Decision

Decision for Mansel Davies & Son Ltd (OG0061783)

Published 11 December 2020

In the Welsh Traffic Area

Decision of the Traffic Commissioner

Public Inquiry held in Caernarfon on 24-25 November 2020

1. Background

1.1 Operator details

Mansel Davies & Son Ltd (“MDSL”) holds a standard international goods vehicle operator’s licence (OG0061783) for 160 vehicles and 130 trailers. There are 141 vehicles specified on the licence at the date of this decision. The licence was granted in November 1995. The directors of the company at the time of the DVSA investigation in 2018 were David Mansel Kaye Davies (“DMKD”) and his son Stephen Mansel Edward Davies (“SMED”). According to Companies House records, DMKD was the chairman, SMED the managing director. Both were directors for many years before the DVSA investigation. DMKD resigned as a director on 9 November 2020 and SMED resigned as a director on 13 November 2020. The current directors are Sasha Davies (appointed in January 2019) and Scott Mansel Davies (appointed on 1 June 2020). Sasha Davies and Scott Davies are the children of SMED.

1.2 Transport managers

At the time of the DVSA investigation in 2018 the transport managers on the licence were SMED and Rhodri Wyn. Both resigned as transport managers on 13 November 2020. The sole transport manager on the licence is now Jamie Evans, whose application to be nominated on the licence was received in August 2018. An application to nominate Sasha Davies as a second transport manager was received on 16 November 2020.

2. DVSA Investigation

In February 2018, following the issue of an S-marked prohibition (denoting a significant failure in maintenance) to one of the operator’s vehicles, DVSA carried out a desk-based investigation of MDSL’s maintenance and drivers’ hours records for the three month period 1 October to 31 December 2017. Four drivers were found to have made false tachograph records during that period (ie they withdrew their tachograph card from the vehicle unit but carried on driving, thereby attempting to disguise drivers’ hours offences), and other drivers’ hours offences were discovered, including driving beyond the permitted maximum daily and fortnightly driving times and failing to take the required amount of daily rest. Set against the number of drivers and shifts examined, the level of non-compliance discovered was not especially serious, although the way in which the company was drawing the attention of drivers to offences (through a note in their payslips) was inadequate.

Much more seriously, the DVSA’s investigation discovered that around 45 of the company’s preventative maintenance inspection (“PMI”) records appeared suspicious, in that they were unusually clean, lacked details of defects, vehicle condition etc and had not been signed by fitters as was the case with other records. DVSA reported that an administrative assistant, Jonathan Phillips, appeared to have been creating some PMI records to make it look as if the vehicles had been given their four-weekly or six-weekly (dependent upon vehicle type) PMIs when this was in fact not the case. Cross checking against vehicle tachograph records and fitters’ time sheets, DVSA found some 19 instances where vehicles could be shown to have been in use at the time they were supposedly receiving their PMIs. There were a further 15 “vehicle off road” (“VOR”) or “laid up” sheets (in place of a PMI) for five vehicles over the three month period, yet other records showed that the vehicles had in fact been in commercial use, one for as much as 16,000km, during that time. 11 other PMI records appeared false in that the odometer readings on the PMI date were shown through a comparison with tachograph data to relate to another date entirely: again, fitters’ sheets showed no record of a PMI being carried out on the claimed dates. All 45 documents appeared to have been signed off by SMED in his capacity as transport manager.

DVSA originally prosecuted MDSL, SMED and Jonathan Phillips on 36 counts of falsification. The company subsequently pleaded guilty to 19 charges of making a false instrument and was convicted on 25 September 2019 in Swansea Crown Court. On 11 February 2020 the Court fined the company £380,000 with costs of £120.000. Jonathan Phillips was also convicted on the same 19 counts on 20 January 2020, and on 11 February 2020 was sentenced to nine months imprisonment suspended for two years, as well as being ordered to pay £1640 in costs and surcharges. SMED had pleaded not guilty to the charges and his prosecution was dropped after the company pleaded guilty.

