The full text of the Traffic Commissioner’s decision is below.Details of her consideration of the evidence and her decision can befound from paragraph 286. SCOTTISH TRAFFIC AREA GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995 McLANACHAN TRANSPORT LTD - OM1001769 PUBLIC INQUIRY AND DRIVER CONDUCT HEARINGS IN RELATION TO DRIVERSMESSRS JOHN McFARLANE, DAVID STEWART, BRIAN WATKINS, IAN ROBERTS, MARTINFLANAGAN, PATRICK McINTYRE, ALEXANDER MILLER, KEITH NICOLSON, SCOTTWEST, JOHN CRAW, ALISTAIR PRIESTLEY, CHRISTOPHER McLANACHAN, JAMESBLACKWOOD, WAYNE ALLEN, DAMIEN McLANACHAN, JAMES PRESTON, MATTHEWMcLANACHAN PUBLIC INQUIRY AND HEARINGS HELD AT EDINBURGH ON 27/28 MAY, 8/9 JULYAND 5 OCTOBER 2009 DECISION OF THE TRAFFIC COMMISSIONER

BACKGROUND 1. McLanachan Transport holds a standard international goods vehicleoperator licence, with current authority for 23 vehicles and 28trailers. As at the date of the preparation of the Public Inquirybrief, 15 vehicles were specified but at later times the numberspecified changed. The licence was granted in July 2003 at a PublicInquiry when a “significant warning” was given in respect of itsfuture conduct. The licence application which was in the Public Inquirybrief disclosed a conviction in 2000 for tachograph infringements anddisqualification from holding an operator licence for one year. TheDirectors of the company are Mrs Rose Ann McLanachan and Mr Matthew HMcLanachan, the latter being Transport Manager (CPC by examination). Theoperating centre is at 12 Garrell Road, Burnside Industrial Estate,Kilsyth. 2. Following my receiving adverse reports from VOSA Traffic and VehicleExaminers, I directed that the operator and associated drivers be calledto conjoined Public Inquiry and Driver Conduct Hearings. A prenotification of the Public Inquiry letter was sent to the operator on 17February 2009 and a call up letter was sent on 4 March 2009, calling theoperator to the Inquiry/Hearings on 27/28 May 2009. The individualdrivers received call up letters personal to them. There was extensivePublic Inquiry documentation contained in the Public Inquiry brief andsequential lettered folders A - R containing the documentation on whichthe Examiners would rely in making their case to me. I do not rehearseall that documentation here save to note that it contained copies oftachograph record charts, interviews and other paperwork ancillary tothe Examiners’ investigations. Given the extent of the VOSAexamination, a long period of notice of the Inquiry/hearings had to begiven such that agents would have sufficient time to prepare on behalfof their clients. 3. The operator was represented by Mr M Whiteford, Solicitor, who also

represented Mrs Rose Ann McLanachan and Mr Matthew McLanachan in theircapacities as Directors and Mr McLanachan as Transport Manager andholder of large goods vehicle driver licence entitlement. The 16drivers were represented by Mr N Kelly, Solicitor. Mrs Rose McLanachanwas not present at the commencement of the Inquiry but, given that thecall up letter referred to the possibility of disqualification as aDirector, I required her attendance at at least one day of the Inquiry. The principal VOSA witnesses were Traffic Examiners Mrs Hill and MrQuinn supplemented by Vehicle Examiner, Mr Hughes and Traffic Examiner,Mr Marshall. 4. There were some initial preliminary matters to make sure thateveryone had the correct set of documentation, including some amendmentsand an up to date annual test history and further prohibitions werelodged. The operator lodged productions during the Inquiry. 5. Evidence of financial standing had been produced and wassatisfactory and so did not require to be probed at the Inquiry. 6. There were no members of the public present and, accordingly, thevoluminous VOSA evidence contained in the Public Inquiry and Drivers’Hearing Briefs, was taken as read into the record. Full opportunity wasgiven and taken for cross examination and challenge to any of thatdocumentation. The Drivers Conduct cases were taken first with Mr Kellymaking his submissions in relation to the respective drivers. The casedid not conclude on the initial 2 days set aside but required a further3 days, there being a gap between 9 July 2009 and the final date of 5October 2009 for diary reasons but also to allow for the production offurther FTA analysis of the operator’s tachograph charts in view ofevidence relating to the use of the FTA as a mitigatory factor. Suchfurther reports were available on 5 October 2009 and had been copied tothe Traffic Examiners. 7. On behalf of some of the drivers, Mr Kelly expressed their disquietthat other drivers who had been looked at in the course of the TrafficExaminers’ investigations had not been called, many of these driversbeing foreign. Given that I have no jurisdiction over foreign drivers,there was no comfort I could give to that observation.

CONVICTIONS AND DRIVERS’ HOURS PROHIBITIONS 8. On 18 May 2004, a driver Mr G Bowe was convicted at CreweMagistrates Court of failing to produce his tachograph charts; failingto take a 45 minute break; failing to take sufficient daily rest; andusing a defective speed limiter. The operator was not prosecuted. Theoperator reported the conviction of the driver to the TrafficCommissioner through Mr Whiteford’s office. A copy of the plea inmitigation recorded for the driver was enclosed. The vehicle was ahired vehicle which the driver assumed would be in good and efficientorder. He had not reported the speed limiter problem to his employers. Explanations were given for why the drivers’ hours offences were made,including movements at RDCs. The driver received a final warningletter. 9. On 8 October 2007, the operator was convicted at NorthallertonMagistrates Court of an overloading offence and fined. This conviction

was not notified to the Traffic Commissioner. The operator produced aresponse by letter of 29 November 2007. They felt that the customer hadput them in a position whereby the overloading happened. 10. Between 6 January 2006 and 19 October 2008, 8 drivers’ hoursprohibitions were issued, 2 overweight prohibitions were issued, and 1hazchem prohibition was issued. 6 of the drivers’ hours prohibitionswere for the driver failing to take sufficient weekly rest.

EVIDENCE IN RELATION TO MAINTENANCE 11. The operator’s prohibition history from June 2006 to May 2009comprised 6 immediate and 5 delayed prohibitions for a range of matters,none of which were ‘S’ marked. Almost all of 2008 was prohibitionfree. Many should have been prevented by the drivers in that 1 was fora laptop being on the windscreen obscuring the view and another for thedriver’s view being serious impaired by 3 dream catchers in the lineof vision. The operator’s vehicle test history from May 2004 to May2009 comprised 61 vehicles presented, 38 passes, 13 PRS and 10 failing. Many fail items related to speed limiters. On 9 December 2008 a delayedprohibition was issued for a trailer fractured brake disc; on 18 Marchan immediate prohibition was issued for a deep cut to a trailer tyre;and on 22 April an immediate prohibition was issued for an ISO cablebeing missing and no evidence of use. None of these three was S marked. 12. The maintenance frequency is 6 weekly for vehicles and trailers,with the Vehicle Examiner on a paperwork exercise finding inspectionfrequencies stretching to 10 weeks. The Vehicle Examiner criticised thedetail in the inspection records and driver defecting reporting wasscarce. Rectification work was not being noted. There was no VOSAcriticism of the operator’s facilities or of the number of mechanics. TRAFFIC EXAMINER EVIDENCE 13. The Traffic Examiner evidence was literally voluminous. Much of itis set out and recorded in this decision against the names of theindividual drivers. 14. VOSA’s Northern Investigation Team began an investigation in tothis operator in May 2008 when the Traffic Examiners required theoperator to produce tachograph charts and digital downloads for theperiod 25 February to 30 March 2008, together with copy driver licences,traffic sheets and fuel invoices and other documentation. After a shortdelay, most of these were produced with the exception of the finaldriving digital downloads which were not received until September 2008. It took repeated interventions by the Traffic Examiners before thisinformation was provided to them. Not all data had been downloaded fromhired in vehicles or demonstrator vehicles used in the period. 15. The Traffic Examiners undertook a detailed analysis in view ofanomalies and apparent offences found. This included contactingpremises to or from which the operator had made deliveries. Their finalanalysis revealed to them 308 alleged offences, being 246 false records;60 drivers’ hours offences; and 2 records showing excessive speeds. There were 56 instances of failing to produce tachograph record sheetsand 68 instances where no driver card/vehicle downloads were produced.

36 drivers were found to be non compliant. 22 (4 foreign) wereinterviewed. 14 (7 foreign) not interviewed had left the operator’semployment. 17 of the drivers were called to this driver conducthearing. Two, who could have been called, had not renewed theirentitlements and one may yet be called.

DRIVER MR JOHN McFARLANE - DRIVER NO: MCFAR 604116 J99LX Traffic Examiner evidence 16. Mr McFarlane was a casual driver for McLanachan, his full timeemployment being driving for Asda. The Traffic Examiners examined 2tachograph charts relative to him and they interviewed him on 17October. They also investigated his hours and driving with Asda. 17. They found that Mr McFarlane was on duty with Asda from 23:20 on 18March 2008 until 11:15 on 19 March. His McLanachan chart showed him on19 March going from Cairn Lodge M74 Happendon to Bellshill at 19:10ending 8:40 on 20 March, with no recording of duty time in getting to orfrom the start and finish points. There was no manual record of histime with Asda. The only manual record is “wrong mode switchselected”. Thus, the chart was not a true record. A true recordwould have revealed insufficient daily rest and exceeding daily drivingby 12½ hours. 18. For a chart of 28 March 2008, Mr McFarlane did a Kilsyth and backjourney for McLanachan. On 28 March, he was on duty with Asda from 1:29to 8:15 and then commences on the McLanachan chart at 11:45 ending at22:30. Duty time and work with Asda was not entered on the McLanachanchart. The most daily rest he could have had was 3½ hours. The dailydriving period would have been exceeded by 10.54 hours. He committed aweekly rest offence, as given the driving in the period 14 to 22 March,for both McLanachan and Asda, he took only 14.22 hours and not the 38.07which Asda recorded on his timesheet. By not keeping true records ofhis work, he disguised that he took insufficient daily rest, exceededdaily driving and failed to take sufficient weekly rest. 19. These matters were raised by the Traffic Examiners at therespective interviews with Mr McFarlane and Mr Matthew McLanachan asoperator. At interview, Mr McFarlane said that he was friendly throughfootball with Mr Damien McLanachan and would give them a help out withthe odd shift. He was unpaid as he did it to help out in view of thefootball connection. He was on a 45 hour nightshift with Asda. Hecould not remember from whom he took the vehicle at Cairn Lodge butthought he had got a run down in a van. No checks would have been madeby McLanachans on what hours he had worked elsewhere. I record here,that the agents for operator and driver cross examined the VOSA TrafficExaminers at various points in the hearing on their use of the term“false record”, putting it to them that the driver(s) had notknowingly omitted to record duty time. Thus, in respect of MrMcFarlane, his agent cross examined the Traffic Examiner on this point. The Traffic Examiner’s response was that the record was a “falserecord” as the full duty time was not recorded. The driver, MrMcFarlane, might have made a manual record, but did not. It was put tothe Traffic Examiners that they were using “a false record” ratherthan “failure to record duty time”. In response to this cross

examination in respect of Mr McFarlane, the Traffic Examiner respondedthat if Mr McFarlane had done a proper manual record on the back, itwould have shown that he had not had a daily rest. So, it was false. There must be intent, intent to disguise that he had not had daily rest. He had not filled in the reverse of the chart (other than in respect ofthe mode switch). It was put to the Traffic Examiner that Mr McFarlanehad not recorded the journey to and from Cairn Lodge but there was noevidence of intent, of him deliberately falsifying a record. TheExaminer could give no further answer than that which she had given. Traffic Examiner Quinn pointed out that, at interview, Mr McFarlane hadsaid “I think I got taken down in a van but I have not written on theback here that I got a lift down there” which showed he knew that hehad to write on the back of the chart. Mr McFarlane’s evidence 20. Mr McFarlane is 43 with a clean driving licence. He has held theentitlement since he was 21. He is a mechanic by trade and it helpedhim to have the entitlement. Only in the last 6 to 7 years has drivingbeen his main source of income. He is a full time Asda driver workingon a rota which starts sometime between midnight and 3am, withdeliveries which could entail trunk work and finishing at approximately11am 4 or 5 days per week. He runs a football team and was friendlywith Damien McLanachan and, if they were stuck for a driver, he went andhelped out as they helped with the football. He would get a textmessage to see if he was available and if he could have helped, he wouldhave done it. 21. In respect of the charts for 19/20 March, he recalled taking alorry from Cairn Lodge to Bellshill but did not record the journey fromhome to the operating centre as he was not aware he had to. That cameout at interview. It is never an issue in his normal job and so it wasa surprise. It was put to him by not recording he was intending to hideanything and he said no, that if he was going to hide anything, whywould he have handed the charts in. In accepting to do the work, he hadnot thought about daily rest. He accepted that he had not hadsufficient daily rest. The driving on 28 March was the same sort ofincident that he got a text or a phone call and could he help. Hefinished at 8:15 with Asda. After he finished with the McLanachanshift, he had longer time off. After the VOSA investigation with Asda,he was suspended by Asda and then resigned, as he knew he was going toget sacked. He is currently not working but is registered withagencies. He enjoys driving and had put himself through ADR training totry and secure a job. Because of this Inquiry hanging over him, he didnot feel it was right to take a job given that the inevitable wouldhappen. He appreciated the seriousness. If he was tired, he would pullin and have a sleep. He is in financial hardship and he knew that hehad done wrong. It had led to the loss of his job. Other than thejourneys for which there were these charts, he felt there was one otherjourney he could remember doing from McLanachan. It did not happen allthe time and there was not a pattern of helping out.

Closing submission for Mr McFarlane 22. It was submitted that this was not deliberate falsification andthat the guidance of Practice Direction number 3 should not apply. This

was a failing to record duty time. There was no evidence of intent ormens rea. He does accept that his Asda work was not recorded on thecharts and that impacted on daily rest. He is contrite. He hassuffered from the consequences of his action. He had been candid. Iwas invited not to revoke. Decision in relation to Mr McFarlane 23. Given that Mr McFarlane’s was a finite case which did not havegreat implications for the rest of the Driver Conduct hearings andPublic Inquiry, I took the decision on 27 May that Mr McFarlane was notfit by reason of his conduct and that his entitlement be suspended for aperiod of 3 weeks from 23:59 on 27 May 2009. That decision wasintimated orally to Mr McFarlane and his agent, their preference beingfor that immediate decision. That decision has not been the subject ofappeal.

MR DAVID STEWART - DRIVER NO: STEWA 402107 D99EN 24. Mr Stewart has a goods vehicle speeding conviction from 2005 - 3points. Traffic examiner evidence 25. Traffic Examiners looked at 30 charts for driver Mr David Stewartand he was interviewed on 17 October 2008. The charts of concern wereall for the same vehicle and was engaged in general haulage work. Theyconsidered that there were 8 false records. 26. His chart for 1 March 2008 which showed 3 full scale deflections(FSDs) and a journey Stafford to Stibbington ended at 19:25. However,this vehicle was noted as entering Tesco, Peterborough (14 miles fromStibbington) at 00:06 on 2 March and leaving at 01:34. If the Tescojourney had been shown on his chart, this would have shown that he hadinsufficient daily and insufficient weekly rest. They regarded thechart as a false record to hide the Tesco delivery and duty drivingtime. At interview, Mr Stewart denied any knowledge of Tesco atPeterborough. He could not recall going there. He could not understandthe Traffic Examiner’s allegation that he had tipped off the card. He denied any use of interrupters or fiddling the tachos. 27. His chart for 2/3 March was Stibbington to Linwood starting at19:35 with an immediately consecutive odometer reading. This chartagain served to hide the journey to Tesco, Peterborough aforementioned.

28. For 8/9 March, his journey was Bellshill to Portsmouth with norecord of duty/driving time from home to collecting the vehicle atBellshill. At interview, Mr Stewart explained that he lived 2 milesfrom Bellshill and one of his family or a taxi would have taken him fromhome to Bellshill. The Traffic Examiners explained duty time and theimport of the Skills Coaches decision to him as he claimed not to knowabout recording the journeys to or from the vehicle if not at base. Incross examination at the Inquiry, Traffic Examiner Quinn opined that MrStewart did know about this duty time provision in respect of getting toor from the vehicle.

29. For 12/13 March, the journey was Wrexham to Bellshill. The job wasto uplift cheese at Ash Manor and Mr Stewart’s signature was on thedocumentation. It was the Traffic Examiners’ view that the uplift hadbeen made when the premises started loading at 6am and would take abouthalf an hour. They had a statement taken over the phone from theOperations Director of Ash Manor Cheese. That statement included thatthey did not keep a record of times in and out. They did not ask theDirector what the actual time for Mr Stewart’s loading was. In crossexamination, it came out that they had no evidence as to the actual timethe vehicle was loaded. What was missing for them was a record by thedriver of his duty time doing the paperwork at Ash Manor. They had noevidence to contest Mr Stewart’s assertion that he loaded at 15:30. 30. At interview, Mr Stewart said that it might only take 20 minutes toload but that they could be kept sitting for 5 to 6 hours at Ash Manor. The Traffic Examiner could not see the duty time at Ash Manor. MrStewart described the procedure as going in, opening the door andsitting and twiddling your thumbs until they tell you to go. 31. For 14/15 March, the journey was Northampton to Rosyth ending at11:03. His next chart 15/16 March is for Rosyth to Zeebrugge,commencing 17:00. Ferry records show him and his vehicle on the 17:00departing ferry. 32. At interview, Mr Stewart first of all asserted he was a footpassenger; then admitted driving the vehicle on. This was not recordedas it would interrupt his daily rest which he agreed and then retracted. The Traffic Examiners consider his chart for 15 March to be a falserecord as his duty/drive on to the ferry was not recorded. 33. There was extensive cross examination during this and othersections of the Inquiry of the Traffic Examiners regarding thearrangements for loading at Rosyth. Particular productions referred towere the statement the Traffic Examiners obtained from Mr AndrewMarshall, the Duty Manager at the Rosyth terminal and an email from MrTurnbull of Superfast Ferries to Mr Mathew McLanachan, which MrMcLanachan had provided to the Traffic Examiners. 34. Mr Marshall’s statement recorded that McLanachan’s vehicles didnot go unaccompanied on to the ferry. The arrangement was that a driver(A) would bring the unit and trailer to the weighbridge, drive to checkin with the unit and trailer being checked in (not passengers). Driver(A) would park the unit in the yard and leave the port. Driver (B)would check in at the foot passenger check in and would be given hisboarding pass and cabin key and would go through security on foot andthen to the vehicle and trailer and would drive them on to the ship. Adriver could not drive the unit and trailer on to the ferry and come offas a foot passenger. Neither, a shunter nor other employee from theport would drive a unit and trailer on to the boat. The TrafficExaminers acknowledged that several drivers said that stevedores didload the vehicles and that was what Mr Turnbull’s email also said. The Traffic Examiners were caught between these two statements. Theyalso found Mr Stewart’s account at interview confusing. The paperworkfor the trip has a section PAX and underneath stated whether passengeror not. They were of the view that Mr Stewart drove the vehicle on.

