Neutral Citation Number: [2011] UKUT 182 (AAC)
Appeal No. T/2010/77
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Joan Aitken
Traffic Commissioner for the Scottish Traffic Area 
Dated 17 September 2010

Before:
Frances Burton, Judge of the Upper Tribunal
                                 Patricia Steel, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal

Appellant:
			JOHN MacEWAN T/A MacEWAN COACH SERVICES

	 
Attendances:            Gary McAteer

For the Appellant:           

Heard at:                   The Eagle Building, 215 Bothwell Street, Glasgow G2 7EZ
Date of hearing:        25 March 2011
Date of decision:      28 April  2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and the case remitted to the Traffic Commissioner for rehearing by another Traffic Commissioner or Deputy

REASONS FOR DECISION

1.	This was an appeal from the Decision of the Traffic Commissioner for the Scottish Traffic Area dated 17 September 2010 when, under s.17 of the Public Passenger Vehicles Act 1981 as amended, she curtailed the Appellant’s authorisation from 40 to 32 vehicles for a period of 6 months with effect from 30 September 2010 (the Appellant having at the time 35 discs in issue). 
2.	The factual background appears from the documents, the transcript of the public inquiry and the written Decision of the Traffic Commissioner and is as follows.
(i)	The Appellant operator has held a Standard National PSV operator licence since 29 November 1995, currently authorising 40 vehicles with 35 discs in possession, operated from Johnfield, Amisfield, Dumfries, and from Unit 4, Catherinefield Road Industrial Estate, Dumfries. The operator is his own Transport Manager and does his own maintenance with the aid of some outside contractors.  He has 5 local registered services including 2 running from Dumfries to Edinburgh. 
(ii)	Following an adverse report from a VOSA Vehicle Examiner, and a report in the Peebleshire News of 4 September 2010 with the headline “Pupils forced to flee school bus”, the Appellant operator was called to a public inquiry by letter of 13 April 2010 to take place on 7 May 2010 at Edinburgh.  A warning letter had been issued on 16 August 2009 November 2007 in respect of “S” marked prohibitions. The letter of 13 August 2010, by which the company was called to a public inquiry, notified the operator that it was to consider whether or not the Traffic Commissioner should exercise her powers under s 17 (1) and (2) of the Public Passenger Vehicles Act 1981 as amended, to revoke, suspend (or vary any condition on) the licence or to attach any additional conditions, owing to the operator’s failure to fulfil undertakings.  The operator was also called under s 26(1)(c) in respect of maintenance.   
(iii)	The public inquiry opened at Edinburgh on 7 May 2010.  For VOSA, Mr J McIntyre, Vehicle Examiner who was covering for a colleague (Robert Carson of Dumfries HGV Test Station). The Operator, Mr MacEwan was unrepresented. He was accompanied by Mr Donald Cameron, an employee of 2 years’ standing as supervisor with the Appellant’s business and of 40 years’ experience in the bus industry, and by Mr James Glen, a local maintenance contractor and friend of the Appellant since childhood. They had brought with them the defective turbo charger which had emitted excessive smoke in the incident described in the newspaper report.  The Traffic Commissioner noted that the Appellant was not, as formerly, represented by his solicitor, Mr McAteer of Glasgow, but noted that he had felt he did not need such representation on this occasion as he was familiar with the substance of the matters to be covered at the inquiry. VE McIntyre read out his colleague’s report and correspondence was produced in respect of the Appellant’s representations on the subject of the “S” marked prohibition of 2009 (which had led to the warning letter from the Traffic Commissioner).  In this correspondence the Appellant had been critical of the VE concerned in that matter, Mr D Pugh, and also of the annual test results as presented by VOSA.  The Traffic Commissioner noted in her decision that the Appellant had kept retuning to these issues of the potential impact of Mr Pugh’s adverse opinion of him and of the Annual Test results, and this appeared to be supported by the transcript.  Following these concerns the Traffic Commissioner had decided to adjourn the PI to enable Mr Brown, Senior Vehicle Examiner, who had dealt with the Appellant’s complaint correspondence in respect of the prohibition issued by Mr Pugh, and also Mr Pugh himself, so (she said) as to ensure a fair hearing for the Appellant. The PI was then adjourned to 2 June 2010.
