Decision for Mr Duncan John Blackburn McKee

REDACTED PUBLIC VERSION

WARNING – THE PRINCIPAL DECISION IN THIS CASE CONTAINS CONFIDENTIAL INFORMATION AND MUST NOT BE ISSUED TO THIRD PARTIES WITHOUT THE EXPRESS PERMISSION OF OR EDITING BY THE TRAFFIC COMMISSIONER. THIS IS THE REDACTED PUBLIC VERSION.

1. TRAFFIC COMMISSIONER FOR SCOTLAND

1.1 ROAD TRAFFIC ACT 1988

2. MR DUNCAN JOHN BLACKBURN MCKEE

3. DECISION OF THE TRAFFIC COMMISSIONER

3.1 RELEVANT STATUTORY PROVISIONS

Section 115 (1) of the Road Traffic Act 1988 provides that a large goods vehicle or passenger-carrying vehicle driver’s licence – (a) must be revoked if there comes into existence, in relation to its holder, such circumstances relating to his conduct as may be prescribed; (b) must be revoked or suspended if his conduct is such to make him unfit to hold such a licence; and where the licence is suspended under paragraph (b) above it shall during the time of the suspension be of no effect.

Section 116 (1) provides that any question arising under section 115 (1) (b) of this Act as to whether a person is or is not, by reason of his conduct, fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, may be referred by the Secretary of State to the Traffic Commissioner for the area in which the holder of the licence resides.

Section 116 (2) provides that where on any reference under sub-section (1) above, the Traffic Commissioner determines that the holder of the licence is not fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, he shall also determine whether the conduct of the holder of the licence is such as to require revocation of his licence or only its suspension; and if the former, whether the holder of the licence should be disqualified under section 117 (2) (a) of this Act (and, if so, for what period) or under Section 117 (2) (b) of this Act.

Section 116 (3) provides that a Traffic Commissioner to whom a reference has been made under sub-section (1) above may require the holder of the licence to furnish the Commissioner with such information as he may require and may by notice to the holder, require him to attend before the Commissioner at the time and place specified by the Commissioner to furnish the information and to answer such questions (if any) relating to the subject matter of the reference as the Commissioner may put to him.

Section 121 defines conduct as meaning (a) in relation to the applicant for or the holder of a large goods vehicle driver’s licence, his conduct as a driver of a motor vehicle, and in (b) in relation to an applicant for or the holder of a passenger – carrying vehicle driver’s licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger – carrying vehicle driver’s licence.

4. BACKGROUND

Mr Duncan John Blackburn McKee (hereinafter referred to as ‘Mr McKee’) was called to a driver conduct hearing conjoined with the Public Inquiry in relation to his father’s (hereinafter ‘Mr McKee senior’) operator licence OM1137607 on 29 April 2021. The inquiry and hearing were conjoined with an inquiry in relation to Mr McKee’s application OM2040229 for an operator licence and a number of other driver conduct hearings in respect of other drivers who had worked for Mr McKee senior.

Mr McKee was in attendance at the public inquiries and in relation to his own conjoined driver conduct hearing on 29 and 30 April 2021. He was represented by Mr McAteer, solicitor advocate. Mr McAteer advised that he had previously acted for Mr McKee and his wife Mrs Mary McKee but he had accepted instructions in advance of the inquiry from Mr McKee and now acted solely for him.

Reports were submitted to my office by TE Haddow in relation to Mr McKee’s alleged conduct as a driver while working for his mother and father. I heard detailed evidence from Traffic Examiner Haddow during the proceedings in relation to her investigation and findings. I also heard evidence from several of Mr McKee senior’s other drivers.

Following careful consideration of the evidence in relation to Mr McKee senior’s conduct as an operator, I found that he had few or no systems in place for the management of drivers’ hours or to ensure compliance with the laws on driving. That failure had led to significant numbers of serious infringements on the part of drivers going unnoticed, which had in turn impacted on fair competition and given rise to a significant risk to road safety.

Of grave concern was Mr McKee senior’s failure to co-operate with DVSA during their investigation. TE Haddow described it as the worst case of failure to co-operate that she had ever seen. In the absence of any explanation to the contrary, I concluded that such a failure amounted to deliberate concealment of repeated failures to comply with the law and his operator’s licence undertakings.