35. For 26/27 March, the journey was Sittingbourne to Glasgow. Fruitmarket records at Glasgow showed the vehicle unloaded between 7.00 and7:30. The Traffic Examiners had relied on the fruit market’s bookingin schedule, which had half hour slots. They did not ask how accuratethese were. The driver put in his chart when he came out of the fruitmarket and therefore did not record any duty time at the fruit market. If duty time at the fruit market had been recorded, he would haveinsufficient daily rest. Mr Stewart at interview asked how 10 secondsof handing out paperwork through a window could be recorded. He said hehad arrived at the fruit market at 1:30am with no one there and parkedin the bay and at 7:30 he handed the paperwork out at the window. 36. For 27 March, the journey is Glasgow to Northampton with a startworking day entry of 11:16. This includes the duty time of delivery atGlasgow fruit market. 37. For 29/30 March, the journey is Cardiff to Bruxelle; he manuallyrecorded the start of working day at 11:00, with other work to 12:30 anddriving from 14:00. He manually recorded that the card had beeninserted wrongly at 11:00. The vehicle is recorded at Cardiff Panasonicfrom 7:45 to 8:30. He does not record that. If he had done so, itwould have shown that he had insufficient daily rest. The record wasfalse as it hides the Panasonic duty/drive time. At interview, he madeno comment on this. 38. The following other points emerged during the interview with MrStewart. He has been a LGV driver for 30 years and employed full timeby McLanachans for 4 years doing local national and internationalgeneral haulage jobs; paid weekly by bank transfer. Time sheetscompleted and handed in or faxed to the office; had received no trainingon drivers’ hours but learned on the job over those 30 years; if awayfor a long time, paperwork would be handed over at a change over toanother driver; changeovers could happen anywhere. He would get hiswork by satellite or phone call from the office. If he did not have thehours and thought he could not do a job, he told them “end ofstory”. 39. The Examiners considered that the FSDs on the chart of 1 March wereevidence of some interference or ongoing fault with the tachographs, butthey did not put that to Mr Stewart at interview as their interest wasthe journey between the charts. 40. The Examiners use Autoroute as an indication to them of distancesbut did not know of any warranty as to its accuracy. They had nottravelled the route to Tesco Peterborough. They were of the view thevehicle journeyed to Tesco between the 2 charts. Mr Stewart’s evidence 41. Mr Stewart’s conviction was for a speeding when in his lorry at57mph on the A1 north of Newcastle in a 40 mile speed limit. He wasaware of the importance of speed limits and on that occasion, had notbeen rushing and was about to finish his day. 42. He has held his licence since 1971 and has been with McLanachansfor 4½ years. He normally does refrigerated work and McLanachans isonly his third employer in his working life. He described the working

conditions as average. He loves the job as it takes him to places hehas never been to and could only otherwise have seen on a map. He foundthere were no airs and graces to McLanachans. He had not had anydrivers’ hours training other than when tachographs first came in inthe late 80s but 6 to 7 months ago after the VOSA investigation, he gottraining from McLanachans. He had never been pulled up by his employerfor his tachograph charts. He had found the training informative. Until Traffic Examiner Quinn told him of the “Skills Coaches” rulinghe had not heard of it and he has since then had to apply that rule. 43. Mr Stewart admitted that on 1 March he tipped at Tesco Peterboroughwith no chart in the tachograph head. He did it as he had been told byJamie McLanachan in the office that the load needed to be tipped thatnight and there was no one else to do it. He knew it was wrong. He hadthe rest of the day until Sunday night for rest. His mileage on thechart for 2/3 March was correct and not false. 44. His chart for 8/9 March has him starting at Bellshill which is afew minutes from where he lives at Coatbridge. He often left and pickup his vehicle at Bellshill and did not know he had to record hisjourney to and from there. He only found that out from Traffic ExaminerMr Quinn. 45. He remembered the cheese load of 12/13 March. It was loaded duringthe day just before he left. It had been delayed and he had to collectit. He was in his bed in the cab when it was loaded. There are noloading bays as such, just a dead end road. His charts were accurate. 46. For the chart 14/15 March, his vehicle was put on by one of theRosyth stevedores. He would take his bags out of his vehicle and walkon to the ferry as a passenger. He could get access to the vehicle ifhe wished but usually did not. The keys would be left in the vehicle oron a grill. He was confused at the interview as he could not mind whichday he had shipped out. He did not think he had done anything wrongthat day. He said the information that third parties did not load thevehicles was rubbish. 47. On 26/27 March, he had arrived at the Glasgow fruit market in theearly hours of the morning and reversed on to the bay which is sealedand he went to bed. At 7.30am, a chap asked him for the paperwork andhe handed it out through the window and got it back later on. He satthere until ready to go. He denied failing to record some duty time asin his view he had no duty, he took no part in the tipping other thanhanding the paperwork out of the window. He did not set out to hideanything. His chart was correct. 48. On 29/30 March, he loaded at Panasonic without a chart in thetachograph head. There were 3 McLanachan vehicles loading at the sametime. It was a secure load and they had to have each other in sight atall times and could not travel on their own. He did not put a chart inas he would not be able to start until later. It was all aboutsecurity. His instructions came from Jamie McLanachan in the office,that the 3 must leave together and he supposed that to be so, even ifbreaking the law. His was loaded first taking 20 to 47 minutes and hewas sleeping when the other two were loading. 49. He realised that the rules are there to ensure that there are no

tired drivers. If he gets tired, he pulls over. He will never do thisagain. He realised he could be a danger on the road. Closing Submissions for Mr Stewart 50. Of the 8 alleged false records, 2 are accepted. There were 2instances of failing to record loading and unloading. Tescos and theRDCs put drivers in an invidious position. A driver ought to make surehe has an appropriate break. He has given an account of what happenedat Tesco. On 1 March he was told what was expected of him and he didit. He had been candid and was aware of the consequences. He had beenstupid and foolish. On 29/30 March, the 3 vehicles had to traveltogether and he did a load without a chart. His reticence was due tothis being a conjoined hearing as he has a sense of loyalty to thisemployer. He rested after loading and the 3 vehicles went together. 51. His ordinary driving licence is now clean and he had 3 pointspreviously for speeding. 52. He did not accept the accuracy of the VOSA Autoroute evidence. Fornot recording his journey to Bellshill, he was surprised that he had torecord that. He will do that in the future. He had been ignorant andthere was no evidence of deliberate falsification. 53. The allegations in respect of 12/13 March are challenged. TheTraffic Examiners did not question when he actually did load at AshManor Cheese. It was submitted that Mr Stewart’s evidence should beaccepted that this was a delayed load. His record was not false. Hisaccount of what happened at the fruit market was sound and correct. Theevidence of what happened at the ferries was contrary to the actuality. VOSA preferred Mr Marshall’s statement to what actually happened. Adriver should be allowed some latitude recalling events at interviewsabout several months before, especially if the driver has had severalferry crossings. After receiving the brief, the driver has refined hismemory that the vehicle was loaded by a third party on that occasion. 54. It was submitted also that the times given for the loading ofvehicles on 26/27 was so inaccurate that they were questionable. Therewas not sufficient evidence to counter Mr Stewart’s evidence. 55. Mr Stewart had been candid after the Traffic Commissioner had putquestions to him. He can be compliant and has had training. I wasinvited not to revoke his entitlement and if suspended to restrict thatto allow him to work.

MR BRIAN WATKINS - DRIVER NO: WATKI 809081 B99RR 56. Mr Watkins has a conviction of July 2006 for failing to give theidentity of a driver - £170 fine and 3points. 57. The Traffic Examiners considered 2 tachograph record sheets for MrWatkins and 2 digital downloads for him in the period investigated. 58. Their first concern was a false record on 1 March 2008 when he

failed to record that he had left his vehicle at Rosyth and travelledback to Kilsyth by car. Thus, he had made a false record by notrecording manually on his driver’s card/vehicle his true duty/drivetime back to home/operating centre. The next related to 24 March 2008for a journey Kilsyth - Mossend and his failing to record his duty timein getting back to Kilsyth that day. 59. The Traffic Examiners also checked his time sheets for his otheremployment with H & R Transport (Kilsyth) Ltd and in the period 25February 2008 to 3 March 2008 found insufficient weekly rest i.e. at notime during the period had he been off work for 24 hours. They alsofound that he had taken insufficient daily rest on 24 March 2008.

Mr Watkins’ evidence 60. Mr Watkins is 27 and got his HGV entitlement when aged 21 but hadnot always used it for his livelihood but does now. The conviction ofJuly 2006 was when he was caught speeding in his lorry. He was caughtby a speed camera. He was working away from home. He sent the formaway and it was not received and it ended up in him getting a £170 fineand 3 points. He has had no convictions since. He has worked for H &R Transport at Kilsyth for 2 years and was employed by them at the timeof the investigation. He is self taught on tachograph matters. He didnot know about making the manual entry. The distances involved i.e.Rosyth to Kilsyth and Mossend to Kilsyth are respectively about an hourand about half an hour. He had no intention of making a false recordand he now appreciates the seriousness. His work for H & R Transportdid not require the use of his vocational licence. He is now driving atipper truck for H & R Transport so is using the vocational licencethere. His knowledge is now greater. He has done no work forMcLanachan since December 2008. He now knows to put a manual entry in. He knew that it was for safety reasons. Closing submissions for Mr Watkins 61. The previous conviction was an error on his part. There was nodeliberate falsification of records by him. What he did was fail torecord travelling in a car on relative short journeys. He simply didnot know. Road safety was important and he was not trying to get roundthe rules. This was ignorance. He had erred with weekly and daily restas his main employment was not doing LGV driving. He now knows. Thereis unlikely to be any repetition. I was invited to stop short of asuspension or if not to restrict it to as short as possible.

MR PATRICK JOHN MCINTYRE - DRIVER NO: MCINT 501256 PJ9WH 62. The Examiners had two tachograph records and 1 digital download forMr McIntyre. Their analysis for 26 February 2008 revealed insufficientdaily rest and exceeding the daily driving limit. At interview MrMcIntyre explained that he broke his rest to drive the vehicle on andoff a loading bay in Germany - he had said he couldn’t move but they“weren’t for having that”. This was his first use of a digitaltachograph. On 12/13 March, the Examiners alleged a false record - this

related to him failing to record his journey to collect the vehicle. He had not made a manual record and did not know to do so. In relationto 13/14 March, the Examiners detected a gap of 2km in the V tracefinished position and Mr McIntyre’s record for 14 March at Bellshilland a start on Mr Christopher McLanachan’s record at 7:05, meaning thevehicle moved between the two charts. At interview Mr McIntyre denieddriving the vehicle into Morrisons and said that he waited until 6am fora long haired man from McLanachans to turn up in his car (i.e. MrMcIntyre’s own) to drive home. The Traffic Examiners were of theview that he had made a false record by not recording his true duty timein and out of Morrisons at Bellshill and his drive home. If he had doneso, he would have failed to take sufficient daily rest. Mr McIntyre wasadamant at interview that he had not unloaded at Bellshill that morningeven though Morrisons had his name and time out of 6.22. 63. His interview took place on 31 October 2008 and the TrafficExaminer accepted that anyone in such a position could be confused ormake an error as to what he was doing on any given date. Mr McIntyre’s evidence 64. Mr McIntyre gained LGV entitlement through the Army and has used itas a means of livelihood since 1991. He is working part time for familyreasons. He phoned around for part time work McLanachans offered him afew shifts. His knowledge of drivers' hours rules came from talking toother drivers at truck stops and in the yard where someone showed himhow to work the digital tachograph. The journey of 26 February toGermany was his first with the digital tacho and he had to move as thepolice said he was blocking a road. He did not know he had to recordjourneys from his home to pick up the vehicle. He did not intend to makea false record. He now knows what to do. On 14 March he arrived atMorrisons Bellshill in the early hours and ceased driving at 2am. Hetook his card out. He later tipped the load having forgotten his cardwas out. He tipped to allow another driver to do other drops. Heaccepted that his was not a true record. He had thought he would be inand out of Morrisons but was in longer. He could not deny that he wouldhave had insufficient daily rest. At the interview he had notremembered that he had driven in but he now did. Closing submissions for Mr McIntrye 65. Mr McIntyre had not known how to record that he had been asked bythe police to move the vehicle. He did not know about recording dutytime. He had put extra effort in at Morrisons and tipped to assist hisemployer but understands now. I was asked to stop short of suspendinghis entitlement.

MR IAN STEPHEN ROBERTS - DRIVER NO: ROBER7030461S9RK Traffic Examiner evidence 66. The Traffic Examiners looked at four tachograph records and 2digital downloads for Mr Roberts who was a part time driver forMcLanachans, his main occupation being taxi driver. He lived across theroad from McLanachan’s yard. For charts of 19 and 20 March he did notrecord his duty time from leaving the vehicle. The Examiners had a

difficulty with his charts for 21 March and much time was spent atinterview trying to work out why v traces did not match up, Mr Robertsbeing as puzzled as the Examiners over what might have gone on (therebeing 2 charts for same day in his name). The Examiners were worriedthat charts with the name “Roberts” might be ghost drivers. LaterMr Roberts phoned the Examiners and said he had used an already usedchart, had realised what he’d done and put in a new chart. Itremained a matter of mystery and made the chart a false record. In theinterview he said that most of the work he had done for McLanachans wasfairly local (Bellshill, Gourock, Larkhall, and sometimes to CouparAngus). He had gone out to bring lorries back and had brought backdrivers’ cars or had gone in one of the 2 vans. His instructions camefrom Jamie or Damien McLanachan in the office. Often he did only acouple of hours but it allowed him to build up some extra money.

Mr Roberts’ evidence 67. Mr Roberts, aged 33, is known as Stephen and has had HGVentitlement since aged 27. He’s a taxi driver with a clean licence. He was self taught in drivers' hours. He did not know he had to recordthe time back from leaving a lorry. He didn’t think he had doneanything wrong. If he had known to record duty time he would have. Heasked VOSA for leaflets but none came but he has since got leaflets. He’s been doing work for McLanachans due to his car being in thegarage. Closing submissions for Mr Roberts 68. There was no evidence of deliberate falsification on the dates inquestion. He was not aware of the necessity to record his duty time andonly became aware on meeting Traffic Examiner Mr Quinn. If he had knownhe would have recorded. He has got leaflets to be compliant. I wasasked to take no action or to restrict any suspension.

MR MARTIN FLANAGAN - DRIVER NO: FLANA611037N99SA 69. The Traffic Examiners were interested in 3 charts in name of MrMartin Flanagan being for 26, 27 and 28 March. That for 26 March showedan end point of Kilsyth whereas Mr Flanagan had handed over the vehicleat Bothwell and continued in other transport back to Kilsyth. He couldnot explain at interview why he had put Bothwell, only that he was goingback to his motor home at Kilsyth. The other two charts related to ajourney which involved tipping at Morrisons at Corby. On examination theExaminers found that the traces for 27 and 28 did not match up. Thiswas discussed at interview. The Examiners had paperwork for deliveriesby the vehicle. Mr Flanagan explained it was difficult to park atMorrisons due to double lines. 20 kms were missing from the charts. This could be from Morrisons to junction 3 of the M6. The problem forthe Examiners was that the charts had consecutive odometer readings andso questions arose as to duty time and to daily rest as he had run outof time. They did not have a clear picture. Mr Flanagan’s evidence

70. Mr Flanagan, aged 42, has held LGV entitlement since 1994. Hestarted as a fencer and gradually needed a larger vehicle and then hewent into lorry driving. He has never been out of work and has workedfor a number of operators. He has a clean driving licence. He has hadtraining from one of his employers. He has only worked a few shifts forMcLanachans and has not worked any since. He had been in dispute withanother employer and during that time he did some agency work and somework for Matt (McLanachan). 71. On 26 March he had handed over to another driver at Bothwell whowas taking the vehicle south. He had become used to digital tachos andbecause he thought he was going back to Kilsyth he put that in. He wasaware that you had to record going back to base and he forgot. He wasnot trying to hide anything and there was no benefit to him. His own carwas at Kilsyth. 72. On 27 March he was unloading at Morrisons without a chart. At theinterview he had tried to recall the day but was vague about it. Heaccepts that he went into Morrisons without putting a chart in. He didtake time off. He just forgot to put the chart in and forgot to writeon the back. He’d probably thought it was a digital card and got lazy.The chart for 27 March is a true record but that for the 28th is not acomplete record. He is good with the digital card and prefers it anddoes manual entries all the time. He put his hands up to the error of28 March. He was not trying to hide that he had not taken his break. Closing submissions for Mr Flanagan 73. The case concerned 3 charts, 2 being for the time at Morrisons atCorby. Mr Flanagan has been candid. He was aware that entering Kilsythas the end point was a mistake. He was used to digital. On 28 March hedid make a journey to Morrisons at Corby without a chart in the head.Daily rest would be tight but was not breached though it is acceptedthat the Traffic Examiners cannot know that as no entry was made. Itwas a mistake in failing to put a chart in. He has a good knowledge ofthe rules, to his credit. I was asked to show leniency.

MR ALEXANDER STURROCK MILLER - DRIVER NO: MILLE307217ASDS Traffic examiner evidence 74. The Examiners looked at 34 records for Mr Miller and checked itagainst other documentation including ferry and fuel records. They foundmatters of concern and interviewed Mr Miller. 75. 26/27 February 2008 was a journey Kilsyth to Portsmouth, crossingon Brittany Ferries, landing at Ouistreham and fuelling at CaenCarpiquet. The record was false given Portsmouth and the journey fromlanding to fuelling (approx 22kms) had not been recorded. The startodometer and distance traces match the next chart but there is no recordof the 22kms. It was the Examiners’ view that the driver had pulledthe fuse which he denied. The motivation would be to disguise thatinsufficient rest had been taken - rest only 6.23hours - daily drivingexceeded. Putting Ouistreham as the start of the next chart also madeit false.

76. The journey on 27 February was to Poullaouen to offload fish andthe chart showed a journey Ouistreham to Gourin. The Examinersconsidered the end location should have been Poullaouen with Gourin usedto disguise the duty time at Poullaouen and the driving to Gourin. Thejourney on 28 February was Gourin to Cherbourg when Ferry documentationshows the vehicle crossed to Poole. Again this has been done todisguise the true duty time and driving. 77. Charts for 2 to 4 March involving journeys from Kilsyth to Nuneatonand Nuneaton and a trailer coming down from Linwood interrupt his restand he has insufficient weekly rest. On 5 March on a journey back to theUK there is paperwork which shows that he has been out of TNT inNorthampton on 6 March - the chart was removed from the tachograph head.He failed to take sufficient daily rest. Later that day he does ajourney Northampton to Cumbernauld not recording his actual departuretime. He had to go by way of Nuneaton and did not record the journey tothere. He drove to Cumbernauld where he did a change over with ChrisMcLanachan, the latter taking the load into ASDA Falkirk. There was norecord of duty time back from Cumbernauld. On 6/7 March he failed torecord the duty time in getting to Bothwell. 78. 7/8 March this was a journey Northampton to Kilsyth. The Examinersdetected that the tachograph head had been opened and the sheet takenout. The clock has been wound back. The Examiners set out the timingsin their detailed report. The winding back was done to hide that MrMiller would have taken insufficient daily rest - 8 hours at most. Thewinding back was admitted by Mr Miller when the Examiners interviewedhim. 79. The next journey looked at was 10/11 March on a chart showingKilsyth to Portsmouth when in fact the vehicle crossed with BrittanyFerries to Ouistreham and fuel was drawn at Caen Carpiquet. This was notrecorded. The end destination should have been Caen Carpiquet. It wasthe Examiners’ view that the fuse had been pulled. This was to hidethat only 7.25hours of daily rest and that he had driven for 14.40hours. This was a false record. 80. The chart for 11 March should have shown a start of Caen Carpiquetbut showed Ouistreham to Lampaul Guimiliau. There were deliveries to StPol du Leon and cleaning out of the trailer -used for fish and going forice cream - which cleaning duty was not recorded as other work. Againthis done as if recorded there would have been insufficient dailyrest/exceeding daily driving. 81. The chart for 12 March was Lampaul Guimiliau to Roscoff when infact there was a ferry crossing to Plymouth so the chart was a falserecord. 82. 12/13 March was Plymouth to Hamilton with the next chart for thevehicle being for Mr Blackwood (mechanic/driver) at 11am with Mr Millernot recording his time back to the operating centre (30mins journey). Ifthat had been recorded he would have failed to have sufficient dailyrest/exceeding driving period. 83. 13/14 March is also affected by the previous failure to record dutytime as the time for daily rest is affected. The driver was at

Norfolkline Larkhall and duty time there and at the operating centre atKilsyth was not recorded. This affects daily rest with daily drivingtime exceeded - driven for 15.20 hours. The chart is Kilsyth toPortsmouth. For 14 March there is a Brittany Ferry crossing toOuistreham and fuelling at Caen Carpiquet - much as in the pattern notedfor previous journeys. Again the Examiners considered that a fuse hadbeen pulled again to disguise insufficient daily rest/exceeding dailydriving. The chart for 14/15 March is affected by that before given thestart location is given as Ouistreham. The Examiners also had a fuelrecord which was not recorded on the chart. 84. The chart for 15/16 March is St Pol de Leon to Northampton. Theclock was wound back, distance traces did not match up and there wereseveral head openings. The chart times do not accord with TNTNorthampton paperwork. This chart is a false record. 85. For 17/18 March the journey was Northampton to Nuneaton with aclock winding back and head openings. The Examiners also consideredthat Mr Miller had changed vehicles coming down to Penrith. 86. For 19 March, Mr Miller’s chart shows Nuneaton to Harwich. StenaLine Ferries show the vehicle on board with driver A Miller. The chartshows a winding back of the clock of 2 hours at Harwich which woulddisguise insufficient daily rest. The end destination of Europort is notgiven. The charts for 19/20 March are not a true record as that fromEuroport to Bockel fails to record a delivery to Hemsbuende. The chartwas removed at 5.30 on the 20th and recordings begin again approximatelyfive hours later. True records would have revealed insufficient dailyrest - only 4.25 hours and driving for 14.20 hours. The next chart of20 March is false given the previous chart end destination of Bockel.The recordings are from Hemsbeunde to Emmen where there was a load to belifted. 87. On 24/25 March for a journey Kilsyth to Heathrow, Mr Miller failedto take sufficient daily rest. 88. For 28 March a journey from Hemsbeunde to Meer was considered to bea false record in that a fuelling at Meer was not recorded as the chartended 4 hours previously. Also the Examiners considered that Meer wasnot the end destination. All this was done to hide insufficient dailyrest/exceeding daily driving. 89. The last charts for Mr Miller were for 29 March and journeys in toScandinavia - I will not record this part of the evidence for matters todo with the Scandinavian run were aired in cross examination and MrMiller’s evidence and the Examiners accepted that there had beenmisunderstandings about place names and available routes. 90. The Examiners concluded that Mr Miller had made false records tohide that he was not taking sufficient rest and that he was exceedingdaily driving periods. They also found that he had interfered with thetachograph recording equipment in winding back the clock and theirprofessional opinion was that he had pulled a fuse on occasions orotherwise interfered with the equipment. As the drivers' hours rulesare for road safety he had endangered that. Mr Miller’s evidence

91. He is a 71year old with a clean driving licence who obtained hisHGV licence in 1958 and has always used it. He has worked forMcLanachans for 5 or 6 years following redundancy. He has worked allover Europe and to the Middle East including Iran and Iraq and enjoysbeing a continental lorry driver and the variety. His vehicle istracked with the satellite in the cab and normally he gets enough timeto do the job. 92. He admits to winding back the clock on there occasions and also ofnot having a chart in the head. However, he denies pulling a fuse asthat is something he does not do. What he had done on 26/27 February wasto drive without a chart in, to give himself some time. There was noexcuse. 93. At Poullaouen the procedure is to drive in, there is no gate. Hesometimes washed his trailer there or in a layby, never at Gourin. Heaccepts that on 27 February he drove without a chart in the head to gethim along his journey faster and to make it easier to get back. He wasnot bothered about the French police as they had “got to catch youfirst”. He had been caught a couple of times and had got away with itby pleading innocent. 94. He was emphatic that he denied pulling a fuse and claimed it couldnot be done in an automatic gear box as it would knacker the gear boxwhich VOSA should know. One of the mechanics at Scania had told himnever to pull a fuse as it would knacker the gearbox and so he neverever did because of that. 95. For 5 March, his name and vehicle was on the paperwork for thejourney Linwood to Northampton. The guys at the gatehouse struggle withEnglish. Your name has to be on it so that you are booked on the train. If you are at Eurotunnel and it is not your name on the paperwork youwill not get on the train. 96. He could not remember the circumstances of 7/8 March. It was toolong ago. He knew how to wind back a tachograph. It was a bit daftbut every else knows though he wasn’t saying that everyone winds backthe clock. 97. There was nothing wrong with his Scandinavian charts as if VOSA hadchecked the ferries they would have known the times. VOSA had used anincorrect route. [The Traffic Examiners looked again at what he said andaccepted what he said about the correct location: they therefore onlyasserted 20 false records, not 22] 98. He couldn’t fiddle with some of his former employers eg Intercitywho were 100% legal and who would have sacked him. McLanachans did notknow what he was doing; it was off his own back to make life easier toget somewhere. He is sticking to the rules now and has been through atacho course and has plenty of time to do the job. He would like tocarry on driving. Closing submissions for Mr Miller 99. It was recognised that 20 false records was a serious tally. Hehad been candid at interview about winding back the clock and adamant

that he had not pulled any fuse. He did not accept the evidence ofAutoroute. He appreciates that action will be taken against hislicence.