(iv)	At the reconvened public inquiry the Appellant had been represented by Mr McAteer. Mr Brown and Mr Pugh from VOSA had attended, as had the Appellant’s driver, Mr I Hornby.  At the beginning of the resumed hearing the Traffic Commissioner had summarised for Mr McAteer the content of the earlier hearing, and welcomed Mr McAteer to represent the Appellant,  so as “to reach the issues that a Traffic Commissioner needs to look at”. She inquired whether he had seen the transcript (he had not as it had not become available, although she had understood that it would be ready the previous day or that morning).  In the absence of this transcript she stated that this was not of great significance to her as she had clearly been present at the earlier hearing but nevertheless asked Mr McAteer how he felt about proceeding without it, to which he had replied “…well I would be prepared to continue irrespective of its lack of availability, however I would not like to feel, if something develops where I feel prejudiced by what may have gone before ….if we could have a little break at that stage just so I can speak to Mr MacEwan or clarify ….what had gone before”.  To this the Traffic Commissioner had readily acceded and the PI proceeded on this basis.  The transcript did later become available during the hearing.
(v)	The Traffic Commissioner’s summary for Mr McAteer made clear that the Appellant had not been happy that he could not cross examine Mr Carson, the actual writer of the report read out by Mr McIntyre at the previous hearing and duly reiterated (i) the Appellant’s criticisms of VOSA’s handling of the Annual Test results (ii) the Appellant’s perception that Mr Pugh was biased against him in relation to the “S” marked prohibition, the unsuitability of conducting a roadside check in the circumstances in which that had been obtained, the fact that Mr Pugh had been concerned in am earlier incident with the Appellant (a fatal accident some 14 years previously, although on this occasion it appeared that the Appellant had considered that Mr Pugh “could not have been nicer” and “he could not have asked for better”).  It had also emerged that they had apparently had further meetings during the previous 4-5 years which had left them “splitting apart”.  She had also made clear to Mr McAteer that at the earlier hearing the Appellant “had said some pretty damning things about Mr Pugh” and that she was concerned that this was an unfair attack as it appeared that the Appellant might be disregarding “well intentioned” advice which was “technically of merit” and that it was important to her to know whether Mr Pugh was “doing his job properly” or “being defamed” in which case “that must stop”.  She highlighted her concerns stating that she clearly “placed great weight” on VOSA evidence” but was also “independent”.
(vi)	Mr McAteer then proceeded to cross examine both Mr Brown and Mr Pugh (curiously beginning with Mr Pugh by asking his age which the Traffic Commissioner found odd, but to which Mr Pugh answered in a matter of fact way, adding that he had been with VOSA as a VE for 13 years, during which he had periodically come across the Appellant, and that he had not had any particular difficulties with the Appellant’s company).  This cross examination concerned various immediate prohibitions, including a missing hammer from a safety glass window, a warning light, a bulging brake hose, a corroded exhaust pipe, an insecure shock absorber, lifting floor covering, and a raised gear box, one or more of which could have caused injury, and some not actually issued by Mr Pugh, but by one or more colleagues. Mr McAteer also explored the detail of the incident of 19 May 2009 when the “S” marked prohibition had been given at the roadside check, at which 2 police officers had also been present, and where the principal concerns had been an oil link, an emergency door which was sticking at the base, and would not open, a side flap issue and some health and safety issues. It was noted that the driver on that occasion, Mr Hornby, was present in court. Mr Pugh gave evidence that the roadside check had taken about 45 minutes, which was perhaps longer than usual (although he said that length of time depended on each individual vehicle and how long it took him to complete his paper work) and that there was nothing unusual in the 2 police officers from the Lothian and Borders Constabulary being present and looking at the vehicle themselves during the inspection, nor in the fact that he had asked one of them (PC Todd) to provide a statement confirming his conduct of the inspection which was being questioned at PI and a complaint had been made about his conduct of that inspection.