3. Public inquiry

The Senior Traffic Commissioner asked me in 2019 to handle the public inquiry into the operator once the case had cleared the courts, because the then traffic commissioner for Wales, Nick Jones, had attended a civic event at which SMED had been sworn in as High Sheriff of Dyfed. Although TC Jones had sat next to someone else at the event, he was anxious to avoid even the perception of any possibility of bias and therefore recused himself.

After the court handed down the sentences in February 2020 I had intended to issue the call-up letters in March 2020, for a public inquiry in May. However, the COVID-19 pandemic intervened and it proved not to be possible to issue the call-up letters until 18 August 2020. The inquiry was initially set to take place in Caernarfon on 22-24 September 2020.

3.1 New application from Mansel Davies & Son Group Ltd

On 14 September 2020 the central licensing office in Leeds (CLO) received an application for a standard international licence for 150 vehicles and 130 trailers from Mansel Davies and Son Group Ltd (“Group”). The directors of this company are Sasha Davies, Scott Davies, Shan Davies (SMED’s wife) and Jamie Evans. The accompanying letter from Backhouse Jones stated that the intention was that MDSL would surrender its licence if Group’s application were granted. It stressed that none of the above directors had been directors of MDSL at the time of the DVSA investigation. The letter acknowledged that it was too late formally to include the application in the public inquiry but asked that I be made aware of it.

3.2 Argument that the company’s conviction was spent

The operator’s legal representatives, solicitor James Backhouse and barrister Mark Laprell, subsequently expressed concerns that they would not have sufficient time to prepare adequately for the inquiry, the inquiry bundle (as opposed to the call-up letter) having reached the operator only at the end of August. At a case management hearing on 15 September 2020, I agreed to postpone the inquiry until 24-26 November. The main argument advanced by the operator’s legal representatives, with which I had some sympathy, was that the extra time was needed in order for the large amount of documentation to be gone through and for the transport consultancy Foster Tachograph to audit the operator and prepare a report on current maintenance and drivers’ hours compliance.

A few days before the inquiry, I received a skeleton argument from Mr Laprell, for which I was grateful. One of his major points was that MDSL’s conviction, incurred on 25 September 2019, was now spent under the Rehabilitation of Offenders Act 1974 as more than 12 months had passed since the conviction which had resulted in a fine. At the opening of the inquiry in Caernarfon on 24 November he expanded on this point, citing various case law to support his case that legal as well as natural persons benefitted from the 1974 Act’s provisions.

I have considered the points made but I do not agree that I must treat the conviction as spent. The reasons for this conclusion are:

• the call-up letter of 18 August 2020 had originally set 22-24 September as the dates for the inquiry. Because of the difficulty in finding a Covid-compliant venue, the dates were subsequently revised to later in September; on 15 September the inquiry was further postponed until November.at the operator’s behest. But on the date of the call-up letter (and on the dates of the inquiry in that call-up letter) the company’s conviction was less than a year old. It would not be in the interests of justice to exclude consideration of it on a technicality;

• in any event, paragraph 24 of the senior traffic commissioner’s statutory guidance document no 1 states clearly that: “The convictions of corporate bodies are not subject to the Rehabilitation of Offenders Act 1974. Section 1 of the 1974 Act specifically refers to conviction of an “individual”.” Mr Laprell argued that, in this context, the word “individual” could equally refer to a “person” and cited the 1974 Act’s guidance notes and case law (not related to the 1974 Act) to this effect. However, I note that the guidance notes, in the section entitled “What is the Rehabilitation of Offenders Act 1974?” also state that “the 1974 Act treats a rehabilitated person as if he or she [my emphasis] had never committed…the offence”. There is no reference to “it” as might be expected if legal persons were intended to be included. Further, Mr Laprell was unable to give any example of where a company had benefitted from the provisions of the 1974 Act;

• the conviction of Jonathan Phillips, being a prison sentence of nine months, is certainly not spent. Given that the company in its basis of plea accepted that someone at director level had instructed Mr Phillips to falsify 19 records, I am firmly of the view that it is entirely legitimate to consider at this inquiry the falsification offences and the potential consequences for the repute of the company and its officers.