MR KEITH EDWARD NICHOLSON - DRIVER NO: - NICHO603060KE9DA 100. Mr Nicholson has one speeding conviction - September 2005, 3points. Traffic Examiner evidence 101. The Examiner looked at 29 digital tachograph records for MrNicholson and alleged 7 offences. He was interviewed. 102. The 7 offences were: 103. On 3 March he exceeded daily driving by 48 minutes. He admittedthis at interview. 104. On 11 March he is the only driver with vehicle SF07 CBX. Herecords a start of work when it should be end of duty and leaves hiscard in the unit. He removes his card and then the vehicle is driven onfour occasions for short periods, between which there is other work. The unit shows this but his driver card shows him on daily rest. Headmitted that he had moved the vehicle but could not say why he removedhis driver card before doing so. (The Examiner clarified that he hadbeen made aware that the opening times at Poullaouen were open forlonger than 4-12.) 105. On 13 March he withdraws his card at 3.16 and the vehicle isbooked into Morrisons RDC Corby at 3.20 and booked out at 6.50. Inbetween these times the vehicle is driven for some minutes and thenagain. Duty on loading and manoeuvring has not been recorded on hiscard. He has not recorded all of his duty. He admitted that he movedthe vehicle. 106. On 14 March he records end of work, then has rest and withdrawshis card. The unit records a short period of driving and other work. He later inserts his card and then withdraws it (times given in theExaminer’s statement) and commences daily rest on the Rosyth/ZeebruggeFerry. The withdrawal of the card disguises that he has had a spreadover of 20 hours 13 minutes in 24 hours and so fails to have sufficientdaily rest. He thought that a docker at Rosyth put the vehicle on theferry and that he was a foot passenger but was unsure. The Examinerconceded that if Mr Nicholson was not responsible for putting thevehicle on the ferry then it may not be a false record. 107. On 16/17 March the evidence from the unit shows a spread over of17 hours 12 minutes and that he has only had 6hours 48 minutes of theminimum daily rest. Also during this period he exceeds the permittedmaximum 10 hours driving. Lastly on 17/18 March he again exceeded themaximum daily drive of 10 hours. He accepted this happened on thesedates. The Examiner had seen the very comprehensive diary which MrNicholson keeps and which showed for example that the 18 minutes inrelation to the last alleged offence was due to him not being able toget parked.

Mr Nicholson’s evidence 108. Mr Nicholson (49) has been an HGV driver since 1991 and alwayswanted to drive Lorries and this is his livelihood. He has worked withMcLanachans since June 2003 and does continental and UK work. Hisspeeding conviction was in 2005 - 3 penalty points when he had been in atraffic jam and was trying to get a delivery done. There has been norepetition. 109. He accepted that he was over in his driving time on 3 March. Norfolkline wanted the load back at Larkhall that night. He’d toldthem he would be pushing it. They are always on the phone. He was toldto do the best he could. He did not phone his own office. If this wasto happen again he would ring the office and arrange for a trailerchange or re-booking of the load. 110. He got to Poullaouen 10 March and parked on the bay which issealed so the trailer can be opened. He described the procedures thereincluding that the gate can be pulled open. There are trailer washingfacilities there and people to help unload. Normally there are 9 hoursto unload but this time they wanted it quicker and so he had to move andthen to find somewhere to park which explained the small movements. Hehad to move as otherwise he would have caused hassle for other drivers. 111. On 13 March he tipped at Morrisons Corby. He had expected to tipat 1 but got there at 3.20 and it was 6 when they said they would takeit. He told them his time was up but they said 6 or they would rejectit. He accepted that he made these movements within Morrisons withoutthe card in and that he did not tell his office. It was his fault not todo a change over. He took his card out as he was going to tip off thecard. After he came out of Morrisons he had to find somewhere to park. There was no financial gain to him in tipping off the card. It was amistake as he knew he would not be going north until the late afternoonany way as there are always evening loads to come up eg from Dairy Crestat Nuneaton. He did not know what the consequences to him would havebeen if Morrisons had rejected the load. There is a lot of pressure atthe RDCs and they do not care if you tell them you are short of time. He thought the company could be banned if it didn’t co-operate withthem. Asked by me if he felt between a rock and a hard place he said“sometimes, yes.” 112. In relation to 15 March he thinks he did drive the vehicle on tothe Rosyth Ferry that day but could not be sure of what job he was goingto. Sometimes a McLanachan employee will take the vehicle to the ferryand the driver would go on as a foot passenger. Sometimes it would be adocker and the keys would be left in the truck in the trailer park andhe would take his personal belongings out and go on foot through thepassenger terminal and get the vehicle the next morning. On 15 March hethought he was doing an Italian run but it was changed to Germany and sohe put the card in. If going to Germany he did not need to leaveZeebrugge early whereas Italy you need as much rest as possible to getgoing early. He was confused in his recollection of what exactly he haddone on the two occasions he used that boat that year. At 2pm he drovethe lorry to the ferry park. Then at 17.05 he put it on the ferry. 113. On 16/17 March he made a mess as he thought he would be loading

after his 9 hours rest but they wanted loaded that afternoon. Thisaffected the calculations of his driving time. On 17 March he was atDover with nowhere to park and went over the 10 hours trying to findsomewhere. He ended up at a small village near Ashford. Closing submissions for Mr Nicholson 114. His licence is now clean; there has been no repetition ofspeeding. He was co-operative with the VOSA investigation. He acceptsthat he moved off the bay at Poullaouen. He was subject to the pressureson drivers at RDCs and for accountability for the load. Even with theaid of his diary, he could not be sure what happened at Rosyth that day. It is a long crossing. He knows he made a mess of his reduced restcalculation. He did not know to make a manual entry to cover hisdifficulty in finding parking at Dover.

MR SCOTT (Richard) WEST - DRIVER NO: WEST9 705044 115. Mr West has a 2006 goods vehicle speeding conviction - 3points. Traffic examiner evidence 116. The Examiners had 9 record sheets and digital data for Mr West andthey also interviewed him. For 5 journeys he had not recorded his dutytime going to and from the vehicle including one journey to RosythFerry. Despite revealing a good understanding in the interview of thedrivers' hours’ rules he had not known to record duty time and no oneat McLanachans had told him. He had worked for McLanachans for 6 monthsand Jamie McLanachan scheduled it including making sure he got home. Thus he took his 45 and 24 hours rest always at home. He handed hischarts in to the office to Jamie who checks them. Two charts weremissing and Mr West said he had handed them in to the operator. He hadone journey up to Lochinver which was a disaster as the sat nav gave himinstructions which led to him getting stuck. That was 25/26 March so heremembered it as it was a really bad night for him as he had wrecked thetrailer and a new one had to be got from Fraserburgh. He said he kept arecord and handed it in. 117. The Examiners had a chart for 29 March of M McLanachan taking NK05 CYH to Rosyth. The Ferry records show this as a 0 passenger crossingie the driver taking the vehicle into the port was not down to crosswith it. Mr West said he travelled by car to Rosyth. On 30 March, MrWest took the chart out of the vehicle and his chart for 30/31 March wasZeebrugge to Hemsbuende. There were 3kms missing between the charts anda speed start not consistent with ferry disembarking. By not recordingduty time and by the missing 3kms Mr West failed to keep a proper recordand also failed to take sufficient weekly rest. Mr West’sunderstanding from the company was that the way the journey was recordedwas okay. Mr West thought the 3kms must have been him coming off theboat to park in a safe place as he could not cross into Germany until10pm. This was Mr West’s first time on the Ferry over to Germany. The Examiners were not alleging that he drove the vehicle to Rosythsimply that he did not record his duty time and that had a knock oneffect. Mr West’s evidence

118. Mr West (35) has one speeding conviction - in his fuel tanker onthe A68 on the night shift and he let the speed run on and didn’tcounter it. He realised speed limits were for safety. He was caught oncamera. There has been nothing since. 119. He got his LGV entitlement when in the Army in 1996. There wereno drivers' hours training in the Army. On leaving the Army in 2004 heworked as a motor bike instructor and then went to work for Yuill &Dodds for a year but found that the driving was being pushed to thelimits. He then moved to Brogan Fuels for 2½years and started withMcLanachans in February/March 2008 ie the time covered by the VOSAinvestigation. He picked up his knowledge of drivers hours by himselflooking at posters and asking questions. He was told about recordingduty time by the Examiners at the interview. He had not known that hewas doing wrong in not recording that. 120. On 29 March, Mr M McLanachan took the vehicle to Rosyth. Mr Westgot a lift there from a Polish driver who was sent with him as it was MrWest’s first trip abroad. He had his own vehicle. Mr McLanachan tookthe vehicle through to the holding side and a shunter put it on. Hewent on as a foot passenger and had watched the truck being driven onboard. He received no instructions including none from the Polishdriver in how to record the ferry crossing. He got the keys from theshunter. He had been told it was allowed to take the vehicle off theferry and to stop and park up. Radek, the Polish driver had done thejourney a few times so he took it as read. The speeding up was not himleaving the ferry but the truck stop. He did not record the movement offthe ferry. He did not know he was doing anything wrong. 121. He wants to be compliant. He is still working for McLanachansdriving to France, Germany, and Holland, Belgium and is apprehensive ofthe French police but has not been stopped. Closing submissions for Mr West 122. Mr West had given an account of the speeding conviction. He alsotold of leaving a former employer who put drivers under pressure. Atthe time of the investigation he had just started with McLanachans. There was no evidence of deliberately falsifying. He just did not knowhe had to record duty time. He has taken VOSA’s advice on board. Inrespect of 29 March it was now understood that VOSA were alleging afailure to record duty time. Regulation 561/2006 art 9(2) applies tothe journey and the calculation of weekly rest. 123. His evidence clearly was that not just drivers put vehicles on tothe Rosyth Ferry as he saw his vehicle being put on. This was contraryto the Examiners’ understandings of what happened at Rosyth. 124. Given that there was no evidence of deliberate falsification I wasurged to take no action, failing which a short as possible suspension.

MR JOHN CRAW - DRIVER NO: CRAW9 608172 JC9BR 125. Mr Craw was at a driver conduct hearing in July 2007 on drivers'hour’s matters and I suspended his entitlement for four weeks. The

Traffic Examiner’s report in relation to that was copied in the callup letter. He has a speeding conviction of 10 June 2008 - £180 fine and4 points. Traffic examiner evidence 126. The Examiners had concerns over 2 of Mr Craw’s charts and alsothat charts were not available for journeys which according toMcLanachan traffic sheets he had undertaken on 2,3,4,5,6,7,8,9,10 11,12and 13 March. Mr Craw said that he kept his 28 day charts with him ashe went to France and the way he would get charts back to the office wasby giving them clipped together in an envelope to one of the changeoverdrivers. The Examiners formed the view that a chart of 25 February inname of Damien McLanachan was really a chart for Mr Craw. ASDA gatehousehad noted the driver as a Mr Foster yet no one of that name appeared onMcLanachan records. Similarly, at Somerfield Pitreavie the name appearsand that was a place Mr Craw went to. On 25 February Mr Craw’s chartrecords him as on a journey Spalding to Falkirk arriving 20:50. Thereis no record of what Mr Craw did next. At interview, he said he wasunaware he had to record travel home and that he would have gone home.He said he may have been with Damien McLanachan when Mr McLanachan wentinto ASDA Falkirk the next morning - at 6. The Examiners suspected thatMr McLanachan’s name had been used by Mr Craw. Both men denied that. 127. The Examiners had McLanachan’s daily traffic sheet and otherdocumentation for Mr Craw’s work on 12/14 March and a chart of 13/14March which is for Kilsyth to Bellshill 23:15 to 3:10 (journey toPrestwick). There is no record of the previous driving and in the viewof the Examiners this was to disguise that daily rest would only havebeen 5.08 hours. Thus, the chart of 13 March is a false record as itdoes not include the times for earlier on 13 March ie duty time. In theExaminer’s view, Mr Craw had not recorded his duty time. He was usingdifferent vehicles between the dates ie 12/13 to 13/14. Mr Craw’s evidence 128. The speeding conviction was for driving at 80mph in a 60mph area,in his car on the A7. He has been driving Lorries since aged 25 - he’snow 47. He has worked for McLanachans for 4 years and had been beforeme before when he worked for Body Repairs of Earlston and he had takenthat on board. His chart for 12/13 March is missing. He gets his chartsback to the operator through the changeovers with other paperwork (CMRs)which has to go back. There was a clash of personalities with one ofthe Polish drivers who did changeovers. The chart was left in the truckwhich was his usual day in day out truck (SJ03 GFP) when the driver wentaway with it. It was only when he went on his drivers’ hours trainingthat he recognised that he had insufficient rest in the period 12-14March. He has been trying to comply and can’t explain if the chartsget lost. Submissions 129. Mr Craw had explained the speeding conviction. He was concerned tobe at a second driver conduct hearing. He took on board all thathappened in 2005. In respect of the current case, there was no evidenceof any wrong doing by Mr Craw on 25 February. For 12/13 March there isan allegation of a false record somewhere but no chart. His evidence was

of returning all charts. He did not have sufficient daily rest in the24 hour period 13/14 March. He has since had training. He is stillfit.

MR ALISTER JAMES ROBERT PRIESTLEY - DRIVER NO: PRIES607050AJ9NE Traffic examiner evidence 130. Mr Priestley has worked for 20 years with McLanachans and is oninternational work. The Examiners looked at 35 digital tachographrecords for him and alleged 8 offences. They interviewed him and he wasco-operative. He did not bother to complete McLanachan timesheets eventhough given them to do (he did not see himself as a secretary!) Atinterview the Examiners explained what the driver card would record butalso what would be recorded by the vehicle unit. They focussed theirattention on journeys where Mr Priestley would be in control of thevehicle, the only driver there, as distinct from the yard where a numberof persons might move it. Their findings showed that Mr Priestley didnot have sufficient rest even though if regard was had only to hisdriver card it might look as if he complied. 131. On 24 February he removed his card and re-inserted it later as ifhe had a reduced daily rest. However the vehicle unit shows shortperiods of driving and other work during the time the card is out. On 28February he removes his card at 00.21 as if commencing a weekly rest andthe next card in is Damian McLanachan’s at 9.33. The traffic sheet hasMr Priestly doing a delivery to GIST Cumbernauld. GIST has the vehiclein and out at 6.20/7.40 with driver name Smythe (who does not exist inMcLanachan records). The vehicle is moved several times in this period. There is no record of Mr Priestley getting home or back to Kilsyth.There is a further 8 separate periods of driving not on the driver card. At interview he went between saying he stayed with the vehicle untilthe morning or that his sister in law came to collect him in the earlyhours. 132. On 10 March he was in France single crewed. He takes out his cardat various times and appears to take rest but the vehicle unit showsdriving and other work and then the driver changes the mode to rest. Helater re-inserts his driver card (the times are in the Examiners’report). By removing his card Mr Priestly has disguised that he onlyachieved 6 hours 28 mins of daily rest. 133. On 13 March Mr Priestley took over SF07CAX as driver at Larkhallwith no record of duty time recorded as to when he got there. He puthis card in at 19:30 and took it out at 10:00 next day. However, theunit shows other work to 10:32 and a period of 8minutes further driving- 1km of distance. By so acting Mr Priestly disguised his actual spreadover and insufficient daily rest. 134. On 17 March he travelled to Ouistreham with fish and took out hisdriver card at 9:28 on 19 March and at various times given in theExaminers’ report the unit shows driving, mode changed to rest, andreveals that he has taken insufficient daily rest - only 6 hours 39minutes. 135. Still in the same vehicle, on 20 March he puts in his card at

21:23 - however prior to that the vehicle had been driven without a cardfor four short periods. The Examiners considered he made a false recordto hide his spread over being greater and his daily rest only 6hours 25. On 25 March he begins his daily rest at 10:03 and withdraws his card,re-inserting it at 19:06 but before he does that there is drivingwithout a card in for a few minutes and other work. T his is done todisguise that he only had daily rest of 8hours 29mins. 136. On 31 March he finishes in Germany but during the period which thecard would have shown as rest as it was taken out there was driving andother word, again to disguise that he did not have sufficient dailyrest. 137. Thus all the alleged offences are the same of driving without adriver card inserted, thereby affecting daily rest. The Examiner didnot think Mr Priestley’s journeys needed double manning. I f thevehicle is driven then it will revert to other work. The driver needsto move the mode to rest. That is why after the short periods ofdriving, other work is shown. The driver needs to take a print out andmark on the back eg blocking entrance gate which would be acceptable tothe Examiners as long as not a daily occurrence. Mr Priestley’s evidence 138. Mr Priestley is 49 and has worked as a driver since he was 21 andfor McLanachans for over 20 years. He enjoys the continental work andcan be away from home for a week to 3 weeks. Within the last 4 months hehad been at a tacho course at Bathgate which was an eye opener. He hadbeen on the vehicle in question for about a year and was given littletraining. He had not been pulled up before on the different informationbetween card and unit. He was no longer on a digital lorry. He nowappreciated he must have a card in and he keeps a diary. He could notrecall what had interrupted his rest on 24 February, probably someonewanting him out of a parking space. On 28 February there was a deliveryto Cumbernauld which they refused to take, so he parked up and then theawakened him and said they would take it and if he did not deliveredthey would reject it. He tried to contact Damien but no answer. Thatwas how he came to drive the lorry. Damien brought his car over in themorning. He now knew to record that duty time. He admitted that he wasthe name “Smyth”. There are times when security men get up his noseand he didn’t like having to give his name all the times so he hassigned himself in with different names including “M Ouse” whichsometimes they pick up sometimes not and sometimes they don’t evenlook. He realised now what a serious position he was in and will not usesilly names again. There can be animosities between drivers andgatemen. 139. He could not recall the particular details of the other journeys. He would take out his card and if they vehicle needed moving by loadingstaff he would move the truck without putting the card in. Some of themovements could be for people needing access. He appreciated that everymovement affected daily rest but did not realise the seriousness at thetime. He would stop if tired and had done that once when he felt underthe weather. He got enough time to do his work. He will comply and willwrite on the back of the card as he now knows how. 140. He had health problems including the need to greatly reduce his

weight. Currently he felt healthier and his blood pressure better. Closing submissions for Mr Priestley 141. He had failed to record duty time and is now aware and will do soin future. At Cumbernauld on 28 February his position was invidious asthe load had to be moved in or rejected. It was a horrible position forthe driver. All of the drivings disclosed short shuntings with a knockon to daily rest. He made mistakes and did not know how serious. He hasbeen candid. This is not as serious as first looked and his record isgood. I was asked not to revoke and to restrict the suspension in lightof the circumstances.