(vii)	The bus driver, Mr I Hornby, had then been called to give his version of the inspection.  He confirmed that he had made his usual walk round morning inspection before leaving with the bus when he had found no fault with the emergency door, through which he also habitually left the bus each evening..  He said that he had attempted to cooperate with the inspection, as he always did, had made no complaint about it (although he felt he had been bombarded with questions all at once by the two police officers and Mr Pugh, which had been “intimidating”) but that he had concluded that they each had their own tasks to do in relation to the inspection and had simply done as he was asked, including moving the vehicle as and when requested.  Mr Hornby had then told the Traffic Commissioner that while the inspection was going on he had telephoned Mr Cameron at the bus depot and reported the fact and subject matter of the inspection, and had then telephoned again at the conclusion to report that he had been advised to take the bus back to the depot and to exchange it for another.  He had agreed to meet Mr Cameron and to hand over the prohibition papers later that day. He had then later spoken to Mr MacEwan when he had reported the fact that he had felt intimidated by the presence of the 3 people all inspecting his bus and also all asking him different questions at the same. The Traffic Commissioner, however, suggested to him that he had “made a storm in a teacup” about the incident and given “poor Mr MacEwan” an “exaggeration of events that most people would take in their stride” although Mr Hornby did not agree with this, nor with her suggestion that he had not done his daily check properly before taking the bus out.
(viii)	The Traffic Commissioner had then questioned Mr Glen about maintenance of the vehicles, including of the emergency door which had not opened at the check of 19 May 2009, and the damaged turbo charger which had been the cause of the incident reported in the press (in respect of which Mr Glen had, when telephoned, advised the driver not to drive the bus further because it would cause expensive damage, advice which was not taken).  She further questions Mr Glen about what action Mr MacEwan should take to improve the maintenance of his buses to which he replied that the higher mileage vehicles should perhaps have extra service checks by mechanics. She then questioned Mr Brown about the Appellant’s issues with the recording of annual test rates. The Traffic Commissioner had then questioned Mr MacEwan, indicating that she was not “sitting here to put you out of business, I am here to sort it”…”because I have to look Scotland in the face, you know”.  Mr MacEwan explained that he had changed maintenance contractors owing to previous failures at annual test, and that he had dismissed a driver who had damaged tyres and had driven in the face of advice from VOSA. He had then gone on to reiterate his discontent with the roadside check on 19 May 2009 because of the location of the tested vehicle (on an incline) and because of Mr Pugh’s conduct, of which he had heard from Mr Hornby, which had led him to conclude that Mr Pugh had “manufactured a defect on the side panel” because “it would not have blown open in the wind”.  He was also not convinced that the bus had spilled oil during the test.  The Traffic Commissioner had noted the “very significant divergence in opinions about what did happen” and that Mr Pugh did have contact with the Appellant many years ago “in a sensitive situation” whereas Mr Pugh who “sits before you” maintained that he had “absolutely no reason to make up a defect” but was quite happy for the Appellant to make a complaint. However she pointed to the Google photographs which had been produced to show the location of the roadside check and pointed out that if members of the public had to be rescued from that location it would matter that the emergency door could not be opened, whether it was on an incline in the camber or not.  She noted that the Appellant in his letter of complaint had stated that he had heard from other operators that Mr Pugh had a reputation “for his ability [to] manufacture defects”. She said that the Appellant had “the chance to withdraw these statements about Mr Pugh” but Mr McAteer intervened to say that he was “stopping him from doing so instead of going into it” which he considered to be “healthy”.  