I found that, as a result of their actions, Mr McKee senior and his wife and transport manager Mrs Mary McKee had shown a complete disregard for the law of the road and of their statutory obligations as operator/transport manager. I revoked Mr McKee senior’s operator licence and disqualified him from holding an operator’s licence for an indefinite period on 30 April 2021.

At the conclusion of the inquiry proceedings Mr McKee requested that he be allowed time to lodge additional supporting documentation in relation to his application for an operator’s licence. I allowed that and additional documentation was lodged with my office on 14 September 2021.

Given the closely connected nature of the evidence in the cases before me, I delayed in issuing this driver conduct decision so that it could be issued along with my decision in relation to Mr McKee senior’s vocational driving entitlement and Mr McKee’s application for an operator’s licence. I apologise for the subsequent delay in issuing this decision which has arisen largely as a result of the impact of the COVID 19 pandemic on resources.

5. EVIDENCE

At inquiry, TE Haddow advised that her investigations into Mr McKee senior’s transport operation had highlighted driver’s hours infringements and other concerns in relation to Mr McKee’s behaviour as a driver. It was alleged that he had committed numerous driver’s hours infringements, including rest and falsification offences. Moreover, her opinion was that Mr McKee was an instigator of the culture of disregard for the rules in relation to drivers’ hours that existed in his parents’ transport operation.

TE Haddow also considered it likely that Mr McKee had deliberately positioned a number plate in one of his father’s vehicles such as to render it undetectable by ANPR cameras. She further alleged that Mr McKee was in possession of more than one digital driver card for the period September 2018 until February 2019, with the intention of falsifying records.

TE Haddow advised that Mr McKee senior and his transport manager, Mrs Mary McKee, had failed to provide the vehicle and driver card data which had been requested in the course of the DVSA investigation. That had hampered her ability to investigate the full extent of what she believed was wide spread offending on the part of drivers employed by Mr McKee senior.

DVSA officers had, however, been able to gather some vehicle and digital driver card information during roadside encounters involving Mr McKee senior’s vehicles. She advised that analysis of that limited information indicated that Mr McKee had committed at least 57 driver’s hours offences in the period April 2018 – August 2019. Another 21 offences, which she had set out in an addendum report, were alleged to have been committed by Mr McKee between September – November 2018 and January and March 2020.

TE Haddow referred to specific roadside encounters between DVSA and Mr McKee. She advised that on 1st May 2018, he had been stopped by DVSA officers and found to have committed six infringements, four of which were classified as serious or very serious. Mr McKee’s photocard driving licence was also found to have expired. He was offered fixed penalties totalling £700, which he accepted, but then failed to pay. TE Haddow advised that a report in that regard had been submitted to the Procurator Fiscal however she was unaware of the outcome of those proceedings.

Mr McKee was stopped again on 10 September 2018. Data from the vehicle unit and Mr McKee’s driver card indicated that Mr McKee had committed 12 driver’s hours infringements in the previous 28 day period. The data also indicated that he had falsified records on two occasions by pulling his driver card then continuing to drive the vehicles.

TE Haddow directed me to the data in her report which showed that on 30/8/2018 Mr McKee’s card had been removed from the recording equipment at 19.09 hours, just as the driver using that card was approaching the maximum daily drive limit. The vehicle continued to drive without a card inserted for a further 20mins thereafter. On 5 September 2018, Mr McKee’s card was withdrawn from the recording equipment after 4 hours and 41 minutes driving, which is just over the legal drive time after which a break should be taken. The vehicle continued to drive, however, for another 2 hours and 42 minutes thereafter without a card inserted.

Mr McKee was stopped at the roadside again on 1 May, 28 August and 15 September 2019. On all three occasions his vehicle’s number plate was found to be placed on the dashboard of the vehicle, rather than on the front of the vehicle body as normal. It was noted that the rear number plate was obscured by grease and that the trailer number plate was discoloured. Analysis of the vehicle data showed that the vehicle Mr McKee was driving had been driven without a card on 26 and 27 August 2019. It was also alleged that on 22 August Mr McKee’s driver card had been withdrawn when the driver using it had reached the 4.5 hours driving limit but the vehicle had continued to be driven for 5 minutes thereafter.

TE Haddow advised that analysis of the data that had been obtained also showed 15 examples of quick driver card changeovers. She explained that quick card changeovers can be indicative of a driver using more than one digital card or double manning not being managed correctly. There was no evidence to suggest that double manning was in operation on the days in question. On 13 of the 15 occasions where quick changeovers were identified, they were between Mr McKee’s card and the one belonging to his father, Mr McKee senior.

