver

Will was taken to Morrison's by another driver.

48. In these circumstances I hold, on the balance of probabilities, that driver Will did notmake a false record in respect of this journey on 21st August 2008.

Driver Philip John Andrew (dob 3rd November 1975)


49. Driver Andrew was on notice that I would be considering the report from Mr Dunlopattached to the call-up letter which alleged that he had created 5 false records and

had failed to take sufficient daily rest on two occasions. No convictions or

endorsements are recorded against him.

50. Mr Dunlop determined that the alleged false records were associated with thefollowing journeys undertaken by driver Andrew:-

a. Chart dated 30th September 2008 records a journey starting from Aberdeen at

13:00 hours and ending at Newark at 22:35 hours. A weighbridge ticket for

the same day puts his vehicle at Inverurie at 11:33 hours. The journey from

Inverurie to the south edge of Aberdeen has not been recorded;

b. Chart dated 9th October 2008 records a journey from St Martins to Frankley

ending at 18:20 hours. A gate pass for the same date puts his vehicle at

Chepstow at 20:16 hours. That part of the journey from Chepstow to

Frankley has not been recorded.

c. Chart dated 14th October 2008 records a journey starting from Aberdeen at

11:45 hours and ending at Tividale at 22:45 hours. A weighbridge ticket forthe same date puts his vehicle at Inverurie at 10:54 hours. The journey from

Inverurie to the south edge of Aberdeen has not been recorded.

d. Chart dated the 16th October 2008 records a journey from Inverness to

Preston ending at 21:00 hours. His vehicle refuelled at Carlisle at 19:03

hours. A vehicle register records his vehicle arriving at Widnes at 22:10 hours

and leaving at 23:15 hours. The journey from Widnes to Preston has not been

recorded. The next chart dated the 17th October 2008 begins at Preston at

06:40 hours. Driver Andrew failed to take sufficient daily rest.

e. Chart dated 20th October 2008 records a journey from Insch to Bolton ending

at 22:25 hours. His vehicle was refuelled at Perth at 15:21 hours. A vehicleregister records his vehicle arriving at Widnes at 22:35 hours and leaving at


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24:00 hours. The journey from Widnes to Bolton has not been recorded. The

next chart dated 21st October 2008 begins at Preston at 08:00 hours. Driver

Andrew failed to take sufficient daily rest.

51. On 30th October 2009, driver Andrew was interviewed by Mr Dunlop about these

allegations. Mr Dunlop went through all these charts with driver Andrew and soughtexplanations for the discrepancies he had identified between the charts and the

extraneous evidence. In answer to the questions, driver Andrew was either not sure

how it had happened or was unable to explain the inconsistencies in the records. He

conceded that in respect of the charts dated 9th, 14th, 16th and 20th October 2008 he had

done something wrong and had obviously tipped off the chart. The last question MrDunlop asked driver Andrew at the end of the interview was Have you ever doneanything to affect the correct recording of your tachograph, for instance pulling a

fuse? In reply driver Andrew stated Yes. You cannae hide it can you? Just to helpmyself out really.

The case for driver Andrew

52. Driver Andrew informed me that he 34 years of age. He has held the LGV licence for14 years. At the time of his hearing he was employed as a tractor driver. He had

taken up this employment in December 2009 as he understood that he might lose his

LGV licence because of the circumstances that brought him before me.

53. He considered the transcript of the interview that he had had with Mr Dunlop was

accurate. In answer to the questions I put to him he accepted that Mr Dunlop's

findings were accurate. He explained that he had pulled the fuse on the five

occasions that Mr Dunlop believed that he had created false records. With regard to

his lack of candour with Mr Dunlop at the time of interview, driver Andrew explained

that he was not sure about his position in relation to some of the matters that were

being raised with him. On receipt of the call up letter and having considered thetranscript of the interview attached to it he had a clearer understanding and/or a better

recollection.

54. His explanation for pulling the fuse was to give him more time off and spend moretime with his family. He described himself sneaking home without the operator

knowing. It was done solely for his own benefit. He denied that there was any

pressure on him from the operator to get the job done. He maintained that when he

was driving with the fuse pulled he was driving sensibly.

55. He had been employed by the operator for three or four months. He would like to

return to driving large goods vehicles. He accepted that he had done wrong. He wasanxious to do the best for his wife and three children.


56. I am always concerned when a driver is interviewed under caution by a representativeof VOSA and the driver is less than candid in his or her answers to the questions.

Driver Andrew agreed with me that he had been less than candid with Mr Dunlop. I

note that as the interview developed he became more candid and came closer to

telling the truth. His answer to the last question as recorded above makes the point.

57. During the course of my discussion with him, driver Andrew made reference to

difficulties with the manifests and changing trailers. On occasion, he would leave amanifest with his name on it with a trailer. Whatever difficulties this may have


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caused him he maintained his position namely that he created false records to disguise

the fact that he had gone home unknown to the operator. There are two journeys from

Aberdeen to Inverurie that are not accounted for. The other three journeys have been

undertaken when 130kms, 60kms and 45kms have not been recorded respectively.

58. When challenged, driver Andrew was at pains to assure me that he was telling me thetruth. Accordingly, I hold that Mr Dunlop's findings are established and that driverAndrew created five false records. He achieved this by pulling the fuse. This means

he has removed the fuse from the electrical power supply to the tachograph recording

equipment. With the fuse removed the tachograph is inoperative. Such conduct

cannot be condoned - it must be discouraged.

59. By definition the creation of false record means that driver Andrew has driven inexcess of the hours lawfully available to him in respect of these five journeys. He has

taken insufficient daily rest on two occasions. He has therefore taken the risk of

driving tired thereby compromising or potentially compromising road safety, not only

for himself, but more importantly in respect of other road users. Such conduct renders

him unfit to continue to hold the LGV licence.

Driver Darren John McDonald (dob 28th August 1984)


60. Driver MacDonald was on notice that I would be considering three speedingconvictions and allegations that he had created five false records and committed two

daily rest offences.