(ix)	The Traffic Commissioner then stated that she routinely fed back information to VOSA if she thought there “was something” even if it was “just a whiff”, to which the Appellant reiterated that he considered Mr Pugh’s actions on 19 May 2009 to be “disproportionate” which was why had had made the complaint.  he explained that he had cold called other operators before making his complaint and all three had had reservations about Mr Pugh though he refused to name any of them. However, confusingly, he had then added that he was “very content that the matter has been fully addressed here today and thank Mr Pugh for his forthrightness and patience, I wish him well in the future”.  Asked by the Traffic Commissioner whether he still considered Mr Pugh a “rogue vehicle examiner” the Appellant said “No, I wouldn’t wish him well if he was that, I would expect he would get the sack”. The Traffic Commissioner then continued to question the Appellant about the alleged intimidation of the driver, pointing out that when she had questioned him herself nothing remotely intimidating had been revealed, however the Appellant insisted that there had been “pressure”.  She had then explored with Mr Brown whether the location of the inspection of 19 May 2009 had been a regular one, and Mr Brown had confirmed that it was a regular location, in a quiet road.  Mr McAteer had then made submissions in respect of the incident which had been reported in the press, submissions in respect of any likely penalty (suggesting that there was no case for revocation) and commenting that perhaps there had been a “storm in a teacup” and “the least said about it the better”. The Traffic Commissioner had then reserved her decision which was delivered in writing, taking the action set out in paragraph 1 above. 
(x)	The Decision duly recorded the Appellant’s having taken issue with VOSA’s annual test records, which he had said did not accurately record his pass rate as they had omitted many of his vehicles and of his other criticisms of Mr Pugh and of the handling of the inspection of 19 May 2009.  She also recorded her adjournment to give the Appellant a fair hearing by requiring the attendance of Senior Vehicle Examiner, Mr Brown and of VE Pugh and her giving the Appellant the opportunity to bring in a complete list of his vehicles so that his annual test results could be revisited. She rehearsed the contents of the report of VE Carson which Mr McIntyre had read out at the first hearing, giving due credit for correctly completed PMI sheets, adequate in house and PMI contractor facilities, correctly working Drivers Defect Reporting system (although not all sheets had been available) and the existence of a forward planner. She had then listed all the Appellant’s prohibitions from 23 March 2009 to 14 May 2010, and set out the details of the Appellant’s complaint in his letter of 29 May 2009, in which he had taken issue with the timing of the inspection that day (just as the driver was waiting to meet a connecting service) which had delayed the bus in service, the location (on a 1:12 gradient and side camber that made it unsuitable for an inspection) and Mr Pugh’s working methods, including his suspicion that  Mr Pugh had unlocked the vehicle filler cap, which had been locked when the driver had done his daily inspection that morning.  She had set out all the Appellant’s other complaints about the way the inspection had been conducted which he had claimed that caused or contributed to the oil leak (if indeed the oil leak at the location had come from his vehicle at all) and had caused or contributed to the allegedly jammed emergency exit door, which had not caused any problem to the driver or his fellow drivers. He had complained about Mr Pugh’s prising open the engine access panel which, according to the VE, had defective catches so that it could have opened while the vehicle was in motion. He had complained about the advisory matters raised at the inspection and that defects had been manufactured.
(xi)	The Traffic Commissioner had then set out VOSA’s response in detail by Mr Brown, and Mr Pugh’s cross examination, which had been lengthy and thorough, and then the evidence of Mr Hornby, the driver of the vehicle which had been inspected at the roadside check on 19 May 2009, and the evidence of Mr Glen.  Finally she had set out the evidence of the Appellant.  She recorded the final submissions and noted that the annual test figures were improving, that it was submitted that the press coverage had been sensationalised, that Mr Glen was impressive, that the driver he had told not to drive the bus with the defective turbo charger had been dismissed as the Appellant was “stunned” that Mr Glen’s advice had been ignored, and that the Traffic Commissioner was urged to treat the problems before the PI – only 1 “S” marked prohibition in 18 months – as a “storm in a teacup”.  The Traffic Commissioner’s findings then indicated that she regarded the Appellant as not a first time offender because of his previous shortcomings, repeated assurances and the incident reported in the press, that she found Mr Hornby a “dismal witness” who had exaggerated his report to his employer, and that the Appellant’s objection to the inspection of 19 May 2009 because it was on a gradient was inappropriate as there were many such gradients in Scotland.  She found that there was no evidence that Mr Pugh had manufactured any evidence but that it was “disgraceful” that the Appellant had attacked Mr Pugh without evidence and on the basis of industry gossip.  (She had, however, noted the Appellant’s description of Mr Pugh “in positive terms” in relation to the fatal accident incident of 14 years previously).