DVSA’s investigation also revealed that Mr McKee senior’s driver card had been used on days when he was known to have been out of the country. Evidence had been sought from UK Border Control who confirmed that Mr McKee senior was in Spain between 6 and 9 February 2019, and again between 26 June and 5 May 2019. Mr McKee senior’s driver card had been used in a vehicle on 6 and 7 February, 29, 30 April and 1 May 2019. It was noted that Mr McKee’s driver card was the other card in use in the vehicle on 29 April 2019, and again on 6 and 7 February 2019 with very quick change over times between the cards noted.

TE Haddow advised that Mr McKee had been interviewed in September 2019 and again in October 2019 as part of the DVSA investigation. She advised that when asked about the infringements he was alleged to have committed he had been unable to remember or had chosen to answer ‘no comment’. When asked about the alleged use of his father’s driver card when he was out of the country, he had advised that he was not his dad and they would have to ask his dad about it.

It was put to TE Haddow by Mr McAteer that the drivers’ hours information which she had produced did not prove anything. TE Haddow accepted that the data alone could not be viewed as proof beyond all doubt that a particular driver had falsified records or driven off card. For such to be proved beyond doubt, a driver would have to be physically observed in the act of doing so. Nevertheless, in her experience of over a decade as a traffic examiner, evidence of quick card changeovers and cards being withdrawn as driving limits were about to be reached was indicative of falsification. Those features, when coupled with the use of a card when the holder of such was known to be out of the country, strongly indicated that Mr McKee had falsified records and committed the driver’s hours infringements identified.

TE Haddow also advised Mr McKee had reported his digital driver card lost or stolen to DVLA on 7 September 2019. Analysis of the data showed that the digital card which was reported by Mr McKee to be lost was in fact used on 7 September 2019 and remained in use until 8 November 2019. TE Haddow referred to the data in her report which showed that Mr McKee’s old and new driver cards were in use on several occasions on the same days, in some cases with quick changeovers between the two cards taking place.

TE Haddow also advised that she suspected that Mr McKee was responsible for placing his vehicle’s number plate in the cab in an attempting to evade ANPR cameras. I was advised that ANPR data is regularly used in DVSA investigations to evidence the location vehicles driving times. In TE Haddow’s opinion, all of the evidence pointed to Mr McKee’s involvement in the deliberate falsification of records, breaches of the driving hours rule and attempts to evade the enforcement authorities.

[REDACTED].

Mr McKee advised that he had, in recent years, been working part time as a driver for his parent’s business. He also had a chip shop business which was very successful. His parents helped him out with his business and he helped them in theirs by driving for them. He was not paid for his driving work.

Mr McKee stated that the infringements identified took place so long ago that he couldn’t fully remember the circumstances. He admitted, however, that it was likely he did commit the daily or weekly rest infringements referred to in TE Haddow’s report. His position was that he had not done so deliberately, but out of ignorance. He had been following old driver’s hours rules rather than bringing his knowledge up to date after his time off the road in prison.

His evidence was that he had genuinely believed his driver card to be lost and he denied ordering a new one with intent to deceive. He had found his card not long after he had reported it lost and advised that he must have got mixed up on the days where it was identified that both his driver cards were in use. He did not think to call DVLA to advise that he no longer needed a replacement. With regard to the number plate being placed on the dashboard of his vehicle, Mr McKee advised that it had been placed there because the bull bars on the front of the lorry were broken.

Mr McKee denied that he had falsified records by using another driver’s card or by pulling his card. He stated that if the records showed that his card was inserted that it would have been him driving. He advised that he could not remember being involved in many double manned journeys. However, he could not offer any explanation as to how the incidences of driving off card immediately after his card had been ejected had happened, nor for the occasions when quick changeovers between his and his father’s card were identified. He could not explain how his father’s card had come to have been used directly before and after his, when his father was known to be out of the country.

Mr McKee told me that he wanted to keep driving. He enjoyed the work and hoped to have his own licence which he could run successfully. He had learned from his past mistakes and wanted to move on with his life. The loss of his driving entitlement, whilst it would be difficult for him, would not prove catastrophic given his other business interests.