3.3 DMKD’s resignation and non-attendance

On 17 November 2020, one week before the inquiry was due to open, I received an email from Richard Wadkin, solicitor, acting on behalf of DMKD. He explained that DMKD would not be attending the inquiry as he was in poor health. The note informed me that DMKD had resigned as a director of MDSL on 9 November 2020. It further argued that, as DMKD was no longer a director of the company, he could not be disqualified from holding a licence in the future, as the disqualification provisions in Section 28 of the 1995 Act applied only to existing directors.

3.4 Rhodri Wyn’s resignation and non-attendance

On 20 November 2020 I received a letter from David Glover, solicitor, acting on behalf of Rhodri Wyn, who had been called to the public inquiry as one of the two transport managers at the time of the DVSA investigation. The letter informed me that he had resigned as transport manager on 13 November 2020 and would not be attending the inquiry. It was hoped that I would refrain from making a finding against Mr Wyn’s good repute.

3.5 Inquiry attendees

Present at the inquiry were current MDSL directors Sasha Davies and Scott Davies, transport manager Jamie Evans, transport consultants Stuart Brooks and Gordon Humphreys and accountant Neil Pugh. The company was represented by James Backhouse, solicitor, of Backhouse Jones and counsel Mark Laprell. DVSA traffic enforcement manager Gary Myers attended via video link; DVSA was represented by counsel Justin Evans. SMED was not present: Mr Backhouse explained that SMED did not wish to put himself in a position where he might incriminate himself if I sought to question him on whether he had been involved in the falsified documents.

3.6 The company’s case

The arguments advanced on behalf of the company over the two days of the inquiry essentially boiled down to the following points:

• the good repute of MDSL should be judged at the date of the inquiry, not on what had been going on in late 2017;

• it was accepted that the company had falsified 19 PMI records out of the 410 looked at by DVSA. This was a relatively small percentage, showing that falsification was not the standard practice. But occasionally schedulers had failed to ensure that the vehicles were sent in for maintenance when due: this was when the false PMI records had been created;

• the 15 VOR records were not false documents: a document was only false if the person filling it in knew at the time of doing so that it was false. But it was accepted that the documents were inaccurate, since the vehicles to which they related had not in fact been off the road for the whole of the period covered by the VOR records. A mitigating factor was that three of the five vehicles had only been driven for 1000-2000km during the three month period (although I noted that the remaining two had been driven for 7600 km and 16,000 km respectively - considerable distances at a time when they were supposed to be “laid up”;

• falsification of documents had ceased the moment DVSA had commenced their investigation. Gordon Humphreys of Foster Tachograph had conducted exhaustive analyses of vehicle maintenance records for both 2019 and 2020, cross-checking with tachograph data and fitters’ time sheets, and had found that all PMI records were genuine. Giving evidence to this effect, Mr Humphreys added that he rated MDSL at the “top end of the compliance scale” in 2020 (for both maintenance and drivers’ hours compliance);

• the drivers’ hours offences discovered during the DVSA investigation were relatively few in number compared with the number of driver shifts. There was no evidence that the company had encouraged driving without the card – the opposite in fact;

• Mr Humphreys had found that some PMI intervals had been stretched beyond the 4 or 6 week stated intervals in 2019 and 2020, but the delays were mostly quite short and their number had been declining over time;

• new directors Sasha Davies and Scott Davies understood that SMED and DMKD had not managed things correctly. Their detailed evidence at the inquiry about the way in which the business was currently managed showed that, though young, they were highly competent, mature and determined to operate compliantly and independently of the previous directors;

• these young directors had made significant improvements to the operator’s systems, including – in summer 2020 - putting most PMIs onto an electronic format which could not be tampered with;

• Stuart Brooks, former group compliance manager at blue chip company C M Downton Ltd, had been brought in around six weeks ago to work two to three days a week with the company to improve compliance systems and management practices further. He was now willing to be nominated as a third transport manager: he would not be putting his good repute on the line in this way if he were not convinced that the company had reformed itself and was committed to compliance;

• Neil Pugh, a partner of Cardiff firm Watts Gregory LLP, was intending to become the company finance director when he retired from Watts Gregory in 2021. He would not be joining if he thought there was any prospect of the company coming again before the courts or traffic commissioner;

Mr Laprell’s conclusion was that, while it had taken some time to turn the tanker around after October-December 2017 – MDSL was a large operator – by 2019-20 the company had made significant improvements to its systems and now had a good compliance record. The Priority Freight question of how likely was it that the company would comply in the future could only be answered in the positive.