61. Mr Dunlop determined that the alleged false records were associated with thefollowing journeys undertaken by driver McDonald:-

a. Chart dated 4th August 2008 records a journey from Birmingham to

Cumbernauld. The next chart, dated 5th August 2008, records a journey

starting at 10:25 hours from Cumbernauld to Rugby. His vehicle was fuelled

at Dyce at 09:30 hours. This is not recorded.

b. Chart dated 6th August 2008 records a journey from Rugby to Rothes ending

at 21:30 hours. The speed trace discloses consistent driving on the speed

limiter (56mph) for the last two hours of the journey. The local roads to

Rothes would not allow such sustained speeds.

c. Chart dated 11th August 2008 records a journey from Insch to Walsall endingat 21:00 hours. His vehicle was fuelled at Dundee at 14:56 hours. The chart

discloses the vehicle to be in motion from 13:45 hours to 17:10 hours.

d. Chart dated 17th August 2008 records a journey from Insch to Stockport

ending at 21:00 hours. His vehicle was fuelled at Dundee at 15:31 hours. The

chart discloses driving for the next four hours during which time his vehicle

covered 350 kms. The distance from Dundee to Stockport is 450 kms and

would take in excess of 4 1/2 hours.

e. Chart dated the 20th August 2008 records a journey from Erith to

Cumbernauld. Annotated on the reverse of this chart are the words Been

having problems with batteries. Treasure Transport from Grantham cameout to the A1 at Newark to sort it but the same problem happened at


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Penrith. Full scale deflections are recorded on the chart at 14:50 and 17:50hours. His vehicle was fuelled at Carlisle at 22:05 hours. The distance and

journey time from Penrith to Carlisle are consistent with a stop recorded on

the chart at 19:10 hours and the onward journey to the removal of the chart at

21:20 hours is consistent with a journey from Carlisle to Cumbernauld. If the

whole journey had been properly recorded the correct finishing time would be

22:05 hours +2 hours driving i.e. sometime after midnight. There is no

record/comment about this on the reverse of the chart. The next chart, dated

21st August 2008, starts at 07:15 hours. A daily rest offence has been

committed.

f. Chart dated 26th August 2008 records a journey from Stracathro to Burton on

Trent ending at 22:10 hours. The next chart, dated 27 th August 2008, starts at

0850 hours at Burton on Trent. A weighbridge ticket records his vehicle

entering the premises of Roger Bullivant Limited, Burton on Trent at 22:03

hours that day. His vehicle left those premises at 08:44 hours on 27th August

2008. The unloading of his vehicle is not accounted for. It is recorded as a

rest period.

g. Chart dated 16th October 2008 records a journey starting at 11:25 hours from

Aberdeen and ending at Warrington at 23:20 hours. A weighbridge ticket

puts his vehicle at Inverurie at 10:41 hours. This is not recorded. The total

mileage recorded on this chart is 693 kms. The true mileage from Aberdeen

to Birmingham is 679 kms. The onward journey to Warrington is a further

125 kms. These parts of the journey have not been recorded.

62. On 30th October 2009, driver McDonald was interviewed by Mr Dunlop about theseallegations of false records and daily rest offences. He invited explanations from

driver McDonald regarding the inconsistencies between the charts and the extraneous

evidence.

63. In respect of the charts dated 4th/ 5th August 2008, Mr Dunlop was concerned that theend destination of the last of these two charts was Cumbernauld when he had

evidence to suggest that the vehicle arrived at Dyce. Driver McDonald explained he

had made a mistake and had entered Cumbernauld instead of Dyce on the charts.

64. He was unable to explain the speeds recorded on the chart dated 6th August 2008.

65. He attributed inconsistencies associated with the chart of 11th August 2008 to batteryproblems.

66. He accepted that he had not recorded the entire journey on his chart dated 17thAugust 2008. He could not recall how he achieved this. He explained that he had

been forced to do it by the operator. He told Mr Dunlop that it was his livelihood and

that he was not proud of doing it. He had been told by the operatordo the work oryoure no use to me.

67. He also accepted that his chart, dated 20th August 2008, was not a complete record ofhis driving that day. His explanation was that there had been continuing problems

with the battery which were known to the operator. Driver McDonald had told the

operator when his spreadover would be up. He told Mr Dunlop that the operator

had told him that his chart would appear to show the correct journey because of the

battery problems and that he should get up the road. The next day he had phonedCraibs for his next job and told them that he would not be able to start until 9am as he


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had not finished until about midnight the day before. Shortly thereafter he had

received a phone call from the operator telling him in no uncertain terms that he had

to begin the journey now or he was of no use to him. Driver McDonald began the

journey at about 0715 hours (instead of waiting until 0900 hours).

68. He accepted that his chart, dated 27th August 2008, was also not a complete record.He had been short on time and part of the journey would be off the record.

69. He also accepted that his chart, dated 16th October 2008, did not disclose the fulljourney for that day. He explained that he sometimes drove off the record to enable

him to complete the journey later on in the day.

70. During the course of the interview he explained to Mr Dunlop that he had beenconstantly under pressure to complete the jobs. There were several occasions when he

informed Craibs of constraints on the time lawfully available to him to complete

some of the journeys when he was given instruction which would allow him to work

lawfully. Invariably, those instructions were countermanded with instructions from

the operator insisting that the journeys were completed in the knowledge that theycould not be completed lawfully. He told Mr Dunlop that the charts he had falsified

only had short journeys missing as he detested running without a card. He was not

proud of what he had done. He had done it to pay the bills -- he needed a job to bring

in a wage.

The case for driver McDonald

71. Driver McDonald told me he is 25 years of age. He had held the LGV licence for justover three years. He began working for the operator in or about Spring 2008. He

remained with the operator for five/six months.

72. It was some two/three weeks after he had begun work for the operator that he wasasked to produce his driving licence. Comments had been made with regard to the

number of penalty points on his licence. Those were the same points as detailed in

the call up letter.

73. The first and last speeding convictions were in large goods vehicles. The other onehad been in a car. They had all been dealt with by fixed penalties. He explained that

he had been new to the job and was trying to impress his then boss by trying to get

the job done more quickly. He was at pains to point out that he had been able to drive

in the last three years without picking up any more speeding offences.