6. CONSIDERATION OF THE EVIDENCE AND DECISION

Over and above the allegations of falsifying records, it was alleged that Mr McKee had committed 65 separate driver’s hours infringements between April 2018 and March 2020. TE Haddow also suspected that the placing of the number plate in the vehicle often driven by Mr McKee was deliberate in an attempt to evade detection by ANPR cameras and to deprive the enforcement agencies of their ability to identify locations and times at which the vehicle was being driven.

Following inquiry in relation to the operator’s licence belonging to Mr McKee’s father, I found that Mr McKee senior and his transport manager, Mrs Mary McKee, had shown a complete disregard for the law of the road and of their statutory obligations. Moreover, I found that they had deliberately obstructed a DVSA investigation in an attempt to conceal the extent of the offending which was taking place.

In his evidence, Mr McKee sought to convince me that he was fit to continue to hold his vocational entitlement and, if granted, his own operator’s licence. He attempted to distance himself from the wrongdoing in his parents’ operation and asked me to believe that he was just a driver in that, rather than a controlling force.

I found Mr McKee to be an unreliable and unconvincing witness. He vacillated in giving his evidence and claimed to be unable to remember most of his actions when questioned. Mr McKee admitted that he had probably committed the daily and weekly rest offences identified. He claimed to have done so as a result of ignorance of the current rules rather than intent to break the law. However, my findings as to the nature of his parents’ operation coupled with the sheer volume of infringements, many of them serious, indicated a pattern of recklessness and disregard for the rules rather than ignorance on Mr McKee’s part. In any event, it is incumbent on all professional drivers to make sure that they are aware of the laws on drivers’ hours and to ensure that they abide by them.

I did not believe Mr McKee’s denial that he had falsified records. His evidence was that if his card was found to be in use then it must have been him driving. He did not lend his card to others. Notwithstanding that, he could offer no credible explanation for the occasions when his card was withdrawn and the lorry continued to be driven, or for the quick changeovers with his father’s card, including on occasions when his father was out of the country.

Moreover, TE Haddow had directed me to data which indicated that Mr McKee had falsified records. On 22 August his driver card had been withdrawn when he had reached the 4.5 hours driving limit but the vehicle had continued to be driven for 5 minutes thereafter. On 30/8/2018 Mr McKee’s card had been removed from the recording equipment at 19.09 hours, just as he was approaching the maximum daily drive limit. The vehicle continued to drive without a card inserted for a further 20mins thereafter. On 5 September 2018, Mr McKee’s card was withdrawn from the recording equipment after 4 hours and 41 minutes driving, which is just over the legal drive time after which a break should be taken. The vehicle continued to drive, however, for another 2 hours and 42 minutes without a card inserted. On 29 April 2019, and on 6 and 7 February 2019 Mr McKee’s card was found to have been involved in changeovers with his father’s card, sometimes within seconds, on days when his father was known to be out of the country.

The evidence shows that the driving off card, and use of another driver’s card, happen on occasions where breaches of the drivers’ hours rules would otherwise have been detectable had Mr McKee’s card remained in use. I find, therefore, that Mr McKee pulled his digital driver card and used his father’s card to falsify records on the occasions alleged. Given my finding that Mr McKee had falsified records by using his father’s card whilst he was on holiday, I also find it more likely than not that on the 13 occasions where quick changeovers between Mr McKee’s and his father’s card were identified, it was Mr McKee who was using his father’s card to falsify records.

I consider it likely that many more instances of falsification on the part of Mr McKee have gone undetected as a result of the paucity of evidence in this case. Nevertheless, on the basis of the evidence before me, I find that he has falsified records on at least 18 separate occasions during the period April 2018 – March 2020 by either pulling his driver card or by using his father’s digital driver’s card.

I also find that Mr McKee did order a replacement digital driver card with the intention of falsifying records. His evidence regarding the loss of his card is simply incredible when set against his use of it the very same day and the evidence of him using both his cards on the same day thereafter. Such actions again indicate an intention to deceive rather than honest error.

Mr McKee’s position was that he helped his parents out in their business and they helped him out in his. His evidence was that he was not paid for his driving work and that he spent a lot of time working in his chip shop. I am unable to conclude on the evidence before me that Mr McKee was responsible for directing the culture of lawlessness in his parents’ transport operation. However, it is clear that he played an active part in perpetuating it. Moreover, whilst there is insufficient evidence to support a finding that it was Mr McKee who positioned the number plate in his vehicle so as to avoid detection by ANPR cameras, I consider it likely that someone within the operation did so deliberately.