3.7 DVSA view

For DVSA, Justin Evans cautioned against losing sight of the wood for the trees. The fact remained that the falsification of PMI records was an egregious offence, whatever the percentage of documents falsified. The company’s malpractice had compromised public safety and it should be held to account for that.

3.8 Extent and duration of falsified PMIs

During the inquiry there was some discussion of the extent of the falsification and its duration. For the company, Mr Laprell accepted that 19 PMI records had been falsified – these were the instances which DVSA had prosecuted and for which the company had pleaded guilty. Then there were 15 VOR records, which Mr Laprell asserted were “inaccurate” rather than falsified – the vehicles concerned had been driven to a greater or lesser extent during the supposed VOR period. There were 11 other PMI records which DVSA had considered had been falsified but had not been prosecuted. Most (but not all) of these records are in File 4 of the DVSA bundle presented to the inquiry. In his evidence to the inquiry, Gary Myers stated that they were all of the same “suspicious” type: sparse in detail, with no fitter signature and just the scribbled TM signature, and with no corresponding fitter time sheet to suggest that the vehicle had genuinely been worked on on the date on the PMI sheet. Mr Myers’ analysis of these 11 records is exhaustively set out on pages red 42-49 of File 1 of the DVSA bundle.

I have looked further at some of the 11 non-prosecuted cases in File 1 (pp42-49) and File 4. I note that, for example, the PMI sheet for T90 MDS, dated 16 November 2017 and with an odometer reading of 503649km (red page 1555 in File 4) has only the TM’s signature on page 2 of the PMI record. The tachograph data for the vehicle shows that the vehicle was in motion during a day’s normal use by a driver on 15 November 2017 at the time when the odometer reading was at 503649km.

The PMI sheet for P16 MDS dated 13 December 2017 – again signed off only by the TM and not by a mechanic - showed an odometer reading of 865597km (page 1525 of File 4). The tachograph data shows the vehicle to have been in use throughout the day, starting at 865525km and finishing at 865689km. There are fitters’ time sheets showing that minor ad hoc repairs were made to various defects on the vehicle (eg washers, lights) on 11, 15 and 18 December 2017, but no PMI on 13 December was recorded. It is clear to me from the PMI documents in File 4 that the falsification went wider than just the 19 records prosecuted and I make a formal finding that this was so.

Also in DVSA’s evidence bundle was a statement from Kenneth Jennings, a driver who worked for MDSL from 2013 to May 2015 when he ceased working after being injured in a road traffic accident involving his MDSL vehicle. There was insufficient evidence to warrant any finding that the accident was caused by poor maintenance. However, Mr Jennings also alleged that his vehicle T80 MDS did not have PMIs carried out in February, March or April 2015, and that the PMI records for the vehicle dated 13 February, 14 March and 13 April 2015 were therefore false. Mr Jennings produced his time sheet records (which included start and finish odometer readings) showing that the vehicle had been parked up at the depot in Letterston (where he stated no PMIs on vehicles were carried out) on the dates concerned: the odometer readings showed that the vehicle could not, between his shifts, have travelled the 68km round trip to and from the depot at Llanfyrnach for a PMI. Mr Laprell pointed out that PMIs on trailers were certainly carried out at Letterston: it was not inconceivable that PMIs on vehicles were carried out from time to time as well. I note that no one from the company was able to shed any light on this, as those who could have done so had chosen not to attend. Mr Jennings’s time sheet does show that for the January 2015 PMI he took the vehicle to the Llanfyrnach depot, lending weight to his assertion that this was where PMIs for the vehicle were carried out. On the balance of probability, I find that Mr Jennings’s claim that T80 MDS was not given a PMI in February, March and April 2015 to be made out.