74. He agreed that he had been interviewed by Mr Dunlop. He accepted that the chartsMr Dunlop discussed with him were his. He developed his position to me in relation

to these charts as follows:-

i. Chart dated 4th/5th August 2008 - he explained that he

had been parked up at Dyce that night. He had been on private property. He

did not know that it was a legal requirement to use a chart on private

property. It had been a genuine mistake which he attributed to a lack of

knowledge and being new to the job. He had not been given any training;

ii. Chart dated 6th August 2008 - he did not know what waswrong with this chart. He had a chart in all day. He believed that the


13/34

recorded mileage was correct. He could not understand why the speeds

recorded on the chart could not be achieved/sustained on the roads that he

had driven on;

iii. Chart dated 11th August 2008 - he explained that there

had been battery problems with the vehicle ever since he started with the

operator. He had told the operator about this. The operator had not treated

the problem as a priority. Driver McDonald had been told to work awaywith it.

iv. Chart dated 17th August 2008 - he recalled that he had to

complete this journey and only had a short period of time left. He had been

told by the operator that if he did not do the journey in the required time Iwas of no use to him. To overcome this and to produce a chart that wouldlook legal he had pulled the fuse. He had been shown how to do this both

by the operator and driver Will. He had been under a lot of pressure and

needed to lose about two hours. He stated that he was paid a salary and

there was therefore no benefit to him in pulling the fuse. He needed the jobat the time;

v. Chart dated 20th August 2008 - the day had started at

Erith. He had a break at Newark of 45 minutes. After the break he could not

restart the lorry. The operator had arranged for Treasure Transport Ltd to

sort the problem out. That had been achieved. The clock, however, was not

at the right time as the battery had been disconnected. Driver McDonald

finished the journey at Cumbernauld. He was not happy with his

spreadover. The next day he had phoned Craibs who understood the

difficulty he was having with his daily rest. They were prepared to

accommodate him. Shortly thereafter the operator phoned and told him to

get on with the journey. He felt pressurised into doing the journey evenalthough he knew that he did not have sufficient daily rest. In the morning

he re-set the time on the clock. On the face of the chart it disclosed that he

had the required nine hours off;

vi. Chart dated 27th August 2008 - driver McDonald

explained that there had been no interference with this chart. He drove into

Roger Bullivants yard to be unloaded. He removed the straps from the

load. It was a requirement of the yard that the driver remained within his

cab. He remained within the cab where he had slept overnight. When he

woke up in the morning the trailer had been emptied. He resumed his

journey with this (new) chart.

vii. Chart dated 16th October 2008 - he had picked up a trailer

from International Paper at Inverurie. He did not understand that he

required to use a chart whilst on private property. When he spoke to Mr

Dunlop he had not remembered about picking up the trailer and driving off

road.

75. In conclusion, driver McDonald accepted the findings of Mr Dunlop. He knew haddone wrong. He appreciated the seriousness of his wrongdoing. There had been

limited use of pulling the fuse as he had tried to do the work within the time

allowed. He did not like doing it. He did not wish to change anything that he had said

to Mr Dunlop or to me. He explained that he had been under a lot of pressure fromthe operator. He denied blaming the operator for his wrongdoing to save his own

skin. He assured me that he had not told me a pack of lies to save his own skin.


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Driving is what he wished to pursue as a career. He had organised CPC training to

improve his knowledge of the drivers hours rules and regulations.


76. There was a consistency in what driver McDonald told me about his admitted wrongdoing in relation to what he had said to Mr Dunlop. He did, however, volunteerfurther information which on any view aggravated his situation namely his confession

that he had occasionally pulled the fuse. This revelation came about during the

course of my discussion with him. It came at a time before I had embarked upon an

in-depth cross-examination of him with regard to any methods he may have

employed to falsify his records.

77. At the time of the commission of these offences he was a relatively inexperienceddriver of large goods vehicles. He had a lot to learn. I have no doubt that he received

no training from the operator. I am concerned to note that the operator did not

examine driver McDonalds driving licence prior to employing him as the operator

may well have reconsidered employing him with the then nine live penalty pointsendorsed on the licence that said his son driver Will has the same number of points

endorsed on his licence all for speeding.

78. In telling me that he had pulled the fuse I do not believe that he was pre-emptingmy predictable enquiry into any methods he might have employed to falsify his

charts. Making a false record is a serious matter. His explanation for indulging in this

course of conduct, namely that he needed the job is not acceptable. The reality of the

situation is that he has prioritised his own personal circumstances ahead of the safety

of other road users. He was prepared to take the risk of driving whilst tired as

evidenced by his driving in excess of the hours lawfully available to him and failing

to take sufficient rest. Conduct of this nature renders driver McDonald unfit to

continue to hold the LGV licence.

THE PUBLIC INQUIRY THE CASE FOR VOSA

79. The case for VOSA principally focused on the findings of Mr Dunlop and theallegations that the aforementioned three drivers had between them generated 14 false

records together, with three instances of drivers failing to take sufficient daily rest all

as detailed in his report dated 16th November 2009. For ease of reference, as I am

now considering a separate licence in a different jurisdiction, I have cut and pasted

the summary of the findings for each driver as hereinbefore scripted for each of the

drivers cases. Additionally, the report referred to a prohibition being issued to theoperator on 30th September 2009 for a tachograph not being fitted as per the

regulations.

80. The chart in the name of driver Will dated 20 th August 2008 records a journey fromAltens to North Shields ending at 0035 hours. The next chart dated 21st August 2008

records a journey from North Shields to Dundee. The journey began at about 1020

hours and finished at about 2125 hours. Mr Dunlop had obtained a drivers exit pass

from Morrisons Supermarket at Wakefield dated 21st August 2008 with a time in

of 1130 hours and a time out of 1410 hours. It was signed B Will. The same

registration mark of the vehicle (P633 UOS) appears on both the chart and the said

drivers exit pass. Mr Dunlop noted that the chart disclosed short vehicle movements

between 1020 hours and 1115 hours indicative of the vehicle being driven in a yard.There was little use of the vehicle recorded until about 1410 hours when another


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journey began. These times tie in with the exit pass. The journey of 180 kms between

North Shields and Wakefield was not recorded. Mr Dunlop concluded the chart

contained a false record.

81. On 6th November 2009, Mr Dunlop interviewed driver Will under caution.

82. At the interview driver Will confirmed that the chart was his. He denied that thesignature on the exit pass was his. He denied that he had been at Morrison's

Supermarket, Wakefield on 21st August 2008.