(xii)	The Traffic Commissioner had finally concluded that it was obviously disproportionate to consider revocation or suspension, she gave credit to the Appellant for dismissing the driver who had not parked up as advised by Mr Glen following the incident with the defective turbo charger, which she accepted could not have been foreseen, and noted  that while “too much time was taken up with the 19 May prohibition” the annual test history had only recently improved and that “the incidence of prohibitions is far too high”.  She criticised the Appellant for his over reaction to the 19 May prohibition and considered that he needed to “calm down and to look at himself and his standards”.
3.	At the hearing of the appeal the Appellant was again represented by Mr McAteer who had previously requested that a copy be made available for him to hear the tapes of the first hearing in the PI, indicating that the Appellant had claimed bias on the part of the Traffic Commissioner, and requested an adjournment at short notice so that the tapes could be considered at leisure.  He was reminded of the procedure to be adopted in such a case, as set out in the case of EA Scaffolding, arrangements were made for him to hear the tapes at the office of the Traffic Commissioner, and  the adjournment declined on the basis that it would be appropriate first to hear whether the Appellant wished to persist in this allegation after Mr McAteer had heard the tapes of the first hearing at which he had not himself been present.  In the circumstances it was indicated that a decision about adjournment of the substantive hearing could more appropriately be made after hearing Mr McAteer’s submissions following access to the tapes.  The hearing on 25 March 2011 then went ahead as listed.
4.	Mr McAteer’s grounds of appeal were that “(i) the penalty was excessive and disproportionate having regards to the maintenance history” and “(ii) that the Traffic Commissioner had failed to give due regard to the concerns raised in respect of the evidence given by vehicle examiners and to explanations given by the operator relating to the prohibitions issued”.  His additional grounds dated 24 March 2011 were that (1) The Traffic Commissioner…. had erred in fact and law and misdirected herself by taking into account irrelevant factors, failing to give due regard to evidence before her, having regard to her own speculations and reaching a decision no reasonable Commissioner could properly have reached having regard to all the evidence before her; that (2) she had misconducted herself by (a) acting in a manner which would cause a fair minded and informed observer with due consideration to the facts to conclude there was a real possibility the Tribunal was biased; and (b) acting in a manner which would have demonstrated to the fair minded and informed observer that she had determined issues of credibility relating to the witnesses in the proceedings prior to proper consideration of their evidence.
5.	In his accompanying skeleton argument  Mr McAteer rehearsed the law on bias in relation to his additional ground (2) and submitted that during the first hearing the Traffic Commissioner’s conduct was such that the test of bias was met, in that throughout the transcript, excerpts of which he submitted to us, a reasonable observer would “allow the perception” that the Traffic Commissioner prejudged the issue, formed an opinion of the appellant and his character detrimental to his interests, was unprepared to hear criticism of VOSA, broadly or in detail, was aggressive and dismissive in her manner, failed to listen to the Appellant or to have regard to what was said, argued a position in respect of a number of the alleged failures in maintenance and in respect of the character of Mr Pugh and VOSA, interrupted the Appellant on several occasions and stated expressly that she was annoyed with him and that it was a confrontational hearing.  As a result he submitted she was not impartial, and ought to have taken the opportunity of the adjournment to recuse herself and passed the case to an alternative Traffic Commissioner or Deputy.  He also submitted that the Traffic Commissioner had in cross examining Mr Hornby and the Appellant and attempted to “get them to take a position”, and that she should not have accused Mr Hornby of exaggerating the episode and thus misleading the Appellant, adding that these assertions were mutually contradictory in that she had blamed the Appellant for his complaint to VOSA but had then also claimed that he had been misled by Mr Hornby.