3.9 Poor maintenance practices

In addition, Mr Jennings stated that the company’s failure to deal with a long-standing water leak (which he had repeatedly reported to MDSL without anything being done) from the engine of his previous vehicle X28 MDS led to the vehicle breaking down on a hill near Devizes in late 2014, in what Mr Jennings described as a “dangerous position”. Further, Mr Jennings reported that around Christmas 2014 he had been driving T80 MDS when he heard thudding from the rear wheels: he discovered that the bolt stud holes in the wheel had become elongated and the thread had been taken off the wheel nut studs. If it had been an outer wheel it would have become detached. In sum, he believed that the company’s attitude to maintenance was “very poor”.

Also in DVSA’s evidence bundle was a witness statement from Mark Taylor, a fitter employed by MDSL from April 2018 to March 2019. Mr Taylor made a serious allegation that a PMI had been falsified in August 2018 (ie after the DVSA investigation). After hearing representations on this from Mr Laprell I accepted that the evidence was insufficient to support this allegation. However, Mr Taylor also produced records showing that on occasion he had been instructed by DMKD to send vehicles out of a PMI without having conducted a full inspection and with some defects not having been rectified. For instance, the PMI sheet dated 9 July 2018 for vehicle R80 MDS was marked “full inspection not carried out per instruction KD [ie DMKD] as MOT only carried out 30 days ago”. The PMI for K700 MDS, dated 27 July 2018, identified leaks from the thermostat housing and “manifold gasket u/s” but recorded “no action per instruction KD”. Vehicle N18 MDS was given a PMI on 6 August 2018, with Mr Taylor recording against the defect “nearside rear drive axle disc insecure” the words “no action KD”.

I was also struck by some of the evidence given by the current directors which also hinted at what had gone on. Sasha Davies, who had only a junior scheduling role in the company in 2017, said that she was aware that things were not properly done in 2017. Vehicles were given PMIs “if they were around”. From mid-2018, when she had become aware of the DVSA investigation, she had taken an interest in ensuring that PMIs were done on time. Her grandfather DMKD was rather old school and regularly said that vehicles “did not need a PMI today”. She had had to put her foot down and insist that they were done to time.

Jamie Evans, transport manager (and a director of Group although not of MDSL), stated that when he had been nominated as transport manager in August 2018 he had found that DMKD had an “if it’s not broke, don’t fix it” approach. They had had arguments about this and things had improved from the latter half of 2018. In 2018 there had been almost constant breakdowns of vehicles – on a daily basis. Breakdowns were far fewer now.

4. Considerations

In arriving at my findings I have been conscious that the philosophy of preventative maintenance – inspecting and maintaining vehicles at appropriate intervals so that they remain above minimum roadworthiness standards at least until the next PMI – is at the heart of the UK’s goods vehicle operator licensing system. That is why, when they apply for an operator’s licence, operators are required to specify the intervals at which vehicles will be given PMIs and to promise that these intervals will be adhered to. An operator which adopts a “fix it only when broken” approach, and which falsifies PMI records, fires an arrow straight into this heart.

Considering the evidence, both documentary and oral, it is clear to me that the culture in MDSL did not pay due respect to the preventative approach. This failure meant that vehicles came to the workshop more often than they would otherwise have done for various defects to be fixed as they arose; they also had to be frequently recovered from or repaired at the roadside. Vehicles went out from the workshop with defects identified during the PMI not yet fixed. Sometimes PMIs were missed altogether as vehicles were kept busy in service. When DVSA commenced their investigation someone at the operator (and it must have been either DMKD or SMED) ordered Jonathan Phillips to constitute PMI documents to make it look as though vehicles had had their PMIs. Other documents dishonestly made it appear as if the vehicles had been off the road for the three month period and had not therefore needed PMIs. The total number of documents which were falsified or dishonest is not wholly clear, but it was somewhere between 34 and 45 (with the number of falsified PMI records being between 19 and 30). Both the order to Jonathan Phillips and the creation by him of false (or dishonest) documents were disgraceful acts.