83. Mr Dunlop determined that the alleged false records were associated with thefollowing journeys undertaken by driver Andrew:-

a. Chart dated 30th September 2008 records a journey starting from

Aberdeen at 13:00 hours and ending at Newark at 22:35 hours. A

weighbridge ticket for the same day puts his vehicle at Inverurie at 11:33

hours. The journey from Inverurie to the south edge of Aberdeen has not

been recorded;

b. Chart dated 9th October 2008 records a journey from St Martins to

Frankley ending at 18:20 hours. A gate pass for the same date puts his

vehicle at Chepstow at 20:16 hours. That part of the journey from

Chepstow to Frankley has not been recorded.

c. Chart dated 14th October 2008 records a journey starting from Aberdeen

at 11:45 hours and ending at Tividale at 22:45 hours. A weighbridge

ticket for the same date puts his vehicle at Inverurie at 10:54 hours. The

journey from Inverurie to the south edge of Aberdeen has not been

recorded.

d. Chart dated the 16th October 2008 records a journey from Inverness to

Preston ending at 21:00 hours. His vehicle refuelled at Carlisle at 19:03

hours. A vehicle register records his vehicle arriving at Widnes at 22:10

hours and leaving at 23:15 hours. The journey from Widnes to Preston

has not been recorded. The next chart dated the 17 th October 2008 begins

at Preston at 06:40 hours. Driver Andrew failed to take sufficient daily

rest.

e. Chart dated 20th October 2008 records a journey from Insch to Bolton

ending at 22:25 hours. His vehicle was refuelled at Perth at 15:21 hours.

A vehicle register records his vehicle arriving at Widnes at 22:35 hours

and leaving at 24:00 hours. The journey from Widnes to Bolton has not

been recorded. The next chart dated 21st October 2008 begins at Preston

at 08:00 hours. Driver Andrew failed to take sufficient daily rest.

84. On 30th October 2009, driver Andrew was interviewed by Mr Dunlop about theseallegations. Mr Dunlop went through all these charts with driver Andrew and sought

explanations for the discrepancies he had identified between the charts and the

extraneous evidence. In answer to the questions, driver Andrew was either not sure

how it had happened or was unable to explain the inconsistencies in the records. He

conceded that in respect of the charts dated 9th, 14th, 16th and 20th October 2008 he had

done something wrong and had obviously tipped off the chart. The last question Mr

Dunlop asked driver Andrew at the end of the interview was Have you ever doneanything to affect the correct recording of your tachograph, for instance pulling a


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fuse? In reply driver Andrew stated Yes. You cannae hide it can you? Just to helpmyself out really.

85. Mr Dunlop determined that the alleged false records were associated with thefollowing journeys undertaken by driver McDonald:-

86. Chart dated 4th August 2008 records a journey from Birmingham to Cumbernauld.The next chart, dated 5th August 2008, records a journey starting at 10:25 hours from

Cumbernauld to Rugby. His vehicle was fuelled at Dyce at 09:30 hours. This is not

recorded.

i. Chart dated 6th August 2008 records a journey from Rugby

to Rothes ending at 21:30 hours. The speed trace discloses consistent driving

on the speed limiter (56mph) for the last two hours of the journey. The local

roads to Rothes would not allow such sustained speeds.

ii. Chart dated 11th August 2008 records a journey from Insch

to Walsall ending at 21:00 hours. His vehicle was fuelled at Dundee at 14:56hours. The chart discloses the vehicle to be in motion from 13:45 hours to

17:10 hours.

iii. Chart dated 17th August 2008 records a journey from Insch

to Stockport ending at 21:00 hours. His vehicle was fuelled at Dundee at

15:31 hours. The chart discloses driving for the next four hours during which

time his vehicle covered 350 kms. He distanced from Dundee to Stockport is

450 kms and would take in excess of 4 1/2 hours.

iv. Chart dated the 20th August 2008 records a journey from

Erith to Cumbernauld. Annotated on the reverse of this chart are the words

Been having problems with batteries. Treasure Transport from Granthamcame out to the A1 at Newark to sort it but the same problem happened at

Penrith. Full scale deflections are recorded on the chart at 14:50 and 17:50hours. His vehicle was fuelled at Carlisle at 22:05 hours. The distance and

journey time from Penrith to Carlisle are consistent with a stop recorded on

the chart at 19:10 hours and the onward journey to the removal of the chart at

21:20 hours is consistent with a journey from Carlisle to Cumbernauld. If the

whole journey had been properly recorded the correct finishing time would be

22:05 hours +2 hours driving i.e. sometime after midnight. There is no

record/comment about this on the reverse of the chart. The next chart dated

21st August 2008 starts at 07:15 hours. A daily rest offence has been

committed.

v. Chart dated 26th August 2008 records a journey from

Stracathro to Burton on Trent ending at 22:10 hours. The next chart, dated

27th August 2008, starts at 0850 hours at Burton on Trent. A weighbridge

ticket records his vehicle entering the premises of Roger Bullivant Limited,

Burton on Trent at 22:03 hours that day. His vehicle left those premises at

08:44 hours on 27th August 2008. The unloading of his vehicle is not

accounted for. It is recorded as a rest period.

vi. Chart dated 16th October 2008 records a journey starting at

11:25 hours from Aberdeen and ending at Warrington at 23:20 hours. A

weighbridge ticket puts his vehicle at Inverurie at 10:41 hours. This is notrecorded. The total mileage recorded on this chart is 693 kms. The true


17/34

mileage from Aberdeen to Birmingham is 679 kms. The onward journey to

Warrington is a further 125 kms. These parts of the journey have not been

recorded.

87. On 30th October 2009, driver McDonald was interviewed by Mr Dunlop about these

allegations of false records and daily rest offences. He invited explanations fromdriver McDonald regarding the inconsistencies between the charts and the extraneous

evidence.

88. In respect of the charts dated 4th/ 5th August 2008, Mr Dunlop was concerned that theend destination of the last of these two charts was Cumbernauld when he had

evidence to suggest that the vehicle arrived at Dyce. Driver McDonald explained he

had made a mistake and had entered Cumbernauld instead of Dyce on the chart.

89. He was unable to explain the speeds recorded on the chart dated 6th August 2008.

90. He attributed inconsistencies associated with the chart of 11th August 2008 to battery

problems.

91. He accepted that he had not recorded the entire journey on his chart dated 17thAugust 2008. He could not recall how he achieved this. He explained that he had

been forced to do it by the operator. He told Mr Dunlop that it was his livelihood and

that he was not proud of doing it. He had been told by the operatordo the work oryoure no use to me.