6.	Mr McAteer provided a further document in which he excused the lateness of his application to add additional grounds of appeal because he said he had written to the clerk to the Upper Tribunal (Transport List) on 16 March advising that the Appellant wished to raise the issue of bias of the Traffic Commissioner as a result of which he had requested access to the tapes so as to ascertain whether concerns raised by the Appellant could be allayed or whether or not there was a point to be raised.  A member of his staff had then listened to the tapes at the Edinburgh office of the Traffic Commissioner on 23 March, leaving little time for consideration of “a very delicate matter” and to satisfy the Tribunal “that on a prima facie basis there is merit in these grounds and that they ought to be received”. 
7.	Mr McAteer then addressed us in detail, taking us through the portions of the transcript of the first hearing to substantiate his grounds of appeal.  He began by saying that it had been difficult to decide to bring this complaint but that he had felt obliged to do so as the Appellant had had previous experience of the Traffic Commissioner and was insistent that he had not been fairly treated.  He submitted that he had received the appeal bundle some 6 weeks previously and believing he knew what the points were he had not taken the opportunity to meet with the client until closer to the appeal hearing, when the Appellant had raised the matter of the Traffic Commissioner’s bias against him.  He had at first tried to explain that in the “hurly burly of a tribunal hearing” some things might appear to be unfair which were not in fact so. It had only been later when he had thought about the matter from the client’s point of view that he had realised that the Appellant was genuinely concerned that he had been treated unfairly.  He said he would have asked the Traffic Commissioner to recuse herself on the second day if he had realised that the client felt that way at the time.  Thus bringing the matter up at the hearing before us was “done with a heavy heart”.
8.	We did point out to Mr McAteer that we had read the transcripts ourselves, although we had not considered that at this stage there was sufficient prima facie case for us to hear the tape so we had not done so although we had had it brought from Edinburgh in case that should prove necessary. We asked him if he was challenging the penalty or what it was that he sought?  Mr McAteer said that he had thought about the question of what he sought for his client “last night” but did not directly answer us at this time, instead going to the beginning of the transcript of day 1 where the Traffic Commissioner was asking the Appellant if he did not want to be represented and reminded him of her powers.  He said this was threatening, we said that we thought it was her right to be frank since, as she said, he usually had his solicitor with him.  He then drew our attention to passages where he said she was demonstrably impatient, and he said, dismissive of the Appellant’s answers.  We commented that in our opinion there were places where the Traffic Commissioner had had a right to be impatient and she had not apparently become impatient for nothing.  However Mr McAteer’s response was that this was inappropriate in a regulator, as had been her dismissal of Mr Hornby as a “dismal witness”.  He said it was the cumulative nature of the Traffic Commissioner’s comments and inferences from the evidence, for example where she tries to get the Appellant to withdraw his allegations against Mr Pugh.  We pointed out that some evidence in support of the allegations against Mr Pugh could have been given but were not, to which Mr McAteer had no response.
9.	Mr McAteer then turned to the issue of the emergency door arising from the inspection of 19 May 2009.  He criticised her question to the Appellant where, when he tries to explain the possible impact of the location of the inspection on the door’s apparent failure to open, she asks if he is a metallurgist, and he replies, that of course he is not.  Mr McAteer submitted that she was not taking the Appellant seriously when making this type of comment. We pointed out that the Traffic Commissioner, far from being dismissive of the Appellant, had insisted on adjourning so that 2 people not present could attend, because this was for the benefit of the Appellant, who had wanted to continue without an adjournment. Mr McAteer’s comment was that as a lay person the Appellant was entitled to make strategically incorrect decisions of that sort.  However we pointed out that she had forced the adjournment and that this had been for the Appellant’s benefit and in our opinion was the correct course to take.  Mr McAteer nevertheless insisted that the Traffic Commissioner had cross examined Mr Hornby for 10 pages at the second hearing (p 162 of the transcript), was critical of the Appellant in her Decision and found firmly in favour of Mr Pugh.  We pointed out that she was entitled to believe a witness, including one from VOSA, and that she had cross examined Mr Pugh fairly rigorously as well as questioning Mr Hornby herself.