In saying this I have a little sympathy for Mr Phillips who was carrying out (albeit illegal) orders rather than being the motive force behind them. Although I understand DMKD’s and SMED’s wish to avoid incriminating themselves, I note with disquiet and disappointment that the consequence of the falsified records has been a prison sentence for Mr Phillips while they have had no action taken against them. It is the antithesis of good leadership and reputable behaviour to conduct a haulage business in such a manner as to visit the consequences of one’s own misdeeds upon a relatively junior employee.

No one at director level (at the time of the DVSA investigation) in MDSL has taken responsibility for the company’s misconduct. Both DMKD and SMED resigned as directors only a few days before the public inquiry and, despite being called to that inquiry, chose not to attend.

In the course of considering this case, I also had regard to the outcome of a public inquiry which MDSL attended in March 2013. The deputy traffic commissioner Anthony Seculer curtailed the licence by ten vehicles for three months, concluding that “the quality and frequency of safety inspections need to be improved”, and imposed undertakings re increased inspection frequency. He further stated that the “message needs to be clear to the company, its drivers and staff that continued non-compliance will jeopardise the licence and their livelihoods.” The company could not say that it had not been warned. It is astonishing in the face of this warning that, far from effecting the necessary improvements, it was responsible for the kind of malpractice described above.

5. Findings

I make the following formal findings:

• MDSL has failed to keep its promise, made on application and subsequently amended in terms of weeks, that vehicles would be inspected every four weeks (off-road farm-going vehicles) and six weeks (articulated vehicles) (Section 26(1)(e) of the 1995 Act refers);

• MDSL has failed to fulfil its undertaking to keep vehicles fit and serviceable (Section 26(1)(f) refers);

• MDSL has falsified up to as many as 30 PMI records, and at any rate more than 19. In addition it has created 15 records purportedly showing that vehicles were off the road and therefore did not need PMIs, whereas in reality the vehicles were being operated on some days during the supposed VOR period and therefore would have required PMIs. Falsification of records is an offence under Section 38 of the 1995 Act;

• the falsification of records was not confined to the October – December 2017 period. There is evidence that such falsification was also being practised in 2015,

• the practice of sending vehicles out of the workshop with incomplete PMIs was continued well into 2018;

• DMKD and SMED presided over a toxic maintenance culture at MDSL. The culture was wholly at odds with the preventative maintenance philosophy. It was not a temporary aberration but of long duration;

• although there have been deficiencies in the monitoring of drivers’ hours compliance and the tackling of infringements, improvements have been made and the level of offending is not serious enough to warrant regulatory action on that account.

6. Conclusions

6.1 Balancing act

I have weighed up these findings against the positive features cited by Mr Laprell and summarised in paragraph 15 above. I have concluded that the depth and duration of the company’s maintenance malpractice – reflected in the record fine imposed by the court - is so serious as to far outweigh more recent improvements and the introduction of new, more capable and more ethical directors. The company is irredeemably tainted by its conduct in failing to operate properly a preventative (rather than reactive) maintenance system and in attempting to cover this up by falsifying maintenance records. Its methods have put its employees and other road users in danger, as well as constituting grossly unfair competition against those hauliers who run compliant maintenance regimes.

The company is also tainted by the continuance in office, right up until the last few days, of the two directors responsible. Whilst I accept that improvements have been made in 2019 and 2020, it was also the case that even as the DVSA investigation was in progress in 2018, some vehicles were not being given effective and thorough PMIs and DMKD was still managing by his old school methods.

6.2 Priority Freight and Bryan Haulage questions

Mr Laprell invited me to conclude that I could have confidence that MDSL would comply in future, the Priority Freight question. After much consideration, I am unable to do this. The breach of trust by the company has been so great and the directors responsible so little inclined to admit responsibility that I cannot, looking at the overall record of the company, be confident that it will comply in the future.

The Priority Freight question having been answered in the negative, that would tend to suggest an affirmative answer to the Bryan Haulage question of whether the company deserves to go out of business. For the reasons outlined above, I firmly believe that it does.