92. He also accepted that his chart, dated 20th August 2008, was not a complete record ofhis driving that day. His explanation was that there had been continuing problems

with the battery which were known to the operator. Driver McDonald had told the

operator when his spread over would be up. He told Mr Dunlop that the operatorhad told him that his chart would appear to show the correct journey because of the

battery problems and that he should get up the road. The next day he had phoned

Craibs for his next job and told them that he would not be able to start until 9am as he

had not finished until about midnight the day before. Shortly thereafter he had

received a phone call from the operator telling him in no uncertain terms that he had

to begin the journey now or he was of no use to him. Driver McDonald began the

journey at about 0715 hours (instead of waiting until 0900 hours).

93. He accepted that his chart, dated 27th August 2008, was also not a complete record.He had been short on time and part of the journey would be off the record.

94. He also accepted that his chart dated 16th October 2008 did not disclose the fulljourney for that day. He explained that he sometimes drove off the record to enable

him to complete the journey later on in the day.

95. During the course of the interview he explained to Mr Dunlop that he had beenconstantly under pressure to complete the jobs. There were several occasions when he

informed Craibs of constraints on the time lawfully available to him to complete

some of the journeys when he was given instruction which would allow him to work

lawfully. Invariably, those instructions were countermanded with instructions from

the operator insisting that the journeys were completed in the knowledge that they

could not be completed lawfully. He told Mr Dunlop that the charts he had falsified

only had short journeys missing as he detested running without a card. He was not

proud of what he had done. He had done it to pay the bills -- he needed a job to bring

in a wage.


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96. On 11th November 2009, Mr Dunlop interviewed the operator under caution inconnection with his findings.

97. The operator confirmed that he was the CPC holder for and sole owner of the

business. He confirmed that he is employed full time by Craibs in their transportoffice. He has a responsibility to make up loads going south, put it on a trailer and

meet the delivery. His vehicles work exclusively for Craibs. At the start of any

working week his drivers will know their duties for the first day (Monday).

Thereafter, their duties for the remainder of the week are scheduled by Craibs. He

analyses charts himself using a handheld analyser. If need be he firmly reprimands

drivers for any infringements. He had identified problems in the past for incorrect

use of the mode switch and recording work as required by the Working Time

Directive. His drivers are all salaried. There is no overtime.

98. With reference to all of the alleged offences detected by Mr Dunlop the operator

commented on four of them. In respect of driver Wills chart, dated 21 st August 2008,

he said Ive nae information on how that happened.

99. The other three charts were all in the name of driver McDonald. In respect of the

chart dated 11th August 2008 he said Im aware of this card and I took issue withthe driver. It seemed to be he took into his own head to meet up with mates at

Penrith. He did something to the tachograph to do with his three-quarter hour breakbetween Insch and Penrith I'm led to believe. With regard to the chart of 17th August2008 he said It looks as though this driver has a grudge as I actually dismissed him.There's only ever once he took a load from Craibs and then realised he didn't havetime to complete the whole journey back to base at Insch. He phoned and made me

aware of this and I said to him because you have committed to this job you will easilyhave time to do the job and get back to Craib's depot, Cumbernauld. I said to him

you can get the train up the road and I would even pay for it, don't worry about thetruck. I'm absolutely shocked he can even refer to me asking him to break the law.Finally in respect of the chart dated 20th August 2008 he said That phone call nevertook place and I would have told him to wait 2 hours. I was well aware of thebreakdown on the A1 but at no time did he tell me he didn't have time to complete the

journey.

100. At the conclusion of the interview, the operator asked for an opportunity to make

written representations. These were faxed to Mr Dunlop that day.

101.The only other aspect of Mr Dunlop's investigation that caught his attention was that

the operator had copies of the driving licences for all drivers except driver Andrew.

There was no procedure/register in place for checking these licences.

102.Mr Dunlop records that the operator and his drivers were helpful and had been willing

to be interviewed. The operator supplied all documents requested by Mr Dunlop.

103. Mr Dunlop concluded that the operator appeared to have put too much trust in his

drivers. He had not undertaken proper checks of the charts. Had he done so the

many problems discovered by Mr Dunlop might otherwise have been detected. He

was also firmly of the view that the operators habit of leaving the daily running of

his vehicles to Craibs was incorrect and poorly judged.

104.

In cross-examination, Mr Hogg confirmed to Mr. McLaughlin that former TrafficExaminer Miss Margaret Munro (Miss Munro) called at the operator's house to

obtain charts for one month. She had been unable to speak to the operator. A written


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request was mailed to him for the charts. They were subsequently submitted. In

response to follow-up requests further charts, bank statements and payslips were also

received from the operator. The operator complied with all requests at all times. Mr

Hogg also confirmed that VOSA obtained information from third parties and, in

particular, gate passes. He agreed with Mr McLaughlin that of the 152 charts that

were examined the problem charts related to the three said drivers. There was a

fourth driver namely driver Headley. Mr. Hogg understood that drivers Will and

Headley were the mainstay drivers for the operator -- the other two not being long-

term. He also agreed with Mr McLaughlin that an examination of the charts in

isolation did not disclose anything untoward i.e. it was not possible to determine if a

fuse had been pulled or the like.

The evidence of Mr William Will (the operator)

105.The operator confirmed that he is 49 years of age. He has held the licence since 2nd

March 1994. He has had 22 years experience of running the transport business. He is

the CPC holder. This is his first time at a Public Inquiry. He is authorised for three

vehicles and five trailers. At present, two vehicles are specified on the licence. Heemploys two full-time drivers namely his son driver Will and driver Headley. He

confirmed that he had also employed drivers Andrew and McDonald. He explained

that driver Andrew joined him when his son was on paternity leave.

106. He is employed full-time with Craibs at Aberdeen in their transport office. He is

salaried. He has responsibility for making up loads for the trailers going south. He

collates the pallets. He makes up the manifest with particular reference toweights and times for the load to be transported on the trailer. Thetrailer number is put on the manifest. His job is to ensure that each driverhas enough time to make all the drops.

107. The name of the driver and registration mark of the vehicle is the added to themanifest when the driver attends at the office to pick it up. There are occasions when

the manifest is issued without the name of the driver and registration mark of the

vehicle entered on it. When this happens the name of the driver and vehicle

registration mark is entered on the manifest once the job has been completed. There

are also occasions where a driver gets held up and it is necessary to change trailers.