10.	At this stage, some way into the second hour of the appeal hearing, Mr McAteer told us that he was less than one third of the way through his detailed examination of the transcript.  We suggested to him that this was not likely to be particularly productive since it was clear to us that the nature of the public inquiry had been that there had been constant irritation by the Appellant at the evidence given, and about his apparent  wish to see that VOSA in general and Mr Pugh in particular was reprimanded.  Moreover it was clear that the Appellant had simply not dropped this point so that it had been difficult for the PI to progress so as to consider all the matters raised in the calling in letter which was principally about maintenance.  We commented that it appeared to us that it was only 29 pages into the PI transcript that the Traffic Commissioner had realised that the Appellant was making an issue of the “S” marked prohibition obtained on 19 May 2009, as he kept on returning to it, and that this was preventing the Traffic Commissioner from moving on to other issues which the PI calling in letter had specifically flagged up to be addressed.  Mr McAteer countered that the Traffic Commissioner’s comments throughout had been unwise, as the Appellant had had not chance to explain himself or to say what he thought as he had been frequently cut off. He submitted that the Traffic Commissioner’s behaviour was unacceptable and met the test that there was bias as the hearing had not been impartially conducted.
11.	We asked Mr McAteer again what he sought from the hearing before us, since we had so far by no means detected bias on the part of the Traffic Commissioner.  He responded that he was in essence seeking both a new hearing before another Traffic Commissioner or Deputy and would in any case like to have the tape so as to identify certain minutes where he said that the tone was inappropriate. 
12.	We reserved our Decision and took time to consider the circumstances of the first day of the PI held on 7 May 2010.  First, and without hearing the tape, but only based on our perusal of the transcript, it was clear to us that the conduct of the hearing was unsound, not because we detected any particular bias on the part of the Traffic Commissioner but because the lengthy tirade of the Appellant against Mr Pugh had completely clouded the proceedings, preventing the Traffic Commissioner from dealing appropriately with the issues for which the PI had been called in the calling in letter.  These were maintenance issues which needed to be gone through methodically and a conclusion drawn as to the Appellant’s likely future capability in this regard since he is his own Transport Manager.  
13.	Secondly, it was clear to us that the incident of 19 May 2009 had completely taken over the centre stage, both in the hearing and in the Traffic Commissioner’s Decision. Paragraph 52 of the Decision is devoted to this topic and recognised that far too much time was spent on it.  As a result the whole PI had been reduced to a level of emotion of which the Traffic Commissioner had not taken control and had taken her eye “off the ball”, whereas her attention should have gone to the fact that there had been 13 prohibitions in 14 months.  As a result we are unable to be sure whether the end result, i.e. the penalty, is disproportionate, although we are of the view that it probably was not an inappropriate disposal, though possibly lenient, since the prohibitions could not be ignored but revocation would clearly be too severe.  Whether a suspension would be more appropriate we cannot say since there was insufficient analysis of the prohibitions and of their impact on the final disposal and sanction in her decision.  We are also unclear as to what credit she gave for the advice of Mr Glen, whose suggestions for improvement she was pleased with.
14.	The atmosphere on both days of the Public Inquiry appears to have been strained and led to an exchange on the second day when the Traffic Commissioner said “I am trying to take the stubbornness out of you a wee bit, this is not about you against the world, this is about us getting this sorted”.  Mr MacEwan replied “It is not stubborness, madam,it is frustration and it is not a frustration with VOSA people at all” to which the Traffic Commissioner responded “Forgive me if I have not noticed it”.
15.	In our view this public inquiry should be held again from scratch, before a different Traffic Commissioner or Deputy, and that the issues in the calling in letter (and the supplementary letter) should be dealt with properly in an unemotional atmosphere in which the Appellant’s demeanour should be controlled in a professional manner.  If possible Mr Carson should be called to speak to his own report, PC Todd should be called to speak to his statement and be cross examined, a further report should be prepared to deal with the Appellant’s annual test results and Mr Hornby should be interviewed to provide an appropriate witness statement on which he may be cross examined about the precise nature of the inspection on 19 May 2009. 
16.	The Tribunal therefore determines that the appeal shall be allowed and the case remitted for rehearing before a different Traffic Commissioner or Deputy.

Frances Burton
Judge of the Upper Tribunal
28 April 2011