This week, the traffic commissioners published their much-delayed annual report for 2005/06 (sic). Though some 14 months late, the pre-retirement line-up of Britain’s first independent regulators are fairly critical of the DfT and VOSA for the controversial changes in centralising traffic area office staff in Leeds, Yorkshire. And the reports themselves are getting heftier, too.
One of the traffic commissioners’ criticisms was their lack of legal support. Anyone who’s been to what used to be referred to as a “traffic court” but is now merely a public inquiry will know the only support tends to be from a single civil servant administrator who turns the lights on, acts as usher and switches on the tape machine. Yet, the traffic commissioner is expected to act quasi-judiciously in a role not dissimilar to a magistrate. Even where a trained district judge presides, a magistrate’s court always has the backing of a professional legal adviser in a clerk to the justices. The traffic commissioner is on his or her own. Time was when there would be a “bench” to spread the load. Not any more.
Invariably, VOSA as “prosecutor” has submitted details to the traffic commissioner for investigation and when called as a witness neither the traffic nor the vehicle examiner has a solicitor present to assist. When the case involves undisputed facts, this is less of a problem for VOSA. Understandably, the operator’s solicitor can and will argue vigorously for his or her client where things are less clear-cut or a matter of interpretation. As a result, sometimes what might appear an open-and-shut case turns out to be a real nightmare for the VOSA inspector. Unlike in a magistrate court, only the traffic commissioner can cross-examine, not the VOSA representative (or their non-existent solicitor).
This may be rather good news for the operator in the dock. But if the system is to remain truly independent and if operators recognise that the industry’s cowboys need tackling – and surely everyone from the traffic commissioners down wants that – and, importantly, if there is to be more consistency then a modicum of support would be useful.
Friday, 8 June 2007
After Much Delay
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I agree that decent legal representation for the Traffic Commissioner might help in some respects, (perhaps a "clerk of court" to help point out the legal subtleties to both parties), but it does cut two ways...
I once attended a hearing where the issue of late running on routes over a level crossing was absolutely critical...the TC (a brigadier who is now, thank god, retired) was clearly determined in his view before he started...during the evidence he butted in and said "can you operate the route 100% as registered...and before you answer I'm telling you if you say yes my next question is, why didn't you...if you say no, my next question is why did you register it that way?"
When it was pointed out that he hadn't yet heard all the evidence (which included witness statements that the level crossing in question was sometimes down for only two minutes, but more often longer, and up to 18 minutes on occasion, particularly as the trains were at that time on a "disrupted" schedule owing to long-term signalling works) he said that whilst the company was quite free to present said evidence, he didn't feel it was going to be in the least relevant and was happy to say so in advance...
He also said that if the company contended that the gates could be closed for eighteen minutes, then the company should allow sufficient time for crossing delays up to the eighteen minutes quoted for every trip...and if a bus had a clear run and had to wait quarter of an hour just over the crossing to avoid early running then so be it...this was perfectly reasonable...
Admittedly this was many years back and not only have the guidelines changed somewhat, but recordings of the proceedings are now available...
However, the TC in his public enquiry is still far more potent than any judge in court...because it isn't a court of law, he/she can arbitrarily alter the rules, inflate or deflate the importance of any particular evidence, (because the rules of evidence don't apply), play to the gallery (the TC I previously referred to was keen on cultivating and "displaying" to the public and the press), and more or less adjust the procedure of the hearing (even the order in which evidence is heard) as he/she wants...In some cases a clerk of court might actually help keep some TCs in order!
It's worth saying at this point that the only legal comeback available to an operator who feels he's been wronged is an appeal to the Transport Tribunal...a very difficult path (If you take it, you can kiss goodbye to any effective professional relationship you had with any commissioner - a last resort only I'd guess, to take if your licence is withdrawn and you have nothing to lose anyway)...and guess who usually, in practice, hears an appeal against a TC?
Another TC? Oh how unbiased...
Effectively you see there is NO reasonable legal appeal against a Traffic Commissioner, and I suppose it is a tribute to the integrity of MOST of the breed (Chris Heaps in particular is a shining example) that there is so little outrage about this...the Brigadier (retired) is an exception and I sincerely hope he rots in hell.
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