[REDACTED].

The impact of [REDACTED] on fitness to hold vocational entitlement may well lessen over time. However, the passage of time can be of little benefit where there is evidence of dishonest or deceitful conduct as the driver of a motor vehicle in the intervening period.

The infringements and falsifications in Mr McKee’s case were committed between April 2018 and March 2020. In reaching my decision, I had regard to the version of the Senior Traffic Commissioner’s Statutory Document No.6 which was in force during the period in which Mr McKee committed those infringements. An updated version of that statutory document was in force as at the date of the hearing. However, I considered it just to apply the starting points which were in place at the time of the offending, rather than to retrospectively apply new guidance.

Paragraph 77 of the relevant version of the Senior Traffic Commissioner’s Statutory Document No.6 states that:

“Traffic commissioners are likely to regard the falsification as more serious than the offence that it may be designed to conceal. Those who commit offences of this kind must understand that there will be serious consequences if and when the matter comes to light. A cumulative and significant period of disqualification which reflects the offence that has been subject to concealment, the falsification of records and/or use of a manipulation device, is the likely outcome. Subsequent conduct is also likely to be of limited weight.”

The starting point in cases where 6 or more instances of falsification are found, is revocation and disqualification for 12 months.

Mr McKee has a history of serious offending as the driver of a motor vehicle. I have found that he falsified records on at least 18 occasions and committed serious and numerous infringements of the drivers’ hours rules in the period April 2018 – March 2020. I have also found that he obtained a duplicate digital driver card with intent to deceive and that he played an active part in the culture of lawlessness in his parents’ business. Those findings act as an aggravation when considering my regulatory response

In balancing, I note the passage of time in this case and the fact that the last of the infringements found took place nearly two years ago. I have not been made aware of any further concerns in relation to Mr McKee’s driving. However, I was unable to attach much weight to the passage of time or subsequent good conduct on the part of Mr McKee where so many instances of dishonesty and falsification had been found. I noted, given his other business interests, that the loss of his vocational licence would not result in significant adverse personal consequences for Mr McKee.

Falsification of records is one of the most serious offences a professional driver can commit. Mr McKee failed to take responsibility for his actions, choosing to deny serious wrongdoing and hide behind his parents’ failure to co-operate with the authorities. His repeated acts of dishonesty and falsification, coupled with his serious and numerous infringements of the driver’s hours rule show an obvious disregard for the law in relation to driving. Given the number and nature of the offences, revocation of his vocational entitlement is a proportionate response. I therefore revoke Mr McKee’s vocational LGV driving entitlement with effect from 23:59 on 13 March 2022 to allow for an orderly end to any driving employment he may have. Having revoked his licence, I must disqualify him from holding his entitlement, either indefinitely or for a specified period.

In considering what period of disqualification to apply, I noted the starting points in the statutory document. The starting point for six or more falsification offences was 12 months disqualification. Mr McKee had committed three times that amount. I also had to take into account the drivers’ hours infringements and his being in possession of a digital driver card with intent to deceive. I was also assisted by the approach of Sheriff Principal Lockhart in the case of Bruce Kirkpatrick. Mr Kitrkpatrick, like Mr McKee, was an unreliable witness, however he relied on his vocational entitlement for his livelihood. In the Kirkpatrick case, there were 24 false records made and the Sheriff Principal imposed a period of disqualification of four years.

It is worthy of note that the current version of the statutory document sets a starting point of revocation and disqualification for twelve months for a single falsification offence. Whilst not directly applicable in this case, the revised starting point does indicate how seriously Traffic Commissioners are expected to treat dishonesty and falsification of records.

Balancing all of the evidence, having regard to the lengthy course of dishonest conduct demonstrated by Mr McKee and his previous serious offending in a heavy goods vehicle, I have decided to disqualify him from holding vocational driving entitlement for a period of FIVE years. That period reflects the serious nature of his actions, the cumulative nature of his offending, and his lack of remorse.

Should Mr McKee apply for the return of his vocational driving entitlement in the future, I direct that the application must be considered by a Traffic Commissioner.

Claire M Gilmore

Traffic Commissioner for Scotland

28 February 2022

https://www.gov.uk/government/publications/decision-for-mr-duncan-john-blackburn-mckee/decision-for-mr-duncan-john-blackburn-mckee