When this happens the manifest will remain with the trailer - he explained that there

was a pocket at the front of each trailer for the manifest.

108. In 2008, only the names of drivers employed by Craibs were kept on computer for

each job. Since then the system has changed and the names of all drivers are recorded

on computer for each job. He was not in a position to retrieve information regarding

specific work undertaken in 2008 by his drivers as no records were kept.

109.He recalled being approached by Miss Munro in 2008. At their first meeting he gave

her one month's records which she picked up from Craibs yard. She came back to

his house and said that she had found a few discrepancies but there was not too much

to worry about as in her opinion everything was okay. Thereafter, Miss Munro and

Mr Dunlop met him at Craib's. Mr Dunlop indicated that he had concerns regarding

some of the charts. He asked for charts for another two months, together with proof of

delivery vouchers (PODs) and payslips.

110. The operator complied with all requests. He did not hold anything back from VOSA.

He did not think that there would be any problem. His drivers were paid a salary.There was no benefit for them to work overtime.


20/34

111. The operator explained that driver McDonald had held onto some of his charts. He

did, however, retrieve them and they were made available to Miss Munro. He had

withheld paying driver McDonald his severance pay pending the return of the charts.

He had no opportunity to inspect these charts before handing them over to Miss

Munro. There had been a lot of issues with driver McDonald, including him causing

significant damage to a trailer.

112. Mr McLaughlin asked the operator about driver McDonald's chart dated 16th October

2008. He recalled that Miss Munro had discussed this chart with him. She had some

concerns that driver McDonald had not recorded refuelling. Thereafter. The operator

spoke to driver McDonald about this. He had told the operator that he did not know

what was happening. Shortly thereafter driver McDonald's employment was

terminated.

113. The operator agreed that he had been interviewed by Mr Dunlop on 11th November

2009.

114. He had not terminated driver Andrew's employment which continued through to early2009. He had no idea that there was a question mark over his charts until the

problems were pointed out to him by Mr Dunlop. Had he been aware of any

problems he would have looked at how serious any problem was. Had they been

serious he would probably have terminated his employment.

115. The operator acknowledged driver McDonald's statement that he had received no

training. He accepted that there had been no driver training and no training on

tachographs. He described this as a downside on his part. He assumed that the

drivers knew what was required.

116. He explained that each week drivers handed in their charts. The operator checked

them with his hand held analyser. He ensured that each driver had time off everysecond weekend.

117. With regard to the three months charts that VOSA had analysed, he had not found any

drivers hours problems. He had not checked any of the charts with any external

evidence. He had not realised that one could check the charts against fuel receipts.

Mr McLaughlin asked him how Craibs checked their charts. The operator understood

that the Freight Transport Association selected charts at random for checking. He did

not think that their charts were cross referenced to fuel receipts.

118. In 2008, a maintenance investigation was carried out by VOSA. It had been classed

as satisfactory. The one prohibition notice issued in 2008 had been for the

tachograph not being fitted as per the regulations.

119. Mr McLaughlin then discussed with the operator the occasions when driver Andrew

pulled the fuse. The operator believed that driver Andrew would have had sufficient

time to do the job legally on 30 th September 2008. There was nothing to say he had to

go to Newark. He could still have done the job in 10 hours. Similarly, with his chart

of 14th October 2008, the operator believed that driver Andrew could have completed

this job legally. As he had not spoken to driver Andrew since he had ceased working

for the operator he was unable to assist with regard to any problems that driver

Andrew had experienced with the manifest

120. The operator was adamant that at no time had he instructed or pressurised driver

Andrew to make false records. He was not aware that driver Andrew had not


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properly recorded all of his journeys. Similarly, he was not aware that driver Andrew

had pulled the fuse. There was no need to pull a fuse.

121. With regard to the one chart that Mr Dunlop had discussed with his son, driver Will,

the operator still did not know what the problem was. He could not speak to

signatures. He recognised his son's signature where it appeared at the end of the

interview written as Billy J Will. He has not seen his son's signature written as BWill as it had been on the Morrisons exit pass. It was not his son's signature on the

exit pass. He did not think that the other writing to the right of the signature on the

exit pass was his sons. He acknowledged that he was not a handwriting expert. He

had checked the fuelling of the vehicle for 21 stAugust 2008. It was consistent with

what was recorded on the chart for that day.

122. Mr McLaughlin had then asked the operator about the problem charts in the name

of driver McDonald.

123. The operator stated that the explanation that driver McDonald had entered Dyce on

his chart dated 5th August 2008 was understandable. Craibs also had depots atCumbernauld and Dyce.

124. He recognised that there was something definitely wrong with the chart of 6th August

2008. There had been no delivery to Rothes. He could not understand it. He did not

think that he had been at work that day as he had been away in France for 10 days. In

support of this he produced an itemised account for his mobile phone which

disclosed calls being made from abroad from 4th to 13th August 2008. He recognised

that driver McDonald required to retain his charts for 28 days. Miss Munro came for

the charts in early September. Had the operator seen Rothes as the end destination on

this chart he would have checked driving times, spreadover, rest and speed traces. He

could not account for this chart.

125. Mr McLaughlin stated to the operator that driver McDonald attributed the problems

on the chart dated 11th August 2008 to a battery fault. The operator did not disagree.

126. The chart dated 11th August 2008 records a trip from Insch to Walsall. The operator

refuted the allegations made by driver McDonald that he had pressurised him to keep

going with the journey. He had not told him to get up the road. Mr McLaughlin

asked the operator what the position was with Craibs when a problem arose with a

journey. He explained that the driver would phone the delay desk where the

information was collated and the customer was alerted to a potential problem. That

information would not come to the operator in the first instance. Any difficulty with

one of his drivers was dictated to by the amount of time he had available to do the

job. Craibs would not become involved with his drivers. They would sort out anysuch problem. In any event, there was no record on the said itemised mobile phone

account of him phoning driver McDonald that day.

127. The operator also strongly refuted any suggestion that he had instructed driver

McDonald to get the load up the road on 17th August 2008. In support of this he

referred to the itemised mobile phone account in respect of the phone used by driver

McDonald when he was employed by the operator. There was no record of any

phone calls being made on the operator's mobile phone and received on driver

McDonalds mobile phone. The three calls made by the operator that day were one

to his wife and the other two to driver Headley.