MR CHRISTOPHER MCLANACHAN - DRIVER NO: MCLANA 702183CM8LY Traffic examiner evidence 142. The Examiner looked at 17 tachograph records and 10 driver cardsfor Mr Christopher McLanachan and alleged 15 false records. 12 ofthese were in respect of him not making any record of his duty time andjourney to and from vehicles. He is a mechanic in the workshop and roadtests vehicles as well as doing some occasional driving. Very little ofthat is at the weekend as he only comes into the workshop when required. He keeps a diary. At interview, there was a discussion about the needto record such times and as explained to him that even if he was actingas a mechanic doing the garage duties, he had to put it all on hisrecord. It was also explained to him that if he meets an enforcementofficer on the road it would look as though he had done very littletime, when in fact he might have had a very long day. He said heunderstood that. 143. The more serious allegations in the Traffic Examiner’s reportwere allegations that on 26 February and 18 February he had engaged inghost driving allowing his name to be used by Mr Kevin Maund on26tFebruary and by Mr Andy McLeish on 18 March. On 26 February, driverMr Maund uplifted a load from Nuneaton to deliver to Tesco atLivingston. Mr Maund’s chart ends at Harthill at 21:40 and the nextrecord sheet is in Mr McLanachan’s name for a journey from there toKilsyth. The Tesco paperwork shows the vehicle arriving at Tesco duringthe time covered by Mr McLanachan’s chart yet the driver name at Tescohas been recorded as Mallnd, which the Examiners found to be more likeMaund than McLanachan. Asked where the evidence was that Mr McLanachanhad not actually driven the vehicle that night, the Examiners founded onthe paperwork from Tesco Livingston and the statement from Tesco thatthe driver fills in the registration number and copies. So their view,according to Tesco, was Mr Maund who did the delivery. They wererelying on a statement from the Tesco shift manager that thedocumentation was accurate. They produced the goods in note. That gavethe driver’s name on it as Mallnd which they assumed was a mis-type. 144. In cross examination, paperwork of June 2009 from Tesco was shownto the Examiner and where the driver name was not recorded. TheExaminers’ understanding was that Tesco changed their system and nowonly record the haulier name. At interview, Mr Maund could not recallwhat had happened. At interview Mr McLanachan said that he drove thevehicle. Mr McLanachan reckoned that Mr Maund must have been in the

vehicle with him. The Examiner narrated the procedures at Tesco,including that the driver has to fill in a form but these forms are notkept. Thus, Tesco could not supply any sheet in which Mr Maund hadfilled in. 145. In relation to the allegation of 18 March, it was that driver MrAndy McLeish brought the vehicle up to Abington from Poole. The nextsheet is from Abington to Kilsyth and is in the name of Mr ChrisMcLanachan. Tesco Livingston had paperwork showing that vehicle withthem at the times on the record sheet in Mr McLanachan’s name, withthe driver’s name on the Tesco paperwork recorded as McLeish. TheExaminers were of the view that Mr McLanachan’s name had been used todisguise that Mr McLeish had not taken sufficient daily rest. That, intheir view, was why Mr McLeish’s name was not on the chart. MrMcLanachan said that he did drive the vehicle. They were fortified inthis view by Mr McLeish’s name being on the Tesco paperwork. Thestatement from Mr Milne of Tesco was that the paperwork was accurate andthat is what they went by. They did not know if Tesco ever checked theidentity of drivers. They were going by the statement from the Tescoshift manager. 146. For 29 March, a tachograph sheet record shows, in their opinion, atachograph clock wind back in that the distance traces do not match upand the header has been opened. Mr Christopher McLanachan’s evidence 147. Mr Christopher McLanachan (36) has a clean driving licence and hasheld the vocational entitlement since November 1994. He is a timeserved mechanic who has worked abroad. He has worked with the companysince 2002 looking after the vehicles and servicing and maintenance withoccasionally some driving duties and a management role in the workshop. He has no responsibility for the routing of drivers. He has a CPC. How much he drives depends on how busy the transport side is and he willtake a vehicle to service, drop a trailer, take a vehicle to a load, itvaries and is always local. In relation to recording duty time in thegarage or in the car, he simply was not aware he had t. He had been ata tachograph course with the RHA some years previously but did notrecall that being covered. There was no way he would deliberatelyfalsify his records. He is now aware and records the time. 148. In relation to the chart for 26/27 February, it was his chart andnot Mr Kevin Maunds. In relation to the paperwork at Tesco, he hadnever completed such a sheet and had never seen one. In the few timeshe had been there, he would get to the gatehouse, speak to the intercom,be told to come in and park up and bring paperwork in. The lorry wouldbe locked and he would walk to the goods in office and would hand in thepaperwork and would get a bay either right away or get a call. He hadnot been asked his name in Tesco. You just said it is a delivery fromDairy Crest. Asked why Tesco would have the name Mallnd. He said thatthey would have the Dairy Crest paperwork which would have thedriver’s name, the trailer number and registration number with allthe vehicle information stapled to it. 149. In response to the allegation of 18 March, it was his chart and hewas driving the vehicle, not Mr McLeish. Again, the load was from DairyCrest going to Tesco Livingston and Tesco would have got the name

McLeish from the Dairy Crest delivery note. Mr McLeish had beendriving the lorry immediately before and had brought the load up toAbington. He, Mr Chris McLanachan, took the load from Abingdon toKilsyth. 150. For the chart of 29 March, he denied interfering and winding backthe clock and I asked how he could explain the overlap, he said it couldbe to do with changing the clocks but it was early to do it but that wasthe only explanation he could think of. There was nothing he needed tocover up. The drivers were responsible for adjusting the clock at thechange in the hours. That was a Polish driver and may be he was doingit for him and thinking ahead. He denied that his name was used as aname for ghosting. Closing submissions for Mr C McLanachan 151. Of the 12 alleged false charts, 12 were for duty time or journeysto and from vehicles. Mr McLanachan did collect vehicles forchangeovers on a regular basis. These 12 records were false onlybecause duty time was not recorded. He now realises that he should dothat. He does not except that these were deliberate falsifications. His CPC was passed prior to the Skills Coaches decision. 152. He refutes the allegations of ghosting. There is no suggestionthat Tesco checks drivers’ identities and, to take away a driver’slivelihood on the basis of what was recorded as the driver’s name atTesco, would not be sufficient. For Tesco, the times and customer aredefinitely important but the driver’s name is not so. They now havea system whereby the driver’s name is not on it. Little or no weightshould be given to the evidence from Tesco. VOSA have no way of knowinghow accurate Tesco records are. 153. He cannot recall what happened on 29 March and it might be achange of clocks. There is no admission beyond that. He is a mechanicand maybe he would wind back the clock for a legitimate reason. I wastold that there was no deliberate falsification and asked not to suspendor restrict for any period.

MR WAYNE ALLEN - DRIVER NO: ALLEN 612175 WA9EV 154. Mr Allen has a goods vehicle speeding conviction in 2006 -3points; and a mobile phone conviction of June 2007 - 3 points. He alsoappeared at a Public Inquiry/driver conduct hearing in November 2003(decision within the call up letter) and had his entitlement suspendedfor one week.

Traffic examiner evidence 155. The Traffic Examiners looked at 29 tachograph record sheets for MrAllen and interviewed him in November 2008. During this period, he wasdriving NK05CYH in the UK and also across to the continent. They founda range of matters of significant concern to them and raised these withhim in the interview. 156. The first chart examined took him to Coupar Angus from Swindon on

27/28 March and he himself has noted an excess of the daily drivingperiod and annotated his chart as 20 minutes over, unable to findparking. The Examiners were not happy with that as they felt he couldhave finished the journey earlier, for example, at the services atPerth. They were not alleging any missing mileage or anything otherwiseimproper. 157. For 28/29 February, they were considering a journey from CouparAngus to Crayford. There was a load to be taken from Grampian Foods,Coupar Angus to Asda Erith and this journey and the deliveries were notrecorded on the driver’s tachograph record. The vehicle leaves AsdaErith and the record sheet is removed from the head at 13:40. At thatpoint, Mr Allen had only taken 6.20 hours rest and he had annotated onthe reverse of the sheet 2.35 hours over duty due to delays andunloading at Asda. The vehicle was sighted (according to informationreceived from the Examiners) by an ANPR reader on the A282 South nearDartford. The next load was to be uplifted from Tate & Lyle atSilvertown, in London. Tate and Lyle records have the vehicle in at16:45hrs. Yet the chart came out at 13:40 and there was an enddestination of Crayford. The end odometer for 28/29 Februarycorresponds with the start odometer for 29 February/1 March, yet in theTraffic Examiners’ view the journey and duty in between had not beenrecorded. The distance traces match up which would indicate the vehiclehad not moved. In the Traffic Examiners’ conclusion this meant thatthe tachograph recording equipment had been interfered with in some wayor a fuse pulled. The most daily rest taken by Mr Allen was 3.15hrs. In cross examination, it was put to the Examiners that the Tate & LyleSilvertown destination and Erith were all in the area of South EastLondon and that the problem was that Mr Allen had made a mistake inrecording Crayford as the end destination. It was Mr Allen’s positionthat Asda Erith from 13:25 to 13:40 was the journey to Tate & Lyle. Ifthat was the case it would not be a false record. The Traffic Examinerdid not know the exact location of these places but made the commentthat if it was the Erith to Silvertown journey, it would still haveencroached on his daily rest and there were no indications of shuntingmovements. It was put to them that one possibility was that the trailerwas loaded and unloaded by someone else and they did not know. The Tate& Lyle records showed the vehicle in at 16:45 and there was also thesighting on the A282 at 15:31. The Examiners also noted that he put onhis chart that he was held up unloading at Asda. At interview, hedenied being under any pressure. He could not understand how Tate &Lyle had 16:45 on the ticket. The next chart concerned 29 February/1March recorded as a journey from Crayforth to Larkhall fortifying theExaminers in the belief that his previous end destination and thereforestart destination was Silvertown and not Crayford, they link it to afuel receipt at London Gateway at 00:17hrs. Using Autoroute Silvertownto there is 38km which accorded with the record sheet whereas Crayfordwas 57km. The Examiners regarded this as a false record in that thestart location was not Crayford but Silvertown. At interview, Mr Allenexplained the use of Crayford as being because “London” could not beused as a destination and he did not know the other parts of London verywell. 158. The next chart of interest was a journey of 3 March completed asPortsmouth to Poullaouen. The recordings end at 19:30 but there areloading documents for the next day at 8:30 (7:30 UK) not recorded. Theyconsidered that his driving and duty time at Poullaouen had not been

recorded. The Examiners’ understanding of the operating hours atPoullaouen was that it was only operated between 04.00 to 12.00 hours. Mr Allen explained that you could go into Poullaouen and drivers wereallowed to park on the bay, so there were no gates stopping him going inor out, no one there to unload at point of arrival but the unloadingwould have been done in the morning and that the vehicle had not beenmoving anywhere, that it was just sitting on the bay so there wasnothing on the chart to record. The driver opens the back doors andbacks onto the bay and just leaves it. He explained in the interviewthat this happens at quite a few places in France. 159. On 4 March, the record sheet is from Poullaouen to Caen and theyconsidered that to be false because the recordings did not start until13:55, yet there was a loading document at 8:30 (7:30 UK) and they citedtheir understanding of the operating hours at Poullaouen. The next loadto be uplifted was from Ardo, Gourin which Autoroute showed as 30km. That journey was recorded between 13:55 and 15:05. They considered thatduty time at Poullaouen, making the delivery and washing the trailer,had not been recorded. The Examiners could not comment on Mr Allensaying that he did not wash the trailer at Poullaouen. At interview, heexplained that there were various places where the trailer could bewashed out. He had also explained to the Examiners that Poullaouen wasmassive. In cross examination it emerged that the chart should haveread from Poullaouen to Portsmouth including a ferry crossing and the9km in Portsmouth. 160. On 5 March, he goes from Caen to Milton Keynes. His next recordsheet for Milton Keynes to Livingston starts at 3:50am. The distancetraces do not match up with 12km not being recorded. Culina at MiltonKeynes have him delivering there and departing at 2:30am. The Examinerswere of the view that the chart was a false record in that the odometerreadings were given as consecutive as if the vehicle had not moved,whereas in fact it had. 161. For 10 March, the sheet is Bothwell to Newcastle with no record ofduty time from home to Bothwell. He was going to Newcastle for theferry to Ijmuiden, there is no record of the vehicle moving off theferry and the end destination should have been Ijmuiden. He had notknown to do that. He had a VOSA book and acknowledged that he hadoverlooked that provision and the company had not picked it up and toldhim about it. It was not deliberate on his part but an accident. Helives in Crieff and it would be 40 minutes to get down to Kilsyth. Headmitted that he had made a mistake in not putting a chart back in tomove off the boat. Thus, he had not recorded all of his truedriving/duty time. 162. For 12 March, the chart was given as Hemsbuende to Calais with nodelivery duty time at Hemsbuende. He then goes to Dissen between 7:35and 10:10. He is then due, according to McLanachan traffic sheets, togo to Corby. There is Euro Tunnel paperwork for Calais to Folkestoneand this is recorded on the record sheet. He then travels a further28km. The chart is false in that the destination is given as Calaiswhereas in fact he ended the day in Kent where he changed a trailer. Hehas annotated the reverse of his chart with “over on driving duty dueto operation stack and long delays ???at Euro Tunnel.” He came offthe ferry at 6:35 and continued to drive. The most rest taken would be6.10hrs. The Examiners took a strong view of the lack of rest and

considered he had shown a total disregard of the rules and road safety. 163. The chart for the next day, 13 March, was started at Calais toFerrybridge and so was false as by then the driver was in Kent. TheTraffic Examiners were not aware of any advice not to park at Calais andaccept that it was probably right for him to annotate on the rear of thechart that he had arrived in England and parked in a safe place. But hehad reduced his daily rest. 164. 15/16 March is a journey Roissy to Wisbech with a load to go toTNT at Northampton. The Examiners had paperwork for his times at TNT.CEVA paperwork has the vehicle there at times not recorded on the recordsheet. Mr Allen considered that it was the CEVA paperwork that was theanomaly. He thought he had two pick ups from CEVA. He had to gosomewhere else for the load. They had obtained further paperwork fromCEVA. They were not aware the load had not been ready. 165. The chart for 17 March is a journey Wisbech to Bellshill and theTraffic Examiners had CEVA paperwork showing that the vehicle went in at7:17 and out at 7:57. They considered that if CEVA paperwork wasaccurate, it would mean that Mr Allen had insufficient weekly rest. 166. For the chart of 18 March, he recorded the end destination asPortsmouth when it should have been Ouistreham. 167. For the chart of 19 March, it was given as Portsmouth to Roscoffwhereas he was at Roscoff. He failed to take sufficient daily rest andannotated on the reverse 35 minutes over duty hours mis-calculateddriver error. 168. For the chart of 20 March, two records have been completed, onefor Roscoff to Roscoff 1km moving onto the ferry. The second journey isRoscoff to Kirby Hill after ferry disembarkation. The start locationshould be Plymouth. The way that he has recorded it detracted from hishaving sufficient daily rest. 169. For 24 March, the journey is Kilsyth to Portsmouth and he actuallywent on the ferry to Ouistreham and so the end destination should havebeen Ouistreham given a vehicle movement of f the ferry at Ouistreham.

170. On 25 March, the journey is Portsmouth to Saint Germain d’Arcewhen the start location should have been Saint Germain d’Arce. For25/26 March the end destination should have been Newhaven not Dieppegiven the ferry sailing. 171. For 26/27 March, the recordings should be Newhaven to Halton notDieppe as the recordings only start from Newhaven. 172. For the period 10 to 21 March, Mr Allen had not taken sufficientweekly rest, the longest period being 19:30 hours. Mr Wayne Allen’s evidence 173. Mr Allen is 43 and has held an LGV entitlement since 1994 and hasworked for McLanachan’s for over 1½ years, so had not been that longwith McLanachans at the time of the investigation. He enjoys the work

very much, particularly the international. He had been at a driverconduct hearing in 2003 in respect of driving time and rest and breaks. At the time of working for McLanachans, he was confident he wascomplying. He had taken time to read and keep himself up to date. Hehas since had a tachograph course with McLanachans. His speedingconviction came from a lapse of concentration when on the A1. He wasaware that he should not use a mobile phone whilst driving. Thecircumstances were that his ear piece had broken so he put the caller tospeaker and had the phone in his hand, with both hands on the steeringwheel. He was using it like he would a CB. He thought he was incompliance and pled guilty. 174. He was aware that VOSA were alleging 18 false records by him. 175. For 27/28 March, of driving of more than 10 hours, he acceptedthat he should have stopped earlier but carried on to get somewhere toeat. 176. For 28/29 March, Silvertown, Erith and Crayford are all quiteclose in South East London. He did not have a detailed map of London. He was aware he could not just enter London. The allegation that he hadbeen at Tate & Lyle and done that work of the card, he can only thinkthat he dropped the trailer off outside and it was collected by ashunter and that he did not take it in. This trailer would have had theregistration number on the back so that would be how they got theregistration number on the weigh bridge ticket. There were delays inunloading at Erith which he had marked on his chart. It is not possibleto park in Asda. There used to be parking but no longer. He was notunder any pressure to get his destination. The fuelling that has beennoted would have been where he parked up at London Gateway. 177. For 3 March, the procedure at Poullaouen was that there is noclosed gate or barrier and he would drive in and if no one was there hewould open the doors and back in and leave the paperwork. They wouldtip the trailer and he could stay there until it was his time to go. When they unloaded the trailer he would be in his bed. At Poullaouenthere is a normal hose but at Gourin there is a steam cleaner, which isbetter. 178. He realised that his charts for the ferry were wrong and it wasnot a falsification as he had been led to believe that you put downwhere you started your rest i.e. on the boat. This was the first timeit had been brought to his attention. He got that understanding fromother drivers when he started driving on the continent. 179. He did not accept the times that the Examiners had from Culina forthe journey from Milton Keynes to Livingston. As far as he wasconcerned the vehicle had not been moved, at any time, without atachograph. He would have had plenty of time to do the journey and totake time off. 180. He was not aware that he had to record his duty time on the backof the chart or when he went to collect a vehicle. He had not beenpulled up for that before. He drove in his own car to meet the truck atBothwell on 10 March and his car was taken back to the yard. 181. On 10 March, there was a problem with the vehicle at Ijmuiden and

he had to contact McLanachans to get them to sort out the brakes thathad seized on the trailer. Chris McLanachan arranged breakdown recoveryto fit a new brake chamber. 182. He arrived the night before to Hemsbuende and again parked thevehicle so it could be tipped in the morning. It was electrical goodspart of the Amazon load. He played no part in the delivery. Hecollected the paperwork when he was ready to go, the same as atPoullaouen. The paperwork is left at the back of the trailer. Thus,there is no duty which had to be recorded. He came back via Calais andstopped at Ashford as being the nearest safe parking after the train andnoted it on his card. Operation stack was causing long queues. Hedisagreed with VOSA’s conclusion that he had a disregard of publicsafety. He had been kept over his hours in queues which he could notavoid. He got the vehicle parked as safely as he could. 183. For 15 March, he parked up outside CEVA. There are no otherrecordings until 17 March. He had parked for a 24 hour break. He thenwent in and was told where the load was. He could not explaindifferences in times. He had been meant to collect from CEVA direct buthad to in fact collect it from a depot. He did not do anything wrong. He had admitted mistakes. The consequence of his loss of livelihoodwould be severe to him. He has not been as up to date as he should havebeen. He has had recent training and now knows where he has been goingwrong. He found the interview with VOSA helpful. He knew that therewould be direct action against his licence but asked that it kept to aminimum. He was the wage earner. The way he was keeping himself up todate was by word of mouth and if he was not sure he would now ask VOSA. Closing submissions for Mr Wayne Allen 184. In 2003, there were no allegations of false records. He has notknowingly made any false records and he has done nothing intentionallyto deceive. He felt that when embarking on the ferry that was the startof rest and that was the end destination. He is updated now and therewill be no repetition. He was aware that there had to be annotations ifyou went above driving time and had made two annotations. In London hewas aware that he had to enter a district of London. He put in thewrong district but there was a strive to be accurate. He believed thatsomeone else must have done the tipping at Tate & Lyle. The procedureat Poullaouen was that the trailer could sit on the bay and the drivercould take daily rest while the vehicle was parked there. There was noevidence that he had been washing the trailer at Poullaouen. He hadbeen candid. His evidence of there being a fault with the trailer on 11March has now been confirmed. 185. The 15, 16, 17 Wisbech debacle was because he was sent to get aload there and it was not there and he took his weekly rest. There isinsufficient evidence against Mr Allen’s conduct. There was nocorroboration of how accurate records from other companies were. Hewas a conscientious and diligent worker who wanted to help his employerand not sit back and wait for the note to be delivered to Wisbech buthad used his initiative. 186. He has penalty points on his licence, including for mobile phoneuse and understands that direct action will be taken. It could bedistinguished slightly in that he could use his CB radio and was using

his mobile akin to that. It was submitted that the matters against MrAllen were not as severe as might have first of been thought at areading of the case against him. I was asked to stop short ofrevocation and to limit any suspension.