7. Decisions

7.1 Revocation of the operator’s licence

I have concluded that the company, by reasons of its serious maintenance malpractice and conviction for falsifying documents, is not of good repute and deserves to go out of business. I am accordingly revoking its licence under Section 27(1)(a) of the 1995 Act (as well as Section 26(1)(e) and (f)), with effect from 0001 hours on 1 February 2021.

7.2 Transport manager Rhodri Wyn – disqualification

Rhodri Wyn was nominated transport manager in October 2013, in fulfilment of an undertaking given at the March 2013 public inquiry to appoint a replacement transport manager for the inadequate DMKD (who had been a transport manager on the licence up to that point). Mr Wyn should have known from this context that it was important that he exercise his transport manager’s responsibilities effectively. Instead, he proved to be a transport manager in name only. This was abundantly clear from his interview with DVSA in 2018 when he accepted that he worked in reality as a transport planner and had not been able to impose himself on the other transport manager SMED or on DMKD who had run the company as they saw fit. When interviewed, Mr Wyn displayed no knowledge of the drivers’ hours or the maintenance issues raised by the DVSA’s inquiry.

Because Mr Wyn completely failed to act as the second pair of eyes that DTC Seculer had clearly considered so important (although his presence as second nominated TM on the licence gave the outward impression that such a pair existed); because he completely failed to identify or do anything about the substantial maintenance malpractice which ensued; and because he has sought to evade responsibility by resigning as TM just a few days before this public inquiry, I conclude that he is not of good repute. That being the case, I am obliged to disqualify him under paragraph 16 of Schedule 3 to the 1995 from acting as a transport manager under any licence. I do so for an indefinite period of time, although Mr Wyn may in the future apply for a hearing at which to argue for the disqualification to be time-limited or cancelled. I understand from his solicitor’s letter however that he does not intend to act as a transport manager again, and I consider that this is for the best.

7.3 Transport manager Stephen Mansel Edward Davies -disqualification

SMED was one of the two transport managers at the time of the 2013 public inquiry (the other being DMKD). He was therefore fully aware of the need to ensure timely and thorough PMIs in future. Instead of doing so, however, he presided over a system where some PMIs were not done at all, others were incomplete and where vehicles were leaving PMIs without some defects being rectified. As noted above, this was a substantial failure to implement the basic maintenance approach which is at the heart of the regulatory system in Great Britain. Whether SMED instructed Jonathan Phillips to falsify PMI records or whether he signed those records without doing any checks on their obvious inadequacy (they contained no information at all and had not been signed off by a fitter) scarcely matters: neither course of action is the standard of behaviour expected of a reputable and competent transport manager. Representing SMED, Mr Backhouse accepted that SMED was not of good repute in 2017 at the time of the falsifications. But he argued that SMED had since rehabilitated himself by virtue of the improvements in compliance since that time (the precise phrase used by Mr Backhouse was that SMED had “not inhibited” the improvements, which was perhaps somewhat faint praise). I have noted above that the turnround was slow: still in 2018 there were examples of vehicles being given incomplete PMIs, and DMKD and his culture of not fixing things until broken was clearly still influential when Jamie Evans was appointed as transport manager in August 2018.

Further, I was unimpressed by the fact that SMED chose not to attend the public inquiry. His absence has prevented me from questioning him to assess whether or not he has rehabilitated himself. I cannot therefore conclude that such rehabilitation has taken place.

A transport manager is supposed to be the public’s guarantee – through the traffic commissioner - that a company is operating safe and roadworthy vehicles. Through his actions SMED has betrayed the trust that the public and traffic commissioner put in him. I find that he is not of good repute as a transport manager and I disqualify hm under Schedule 3 from acting as a transport manager in the future. The disqualification is indefinite: any transport manager on whose watch PMI records are falsified and vehicles not given effective PMIs should not expect this trust to be extended to him again.