128. With reference to the chart dated 20th August 2008, he again confirmed that there had

been difficulties with the battery in the vehicle driven by driver McDonald. This


22/34

lasted for some time. He denied that he had ignored it. He had tried to identify the

source of the problem so too had outside maintenance providers. Eventually, he

discovered a broken fine wire in the wiring loom. He referred to the various invoices

he had incurred for the costs associated with the eventual repair. One invoice was

from Treasure Transport Serv Ltd with a charge for a callout to the A1 North

Balderton on 20th August 2008 for a non-start and affecting a temporary repair. On

the issue of driver McDonald's allegation that the clock was out on 20 th August 2008

and he had lost time the operator recalled that he had merely told him to try and make

it back to Cumbernauld. He recognised that there could have been safety issues with

a faulty battery such as a failure of the lights. Mr McLaughlin then asked the operator

if a driver finished his shift and was then not able to start until midday how did Craibs

know this? The operator told him that the driver would phone Craibs. Drivers would

not call him. The driver would be told to phone in when he was in a position to

resume driving. If a load was missed the driver would get the next one. He would

not be allowed by Craibs to browbeat one of his drivers to taking a load up the road

illegally. If he did he would lose his job. The operator, with reference to the itemised

mobile phone accounts, observed that he had not made any calls to driver McDonald

and driver McDonald had not made any calls to him during this period. He alsoobserved that driver McDonald had made six calls to an Edinburgh number on the

morning of 1st August 2008. He recalled that driver McDonald had told me that he

had telephoned the operator at 07:00 hours that day. There was no evidence of such a

call on the itemised account. The account discloses that driver McDonald telephoned

him at 17:35 hours that day. Mr McLaughlin recalled that driver McDonald stated

that he had phoned in to Craibs at 07:00 hours that day. The operator was certain that

he had not told driver McDonald to drive illegally. He had not used any other phone

to speak to driver McDonald.

129. The operator then referred to further productions associated with driver McDonald's

work on 20th/21st August 2008 namely delivery notes from which the progress of

his load of 24 pallets on trailer T0212 can be ascertained. He drove the load northto Cumbernauld. He was too late to take the load to East Kilbride were it was due at

16:00 hours. The trailer is then taken to East Kilbride by another driver.There was no rush at all.

130. The operator stated that any loads delivered to the yard of RogerBullivant Ltd were always oil drilling pipes. He maintained thatthere is no unloading during the night at their yard. Work starts at07:30 hours each day. He agreed that it was possible that driverMcDonald had been in his cab. He could not agree that he had sleptin his cab during the very noisy unloading process. He neveradvised driver McDonald that it is legal to drive a lorry on privateproperty without a chart. He disagreed with driver McDonald'sexplanation relative to the chart dated 26th August 2008.

131. The operator was unable to explain the findings of Mr Dunlop inrelation to the chart dated 16th October 2008. He accepted thattrailers were dropped at Warrington from time to time.

132. The operator is adamant that he had never shown driverMcDonald how to pull the fuse. He is also adamant that he hadnever pressurised driver McDonald to do the work he stated Inever did that, I'm telling the truth, I could get Craibs to vouch it.

With reference to the transcript of the interview he had with MrDunlop, the operator explained that he had heard from other drivers


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that driver McDonald made arrangements to meet up with hismates and believed that the six calls made on 21st August 2008were in connection with this. He also understood that driverMcDonald did not like to work on Fridays.

133. At the conclusion of his interview with Mr Dunlop, the operatorrequested an opportunity to submit written representations toVOSA. These are set out in his letter, dated 11th November 2009,(the day of the interview).

134. Mr McLaughlin asked the operator about the substantial damage that he alleged driver

McDonald had caused to one of his trailers as referred to in his letter, the aftermath of

which was also discussed between the two of them as recorded on the CD. The

operator explained that driver McDonald was driving a load from Baxters when the

trailer detached from the unit. Later on driver McDonald admitted that had not

engaged the fifth wheel properly. Damage had been sustained to the unit (400) and

to the trailer (1200). The load was subsequently rejected (3600). He had not

involved his insurers as he had not expected the losses to be so great. He had beenvery angry with driver McDonald. He terminated driver McDonald's employment. He

told him he would be responsible for paying for the costs of the damage he caused.

The telephone exchanges as recorded on the CD were on this topic. Driver McDonald

was looking for his lights back and 2,700. Driver McDonald was paid the money

due to him after he had returned his charts to the operator. Driver McDonald has not

reimbursed him for any of his financial losses.

135. The operator was not aware that driver McDonald had pulled the fuse. As far as he

was concerned driver McDonald had enough time to do the job without needing to

pull a fuse.

136. Mr McLaughlin then referred the operator to driver McDonalds chart dated 16thOctober 2008 and his explanation that he was under constant pressure to complete the

journey hence his reason for driving off the record. Since the first day of the Public

Inquiry the operator had taken the opportunity of considering this. He explained that

where a load of paper for International Paper is tipped the driver is required to text

them. He produced a copy of Craibs On Time Instructions for Drivers. During the

period of the adjournment, the operator had checked driver McDonald's itemised

mobile phone accounts. He found evidence that driver McDonald had regularly

complied with the requirements to text International Paper. There was, however, no

evidence that such a text had been made on either 16th or 17th October 2008 in

respect of that load. The operator acknowledged that the absence of the required text

could be explained in that he did not drop that particular load - the missing part of the

journey could be attributed to the manifest problems i.e. the trailer had been changed

and the drop made by another driver. Driver McDonald had been wrong with the

explanation he had given Mr Dunlop. The explanation he had given me is one that the

operator could accept.

137. The operator repeated that at no time did he instruct driver McDonald to pull the

fuse or do anything contrary to the drivers hours rules and regulations. He strongly

resisted any suggestion that he had shown driver McDonald how to pull a fuse.

138. The operator explained that at the time of the VOSA investigation his practice was to

analyse the charts with a hand held device. Neither he nor VOSA had discovered

anything amiss with the charts until VOSA carried out a more in depth analysis whichincluded reference to external documentation such as fuel and weighbridge receipts.

