It was ‘unfair’ that the operator was not warned about the TC’s consideration to disqualify O-Licence, hears Tribunal
The three-year disqualification from holding or obtaining a PSV O-Licence of Bournemouth-based Cavendish School of English and its Director, Marcus Barber, by Traffic Commissioner (TC) Kevin Rooney after he had revoked its two-vehicle restricted licence because its minibus was driven by an unqualified driver who had been smoking cannabis, is to be reconsidered by the TC following an appeal to the Upper Tribunal.
The licence was granted in February 2018 after the 12-vehicle national licence held by the associated Cavendish Liner was revoked.
On 14 July 2019, a minibus driven by Justin Fayer was checked by police. Mr Fayer was at the location to collect a group of language students to take them to Heathrow Airport. He was not the holder of a Driver Certificate of Professional Competence, nor did he have entitlement to drive the minibus for hire or reward. Mr Fayer smelt strongly of cannabis and was arrested. He admitted to being a regular cannabis user and subsequently failed a drug test.
Making the revocation and disqualification orders, the TC said that the use of a vehicle, whose MoT had long-since expired, by a driver without entitlement or professional qualification and: Who was over the drug-driving limit; who was not having tachograph records checked; who was not recording daily walk-round checks; and who was driving a vehicle with haphazard maintenance, reflected a position of total chaos where all management control had failed [routeone/Court Report/6 November 2019].
Before the Tribunal it was maintained that it had been unfair of the TC to disqualify without expressly warning at the PI that this was an action he was contemplating. Had it been indicated that disqualification was in mind, there would have been a chance – which would have been taken – for those attending the PI to provide relevant information, which the TC would then have taken into account with respect to the proportionality of disqualification.
In remitting the matter of disqualification to be reconsidered by the TC, the Tribunal said that the considered decision not to take legal advice, which might well have led to advice being given as to the need to address disqualification issues, had been taken by the company. Also, perhaps on one view, a rather cavalier decision had been taken by the statutory director Mr Barber not to attend the PI in person.
However, they also accepted that disqualification was not raised at the PI, that the company and Mr Barber were not legally represented and that, importantly, there was something pertinent, which had the question been asked, those attending the PI could have said which might have had relevance to the TC’s assessment as to the proportionality of disqualification either with respect to the decision to disqualify at all or with respect to the setting of an appropriate period.