MR JAMES PRESTON - DRIVER NO: PREST 410093 JM7DN 187. Mr Preston has three convictions - 2 for speeding in 2006 and onefor a contravention of Special Roads Regulations in 2008, attracting 3points each. Traffic examiner evidence 188. 24 tachograph records were examined for Mr Preston. He declined tobe interviewed saying that Mr McLanachan had been good to him. TheExaminers found 12 records which they considered to be false. 189. For 6/7 March there was a fuelling which was not recorded on thechart. The chart for 7/8 March was consecutive yet the fuelling had notbeen shown nor the journey to the service station. The Examinersconsidered that some sort of interruption or device had been used. Therewas no record of the driver’s duty time going back to the operatingcentre or home. If Mr Preston went to Scania there must have been somesort of interference. 190. For journeys on 10 March; 11/12 March; 20/21 March; 25/26 March;26/27 March; 27/28 March; and 28/29 March there were no records of hisdriving either to/from the vehicle ie duty/travel time was notrecorded. 191. There are 2km missing between the charts of 18/19 March and 19/20March where the distance traces to not match up. 192. In respect of chart from 24/25 March, information from TNTNorthampton suggested that there was no record of the vehicle enteringNorthampton. On cross examination, it was put to the Examiners thatthey only had the TNT paperwork to go by and no guarantee as to itsaccuracy. They had been told that 90% was accurate. They denied thatMr Preston’s chart showed him having plenty of rest. Mr James Preston’s evidence 193. Mr Preston is 65 and has been a HGV driver for 30 years and it ishis livelihood. He started with McLanachans about 5 or 6 yearspreviously. He retired at Christmas 2008 but sometimes gets a phonecall from Mr McLanachan and does the odd run. He has a speedingconviction from May 2006 which was in a HGV and was a lapse ofconcentration. He appreciated the importance of speed limits. Theother speeding conviction in July 2006 was in a motor car which was newto him. He misjudged the power of the vehicle. A conviction of October2008 was for driving in the third lane of the motorway coming up toroadworks and he misjudged the lane arrangements. 194. He attended at the interview but did not appreciate until he gotthere that it was formal and would be on tape so he was afraid he wouldmake mistakes so exercised his right not to answer. He wanted to be

able to think about it and had not realised it was so serious. He didnot want to make mistakes which he could not retract. 195. I asked about specific charts. He produced his truck driver’shandbook produced by Ford Trucks and it was published in 1985 (retainedas a production to the hearing). He relied on this little book andlooked it up at all times. In his view, it gave him an exemption tocheck repairs. The unit he was driving was an old unit and the wiringwas dodgy and old and he was getting warning lights from time to timeand the bulbs blowing. He would phone and they would say take it toScania, which he did. He explained it to a friend of his and he didnot want to put in a tachograph chart as it would be wasted as he onlygot 6 tachograph charts a week. His friend says there was an exemptionfor repairs and there it was in his book. It said it did not need atachograph. In the early hours of the 7 March he had a problem withhis lorry. He did not have any paperwork from Scania as it was notworth the paperwork for bulbs and such. He fitted them himself. Hearrived at 3:20am and rested to midday then he drove to Scania which wasmaybe 2-3 miles away. He put fuel in at the Shell garage on the wayback as it was very expensive on the motorway. So, he rested from 3:20to midday. He went to Scania for 10-15 minutes. Then he went back toTNT which took approximately half an hour to 40 minutes which took himback there at 1pm and he did nothing else for the remainder of the day. He considered himself to be covered by an exemption that vehicles couldbe tested for repair and maintenance on local roads. He believed he wascomplying with the rules and regulations. 196. For his chart of 10/11 March a journey from Paisley toNorthampton, he collected the lorry at Linwood and did not record hisjourney from home to Linwood as he did not know he had to. He knewthere was a case involving a coach driver picking up a coach from adifferent town but he did not think that applied to him. He did notrecord time from home to yard at Kilsyth. He may have gone to Kilsythand been driven to Linwood. Asked by his agent about the going from theyard to Linwood and recording that, he said that he had not beendriving. He had nothing to hide. He had left at 9pm which was verylate as there was a delay and he arrived before 5am. Then he made uphis next tacho. He could be at TNT for 18 hours. For example, on hischart for 11/12 March, he arrived at Northampton approximately 5am butdid not leave until 11:30. In between he did nothing except check hislights and his walk round checks and was ready for the road at night. 197. He could not understand how there were 2km missing between 18 and19 March. Probably someone else shunted the vehicle. He had notchecked to see if his chart checked with the odometer reading. He didnot record his journey to Boswell as he did not record any journeys thathe had done to pick up the vehicle. It was the same in all cases. Inresponse to the Traffic Examiner’s reliance on TNT log for 25 March2008 which showed his vehicle going in at 5:50, which was a movement notshown on his chart, he denied that he had been working off the chart anddrew attention to the fact that between 1:45 and 5:50 there was nothingon the TNT log whereas that was a very big international office andthere would have been more vehicles going in. He had no reason to bethere at 5:50. 198. He wants to hold onto his licence and would comply with anytraining. No one had ever pulled him up on any problems. He had never

had any problems at the roadside and would hate his career to end inthis way. He had no reason to deliberate falsify. He thought he wasdoing things correctly. He had been on a tachograph course withMcLanachans about a month previously. Prior to being with McLanachans,his job had been in the Post Office for 25 years. Jamie would ask himto hand in his charts if he forgot to hand them in. When he was at TNThe would leave the trailer there on the loading bay and would not seethe trailer again until midnight. He would just sit doing nothing. Hewould not take the unit for fuel but would take it to Scania if therewas something up. Closing submissions for Mr James Preston 199. Mr Preston had given an account of the convictions. 200. The VOSA Examiners had looked at 18 records and 7 mattersconcerned him not recording the journey to and from home to base. MrPreston had striven to be compliant and whilst he had been aware of therule applying to coach drivers, he had not realised that it applied tohim. He was not wilfully turning a blind eye to the rules andregulations. The guide he had was the best he had but even though itwas out of date. He should get some credit for having his guide and,had he been directed, he would be compliant. He was not working on anarduous route. He had to spend a half day in Northampton. He disputesthe TNT record. In respect of the 2 missing kilometres, what he haddone was to complete the next day’s chart. He had not checked to seeif anyone had moved the vehicle and the obvious explanation is thatsomeone moved the vehicle in the yard. 201. I was invited to take no action against him.

MR JAMES BLACKWOOD - DRIVER NO: BLACK 806124 JG9ZK Traffic examiner evidence 202. The Traffic Examiners had 20 tachograph sheets and 2 driver cardrecords and 6 weekly clock cards to assist them in their investigation. They also interviewed Mr Blackwood. In respect of charts for 28 and 29February, 7, 8, 11, 12, 18 & 19 March, they found that he had notrecorded duty time. Mr Blackwood is a mechanic with McLanachans andclocks in and out and thus they knew from his weekly clock cards whathis working day was for and for what he was paid. Yet his tachographcharts only recorded driving time. 203. A chart for a journey to Coupar Angus of 20 March was notproduced. Mr Blackwood told the Examiners that he would have handed hischart into the office. For the period 17 to 28 March, the Examinersfound that he had taken insufficient weekly rest. On 26 March, he hadused a Dutch registered vehicle using his driver digital card. This wasa vehicle belonging to Mr Brady and Chris McLanachan in his evidencesaid that McLanachans got a loan of that vehicle while one of their ownvehicles was broken down. 204. However, the matters of most serious concern to the Examinersconcerned their conclusion that on 13 March he had not recorded his dutytime but also that his name had been used to cover for driving by driver

Mr Roman Beeger. The Traffic Examiners had a chart for Mr Blackwoodfor the morning of 13 March and they also had his clock card for thatday which showed him starting at 8:07 and finishing at 18:08. Yet,there was a chart completed by him for a journey that night whichstarted at Bellshill and went to Hamilton at 22:00hrs. The odometerreadings are consecutive with Mr Beeger and consistent with Mr ColinCraw’s next journey. The start location and end destination for therecord sheet in the name of Mr Blackwood were not consecutive with theones on either side. The Traffic Examiners were of the view that thechart was completed by Mr Blackwood to obscure that Mr Beeger continuedto drive and thereby failed to take sufficient daily rest. That is thatMr Blackwood was the ghost driver. Thus, the allegation against MrBlackwood was that he made a false record by completing his details on arecord sheet that had the recordings for Mr Beeger to disguise theinsufficient daily rest and exceeding daily driving done by Mr Beeger. There was no record of Mr Blackwood being paid for this journey. 205. Their next concern was a chart for 14 March from 22:02 Carlisle to02:54 Kilsyth when he had clocked in at 8:09 and clocked out at 18:12. Travelling time before 22:02 to Carlisle have not been marked anywhere. The chart previous to Mr Blackwood’s chart was for driver RafalGorecki on a journey from Caen to Carlisle. Paperwork for Tesco’sshows his vehicle at Livingston between 00:16hrs and 01:01. These timesare on a tachograph record sheet in name of Mr Blackwood. The TrafficExaminers concluded that the journey had been done by Mr Gorecki and thechart completed by Mr Blackwood i.e. giving his name as a ghost name. This would disguise that Mr Gorecki would have failed to take sufficientdaily rest and would have exceeded the daily driving limit having - restonly 5 hours and driving 11.04 hours. 206. At the interview, Mr Blackwood confirmed that he did his timesheet and did not get any overnight substance money. His time sheetwould give his start and finish and any overtime payments, including anydriving hours. He would give his charts to Jamie McLanachan. He rarelydelivered anything; he was usually just picking up vehicles or takingunits for inspection. At the interview, he said he would never havewritten a card out and not have done the journey. He had not been paidfor these journeys. The Traffic Examiners observed that there were veryquick changeovers, if indeed the journeys had been done by differentdrivers. The Traffic Examiners considered that he had completed thecenterfield details but did not do the journeys. In so doing, he hadmade a mistake with the start and end locations. It was put to theTraffic Examiners that they had no evidence to support their view thatMr Blackwood had not driven. Their conclusion derived from the hourson his clock card and that he had not been paid for the extra hours. They did not accept that he drove the lorry and that the chart wasaccurate. The start and finish should marry in. It was possible thathe did the driving but they did not believe it. 207. Information at Tescos showed the driver as being “ROWUN” whichthey took to be nearer in name to Rafal than Blackwood. If he was thereit should have been filled in as Blackwood. The information had comefrom Tesco but they could not say how accurate it was. It was possiblethat he did drive the vehicle but they did not think he did. It was putto the Traffic Examiner that at page 30 of the interview, Mr Blackwoodsaid that he had driven and gave a good account. Mr Blackwood wascooperative at the interview.

Mr James Blackwood’s evidence 208. Mr Blackwood is aged 25 and has a clean ordinary driving licenceand has held his LGV entitlement since December 2006, having obtained itto enhance his job prospects and to assist with him being a time servedmechanic. He has been with McLanachans for 6 years and they put himthrough his licence. His duties are as a general fitter and everythingmechanical and he is based in the yard at Kilsyth. Part of his dutiesinvolve driving which he does about twice per week, for example, roadtesting, taking vehicles to annual test and also picking up trucks tocome back to the yard. Usually it is not far away that is within about30/40 minutes to Bellshill, Livingston, Norfolkline Larkhall. He hadnot had training in drivers’ hours until recently. Previously, he hadlearned from speaking to drivers. He was not aware in relation to theallegations that have been made against him that he had to do manualentries for duty time. No one had ever picked him up on that. He hadnot deliberately sought to make any false record. He is now recordingall of his duty on the back of the chart. 209. In relation to the charts where the Traffic Examiners allegeghosting, he acknowledged that these two charts were his and written byhim. He definitely did the driving. He would not have done the workand not get paid. There were two charts because he was in two differenttrucks. He thought that is what had to be done. He admitted that thechart for SF04PFN commencing 22:00 was wrong in that he got mixed up buthe definitely drove back to Kilsyth. 210. For the chart of 14 March, again that was definitely his chart andhe went into Tesco. He remembered that it was out of the norm for himto go as far as to Carlisle. The procedure at Tesco Livingston was thatthere was an intercom system and he said what the load was and theywould get you to go in to the goods in office and the paperwork would betaken to the office. Sometimes they would ask who you were andsometimes not. He had sometimes filled in paperwork such as that shownat production 92 and other times he had not. It was his evidence thathe done that driving to Tesco Livingston. He knew now that he hadcommitted at weekly rest offence by not taking into account the dutytime as a mechanic but he did not know that then. 211. Everything is compliant now. He would not fill in a blank card ashe knows how bad that is and that it was illegal and he had never doneanything illegal in his life. He had not been aware of the duty time.

212. His working hours were usually 8am to 6pm that is day work notnight shift. The alleged ghost driving took place at 10pm and heexplained that sometimes he would get a phone call and if he was notdoing anything he would do the pick up of the truck. He lives inKilsyth and would get to the vehicle in a company van. He would justwalk down to get the van and pull the gate open and the van keys wouldbe in the wheel. So he would take the van to the truck and then thedriver would take the van. He would get any blank charts from thetruck. He also has a folder which he sometimes has with him. 213. He did not remember getting back to Kilsyth at 2am because it wasa long time ago. He would have been paid the same rate. It would have

gone through with his wages to the bank. He would amend his clock cardto say what work he had done. At night, the office would be closed sohe could not have got back in and would just have put a note in at theend of the week. 214. Asked by me why there were drivers’ hours regulations, heacknowledged that it was for the health and safety of himself and otherusers, so I asked him why he thought it safe to drive down to Carlisleto bring the truck back and he said that he would not say it was safebut he said that he was fit enough to do it. He usually goes to bed at1am anyway. It was not the case that he was given the chart in themorning and asked to put his name on it. He would not do that. None ofthe bosses had asked him to. It was not in his nature to break the law. Closing submissions for Mr James Blackwood 215. I was invited find Mr Blackwood a credible and compelling witness. Many of the false records were him not recording his working time ashe did not know but is now aware. No one had pulled him up for itbefore. The charts were for him doing changeovers. The allegation ofghosting is refuted. He has explained that it was mistake in noting theend point on the 13 March but that was not deliberate. VOSA have acomplete record as they have the follow on chart which gives credibilityto his position. His wages depend on hours and he said he would havehanded in a note. VOSA do not accept that he was possibly atLivingston but he had been able to give a full account of what happensat Tesco Livingston as he had been there. There are occasions whenTesco require driver details and some when they do not. It was onlysupposition and innuendo on the part of VOSA that he had put falsedetails on these charts.216. The weekly rest offending is accepted. He had done the drivingbecause he had felt able to do it and was called upon to do it and therehad not been any adverse consequences for other road users. He is nowaware of the rules and is a keen learner who wants to make the best ofhimself. I was invited not to suspend or revoke his entitlement.

MR DAMIAN MCLANACHAN - DRIVER NO: MCLAN 707038 D99DS Traffic examiner evidence 217. The Traffic Examiners examined 12 charts for Mr Damien McLanachan. For those of 28 February, 1 & 2 March, 6 March, 11 March, 17 & 18March, his failure to record duty time made for a false record. Particular charts caused them particular difficulty. For 25 February,there was a chart for Mr Colin Craw going between Spalding and Falkirkfinishing at 20:50. The next chart of 26 February, from Falkirk toKilsyth was in Mr Damien McLanachan’s name from 6:00 to 8:30am. Asdahad the vehicle in and out between 6:00 and 7:30am with a driver“Foster” named. Yet, the operator has no driver called“Foster”. There was no chart for Mr Craw leaving Asda. MrDamien McLanachan said that Mr Craw may have been with him as apassenger. Both, Damien McLanachan and Mr Craw, said that the gatehousecould not spell. The Traffic Examiners’ suspicion was that DamienMcLanachan was a ghost driver, which is that his name had been used. The Traffic Examiners had been told by Asda Falkirk that paperwork is

completed with the driver’s name by the Asda gatehouse staff. Theirown checks showed drivers’ names checking out in more than 90% ofcases. They had visited Asda and seen their procedures and had askedthem about foot passengers and had been told that the driver had to signa disclaimer in relation to the third party passenger that he would beresponsible for the passenger. They could not produce such paperworkfor the Inquiry as such paperwork was destroyed by Asda after 6 months. They had been told that there were times when drivers brought passengersin the cab but mostly that was in foreign vehicles. The driver would bethe person who would have to give details to the gatehouse. The TrafficExaminers were relying on the statement of Asda’s Mr Currie. According to Asda, the vehicle went in with driver “Foster”. MrDamien McLanachan told the Traffic Examiners throughout that he did thedriving. It was put to the Traffic Examiners that Mr Craw gave a falsename. The Traffic Examiners preferred the evidence of Asda over thedriver. For the journey of 1 March from Ipswich to Gretna in the nameof Kevin Maund, which ended at 13:18 and was followed by a chart fromGretna to Kilsyth starting at 13:25 in Damien McLanachan’s name, theTraffic Examiners again suspected this to be ghost driving. AsdaFalkirk had the name of driver Maund entering between 15:24 and 16:05. Mr McLanachan said that Mr Maund’s name being there might be that hehad still been with him when he Damien was driving or else the gatehousetook the name of the paperwork. 218. For 1 - 2 March, there was a chart for S Weselski from Portsmouthto Hamilton and a chart from Hamilton to Kilsyth in the name of DamienMcLanachan. Tesco have a Dimin coming in between 22:43 and 23:22. There is no duty record for Mr Damien McLanachan. 219. For 17 - 18 March, a journey from Bellshill to Dunfermline(Somerfield), the driver is Z Csiznadia. Somerfield record driverZortan in at 8:56 and out at 9:58. Damien McLanachan’s chart startsat Dunfermline to Kilsyth at 9:42, that is before Zortan exits at 9:58. There was two minutes between removal of the charts and the odometer anddistance trace did not add up. The Traffic Examiners consider this tobe ghost driving and were fortified in their view by evidence fromSomerfield that changeovers were not allowed within their premises. They had asked about drivers not trailers. If Mr Paterson ofSomerfield was wrong or confused in the evidence he gave, then thedriver was doing nothing wrong. 220. There would a risk for a RDC in allowing someone to go in. Ifthere was a changeover outside the fence, it would be between the twodrivers. Drivers hand keys in so there would be an issue about someonedriving off a loading bay. That is why there are set procedures aboutkeys. Mr Damian McLanachan’s evidence 221. I record here that at the reconvened hearing on 5 October, MrMcLanachan would have heard much of the proceeding evidence. Heproduced on his laptop a recording from his mobile phone which he saidrecorded his entry on foot to the RDC at Falkirk, which he sought to useto counter VOSA’s assertions that persons could not walk inunaccompanied to a RDC and affect a changeover with a driver who had runout of time. I listened to this but I would have to record here thatthe quality was not at all good.

222. Mr Damien McLanachan has a clean ordinary driving licence. Hehas held his vocational entitlement since he was 21 and is now 31. Heis a time served mechanic and has also worked abroad in Holland, Germanyand Australia. He returned in 2005 and started working with his fatherthen. His job is to float between the office and the workshop. He washelping Jamie with the transport doing a bit of driving but the majorityof his time was in the workshop. He did not schedule drivers. He isnot a Director or shareholder of the company. He would hope to beinvolved in the succession to the business and for him and his brotherto take over the business and he mentioned his father’s 60th birthdayof November 8 2009. He was committed to the success of the businessand took instructions from his father. He has the highest regard forsafety and drivers’ hours. Since the VOSA investigation, drivertraining has been given and drivers are getting warnings written andfinal. He has started to be involved in that. The training they hadreceived was helpful and drivers have been able to quote the trainingback to VOSA. 223. He drove the vehicle on 26 February and 1 March. He had no ideahow the name of “Foster” came to be on the paperwork on 26 February. He had tried to take a video to show that not all was done at thegatehouse, not all the Ts crossed. The way it happens is not how theysay. He could not say what happened on that occasion. He has goneinto RDCs with someone in the cab with him, including friends. No oneelse has signed the paperwork. As to why Mr Maund’s name was on theAsda gatehouse record, he could not remember but it was likely that MrMaund was in the vehicle with him and stayed on in the truck as he wasgood company. 224. For 18 March at Somerfield Pitreavie, he did not see what the bigdeal was there as you could walk into the RDCs. A driver could walkin; there would be a handing over of keys and walking out. He doeschangeovers as and when but they are getting few and far between now. He had not recorded his journey time as he was not aware that he had todo it. He now shows that he should have. He records it now. 225. It was his position that he had done no ghost driving. Closing submissions for Mr Damian McLanachan 226. Mr McLanachan has a clean ordinary driving licence. The VOSAanalysis of his 9 charts related to 3 RDCs. VOSA officers werepresenting the RDC evidence but it did not mean that, because MrPaterson of Somerfield said something that was what actually happened. There was a question of sufficiency of evidence in this case. MrDamien McLanachan asserts his charts to be his records. He has shownthat it is possible to walk in to a RDC. It was a common thread fromdrivers in the case that you can go in and undertake driver changeoverwithin a RDC. Mr McLanachan did do the changeovers. Not only was thereevidence of the RDC changeovers but there were other changeovers that hedid. He was interviewed and gave an account under caution which hereiterated at the Public Inquiry and he was consistent. He had notknown that he had to record the time to and from the vehicle. He hasnow adapted to VOSA advice. The 6 were not deliberate falsifications. I was asked not to suspend or restrict his licence.

MR MATTHEW MCLANACHAN - DRIVER NO: MCLAN 411089 MH8HX Traffic examiner evidence 227. The Traffic Examiner in relation to Mr Matthew McLanachan as adriver (as distinct from in any operator capacity) was of them lookingat 11 of his charts and noting that on 5, 10, 11, 12, 13, 24, 27, 28 and29 March, he undertook driving duties but did not record his duty timebefore or after the period of driving and further that on 10 March heused two charts for the same day, neither of them showing any dutytime. 228. He has one speeding conviction on 2 August 2007 for which he wasfined £60 with 3 points. 229. The Traffic Examiners could not say if he had been in breach ofthe drivers’ hours rules because of his duty not being recorded, theycould not tell. At interview, he had said that he was unaware of therequirement for this to be recorded and commented that it was “a weirdlaw”. [At page 33 of the interview Examiner Mrs Hill narrates whathas to be marked on the back of the card in relation to duty time. Theinterview continues. “MM It is a weird law that. EH Well that weirdlaws has been out for a long, long time. MM Aye I know.”] 230. In relation to his chart of 5 March which showed a journey ofKilsyth to Larkhall, no duty recorded before 13:25, they did not knowwhen he started his work that day. They did not know when he started orwhen he finished. 231. On 10 March, he had driven a different vehicle. 232. The Traffic Examiner accepted that there was an error on 29 Marchwhen he left the chart in the head until the following day when it wasremoved by driver West. Mr Matthew McLanachan’s evidence in relation to his driving 233. Mr McLanachan has held his entitlement for 38 years and only usesit to pick up trucks and trailers from loadings/unloading and back tothe yard i.e. changeovers. His speeding conviction was from hisprivate motor car and he has had nothing since. He had not been awarethat when he went to pick up a vehicle and bring it back or do achangeover that he had to record travelling to and from as duty time. He had not intended to make any false record. VOSA had all of hischarts relating to his driving in the HGV. As boss he does not check innor are his hours fixed and he does not keep a record of his hours. Thus, he had to ask the Traffic Examiners if he really needed to recordhis hours and responded that it was “a weird law”. 234. On 10 March, he had been driving two vehicles and thus had usedtwo separate charts. So many of the charts go abroad where they lookfor all the charts and so it was better he felt to have a separatechart. On 29 March, he had finished in Kilsyth and forgot to take thechart out and Scott West had to remove it. It was an oversight on hispart. He wanted to retain his licence for flexibility and to beavailable if drivers’ time was up. He denied that his response “aye

I know” to the Traffic Examiner meant that he knew the law in relationto duty time, it was just an off the cuff remark. He accepted that VOSAdid not know what time he started, for example, if it was 8am or 1pm. He had nothing to hide. He had plenty of time to do his work and to goon short journeys and do changeovers. Closing submissions for Mr Matthew McLanachan - see operatorsubmissions

FURTHER TRAFFIC EXAMINER EVIDENCE IN RELATION TO THE OPERATOR 235. The Traffic Examiners examined the charts for a number of driverswho were not called to the Inquiry/hearings because they were notresident in Scotland or because they did not hold a UK licence. Verylittle by way of oral evidence was given in relation to these drivers,with the evidence being within the Inquiry brief and productions. I havehad regard to it all though little of it was the subject of crossexamination of the Examiners. 236. Marius Rudnik does not hold a UK driver licence but wasinterviewed. The Examiners found 2 instances where he had not taken hisbreaks; 2 instances of insufficient rest; 1 of failing to take weeklyrest; and on at least 3 instances his failure to record duty time meantthat his records were false. At interview his English was not great buthe told of a problem with one of his trucks which for3/4 weeks had beenwithout a card as the tachograph was broken (though this was not withinthe period of investigation.) He said there was only one occasion whenJamie McLanachan had timed the work with too little time, when the speedlimiter had been lowered. 237. George Barnes no longer holds the entitlement and so was notcalled. He was interviewed about 28 of his charts, the focus being thefailure to record duty time and V traces not matching up. He was doingnight trunking work down to Northampton on a regular basis, a salariedfull time driver. He admitted that he did move the vehicle on occasionsto park up though some movements could have been done by a shunter. Hehad plenty of time for rest. 238. Kevin Maund could not be called to this Inquiry/hearings as his isa Manchester address. At interview he stated that he stayed in hotelswhen up at Kilsyth. The Public Inquiry brief disclosed that the TrafficExaminers looked at 36 records for him and he was interviewed. TheExaminers found insufficient rest taken on 25/26 February; for 26February it was their conclusion that Christopher McLanachan’s namehad been put on a chart for 26/27 February from Harthill to Kilsyth todisguise that in doing a delivery into Tesco Livingston to disguise thatMr Maund would have insufficient weekly rest (see the section of thisdecision relative to Mr Christopher McLanachan). For 28/29 February thetachograph head had been opened and the sheet removed. A delivery to anarmy base at Sutton Heath was not recorded. On 29 September a deliveryto Sutton Heath was not recorded. On 1 March he did a journey Ipswich -Gretna with the next sheet being in name of Damian McLanachan but ASDAFalkirk showing the name Maund. The Examiners considered Mr DamianMcLanachan’s chart to be a ghost chart to cover up for Mr Maundrunning out of time - insufficient daily rest and daily drivingexceeded.

