Decision

Decison for Mark Jones

Published 8 March 2024

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

1. MARK JONES OK2024813

2. TRAFFIC COMMISSIONER’S DECISION

2.1 Goods Vehicles (Licensing of Operators Act) 1995

3. Reasons

Mark Jones holds a Restricted operator licence authorising 4 vehicles from two operating centres in the Croydon area. Mr Jones failed to attend a Public Inquiry on 21 February 2024. The call in letter and bundle were sent to him at the correspondence and email address identified by him on VOL where he will receive all communications. I am satisfied that Mr Jones was properly served and nothing would be achieved by me adjourning proceedings further. I have therefore concluded the case on the papers, having no additional questions for the Traffic Examiner.

The public inquiry bundle case summary sets out the full history which I copy below here for ease of reference: –

• Standard Licence OK2024813 was granted to sole trader Mark Jones on 29 July 2019.

• Enquiries were made during the application process about the nature of the work and an explanation as to why Mr Jones did not declare links to OK1097943 J C G Transport Ltd which was revoked in 2019 following dissolution of the company. Mr Jones was added as a director of this company in 2017. Mr Jones advised he was never an active part of the business and did not have any involvement running the vehicles. He confirmed his business is transport or soil and much from projects he undertakes.

• The Traffic Commissioner identified links to Rock and Muck Haulage Ltd and an application made by this company for a standard national licence OK2062787 made on January 2023. The sole director of Rock and Muck Haulage Ltd is Elle-Rae Balman. This application was due to be considered at a preliminary hearing but the Traffic Commissioner accepted withdrawal of the application. The Traffic Commissioner had concerns due to photographs of two of Mr Jones’ vehicles being photographed on the website for Rock and Muck Haulage. Photographs are included with this brief but the website is not longer active.

• A letter was sent to the Operator on 18 July 2023 requesting recent bank statements and to confirm whether a change of entity had occurred. The Operator responded on 9 September 2023 with a request to surrender the Licence. The Traffic Commissioner has not accepted the request to surrender.

• On 24 July 2023 YK17VMW was subject of a roadside encounter by the police and DVSA. The driver, Rares-Olimpiu Craciun, was driving without a card. 4 drivers hours offences were identified and a fine of £1,000 was issued. The driver stated he was employed by Rock and Muck Haulage, given instructions by Mark Jones and had picked up the vehicle from Paddock Wood. The operating centre specified on the Rock and Muck application is in Paddock Wood, Mark Jones OK202813 does not have a specified operating centre in Paddock Wood.

• The vehicle also did not hold any excise, tax was due on 1 May 2023.

• On 4 August 2023 Traffic Examiner Julia Mepsted attempted to contact Mark Jones but there was no answer. A Section 99 letter was subsequently issued informing Mr Jones that a visit would be conducted on 23 August 2023 with Police in attendance. TE Mepsted requested data be produced prior to the visit. An email was received on 21 August 2023 from Mr Jones requesting an appointment after 5 September 2023, a new appointment was arranged for 18 September 2023.

• The TE obtained registered keeper checks for the vehicles currently listed on VOL in respect of this licence:-

YO18 ZWB - Current keeper: Surrey Property Developments Ltd, Mark Jones, 12 East Street, Epsom. Date of acquisition: 01.02.2023 This company is now in liquidation, appointed 14 October 2023. YO18ZWB is now specified on OD2042359 – disposed of by Mr Jones on 28/08/2023.

YO18 ZWD - Current keeper: Build One London Ltd, Mark Jones, 356 Garth Road, Morden. Date of acquisition: 18.01.2023 and disposal 28/08/2023

NK17 UJD - Current keeper: Build One (London) Ltd, Mark Jones, Reaver House, 12 East Street, Epsom. Date of acquisition - 02.09.2022 and disposal 28/08/2023

YK17 VMW - Current keeper: Surrey Property Developments Ltd, 176 East Street, Epsom. Date of acquisition: 04.12.2021 and disposal 28/08/2023

• The Examiner also noted periods where there was not valid MOT in place.

• On 18 September TE Mepsted attended 122 Beddington Lane together with Police Officers, searched the area and found no evidence of Mr Jones or any vehicles. Phone calls were made to the mobile number listed on VOL with no response.

• On 14 November 2023 a cautioned letter and the previous S99 letter was sent to the email address on VOL for Mr Jones, requesting he attend an appointment at DVSA Belvedere office on 4 December to conduct an interview regarding the failure to provide documents under the S99 request and the drivers hours offences.

• Mr Jones did not respond to the email nor attend the office.

• Due to concerns that Mr Jones may be lending the sole trader licence to limited companies and the failure to respond to the DVSA S99 requests the Traffic Commissioner has called the Operator to Public Inquiry.

The Traffic Examiner Public Inquiry report (pages 61 – 140 of the PI bundle) sets out a catalogue of nefarious practices, systemic failings, and deliberate attempts to avoid investigation and potential enforcement action. Mr Jones has wasted a great deal of police and DVSA resource as they tried to obtain data, statutory records, and evidence under caution. Based on the compliance information available to DVSA there has been operation of vehicles without MOT, without vehicle excise duty paid, without the use of driver cards and when vehicles are in an unroadworthy condition. Mr Jones has prevented any meaningful follow-up to assess the extent of the failings or in terms of which entity/individuals have actually been operating the vehicles. Without wider explanation, I am satisfied that Mr Jones requested to surrender the licence was just one part of a catalogue of steps taken to prevent uncovering the full extent of mischief happening in the background.