7.4 Directors David Mansel Kaye Davies and Stephen Edward Mansel Davies – disqualification

I have considered whether to disqualify DMKD and SMED under Section 28 of the 1995 Act from holding or obtaining an operator’s licence in the future, and from being the directors of a company holding or obtaining such a licence. For the reasons outlined in paragraphs 26 to 33 above, and having performed the same balancing act described therein, I conclude that both directors should be so disqualified. In deciding upon the length of the disqualification, I have taken account of paragraph 100 of the STC’s Statutory Guidance Document 10. This states that: “Serious cases, where, for example, the operator deliberately puts life at risk and/or knowingly operates unsafe vehicles or allows drivers to falsify records, may merit disqualification of between 5 to 10 years or in certain cases for an indefinite period.” MDSL did indeed knowingly operate unsafe vehicles, and consciously operated vehicles that it knew had not had their PMIs, with either DMKD or SMED (it matters not which) ordering a junior member of staff to falsify documents to try to cover this up. This junior member of staff was left to carry the can with a prison sentence, with DKMD and SMED refusing to take responsibility for what one of them had done. This is right at the top end of the scale of non-compliance (as the company’s consultant Mr Brooks affirmed, in his evidence) and justifies an indefinite disqualification. Neither man should ever again hold an operator’s licence or be a director of a company holding one.

I have rejected the argument of DMKD’s solicitor Mr Wadkin that I am unable to disqualify DMKD because he is no longer a director. It is common practice for traffic commissioners to disqualify directors who acted as such during the period investigated by DVSA and who later resigned in an attempt to evade their responsibilities. DMKD only resigned as a director on 9 November, two weeks before the public inquiry. I note that Mr Backhouse, SMED’s legal representative, did not seek to argue that SMED was immune from disqualification.

MDSL as a company is fatally compromised by its conviction and the malpractice which led up to it. As with DMKD and SMED, it should not hold an operator’s licence again. I am disqualifying it from doing so for an indefinite period of time (Section 28 of the 1995 Act refers).

8. Application for a licence made by Mansel Davies & Son Group Ltd

I would like to put on record that I was impressed by those directors of Group (Sasha Davies, Scott Davies and Jamie Evans) who gave evidence at the inquiry. Sasha Davies has acquired a transport manager CPC qualification at a very young age. Scott Davies is still a mechanical engineering student: he came across as having both an inquiring mind and hands-on practical experience. He has already imported some best practice from his experience working in a main dealer workshop. Jamie Evans was brought in by SMED in mid-2018 (to do justice to SMED, he clearly realised the severity of matters and that a new transport manager was required) and started off the process of improvement. Combined with the experience of Stuart Brooks as a third transport manager on the licence (together with Sasha Davies and Jamie Evans), and ongoing audits by Gordon Humphreys (at least for an initial period), I could imagine granting a licence to Group.

There is one large caveat however. I do not believe that the general public would understand if the licence of Mansel Davies & Son Ltd were to be revoked on account of the extensive malpractice described above, only for a licence to be granted to Mansel Davies and Son Group Ltd, operating the same vehicles in the same livery from the same operating centre. At the inquiry, the new generation was presented to me as marking a huge shift in company culture – the injection of new ideas, a modern approach, proper ethics and a completely fresh start to the business. To a large extent I am prepared to buy that. But I believe that the fresh start would be more real and visible to customers, employees, the general public and the regulator if Group were to change its name so that the name Mansel Davies no longer appeared. I recognise that it will not be easy for the Mansel Davies family to effect such a change, but in my view the necessary cultural change will only be achieved and embedded if Group goes forward with a new name. I recognise that, with 141 liveried vehicles in the current fleet, it will take some time to translate any name change onto the vehicles. I am currently exploring with the directors of Group what an urgent but practicable timetable for change might look like, before reaching a final decision on the application.

If the application is granted, there must be no perception (still less the reality) that either DMKD or SMED continue to have a managing role in the business or any involvement with vehicle maintenance or compliance more generally. Their time in charge of the business has gone. If there is any attempt to claw it back behind the scenes, the new company’s good repute is likely to be forfeit and its licence revoked.

Nicholas Denton

Traffic Commissioner

9 December 2020