239. On 12 March, he was at Terracina and 7kms were missing. Atinterview he admitted moving the vehicle without a chart in. Thedistance traces do not match up in relation to his next chart for 14/15March from Terracina. On 17/18 March he is on a journey Evesham to Lilleand the Examiners found from looking at loads, Eurotunnel paperwork andthat the tachograph head was opened that he created a false record andfailed to have sufficient daily rest and false destination given. Hesaid this was a genuine mistake. The chart for 18/19 March is a falserecord - 20kms not recorded. For 21 March the Examiners foundinsufficient weekly rest despite Mr Maund marking the reverse of hischart as 45 off when he only took 44.10. For 21/22 March their detailedexamination of his journey found the head opened and no recordings, somesort of power interruption, a winding back of the clock and a fulljourney to Schipol not recorded. If a true record had been kept it wastheir view that he had only rest of 4.55 hours and he had driven for18.40 hours. The next day’s record was also false. A journey on 24/25from Chaumont to Genoa was a false record - they were able to useconsiderable documentation to check timings, they found the head hadbeen opened and the clock wound back. There were missing kms and theyfound that he would have had insufficient daily rest and the dailydriving period would have been exceeded - driven for 17.10 hours. MrMaund made no comment on this at interview. 240. Mr Swavek Weselski is a Polish driver and the Examiners had 28 ofhis charts and interviewed him as they considered that 6 of his recordswere false. (I have read the interview and his English appears to bevery poor and I would hesitate to give weight to his answers orunderstanding.) For 4 charts he has not recorded how he got to or fromthe vehicle. There is a lot of confusion surrounding the accuracy of achart for 24 March being a delivery to Coupar Angus, duty time notshown. On 21 March he moved his vehicle without a chart. At interview heappeared to say that he got to his vehicle in cars or buses provided byMcLanachans or his own car. 241. Mr Zoltan Csizmadia is Hungarian and does not hold a UK drivinglicence. He has been a lorry driver for 22 years. The Examiners had 21of his charts and 11 days digital data. They had concerns andinterviewed him. He had been employed by McLanachans since December 2007doing continental work. The Examiners found 8 instances of insufficientdaily rest; 2 of insufficient weekly rest; 4 of exceeding daily driving;2 break offences; all as demonstrated by the records. They also 3alleged false records. One of these on 24 March was not showing thejourney to Bellshill and then numerous movements around the time ofgetting off the ferry which intruded into rest and daily drivingexceeded. The Examiners considered that he did a journey on 17/18 Marchand that Mr Damian McLanachan’s name had been used to cover it i.e.ghosting. I deal with this in the section of this decision on Mr DamianMcLanachan (at interview Mr Csizmadia remembered Damian coming toPitreavie Somerfield). He did a journey on 30/31 March recorded asBruchsal to Folkestone with the chart actually removed at Calais and thenext journey is by driver Lazlo Nagy employed by the operator yet MrNagy’s vehicle is sighted at Morrisons Bellshill and the Examinershave him on a journey that day Preston to Bellshill. At interview MrCsizmadia began to say that Mr Nagy was with him but on thePreston/Bellshill information being put to him, there is a change in theinterview and he appears to get upset at the amount of work/overtime he

is to do. 242. Mr Darius Gawron is Polish and does hold a UK licence. He had beenworking for McLanachans for 4 years. The Examiners had digital datadownloads for him. They interviewed him. They found 7 false records withhim failing to record duty/drive time during the day not just to get tothe vehicle with him withdrawing his card; affecting rest and exceedingdaily driving time. 243. Other drivers whose charts were considered by the Examiners butwho were no longer McLanachan employees and not interviewed were asfollows. All of the Examiners findings/queries were discussed with theoperator. 244. Mr Anthony Wrigglesworth - allegations of numerous false recordsincluding allegations of winding back the clock; of speed traces showingzero to top speed when that impossible; insufficient rest; journeys notrecorded; failing to keep a record of ferry crossings; mileage notrecorded; one allegation of ghosting at Rosyth - this deriving from theExaminers’ understanding of who does what at Rosyth; fuelling off thechart; interference with the tachograph or fuse pulled - that ismultiple breaches of the drivers hours and tachograph rules. 245. Mr Andrew Thomas McLeish - address unknown to the Examiners - forhim there were 8 charts and 1 day of digital data. The Examiners foundinstances of exceeding the daily driving limit on 13/14 March; excessivespeed and no deceleration and false record made when ferry crossing;failure to record true record of driving duty on 16 March on journeyPortsmouth/Caen; 16/17 March and again 23 March excessive speed; 22March failure to take proper break; 28/29 March insufficient daily restso false record made; 29/30 March insufficient daily rest and exceedingdaily driving. Of particular concern to the Examiners was Mr McLeish’sdriving/duty on 17/18 March when they considered that Mr ChrisMcLanachan’s name had been used to cover driving by Mr McLeish whenthe latter had run out of time. I deal with that in the section of thisdecision relating to Mr Chris McLanachan. 246. Mr William John Falconer was not interviewed but he spoke withExaminers on the telephone. There were 4 records for him and 3 digitaldownloads. The Examiners found 1 break offence; 2 daily rest offencesand one false record in that movement between charts was not recorded on27/28 March. 247. Mr Mark Canavan - there were 2 charts one relating to 15 March atRosyth when the Examiners considered that Mr Canavan’s name had beenused to cover Mr Anthony Wrigglesworth - this is based on the Examinersunderstanding of Rosyth port arrangements. McLanachan and ASDA paperworkshow Mr Canavan on a journey on 29 March in SF 04 TVJ yet no charts havebeen produced for that day. 248. Mr Laslo Nagy - 16 charts and 3 digital downloads - the Examinersfound 3 instances of insufficient daily rest; 1 of exceeding dailydriving limit; 1 false record - 9kms not recorded; and then there isthe use of his name on a chart from Folkestone to Nuneaton on 31 Marchwhen there is a chart and Morrisons Bellshill records showing himdelivering there on 30/31 March - see above in relation to ZoltanCsizmadia.

249. Mr Rafal Gorecki - 17 charts for him and 3 instances of failing totake sufficient rest and also a false record for 14/15 March when theExaminers considered that Mr James Blackwood’s name had been used tocover for Mr Gorecki - see above in relation to Mr James Blackwood. 250. Mr Pitor Pawel Rzeniecki - 20 charts for him - numerous falserecords with the Examiners unable to establish a clear picture of hisduty/drive time, numerous instances of the head being opened and thechart taken out; no recording of getting to and from vehicle when awayfrom base; insufficient daily and weekly rest offences and perhapsmore. 251. Mr Radoslaw Pysklo - 23 charts with numerous false records;insufficient daily rest; movements off the chart; failing to record dutytime to/from vehicle. 252. Mr Roman Beeger - 27 charts - 2 break offences; one false recordin not keeping record of duty time on 28/29 February when he flew toBudapest to hand deliver a TNT parcel; similarly on 2/3 March and soinsufficient weekly rest; one failing to take sufficient daily rest; 2false records in not showing full driving/duty time and so insufficientdaily rest. 253. Mr Ryszard Niemcsyk - 27 charts - no record of duty time in goingto or from the vehicle - the Examiners could not assess the extent ofhis driving time. 254. Mr Hristo Dimitrov Pangarov - 29 charts - 6 false records mostsuggestive of driving off the chart; driving off the chart. No recordingof duty time on 9 March when duties included flying to Amsterdam andLisbon with package - insufficient weekly rest; on 19 March insufficientdaily rest; exceeding daily driving limit; break offence. 255. Mr William Wilson Paterson - 2 charts - not recording duty time tocollect vehicle at Bellshill and one break offence. 256. Mr Colin David Nicoll - 1 chart - not recording duty time tocollect vehicle at Bothwell. 257. The Examiners interviewed Mr Jamie McLanachan, Mr MatthewMcLanachan’s brother given his role in the company as the day to dayscheduler of the drivers’ work and had worked for the company for 10years. He had received the analogue charts but did not deal with digitaldata. The drivers were to hand their charts back to him. Asked if hechecked them to see if compliant with drivers’ hours rules heresponded “the drivers aren’t allowed to run bent anyway in any way,so they are usually okay..” He gives them instructions by phone andsatellite or text. He doesn’t calculate their hours, he relies on thedrivers to tell him how much hours they have got, and if they arerunning out of time they phone to say they are not going to make it andhe says to park up. He gave instances of customers and their gates notcaring if a driver had to park up, that was the real world; sometimesthey just had to sit for 24 hours to wait to tip. He thought the job wasall up in the air because of all the nonsense of the “boy has moved aminute”; they were trying to keep totally legal all the time. Theyhave to put guys out to tip trailers because the driver has run out of

time. That’s why they do changeovers with fish; they do changeoversall the time. They have worked for a long time with TNT and if you phonethem to say a driver is held up it is not a problem. They have problemsgetting loads re-booked when there are delays getting there or a driverneeds to park up. He gave his opinion of a movement when a driver justmoves a vehicle or trailer out of the way - not 10kms just a movementand opined it to be so ****** stupid. Saying that they try to keep it asneat as they can he said “As much as possible that is why we dochangeovers and that is why we do what we do that is why we are upduring the night making sure that guys are in a certain place.” He hadnothing to do with the digital data - that is for Damien. 258. The Examiners set out in their brief (p145 et seq) the details ofmissing kms (14,372 and for SJ 03 GFP) and of digital cards not beingused/not being downloaded. They had a very lengthy interview with theoperator in the person of Mr Matthew McLanachan putting to him theallegations of false records, fuse pulling, winding back of the clock,drivers’ hours offences, ghost names. He could give no explanation andsaid that no driver had been asked to do other than allowed by law. Hesaid he knew of the “weird law” that is Skills Coaches butdisregarded it especially in relation to Rosyth Ferry crossings and atLarkhall when it did not suit. He provided the information in an e mailfrom Superfast’s Mr Turnball which was at odds with Mr Marshall ofRosyth’s information. He told the Examiners that Jamie did thescheduling using satellite and auto-route. He had not asked casualworkers if they had other employers e.g. Mr McFarlane who worked forAsda. It was clear that there had been no checking of drivers’ cardsor the download data from the vehicle units as downloading was nothappening. They had no software to look at the digital cards.

EVIDENCE FOR THE OPERATOR (including in response to my questions) 259. Mr Matthew McLanachan (and for “he” I mean the operator in theperson of Mr Matthew McLanachan) gave evidence in relation tomaintenance on the first day of the Public Inquiry. At that time, thenumber of vehicles specified was 14 with 16 trailers. Of those 14, 5were inspected by Scania at Bellshill and the remaining 9 and 16trailers by their own staff. They had 3 mechanics, that is his brotherChristopher McLanachan, son Damien McLanachan and Mr James Blackwood. By the last day of the Public Inquiry, the level of vehicles specifiedhad risen to 17 with 22 trailers and I expressly queried with MrMcLanachan whether this rise in number of vehicles specified had beendone to anticipate that I might take regulatory action and therefore tohave a higher level of specification could be viewed as a device toundermine any potential curtailment order. Mr McLanachan responded thatthings had perked up a bit and they had required extra vehicles but weregetting quieter at the time. They had been doing some runs toCzechoslovakia. The vehicles he had taken on were rented vehicles whichhe just hired as and when he needed them. They are in plain livery. The core of his fleet is approximately 12 but depending on businessrequirements, can go to 14 and up to 17. He just hires in when he needsthe extra vehicles. Most of the trailers are owned by them or on hirepurchase to them. They have 25 employees. 260. They endeavour to keep the vehicles and trailers in a fit andserviceable condition with inspections every 6 weeks. They now have a

roller brake tester which they installed in May 2009. Drivers have beenwarned about the prohibitions given that many of these could have beenavoided if drivers had checked or had not had dream catchers or laptopson the dashboard. Recent prohibitions for a cut tyre and brake discfracture and ISO cable were ones which were not ‘S’ marked and inthe case of the ISO cable, the driver had a cable. 261. He thought an inspection interval of 18 weeks was long but wouldhave to check their vehicles as they had some vehicles off road and onehad been in an accident. They now keep paper inspection records forevery 6 weeks. The drivers are doing nil defect reporting and there isrectification. Vehicles inspected and maintained by Scania are put totest by Scania. They present the ones that they maintain. They had 2failures since August 2008. The speed limiter failures had been for akilometre out when at the test station. They have been endeavouring tokeep the fleet in proper condition and that was why they had spent moneyon a brake tester. 262. Until this investigation he had had no feedback from VOSA from anyprevious looking at charts. The VOSA evidence included that charts weremissing. He explained that they had problems downloading digital dataand he had accepted that at the interview. They now have a system. Hisbrother Jamie was the person in the business responsible for chasing upcharts and he is the person who schedules the drivers and whom driverscontact. So much is delegated to Jamie. Drivers are paid a fixed salaryinto the bank whether working in the UK or abroad. There is no incentiveor bonus to work longer. Jamie was responsible for the charts comingback in and being filed with the vehicles. He was the Transport Managerbut he did not take a proactive role in checking and chasing charts andhe acknowledged that. He considered that drivers would be givensufficient time to do their work and he had never asked drivers to doanything illegal, they are not put under pressure. His time was spentgoing out to see customers, some driving and general transport workincluding cold calling. His wife’s deals with the bank andadministration but has no involvement in scheduling work. 263. Drivers going on the Ferry at Rosyth would go on as passengers andnot drive until Zeebrugge. He had not been aware that their journey fromhome to Rosyth should have been recorded. He considered they were ontheir break, on their rest. He did not choose to ignore the rules. Theytook the drivers to Rosyth and the Rosyth stevedores drove the vehicleson and he had an e mail from Mr Turnbull of Rosyth to support that. 264. He had not been aware that taking drivers by car or van to or fromchangeovers required to be recorded as duty time. He did not instructdrivers to move in and out of RDCs without recording their time. He hadnever instructed tipping off the chart. There was no way he could haveknown of it. The arrangements at gatehouses are not always whatcompanies say will happen. Drivers often do not have to give their namesand it is possible to go in to do a changeover i.e. walk in and driveout. 265. The operator arranged for CCTS, a private training company to givetraining on drivers hours and tachographs and produced certificates toshow the attendance of Messrs Miller, Priestley and Allen at a daycourse on 2 April; Messrs C McLanachan, McFarlane, Blackwood, Craw on aday course on 3 April, and Messrs Nicholson, J McLanachan at a day

course on 6 April 2009 and Messrs West M&D McLanachan and Preston at ahalf day course on 2 June 2009. These courses clarified drivers’understandings and included duty time. There had been a big improvementbut there were still infringements. Messrs J & M McLanachan, Stewart,Maxwell, Kolodynski, Gawron and Steele had received FTA digisimulatortraining in December 2008. The drivers’ conditions of servicestipulated “You will work within the EC Tachograph Rules andRegulations. All charts must be posted by registered mail (this will berefunded when receipt is handed in) or handed into the office at…Kilsythas soon as possible. The longest a driver would be away would be 3/4weeks. He is now taking on responsibility for making sure charts areback. A tachograph chart register is kept to track charts beingreturned. Time sheets are kept and include a section requiringdeclaration of any time worked for another employer and the times can beused to check against the tachos and the duty times recorded on theback. Investment has been made in in-house tachograph scanner and it isbeing used as also the Touchdry system which he can run on his ownlaptop. They have satellite tracking but with delay in getting theupdates. They are looking to see if there are better systems. 266. The operator uses the FTA to analyse drivers’ charts and toreport. The operator produced management summaries of these for theperiod 29 December 2008 to 5 April 2009. On perusing these at the PublicInquiry I noticed a significant number of infringements with very few ofthe drivers compliant. This led to my asking to see the FTA analysis fora more recent period and for the adjourned date of 5 October 2009 theFTA had analysed charts for the period 6 April to 14 June 2009 withmanagement summary were produced. These disclosed numerousinfringements; excessive speeds with the query speed limiter fault;instances of insufficient daily rest; breaks offending; apparent misuseof the mode switch etc etc. 267. He fully accepts that VOSA found contraventions and that hissystems had not been good enough but he had taken steps to address that.He was aware of the powers of the Traffic Commissioner. They are notoperating to capacity of their authorisation due to the economy and alsothe VOSA investigation had done them no favours with others shying awayfrom them. The environment is very competitive though refrigerated workis holding its own but any suspension of the licence would lead to himclosing it and revocation would also mean the end of the business withproblems for all the employees and his family. 268. He has been in transport all his life and his company’s operatorlicence was revoked and disqualified for breaches of the drivers’hours and tachograph rules so he knew from before the consequences ofnot complying. He thought he had done enough but had not. He read thetrade press to keep up to date but did not like reading the reports ofwhat happens to those who do not comply and he seldom read the advicepieces but more at the price of trucks and company profiles. He acceptedthat the “buck” stops with him for not knowing about duty time. Hethought he was up to date but was not. 269. I put it to him that in not applying duty time e.g. in relation tothe Rosyth trips that he was self serving in his understanding of therules and he said he had not deliberately broken the rules. He explainedthe number of speed limiter failings on the tolerances which come tolight only at annual test.

270. They had employed so many foreign drivers due to the shortage ofdrivers and their willingness to work. A lot of them were not used toapplying the rules and many had to be let go. They were paid the samerate as the British drivers. In the past they have used a 2nd man teamto take fresh fish down to Italy or Spain but that work has disappeared.Drivers like to have their own trucks and they try to give the sametruck to the same driver. He gets on well with the customers and triesto do a good job. They have lost work on price. 271. In that Derek Brady’s name had come up in theInquiry/investigation I asked Mr McLanachan about his relationship withMr Brady and he told me they worked from the same industrial estate, dida bit of business, were not friends, but purely business with noallegiances, and he was not a front for Mr Brady. 272. I asked him about Mr Blackwood and him being used after a day’swork to drive. He had been available and willing and had asked for work,and would take his girlfriend in the truck for a run. He tookresponsibility for that and that he should have been concerned about himbeing tired. 273. Mr Preston had been on training but had not picked up on the dutytime. He was a part time worker and that was his character. He will bereminded.

