Multiple company convictions could lead to O-licence loss

By Categories: NewsPublished On: Tuesday 8 April 2014

beverleybellThe senior traffic commissioner, Beverley Bell (pictured), has warned that companies operating commercial vehicles within specialist industries with multiple convictions against them could lose their repute or fitness to hold an operator licence – in contrast to guidance issued by her predecessor.

A recent public inquiry regarding the O-licence held by United Utilities Water Plc had “shone a spotlight” on issues that can arise when a business is regularly prosecuted by an enforcement agency, Bell said.

The inquiry was called to consider numerous prosecutions by the Environment Agency and Cumbria County Council between 2009 and 2013, which had resulted in fines totalling over £600,000.

While the company had notified the traffic commissioner of the offences in line with requirements, it had not provided details of the circumstances on many occasions. The company had also identified some offences as being of strict liability.

During the course of the enquiry, the argument was made that operators such as United Utilities will always attract convictions given the nature of their business; and Bell accepted in a written decision that the convictions did not fall within a list of ‘relevant convictions’ specified within the Goods Vehicles (Licensing of Operators) Act 1995.

But she added that the law requires traffic commissioners to have regard to all material evidence when considering repute, particularly if previous conduct could appear to relate to a company’s fitness to hold a licence.

Having assessed the recorded convictions, Bell said that “if this operator had been an individual then it would have been liable to loss of repute” –  but concluded that it would be “manifestly unfair” to make such an order in this case, in view of earlier guidance issued by the previous senior traffic commissioner.

“My predecessor… engaged in correspondence with operators of this kind through its trade association that convictions of the nature recorded against this operator will not lead to loss of repute… I am concerned that this has given the wrong message to operators such as this,” Bell said.

“I no longer consider it acceptable for operators to simply notify their local traffic commissioner that they are being convicted of offences and to say nothing more. [The law] clearly requires the traffic commissioner to consider whether the operator’s conduct as evidenced by the convictions relates to the company’s fitness to hold a licence.

“It is now therefore incumbent on operators such as these who attract convictions to not only notify the conviction itself to the traffic commissioner but also to provide a full and detailed explanation of the circumstances of the offence(s) and of the subsequent remedial action.

“It is no longer sufficient to merely notify the commissioner and to say that the offence is one of strict liability. On receipt of all relevant information, the traffic commissioner will then be able to consider the [relevant provisions] and to make findings accordingly.”

Bell added: “It also occurs to me that operators in this situation would be well advised to make contingency plans in the event of a loss of repute but that will be a matter for each individual operator.

“In an attempt to give guidance to this industry, I make it clear that if United Utilities wishes to form a separate subsidiary company that has as its sole purpose the provision of transport for United Utilities in connection with its trade or business then that would be an acceptable solution.

“The benefit of such an approach would be to separate the transport activities of the subsidiary company from the main company which would allow the transport operating company to focus solely on its transport activities and thereby achieve proper compliance.”

But she added: “Such an approach should also ensure that the transport operating company does not attract the convictions that United Utilities has.

“If the transport operating company did attract those convictions, a traffic commissioner might be more likely to find that the convictions relate to that company’s fitness to hold a licence… I understand that such an approach would require careful consideration due to a number of factors but it would have the desired effect of addressing the varying needs of the various regulatory regimes.”