Operator licensing is based on trust and attendance at a Public Inquiry was one final opportunity for Mr Jones to produce a positive account of himself and his business. The case management directions required relevant data and evidence to be sent to the Traffic Examiner and OTC in advance, together with an attendance sheet. There was no reply to the call in letter whatsoever and Mr Jones failed to attend in person or at all on 21 February 2024.

Based on the evidence that is available to me, I make the following findings of facts:–
- Unauthorised use of an operating centre (Paddock Wood), which is not only a breach of a condition on the licence but also a criminal offence under section 7 of the 1995 Act.

• During two separate roadside encounters in 2023 the operator’s vehicles were issued with immediate prohibition notices in relation to tyres and loose wheel nuts.

• Drivers have been issued with fixed penalty notices.

• Vehicles of been operated without a valid MOT (although I accept the pass rate itself is good) and where vehicle excise duty has not been paid.

• Rules relating to drivers’ hours and tachographs have being breached, to include driving without a card and the risk of false records.

• The operator no longer has the appropriate financial resources to support compliance. having failed to produce any financial evidence to the Inquiry.

Where an individual goes to such lengths to prevent scrutiny after a roadside encounter, they should not be taken by surprise where adverse findings follow. The extent of the avoidance is such that it is more likely than not this operator has been lending his licence to one or more individuals or entities. There is a real risk that Mr Jones and/or those in the background continue to try and operate under the radar. Apart from this being a first Public Inquiry there are no positives to materially impact my balancing exercise.

I have reminded myself of two helpful cases when considering appropriate action with nefarious practices in the background:

3.1 2007/459 KDL European Ltd

We are satisfied of the need “to make an example of the operator so as to send a warning to the industry as a whole”.  This is consistent with the approach by the five-judge Court of Session in the Thomas Muir case (see paragraph 2(xiii) above) where deterrence is expressly mentioned (“in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation”).  This is not by way of punishment per se but, as Lord Cullen said, is “in order to assist in the achievement of the purpose of the legislation”.  We answer the question posed in 2002/17 Bryan Haulage (No.2) “is the conduct such that the operator ought to be put out of business” in the affirmative.  And we judge this at the date not only of the public inquiry but also of the appeal.  This is a bad case and we hope that the message sent out will be clear to all

3.2 2019/025 John Stuart Strachan t/a Strachan Haulage

The Upper Tribunal confirmed the relevance of deterrent action: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”.

I do not trust Mr Jones either in terms of day-to-day compliance or with the integrity of the operator licensing regime. Operators must be left in no doubt that such significant failing to cooperate; deliberately avoiding any engagement with the police and DVSA and undermining the inquisitorial process, will have a starting point of SEVERE in terms of the Senior Traffic Commissioner Statutory Document No. 10 Annex 4. In this case the only appropriate and proportionate outcome is revocation. Accordingly, I have reached the decisions set out in paragraph 1 and 2 above.

The relevant case law and principles are set out in Chapter 13 of the Upper Tribunals Digest of Traffic Commissioner Appeals (2023) and Statutory Document No. 10 paragraphs 64 – 69 and 107 – 109. Disqualification is a potentially significant infringement of rights, and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification the Operator/individual are entitled to know the reasons. Disqualification is not always ordered in addition to revocation. As per 2009/011 Katherine Oliver and J W Swan & Partners, Catch22Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022:     “The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified. Each case must turn on its own merits”.  It follows that there are cases in which the seriousness of the conduct is such that revocation and disqualification are necessary for the purposes of enforcing the legal framework.

In my judgement a disqualification order should follow revocation in this case because:

• Mr Jones was given the benefit of the doubt on a false declaration when he made the original application in 2019. It appears now that trust was misplaced.

• Operating vehicles without vehicle excise duty is a fraud on the revenue and directly impacts fair competition. This is compounded by the failure to produce financial evidence when first requested in July 2023 and again for the Public Inquiry.

• In July 2023, six days after OTC making enquiries on financial resources and change of entity there was the roadside encounter with YK17VMW identifying serious issues across the board.

• Mr Jones has operated 4 x 32t vehicles (multi axle lethal weapons) with little or no regard for safety.

• Mr Jones ignored police and DVSA attempts to investigate concerns before and after the surrender application was submitted.

• Mr Jones has ignored the Public Inquiry process.

It is not possible to set a period of disqualification where there has been so little engagement. On the evidence before me now no set timescale would be meaningful. At present it is difficult to see what steps Mr Jones could take to rehabilitate himself in the eyes of the traffic Commissioner. The lack of cooperation from July 2023 to date has a direct impact on my ability and therefore to that extent Mr Jones’s own actions have worked against him in terms of disqualification. Accordingly, I have reached the decision set out in paragraph 3 above.

4. Decision

The application to surrender licence OK2024813 is refused.

Pursuant to adverse findings under section 26(1) (a), (c)(iii), (ca), (e), (f), and (h) of the Goods Vehicles (Licensing of Operators Act) 1995, Licence OK2024813 Mark Jones is revoked with effect from 23:45 on 1 March 2024.

Mark Jones is disqualified from holding or obtaining an operator’s licence or being engaged in the management, administration or control of an entity that holds or obtains such a licence for an indeterminate period with effect from 1 March 2024, as provided for by section 28 (1), (4) and (5) of the 1995 Act.

Miss Sarah Bell

Traffic Commissioner

Written confirmation: 28 February 2024