CLOSING SUBMISSIONS FOR THE OPERATOR 274. In his evidence, Damien McLanachan had said he would be takingover the business on his father’s 60th birthday that is on 8 November2009. Mr Whiteford wished it to be stressed on the record that this wasa statement made in levity and that there were no immediate successionplans in place. 275. The operator had all necessary maintenance facilities and hadpurchased its own roller brake tester at a cost of £29,000. Inspectionsare on a 6 weekly basis, with 5 vehicles going to Scania and theremaining vehicles and trailers being maintained in house. There hadbeen no recent VOSA maintenance investigation and the Vehicle Examinerreport for this Inquiry had been based on paperwork and not on a sitevisit. The Vehicle Examiner had found gaps of up to 10 weeks on theinspection frequency and a lack of driver defect reports. The causesof the immediate prohibitions were a fuel leak, stop light, stickers inthe windscreen and a laptop. It was not the worst maintenance record aTraffic Commissioner would see. The annual test record has improvedover the previous year. If this was a Public Inquiry relating only tomaintenance, he submitted that a warning would be appropriate. 276. However, the bulk of the Public Inquiry covered tachographs anddrivers’ hours matters. Of 36 drivers, only 22 were interviewed andthe allegations were of 246 false records, 64 drivers' hours offences, 2speeding offences, missing charts and failure to produce digitalrecords. 277. There were 8 drivers' hours prohibitions, 2 overloadingprohibitions, 2 hazchem prohibitions but none for false records. The

first conviction noted in the Public Inquiry brief was in 2004, that isover 5 years previously and the last was an overloading conviction of8th October 2007. 278. The VOSA investigation involved looking at the tachograph charts,looking at RDC gate logs, ferry records, customer records and speakingwith the employees of the RDCs. This VOSA investigation was far more indepth than any operator would do. 279. He took exception to the use of the term “false records” anddirected my attention to section 99ZE of the Transport Act 1968 which hequoted. He submitted that there must be knowledge that the driverknowingly made a false record or altered a record or interfered with it. A large number of the charts in this case listed as false were in factfailures to record duty to or from a vehicle and in relation to MessrsMatthew, Christopher and Damien McLanachan and Mr Blackwood, relatedalso to duty time at Kilsyth in the office and in the workshop. Neither the company nor the drivers knew that travelling to collect avehicle or back from a vehicle in a private car, should be recorded asduty. There was no intent to cause a false record. There had to be adistinction between winding back the clock or such other intention todeceive. The allegations of ghost driving were totally denied by theoperator and drivers. 280. VOSA had made a great number of assumptions and had insufficientevidence. Drivers Maund and McLeish, who are alleged to be truedrivers, had not been called to give evidence to say it was their chartsand not others. There was considerable doubt raised in the case aboutthe procedures at RDCs. There could be a difference between what VOSAwas told by employees of RDCs and what actually happened in practice. Ishould not rely on statements of third party employees in the case ofrevocation of either operator’s licence or driver licence. Had thisbeen a prosecution, witnesses would have been called and the standard ofevidence would be beyond reasonable doubt. The evidence of proceduresat Rosyth was contradictory - Mr Marshall/email Mr Turnbull. Evidencefrom drivers was that the other parties’ stevedores and loaders putvehicles on the ferry and if that was accepted, then there could not befalse records. VOSA had not been able to locate Mr Marshall for asupplementary statement. There was an insufficiency of evidence. 281. The day to day work appears to have been scheduled by Mr JamieMcLanachan, who issued instructions. That did not take awayresponsibility of the Directors and Transport Manager, as it was for MrMatthew McLanachan to make sure the system worked. There was no controlover the return of charts and there was a failure to download digitaldata through lack of knowledge. The company concedes that the systemswere not adequate and that the Transport Manager should have beenproactive. It was admitted that there has been failure to have adequatesystems and a breach of the undertakings and that would entitle me totake action against the licence. However, there was no evidence ofdeliberately breaking the rules. Drivers are paid a fixed wage and nobonuses paid so there is no gain to drivers to break the rules. 282. I should take into account the steps the company took after theVOSA investigation. They are now registering each chart returned. Charts are analysed and monthly reports are received from the FTA. Itis clear that not everything is perfect and there are still problems

with drivers complying despite the training in April/June 2009. Thedrivers have received a strongly worded memo that jobs are at risk andalso that there can be Fixed Penalties imposed up to £200. The economicsituation of the country is that there is not a shortage of drivers, sothere should be an incentive to drivers to comply with the rules andreduce infringements. Matthew McLanachan has taken over soleresponsibility for the systems and is no longer relying on his brotherChristopher. The Tachomaster scanner is being used before the chartsare sent to the FTA. There is satellite tracking of the vehicles. There is the touch drive driver computer program. The VOSAinvestigation has given the company a real shake and the company ispaying much more attention. VOSA concluded that the work was notscheduled to keep the drivers compliant but there was no evidence thatthe work could not be done in the time allocated. Drivers Mr Priestleyand Mr Allen said there was plenty of time. In the driver interviews,there was no evidence of any pressure on drivers to get the work done inbreach of the regulations. There was evidence of pressure from RDCstaff. There is no evidence of any instruction by the company Directorsor Transport Manager to carry out any illegal practices. The case waslacking in any evidence of collusion between Directors and drivers. 283. Mr Matthew McLanachan’s driver licence entitlement was somethinghe wished to retain. He does not use it often but would like to haveit. He has one previous conviction for speeding in a private car. Theallegations of false records are all to do with failure to record dutytime going to or from vehicles and also failure to record duty time atKilsyth. All driving was recorded. There were no driver hours offencesand no intention to break the law. 284. 17 vehicles are currently specified and the operator employs 22employees. At this point I interjected to ask why the number of vehiclesspecified had gone up over the last six months and period of the Inquiryas I was concerned this was done to undermine my curtailment powers. MrMcLanachan explained that business had perked up and they had gone up to18 vehicles but things are getting quieter again as there had been afactory closure. The vehicles had been used; he had not simply rentedthem to sit in the yard. They own 10/12 of the vehicles and most oftheir trailers or have them on HP. The core fleet is 12 which cover themain contracts. 285. Mr McLanachan accepts that there will be disciplinary actionagainst the licence. I was asked to draw back from suspension orrevocation as that would be catastrophic. There was no evidence againstthe repute of Mrs Rose Ann McLanachan, whose role was a legal one andadministrative part time. She was not interviewed by VOSA. There wasno sufficiency of evidence against the good repute of the company or theDirectors. The question of good repute was an absolute and if answeredyes, would lead to the operator being put out of business. I was askedto take a proportionate decision and to allow the company to continueand to demonstrate using the assistance of the FTA, that the operatorand the drivers could become compliant.

CONSIDERATION OF THE EVIDENCE AND MY DECISIONS 286. In relation to the drivers, I record here that I am consideringtheir conduct in terms of Part IV of the Road Traffic Act 1988 and the

legal test therein of fitness by reason of their conduct with conductdefined in section 121. In relation to the holder of a large goodsvehicle driver licence it is his conduct as a driver of a motor vehicle.It is for me to make a determination and to be satisfied. If I am notsatisfied then I must determine whether the entitlement is revoked andthe driver disqualified or whether a period of suspension should berequired. Thus I am applying quite different legal tests to those whichI must regard in the operator case where the principal statute is theGoods Vehicles (Licensing of Operators) Act 1995. I have available to methe Senior Traffic Commissioner Practice Direction No 3 on DriverConduct effective from June 2008 where guidance is given. 287. In this case whilst there were a smattering of road trafficoffences what brought these drivers to a conjoined hearing with thisoperator were the allegations of non compliance with the drivers hoursand tachograph laws - the road safety provisions set out in EECRegulation 3820/85 and now found in 561/2006 and the amended version of3821/85 which sets the framework for preventing continuous driving andwhich requires drivers to take breaks and have daily, weekly andfortnightly rests. Again in this case whilst there were some breaksissues the real crux of the case was the allegations that daily andweekly rest provisions were not being observed and the real risks suchpose to road safety. Driver fatigue is well established as a materialfactor in road traffic accidents and that means deaths and seriousinjuries. The UK Parliament by the test set out in Part IV of the 1988Act and the European Community through long established regulations haverecognised the dangers of driver fatigue and drivers and their employerswho do not heed the requirements to take breaks and rest and todemonstrate by true recording that such have been taken face proceedingssuch as these. 288. This was a major investigation by the VOSA Examiners and I commendthem for their perseverance and for the exemplary manner in which theyset out their findings. I also commend the agents for their respectivegrasp of the case and I know that they appreciated that in recognitionof the preparation time they would need considerable advance notice wasgiven of the dates and productions. There were controversies within theevidence which went beyond any given driver. There was the controversyover the use of the term “false record” and whether that requireddeliberate falsification (what in the criminal law would be called“mens rea” that is intent to do something) and that I shouldapply the criminal standard to such; there was controversy over the useof Autoroute; and over the accuracy of RDC paperwork and gate records;and over who boarded what when at Rosyth. A case like this needs muchreading and reflection not least because it is necessary to see thedrivers as individuals and to avoid inappropriate tarring with the samebrush. Indeed of all the tachograph and drivers' hours cases I have donethis one required most time. 289. I have had regard to the licence undertakings which read short areto make proper arrangements so that: the rules on drivers’ hours andtachographs are observed and proper records kept; motor vehicles andtrailers are not overloaded; vehicles operate within speed limits; motorvehicles and trailers, including hired vehicles and trailers are keptfit and serviceable; drivers to report defects promptly; records to bekept for 15 months.

290. I have had regard inter alia to the undernoted case law: Skills Motor Coaches Ltd v Denham [2001] AER (EC) 289 Priority Freight Ltd and Paul Williams TT Appeal 2009/225 Bryan Haulage (No 1) 2002/1 LE Jones Ltd and LE Jones International Ltd TT Appeal 2009/215 291. I make the following findings in relation to the operator,directors and transport manager. 292. Mr Matthew McLanachan, with his wife Mrs Rose McLanachan, has beenprofessionally engaged in goods vehicle driving and operating for mostif not all of his adult life. They (in corporate form) held a goodsvehicle operator licence which was revoked with disqualification for oneyear in 2000. The grounds for such action were breaches of thedrivers’ hours and tachograph rules. The current licence wasgranted at Public Inquiry in 2003 with a “significant warning” as toits future conduct. 293. In May 2008 VOSA Vehicle Examiners required the operator toproduce tachograph charts and digital downloads for the period 25February to 30 March 2008. The operator was unable to produce all chartsfor that period and had not been undertaking the downloading of digitaldata. Much of what was required was produced but after reminders anddelays the operator failed to produce charts to cover in excess of 14000kms and could not produce charts for one vehicle. Not all digital datawas produced. By so failing the operator breached the licenceundertakings. 294. The Traffic Examiners undertook a thorough and time consuminginvestigation. They found a complete failure to record duty time to andfrom the vehicle when not at base. Thus they could not establish for anygiven driver whether full time, part time or based in workshop or officethe exact extent of the drivers’ working week and whether sufficientrest had been taken. 295. Mr Matthew McLanachan is director, transport manager byexamination and holds large goods vehicle driver licence entitlement. Ifind that he had an inkling that there was a ruling whereby duty timehad to be recorded - his answer “Aye I know” and his comments on the“weird law” cause me to find that whilst he had not taken on boardthe detail of the Skills judgment he knew that there was what I shallterms as that complication. On best view he has not kept himself up todate by his ignorance of the detail of what was required; on worst viewhe deliberately has chosen to ignore the provision to the company’sbenefit and to the disadvantage of road safety and fair competition. 296. Until after the Examiners began their investigation there was nosystem in place to check drivers charts or digital data. Mr MatthewMcLanachan delegated to his brother Jamie all matters in relation to thescheduling of drivers and taking in their charts. He did not check thecharts. He at no time has engaged in downloading or looking at digitaldata. There was no training of drivers and little checking of theirunderstanding of the rules. 297. The operator does effect change-overs for drivers whether headingsouth or north using drivers or McLanachan cars/vans. Thought has been

given to change-over arrangements even though the arrangementsdisregarded the requirement to factor in duty time. I give as an examplethat drivers were driven to Rosyth and that on many occasions the unitand trailer were driven on to the Superfast Ferry by a driver who wasnot sailing or by a stevedore. There were occasions when the driversailing with the vehicle drove it on. In so finding, I am preferring theevidence of the operator, drivers and e mail from Mr Turnball over thedescription from Mr Marshall. 298. I do not find ghosting but I do find that the operator’sworkshop staff and in particular the family members Damian and Jamiewere used to change over with drivers and to keep those drivers withthem when doing the final leg of a delivery coming north and back toKilsyth. Such arrangements served to obscure that drivers hadinsufficient daily and weekly rest but did reduce the amount of drivingtime in the homecoming journey. 299. The prevalent failure to record duty time and to schedule thedrivers taking duty time into account gave a commercial advantage to theoperator and goes to fair competition. 300. I make findings in relation to individual drivers whichdemonstrate that the operator’s drivers were in breach of thedrivers’ hours rules, some to a very dangerous extent. I have foundthat drivers in the operator’s employment have interfered with thetachograph recording equipment through the winding back of the clock,the pulling of a fuse, speeding and tipping and fuelling off the card.Having regard to the findings against the drivers called to the driverconduct hearings and to the findings of the Traffic Examiners recordedin their Public Inquiry brief of papers which I record at paragraphs 235-256 it is apparent that within this company there were widespreadbreaches of the drivers hours rules. I formed the view of the evidencethat in maximising the loads coming north the operator created apressure for its drivers who then drove in excess of their permitteddriving time. There was no evidence of any direct command to breach therules but that does not defeat the behavioural finding of a practicalpressure operating such that drivers took short cuts. The operator didnothing to counter such behaviour which was self serving to theoperator. Breaches of the drivers’ hours rules pervaded thisoperator’s operation in the period under investigation. The absenceof charts for at least 14,000kms prevents a true picture beingachieved. 301. The operator implemented training for drivers in 2009. 302. The operator hired the FTA to undertake analysis of drivers chartsand systems and software were purchased to ensure that drivers haddigital cards and that there was downloading of data. The FTA have beenproviding management reports to the operator. These show a high level ofinfringements. The operator has taken little by way of action to ensurethe levels of infringements have been reduced. This was confirmed by thereports from the FTA available at my request at the last day of thePublic Inquiry. Thus as at the last day of the Public Inquiry theoperator was not able to demonstrate that compliance with the drivers hours rules had been met or was within near reach. 303. The operator’s vehicles and trailers have attracted prohibitions

and the inspection frequency has elongated. Vehicles have failed atannual test notably for speed limiter defects though I was unable totell if these were for minor calibration needs. The operator hasadequate facilities and has upgraded these to include a roller braketester. The operator likely could achieve compliance with theundertakings relative to vehicle roadworthiness. 304. The operator’s drivers have attracted drivers hours prohibitionsand thus the operator had been on notice that all was not well withdrivers hours compliance. The operator’s vehicles have attractedoverloading prohibitions and a conviction which was not intimated to myoffice. 305. It took me a while to work this case out. The Examiners rightlyhad suspicions of ghosting going on but unlike other ghosting casesthere was no leachate in any of the interviews which whispered atghosting. I have come to the view that the clue lies in McLanachans’use of the mechanics and the sons ie Christopher, Damian and JamesBlackwood for these are the names used in the instances where ghostingis suspected (covering for Maun, McLeish, Gorecki, Beeger all of whomwere running out of time as they headed north from several uplifts inEngland). These day staff did not record their duty time though MrBlackwood clocked in and worked a 8-5 day. 306. On the positive side I found that Mr Matthew McLanachan hadco-operated to a considerable degree with the Examiners by producingwhat they asked for to an extent; to assisting with setting up driverinterviews and in attending for interview himself. There was nohostility or thrawnness towards the Examiners in the conduct of theirduties. The workshop has facilities and sufficient mechanics. With someimprovement and focus including ensuring that defect reporting andfrequencies of inspection are monitored this operator should be able tosecure roadworthiness though the incidence of prohibitions and failingat annual test is not good. 307. The operator has invested in training of drivers and himself;purchase of software and other systems to analyse tachographs anddigital data; and has recruited the FTA to analyse and report. 308. The drivers were paid a set wage and there was no evidence of anyfinancial incentives (other than staying in employment through theoperator keeping contracts) to individual drivers. 309. This operator cannot claim first time at Public Inquiry andfailing to understand the regulatory regime. The McLanachans have beencast out before when their licence was revoked with a disqualificationand for analogous matters. They only got back in in 2003 but with asignificant warning from the Deputy Traffic Commissioner who grantedtheir application. Within 5 years ie 2008 when the Examinersinvestigated and up to 2009 the operator has failed to meet the licenceundertakings in relation to drivers’ hours and the failings are notmarginal but significant. 310. I was asked to excuse the operator from failing to know about theSkills case. I cannot do that. It is not a new provision. All of thehandbooks for operators/drivers; all the VOSA guides and the legaladvice pages of the trade press make it clear that duty time and driving

time and other work have to be recorded. But it is so very inconvenientto do so on many occasions and often appears very counter to commonsense (the RDC behaviours) and to serving employer or customer well. Itis convenient and self serving to be out of date. A transport managerhas by law to be “effective” and an operator has to “make properarrangements” and this must include keeping up to date. 311. However, this case is not just about not knowing about duty timeto or from the vehicle. If that were all it was about it would not havetaken all this time and effort by either the Examiners or me trawlingthrough the evidence. It is about the 60 drivers’ hours offences andthe non duty time false records and the failure to produce charts and todownload data. The operator uses satellite and Autoroute - and I pausehere to record that I consider it quite acceptable for the Examiners touse Autoroute as a working tool along with other evidence available tothem and given that it is a working tool used by the operator. With thatand satellite information the operator had the ability to know where thevehicles were. However Jamie in the office doing the scheduling did notlook at the drivers charts and his interview suggested little sympathyfrom his direction for the drivers’ hours regime. 312. I find that there have been these serious breaches of the licenceundertakings. I find that these are so serious as to go to repute of thecompany, the directors and the transport manager. If I find againstrepute I have to revoke and so I have to pose the questions - is thiscase so serious that I have to put the operator out of business - and isthis operator capable of compliant operating in future? If the FTAreports had been positive and for all practical purposes “clean” (oras near thereto as from my wide experience of their reports beingpresented at Public Inquiry in aid of operators I would reasonably andpractically expect) then I might have been able to answer the latter inthe affirmative as I could have done had this say been a maintenanceonly case. Fair competition is of course at the forefront of my mind asalso road safety. There is the past history. 313. I have come to the decision that this is a case in which I have toconsider revocation. I have considered a period of suspension but wastold that would be the same effect - however the Act provides forsuspension as a regulatory option and an operator faced with the choiceof revocation or suspension most likely would prefer to have the chancewhich a period of suspension would offer. It may put the operator out ofbusiness and so be it if that happens for in many ways that does exposethe operator to competition and allows those who have been disadvantagedby compliance to get into the operator’s market with a fair wind.However and as an act of mercy (to use a word favoured by the TransportTribunal) I will hold back from revocation though with concern as torighting the balance in favour of fair competition 314. So in this case I am decided that the proportionate decision afterdoing all the balancing involved in just deciding against revocation isto direct on a period of suspension of FOUR weeks during which time theoperator’s vehicles cannot be used on this or any other licence. Anyshorter period would not mark the seriousness of the degree of breachingof the licence undertakings and the righting of fair competition. Thesuspension will start at 23.59 on 6 June 2010. On the expiry of thesuspension the licence will be curtailed to 12 vehicles with trailerauthorisation unaffected. The 12 is the figure Mr McLanachan gave as hiscore operating level and will stop expansion until Mr McLananchan and

his team get into fully compliant operating. The operator as a company,Mr and Mrs McLanachan as Directors, and Mr Matthew McLanachan astransport manager are all warned as to their repute. Mr MatthewMcLanachan in particular should be in no doubt but that his repute hangson a very, very shooglie nail indeed and that my decision is merciful. 315. In relation to the individual drivers I make the followingdecisions and determinations. 316. Driver Mr John McFarlane - as aforementioned the decision inrelation to him was taken on 27 May.

Driver Mr David Stewart 317. As with many of the drivers in this case Mr Stewart did not recordhis time in travelling to and from his vehicle when not at base. Thatincluded when taking the Ferry from Rosyth to Zeebrugge. Havinglistened to all the evidence in this case I am not persuaded that thearrangements recorded in Mr Andrew Marshall of Superfast’s statementprevailed on all occasions and I believe that on some occasionsstevedores would have taken vehicles and trailers on and on otheroccasions these will have been driven on by drivers under thesupervision of Superfast or the terminal’s people. I am quite preparedto believe that Mr Stewart could not remember the detail of what exactlyhappened on 15/16 March but the failure to record duty time meant thatthere was not a clear picture of Mr Stewart’s rest. I give him thebenefit of the doubt in relation to the load picked up at Ash Manor, thecheese load. The interruption of minutes at the fruit market is atechnical offence and one where operator and customer will have to finda way whereby the driver does not need to be disturbed. However thereare two clear instances when Mr Stewart has knowingly and badlycontravened the drivers hours rules and these were the journey to TescoPeterborough on the instructions of Jamie McLanachan which he didwithout a chart and also the journeys involving the Panasonic load on29/30 March when for part of the time he ran without a chart. He didthat to assist his employers. I have to take a dim view of such forprofessional drivers need to take rest and the drivers hours rules arehealth and safety provisions there to ensure that drivers are notfatigued and also that they are not put under pressure to drive whenthey should have time off. I find that Mr Stewart is not fit by reasonof his conduct and I determine that his entitlement will be suspendedfor a period of SIX WEEKS with effect from 23.59 on 30 May 2010.

Driver Mr Brian Watkins 318. Mr Watkins was a casual driver for McLanachans and his part inthis whole case was a small one. As with others he did not record hisduty time and so there could not be a full picture. He was in full timeemployment elsewhere and therein lays the more serious side to hisinvolvement in that he was not taking rest. His time sheets for 25February to 3 March were examined along with such information as couldbe taken from his tachographs and it was concluded that he had takeninsufficient daily rest and insufficient weekly rest. Drivers need rest.Road safety needs rested drivers. I understand why additional earningsare welcome but here I cannot be sympathetic to the extent to concluding

this with a warning. I determine that he is not fit by reason of hisconduct and that his entitlement will be suspended for a period of TWOWEEKS with effect from 23.59 on 30 May 2010. 319. Summary: Mr Brian Watkins’ entitlement will be SUSPENDED for TWOWEEKS from 23.59 on 30 May 2010.

Driver Mr Patrick John McIntyre 320. Mr McIntrye was a casual driver for McLanachans. Mr McIntyre hadhis rest interrupted when in Germany - at interview he said it wasbecause he was told to go on a loading bay; at the hearing he said itwas on instructions of the police. At interview he told a story about along haired man, not one of the McLanachans, coming to Bellshill withhis car and that he had not unloaded. At the hearing he admitted that infact he had tipped off the chart after arriving at Bellshill in theearly morning and it was submitted he did that to help his employers. Helied though to the Examiners - I do not consider it just a matter of thepassage of time affecting memory. All of this offending goes to roadsafety in that he had insufficient rest. The interruption in Germany -for whatever reason was for 4/5 minutes - and the driving at Bellshilltook place within an RDC. So I have heard worse. The point with him aspermeates this whole case is that the Examiners did not have a truepicture of what he was doing. I find that he is not fit by reason of hisconduct and I determine that his entitlement be suspended for ONE MONTHwith effect from 23.59 on 31 May 2010. 321. Summary: Mr Patrick John McIntyre’s entitlement will beSUSPENDED for ONE MONTH from 23.59 on 31 May 2010.