He realised that his practice was not good enough. He accepted that there were


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shortcomings in his system. Since the VOSA investigation he has been checking

charts against fuel receipts. He sought expert advice and turned to Mr Smith who

produced his report based on the systems that the operator had in place for

February/March 2010. He accepted the advice of Mr Smith as to how to improve his

systems and the need to train his drivers. Previously, the operator assumed that

professional drivers knew the drivers hours rules and regulations and abided by

them. He also accepted that this was an incorrect assumption. That was why he had

arranged for himself and his two drivers to be participate in driver training. They all

participated in a training course held by Mr Smith in March 2010.

139. Again, during the period of the adjournment the operator commissioned Mr Smith to

carry out a tachograph analysis for the period February to April 2010. The various

minor infringements identified by Mr Smith had been acted upon. He had discussed

them with his drivers and given them appropriate instruction.

140. In conclusion, the operator confirmed that he was in full-time employment with

Craibs. He employs drivers Will and Headley. He does not employ casual drivers. He

has held the licence since December 2003. He is authorised to operate three vehiclesand five trailers under the licence. Two vehicles are specified on licence. One trailer

is in use.

141. In answer to Mr McLaughlin, the operator stated that if the licence was curtailed any

driver affected would be laid off. If the licence was suspended both drivers would be

laid off for the period of suspension. If the licence was revoked the operator would

not have any work for them. He could not say whether it would be available for them

at Craibs. As the nominated transport manager on the licence he had learnt a great

deal from the VOSA investigation and the Public Inquiry. He had appreciated the

excellent training he had received from Mr Smith. The required driver training would

benefit himself and his drivers and keep them up to speed with changes in the

legislation. If he did not continue to hold the licence and he was disqualified fromholding or obtaining such a licence it would be trouble for himself and the drivers.

He has lived and breathed lorries since the age of 21.

142. Finally, he again refuted any suggestion that he had bullied driver McDonald into

doing any work. He had seen no evidence of that during the course of the Public

Inquiry.

The evidence of Mr William Smith

143. As instructed by the operator Mr Smith examined the systems that were in place to

ensure drivers adhered to the drivers hours rules and regulations. He identified a

number of aspects of the systems that required to be revisited. His findings are set outin his first report.

144. He recommended that the operator should check the charts against an independent

checkpoint such as fuel receipts. He also recommended that the operator should

analyse a whole weeks charts rather than random charts. He understands that the

operator now analyses all charts. He had recommended driver training. That had gone

very well.

145. His report, dated June 2010, details his findings of his independent analysis of the

operators charts for February to April 2010. This had been carried out with reference

to fuel receipts supplied by the operator. Whilst a few minor infringements had been

detected, there had been an improvement. Some of the infringements had been picked


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up using more sophisticated equipment than that used by the operator. There was no

missing mileage and no indication of fuelling off the card.

The evidence of Ronald Headley

146. Driver Headley has worked as an LGV driver for approximately 14 years. He has

been employed full-time by the operator for five years.

147. He was working for the operator at the time of the VOSA investigation. So far as he

is aware his charts for the period of the VOSA investigation were analysed. He was

not told of any infringements. He understood that none had been identified in the

Public Inquiry brief.

148. At no time, during his employment with the operator, has he been bullied to

undertake journeys with insufficient time. Similarly, at no time has he been instructed

to falsify his charts. At no time had he been shown how to pull the fuse by either

the operator or driver Will.

149. If he was assigned a job that he could not complete in time he would contact the

operator and ask him to inform Craibs for them to sort out. If he was grossly late

with a timed delivery he would contact Craibs and let them know. He was not

assigned further work until he had completed the job he was on. He agreed with Mr

McLaughlin that if one did the same job regularly it was possible to put a wrong

location on a chart.

150. At the paper mill at Inverurie he always used a chart. He estimated it could be a

mile from the gate house to where he used to drop a trailer. When the mill was

operational he recorded all the movements of his vehicle within the mill.

151. He spoke to the operator being very particular about his vehicles. He recalled an

occasion when the operator was at Craibs trying to change an ignition switch on the

vehicle assigned to driver McDonald being the vehicle that had battery problems. He

resisted any suggestion from Mr McLaughlin that the operator would not be attentive

to any such issues.

152. On the topic of training, driver Headley had gained certification whereby he is now

qualified for the carriage of livestock. The training for this had been paid for by the

operator. He had also received information from Craibs about the changes in the

drivers hours rules and regulations. He had participated in the training provided by

Mr Smith which he described as very good. He explained how the few

infringements identified by Mr Smith in the second report had come about. Two ofthem involved problems with deliveries at Regional Distributional Centres which

difficulties, consistent with his established practice, he had recorded on the reverse of

the relevant charts. He has implemented all advice given by Mr Smith.

153. In relation to the completion of paperwork associated with the delivery and uplift of

loads he explained that every location had its own system. He agreed with Mr

McLaughlin that it was possible that driver/vehicle details are sometimes entered on

the paperwork by the gate house keeper.

Submission by Mr McLaughlin


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154. Mr. McLaughlin stated that it had been identified that the checking of the charts for

the period of the VOSA investigation had not been sufficient. The operator accepted

that checking the face of the charts was not enough. However, he had not missed the

obvious. Without reference to independent documentation he had not picked up the

alleged offences detected by VOSA.

155. In developing his submission he put to one side the issue involving driver Will and

concentrated on the other two drivers. Driver Andrew had admitted pulling the fuse

on two occasions. This could not be picked up from an examination of the charts. He

had done it for his own ends, to get himself home. He did not speak to being under

any pressure to do this. At his interview in respect of his chart, dated 9th October

2008, he admitted tipping off the chart yet in his evidence he spoke of it being a

manifest problem. In respect of his charts dated 16th and 20 th October 2008, he did

not speak about doing anything illegal at his interview. He had not been very clear

about what had happened yet in his evidence he referred to manifest problems. He

acknowledged that it would be a matter for me to determine on the evidence what I

made of these issues. The corollary to that was if I knocked out these two matters

then the vulnerability of the licence was reduced. That would then leave me with thetwo charts dated 30th September and 14th October 2008, where driver Andrew had

pulled the fuse.

156. In respect of driver McDonald and with reference to his chart,dated 4 th August 2008,

Mr McLaughlin submitted that there was evidence from other drivers that a mistake

could be made when entering information on the centerfield of a chart where a driver

was regularly working between the same two locations. The other explanation was his

william j will

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