Driver Mr Ian Stephen Roberts 322. Mr Roberts is a taxi driver who does occasional runs forMcLanachans picking up vehicles and doing short local runs. He had notbeen recording duty time and then there was the query over 2 charts forthe same day. I am prepared to give him the benefit of the doubt inrelation to his explanation over these. He says he has got leaflets andbrought himself up to date. In his case I will conclude with a WARNINGto him that if he wants to continue as an HGV driver he must keephimself fully informed of the requirements of the drivers’ hoursrules. 323. Summary: Mr Ian Stephen Roberts is WARNED as to his conduct.

Driver Mr Martin Flanagan 324. Mr Flanagan was with McLanachans for a short time. On an analoguechart he wrote Kilsyth as his end destination rather than Bothwell asKilsyth was where his car was. Thus in an odd way he did record wherehis duty would end i.e. Kilsyth but not his time. He admitted tippingoff the chart at Morrisons and that it was wrong. He was co-operative atinterview. I determine that he is not fit by reason of his conduct butgiven his small involvement in this case and his straightforwardness Iwill conclude matters in relation to him by determining that his

entitlement be SUSPENDED for ONE WEEK with effect from 23.59 on 30 May2010. 325. Summary: Mr Martin Flanagan’s entitlement is SUSPENDED for ONEWEEK from 23.59 on 30 May 2010.

Driver Mr Alexander Miller 326. Apart from the misunderstandings over the Scandinavian route andwhich the Examiners accepted I find that the Examiners have detected inMr Miller a pattern of activities which was deliberately engaged in toget round the drivers’ hours rules and to let him drive on at hisconvenience. The activities, which except in one significant exception,were admitted by Mr Miller included driving without a chart on manyoccasions including doing so on the continent and taking his chanceswith the French traffic police; winding back of the clock on manyoccasions; and in so doing he failed to take sufficient daily rest andhe continued driving when he should not have. He compromised his weeklyrest. Like many drivers in this case he did not record duty time when heshould have. The point of controversy with him was whether he pulled thefuse at all or on many occasions. The Examiners believe that he did dosuch and were fortified in that view by no other explanation for themarrying up of the traces. He denied such at interview and at theInquiry. He offered no alternative explanation to deflect theExaminers’ suspicions. I have to take a view on this. I find thaton balance of probabilities that he did pull the fuse on some occasionsbut that it was not his prevalent way of getting round the rules; hetook the less risky and much easier options of driving without a chartand winding back the clock. He was quite comfortable doing such; playingthe innocent; and then almost genially admitting much of it or takingrefuge behind the passage of time and not being able to recall. A manwho has such disregard for the rules is a man who would know how to pulla fuse. He knows how to be cute. The worst of his offending against therules was when on the long runs to Europe, that is when he most wouldhave needed rest and his wits about him when driving. He has imperilledroad safety. He realises his position is serious. 327. I find that Mr Miller is not fit by reason of his conduct tocontinue to hold the entitlement or to have it renewed to him. The levelof false records here is significant and given that one day’s recordwill knock into the next days does come to about 20. I determine thatthe extent of the false records and the deliberate and repeated breachesof the rules are such that the entitlement must be revoked and he bedisqualified. Having determined on revocation and disqualification Ihave to put a period on the disqualification. Nothing short of 2 yearswould be appropriate here; such is the seriousness of his behaviour. Therevocation and disqualification will come into effect at 23.59 on 8 May2010. If this means that Mr Miller’s driving career is at and end thenso be it. It is a sad end to a long distance driving career which willhave had its adventures and delights in the service of road haulage andmaking a living. 328. Summary: Mr Alexander Miller’s entitlement is REVOKED and hedisqualified for 2 years with effect from 23.59 on 8 May 2010.

Driver Mr Keith Nicholson 329. Mr Nicholson did not record all duty time. On two occasions he ranover when looking for somewhere to park. He moved the vehicle withoutrecording it on his card. He has had pressure at RDCs, the “rock andthe hard place” pressure which is put on so many drivers at RDCs. Hewas failing to have sufficient daily rest given spread over. He hasslipped into these behaviours which are challenging for drivers in termsof getting work done whilst keeping on the right side of the drivers’hours rules. He keeps a meticulous diary but even with that there weresome remaining queries about what he had done. I will WARN him as to hisconduct on this occasion but any recurrence will not be to his advantageand he should be in no doubt. 330. Summary: Mr Keith Nicholson is WARNED as to his conduct.

Driver Mr Scott West 331. The investigation covered the very first month of Mr West beingwith McLanachans and his very first Continental trip. The crux ofmatters concerning the Examiners was the failure to record duty time.They did not allege that he had driven the vehicle on to the Ferry orthat he had driven it to Rosyth. Their whole thrust was that duty timehad not been recorded and then there was the question mark over thedistance trace and speed at the other end. There were two missing chartsincluding one after the disastrous night at Lochinver but Mr West saidhe had handed them in. Fortunately for him this is not a case in whichmissing charts greatly feature and there is no other evidence to suggestthat he was not trying to adhere to the rules. Thus I am prepared toaccept, as I think the Examiners also accepted, that he likely did handthe charts back. He should have known about duty time but did not andhis employers did nothing to correct his ignorance. I have some sympathyfor him in the journey on the Ferry being his first and his having tocopy the practice of others. I am glad that he has a healthyapprehension of the French police and so does not follow the ways of MrMiller. I am content that this case can be concluded by my warning himas to his fitness. 332. Summary: Mr Scott West is WARNED as to his fitness.

Driver Mr John Craw 333. That so many of Mr Craw’s charts are missing is frustrating forit leaves a whiff of suspicion wafting around him particularly given hisprevious appearance at a hearing and his suspension. The missing chartsreflect on the operator’s systems and I will deal with that in theoperator case. I can see why the Examiners probed his charts given theappearance of the name “Foster”. The circumstances were the sortwhich in other cases has revealed “ghosting” by the main drivers tofinish deliveries and get home. Thus the suspicion that Damien’s nameand the name “Foster” were used to hide Mr Craw driving beyond hishours. However in this case I am not persuaded that there is sufficientevidence, circumstantial or direct, to allow me to make an adversefinding against either Mr Craw or Mr Damien McLanachan save that dutytime in leaving and getting to the vehicle was not recorded by either

and so there is not a true picture of their hours. 334. It is accepted by him now that he had insufficient rest in theperiod 12-14 March. He knew what his previous day involved. He knew hewas engaged in this early morning driving. He knows that he had to payattention and keep up to date with drivers' hours rules. He claimed hewas ignorant of the duty provisions. With much frustration given thatthe missing charts mean that I do not have a good picture of Mr Craw’scompliance (good or otherwise) I do determine that his fitness has beenaffected by his not taking daily rest and by not recording duty time butI cannot find that this is a case in which I can do other than mark thatby determining that his entitlement be suspended for TWO WEEKS witheffect from 23.59 on Sunday 23 May 2010. Had this been his first timebefore me I might have been more lenient. It will be very difficult toshow any further leniency should Mr Craw appear at a driver conducthearing again with adverse matters found. 335. Summary: Mr John Craw’s entitlement will be SUSPENDED for TWOWEEKS from 23.59 on Sunday 23 May 2010.

Driver Mr Alistair Priestley 336. Mr Priestley patently did not realise that whilst the card wasout, the vehicle unit still told a story and thereby he has been caughtout. He did not record duty time and says he did not know he had to.However whether analogue or digital he did know he had to record drivingand other work and that he had to take rest. I am in no doubt that thetaking out of the card assisted him in stretching his days and reducinghis rest, in his mind. He knew he was out of hours at Cumbernauld andgave the false name Smyth, a device he has used elsewhere and whichfrankly as I told him serves to cast more suspicion. I wondered if hisbehaviour was because these runs to the continent which he was doingshould have been double manned and thus the operator had to be lookedat. The Examiners thought not. Fortunately for Mr Priestley theExaminers did not find the names Smyth or M Ouse on any tachographcharts. The driver’s card has saved him from that. I find that he isnot fit by reason of his conduct in that he has not made a true recordof his work, all as found by the Examiners. Having so determined I alsodetermine that I do not find this to be a revocation case ordisqualification though that would have been very different if Smyth orMickey had been used on any analogue chart. A lesson from this evidencefor McLanachans is that they must have someone on duty 24 hours toassist drivers at RDCs. 337. Taking rest is essential to safe driving. Mr Priestley disclosedin his evidence that he had health problems including blood pressure. Heis still a big man and he will have to be very watchful as to fatigue.By not being meticulous about daily and weekly rest he has put thesafety of others and himself at risk. I have decided that a period ofsuspension cannot be avoided and consider a period of SIX WEEKS to beappropriate. In so ordering I am giving him some sympathy for thecircumstances he found himself in with the distribution centres. Thesuspension will be from 23:59 on Sunday 23 May 2010. Summary: Mr Alistair Priestley’s entitlement will be SUSPENDED for 6WEEKS from 23:59 on 23 May 2010.

Driver Mr Christopher McLanachan 338. Mr Christopher McLanachan’s duties are in the workshop lookingafter the vehicles so it is a day time job there. His driving is mostlyin connection with road testing vehicles. The Examiners looked at 17charts. I have looked at all of these and have noted that most of themare day time journeys ie from not before 7am and mostly ending early orlate afternoon. The two that stick out as being out of normal hours ofwork for Mr McLanachan are the journeys for which the Examiners allegethat he has completed the charts in his name but Messrs Maund or McLeishrespectively did the journeys. The Examiners concluded that the chart of26/27 from Harthill to Kilsyth is that for Mr Maud who would have runout of hours. I am of the view that Mr Maund was at Tesco Livingstonwhen the delivery was made and that Tesco Livingston’s record of thatunloading was accurate. The Tesco paperwork (annex 92 in the PublicInquiry brief) gives the times in and out for the load and that thesetimes coincide completely with the times shown on the chart in name ofMr Christopher McLanachan. I agree with the Examiners that the insertionof the name “Mallnd” is a mis-spelling of “Maund”. I can see nosource for Tesco using that name other than that the driver or personwith the load gave it. The evidence points to Mr Maund being at TescoLivingston at those times, the only question remaining is was MrChristopher McLanachan there too, having most likely worked a full dayat McLanachans and then out to midnight with this final delivery andthen a home to go to or was his the later role of completing thecentrefield details and lending his name? No one has made any admissionsof ghosting. I find that Mr Christopher McLanachan and Mr Kevin Maundhave made false records of their driving and duty times for the journeysdone on 26/27 February but I hold back from finding ghosting as Ibelieve that Mr Maund was with Mr McLanachan that night. That does notdetract from the fact that both drivers were out of time and that MrMcLanachan should have been resting given that he would have done a fullday’s work earlier that day. Road safety and respect for the purposesof the drivers’ hours rules were offended against. 339. In relation to the chart for 29 March something is most definitelyaskew and Mr Christopher McLanachan who is a mechanic and who might havehad cause to look at whether a tachograph was malfunctioning cannotexplain why the Examiners can find the head opened, the clock wound backand the distance traces not matching. There may actually be something tohis explanation here given that the vehicle was en route to the ferry tothe continent and thus away from base. In 2008 the clocks would havegone forward in Britain and Europe on 30 March. I am prepared to give MrChristopher McLanachan the benefit of the doubt here but he should haveannotated the back of the chart so that anyone checking the chart wouldknow what had happened. 340. In respect of the journey in which ghosting with Mr McLeish isalleged that is 18 March I can see why the Examiners were doubtfulparticularly given what scrutiny of Mr McLeish’s charts had disclosed.The failure to record duty time casts doubts but I am prepared in thisinstance to believe Christopher McLanachan’s answer at interview thatMr McLeish was with him at Tesco. It is not satisfactory that theExaminers could not form a true picture - particularly in relation to MrMcLeish who is of concern - but I am not able to find on balance of

probabilities that there was ghosting. 341. Mr Christopher McLanachan has been working long days as a mechanicand then doing night time change overs on these occasions. Even if hedid not know about duty time he knows about road safety and drivershours being curtailed by drivers’ hours rules. He cannot claimignorance of the need for drivers to have rest. He will have beenfatigued even though he may not have thought so. I find that by workingsuch long hours that goes to his conduct and that he is not fit. Idetermine that his entitlement will be suspended for TWO WEEKS witheffect from 23.59 on 16 May 2010. 342. Summary: Mr Christopher McLanachan’s entitlement will besuspended for two weeks with effect from 23.59 on 16 May 2010.

Driver Mr Wayne Allen 343. Mr Allen has been at a driver conduct hearing before and so isaware of the need to observe the drivers hours and tachograph rules. Hehas a speeding conviction and a mobile phone conviction. He chose toanswer his phone when he should not have done so. Traffic Commissionerstake a very serious view of large goods vehicle drivers who commit suchan offence as regrettably lives have been lost and serious injuriessustained through the loss of concentration occasioned by such use. Aswith others in this case, Mr Allen did not record duty time to and fromhis vehicle and his employer did nothing to counter that practice. Heerred on the side of driving on to find parking rather than using Perthservices. I consider that gives insight into the rest of the evidenceagainst Mr Allen that he drives on, works on to finish the job andthereby eats into his rest. This is what happened on 28/29 February and29/1 March. He has had insufficient rest on these dates. I accept MrAllen’s evidence in relation to practices at Poullaouen for unloadingand washing of trailers. The Examiners engaged in too much conjecture inrelation to the latter and we all had the benefit of drivers’descriptions of Poullaouen as the hearing progressed. However Mr Allenhas not given a true account of his whereabouts in relation to ferrycrossings and the journeys from theses. There is a pattern of such. I doaccept that there was a problem with brakes on 10 March. Leaving asideany duty to or from the vehicle, I find that he has made false recordson 28/29 February, 4, 5, 12, 13, 18, 19, 20 24, 25, 26 March and that hefailed to have sufficient daily rest on occasions, and insufficientweekly rest in that period. I find that he is not fit by reason of hisconduct and that he will have been fatigued and that he has tried to domuch particularly on the UK side of his job. Having found that he is notfit, I determine that his entitlement will be suspended for EIGHT WEEKSwith effect from 23.59 on 30 May 2010.

Driver Mr James Preston 344. There are episodes in Public Inquiries and hearings that stay withone for a long time and so it was with Mr Preston and his pride andaffiliation to his Truck Drivers Handbook. The problem for him arosewhen I turned up the publication date of 1985. Only the most benign ofindividuals could fail to notice that the world has changed rather a lotsince then and so have the drivers’ hours and tachograph provisions.

Mr Preston has let himself get out of date. He knew of the Skills caseyet did not check to see if it applied to him. He has been fuelling offthe chart and doing other journeys off the chart. I agree though thatthe small movements at Kilsyth are likely to be shunting there and nothim driving. He has not recorded duty time. I do not feel confident tomake an adverse finding that would have him tipping off the chart at TNTthough I can see why the Examiners thought that a possibility and it maybe what happened. I do not find that he is one to defy the need for restbut I have to put down a marker in relation to the fuelling and othererrands off the charts. I determine that he is not fit and that hisentitlement will be SUSPENDED for TWO WEEKS from 23.59 on Sunday 16 May2010. 345. Summary: Mr James Preston’s entitlement will be SUSPENDED forTWO WEEKS from 23.59 on 23 May 2010.

Driver Mr James Blackwood 346. James Blackwood is a relatively young mechanic who has benefitedfrom McLanachans training him and putting him through his LGVentitlement. Of all the witnesses in this case he struck me as astraightforward honest guy. I hope I have not got that wrong because ifI have then I will have come to the wrong conclusions in this case inrelation to ghosting. As with other drivers in this case he has notrecorded duty time and has had insufficient daily rest. On the journeyto Carlisle and back he would have been fatigued and a risk to otherroad users and it appears that was not considered by him or whoevercalled him out and similarly so when he went out to Hamilton,fortunately not so far away, to relieve Mr Beeger. Whilst he might be alate bedder, that does not mean he will not be fatigued and lessresponsive in his reaction time. He claims he was paid for thesejourneys so he has benefited financially as well as obliging hisemployer. 347. I regard the two episodes of late night driving and insufficientdaily rest as serious and I find that he is not fit by reason of hisconduct. That he was not on a regime of recording duty time reflects onthe operator. I determine that his entitlement will be SUSPENDED for TWOWEEKS from 23.59 on 16 May 2010. 348. Summary: Mr James Blackwood’s entitlement will be SUSPENDED forTWO WEEKS from 23.59 on 16 May 2010.

Mr Damian McLanachan 349. In relation to Mr Damian McLanachan the allegations were failingto record duty time and ghosting. I have looked very carefully at theghosting allegations and I quite see why the Examiners were suspiciousand I comment that is a problem when full records of duty time are notkept. I cannot find ghosting established on balance of probabilities. Iam prepared to believe that it is possible to do change overs withincustomers’ premises and to get past the gateman with an explanation.But where I am not impressed by Damian McLanachan is in relation to thelength of his working day. We will never be able to ascertain that toany accurate degree given the non recording of duty time. I think he has

gone out to meet drivers coming back north who have been running out oftime and to get them and the vehicles to customers and then Kilsyth.This has been done for the convenience of the business and withoutthought of drivers’ hours and his own likely fatigue. I find that heis not fit by reason of his conduct and I determine that his entitlementwill be suspended for THREE WEEKS with effect from 23.59 on 9 May 2010. 350. Summary: Mr Damien McLanachan’s entitlement will be suspendedfor THREE WEEKS with effect from 23.59 on 9 May 2010.

Driver Mr Matthew McLanachan 351. Mr Matthew McLanachan quite simply was not recording his duty timeand on one occasion used two charts. He should have known to do thisbecause he is also a transport manager and operator. I think he knewthat there was a weird law in the background which related to duty timeand that he was self serving in his putting it out of his mind. In thatthis is of more significance in the operator case whilst I determinethat he is not fit by reason of his conduct in not making a completerecord, I will limit the action against his driver licence entitlementto a short suspension not least because unlike his relatives none of thecharts in question revealed a very long day - indeed in all charts bar 2the driving took place during what might be termed normal office hoursfor a transport operation and the other 2 had him finished by 10pm. Butin those instances he should have realised that the hours he had alreadyput in took him beyond what should be expected of a driver needing rest.The period of suspension will be TWO WEEKS with effect from 23.59 on 9May 2010. 352. Summary of decision: Mr Matthew McLanachan’s entitlement will besuspended for a period of two weeks with effect from 23.59 on 9 May2010.

SUMMARY OF MY DECISIONS 353. The operator licence will be suspended for FOUR weeks from 23.59on 6 June 2010 during which time the vehicles suspended from thelicence will not be used on this or any other licence in any trafficarea. On the cessation of the suspension the authorisation under thelicence will be curtailed to 12 vehicles with the trailer authorisationunaffected. 354. The operator, directors and transport manager are WARNED as totheir respective repute. 355. The following drivers are WARNED as to their conduct as driver oflarge goods vehicles and holders of large goods driver licenceentitlement: Messrs Ian Roberts, Keith Nicholson and Scott West. 356. The large goods vehicle driver licence entitlement of Mr DavidStewart will be SUSPENDED from 23.59 on 30 May 2010 for a period of SIX WEEKS.

357. The large goods vehicle driver licence entitlement of Mr BrianWatkins will be SUSPENDED from 23:59 on 30 May 2010 for a period of TWOWEEKS. 358. The large goods vehicle driver licence entitlement of Mr PatrickJohn McIntyre will be SUSPENDED from 23:59 on 31 May 2010 for a periodof ONE MONTH. 359. The large goods vehicle driver licence entitlement of Mr MartinFlanagan will be SUSPENDED from 23:59 on 30 May 2010 for a period of ONE WEEK. 360. The large goods vehicle driver licence entitlement of Mr John Crawwill be SUSPENDED from 23:59 on 23 May 2010 for a period of TWO WEEKS. 361. The large goods vehicle driver licence entitlement of Mr AlistairPriestley will be SUSPENDED from 23:59 on 23 May 2010 for a period of SIX WEEKS. 362. The large goods vehicle driver licence entitlement of MrChristopher McLanachan will be SUSPENDED from 23:59 on 16 May 2010 for aperiod of TWO WEEKS. 363. The large goods vehicle driver licence entitlement of Mr JamesPreston will be SUSPENDED from 23:59 on 23 May 2010 for a period of TWOWEEKS. 364. The large goods vehicle driver licence entitlement of Mr JamesBlackwood will be SUSPENDED from 23:59 on 16 May 2010 for a period ofTWO WEEKS. 365. The large goods vehicle driver licence entitlement of Mr DamienMcLanachan will be SUSPENDED from 23:59 on 9 May 2010 for a period ofTHREE WEEKS. 366. The large goods vehicle driver licence entitlement of Mr MatthewMcLanachan will be SUSPENDED from 23:59 on 9 May 2010 for a period ofTWO WEEKS. 367. The large goods vehicle driver licence entitlement of Mr AlexanderMiller will be REVOKED and he disqualified for a period of TWO YEARSfrom 23.59 on 8 May 2010. 368. The large goods vehicle driver licence entitlement of Mr WayneAllen will be SUSPENDED from 23.59 on 30 May 2010 for EIGHT WEEKS. Joan N Aitken SSCTraffic Commissioner for Scotland17 April 2010