Transport Tribunal makes landmark ruling

The Transport Tribunal – that’s the body that ADIs can appeal to, if the ADI Registrar decides to remove them from the register, and is more properly known as the First-tier Tribunal, (General Regulatory Chamber) Transport – has recently published something of a landmark decision in an appeal.

The case in question was heard in April but the ruling has only recently been released. It involved an ADI appealing against his removal from the register and marks, as far as I can recall, the first time the Tribunal has dismissed an appeal against such a decision even though it involved no criminal or motoring convictions. The tribunal found that the appellant (the ADI) could not satisfy the statutory requirement to be a ‘fit and proper person’.

The tribunal decision is a curious one. It involves an act that I would hope all ADIs would find repulsive, and is illegal, but for various reasons the Crown Prosecution Service (CPS) decided not to press charges. However, it did merit the incident being recorded by the police.

I should warn you that reading on, it does include some fairly graphic comments, which some readers may find offensive. However, without them, the story makes little sense. The appellant’s DBS enhanced certificate showed under the heading ‘Other relevant information disclosed at the Chief Police Officer’s discretion’, as follows:

‘… Police holds the following information which is believed to be relevant to the application of [the Appellant] for the Child Workforce. ‘The information held by police relates to non-conviction information. On 16/09/15 a call was made to police alleging that the applicant had sent an image of his erect penis to a 17-year-old female who he met whilst employed as her driving instructor and she was his student.

“The applicant was arrested 16/11/2015 and interviewed, where he admitted to engaging in a flirtatious exchange and sexual chat with the 17-year-old female and admitted sending her an image of his erect penis. He stated he had sent the image by mistake.

‘After review by CPS the applicant was not charged with any criminal offence in relation to his actions.’

However, that was not the end of the matter as far as the DVSA was concerned. The agency removed his name from the ADI register, on the grounds that he was not a ‘fit and proper person’. The Tribunal viewed this decision thus:

‘After careful consideration, we conclude that this information is relevant and ought to be disclosed because (the Appellant) has admitted sending a sexually explicit image to a 17-year-old female who he met whilst working as a driving instructor and she was a student.

“The interference with the human rights of (the Appellant) has been considered and it has been determined that, in this instance, disclosure is proportionate and necessary.’

‘While [the Registrar] accepts that the Appellant has not been convicted of any offence, he has by his own admission sent an explicit photograph to a 17-year-old pupil.

‘The conditions for entry onto the Register extend beyond instructional ability alone and require that the applicant is a fit and proper person. Teaching (generally) young people to drive as a profession is a responsible and demanding task that should only be entrusted to those with high standards and a keen regard for road safety. The Registrar believed that she would be failing in her public duty if she allowed a person, who had recently been convicted of the offence to have his name retained in the Register.’

The Appellant participated in the hearing of the appeal. His submission was as follows:

‘The Appellant repeated his submission that the image had been sent accidentally. He asserted that the conversation which he had with his pupil was not sexual but was ‘banter’ between two people and that the investigators had not mentioned this. The conversation reflected the narrative of a well-known comedian.

‘He had sent the first text in the conversation which had taken place after 10 o’clock at night. He had fallen asleep with his telephone in his hand and when he woke up he realised that the explicit image had been sent.

‘He conceded that he had over 2,000 photographs stored on his telephone and that the explicit image was the one which was in the line of images. There had been no mention of two other people that he had conversations with.’

This explanation was deemed enough to convince the CPS that bringing charges against the instructor was not in the public interest. However, the Transport tribunal saw differently, therefore setting a lower threshold of proof for instructors in such cases. In the Decision and Reasons appertaining to this case the Judge states:

‘Having heard from and seen the Appellant we have found his evidence to be wholly lacking in credibility. We simply do not accept, on the standard of proof which we are obliged to apply, which is the balance of probabilities, the Appellant’s assertion that the indecent image had been forwarded by mistake. The account that he had fallen sleep with his mobile telephone, that the graphic image was the one out of 2,000 images on his telephone which had been sent and that the image had been sent while he was asleep, seems to us to be entirely implausible.

‘The Appellant has placed great emphasis on his career as a professional ADI and has stressed in all of his correspondence in relation to his appeal, including his submissions to us, that his behaviour and actions have no bearing on his status as a professional ADI. In his written representations to the Registrar, the Appellant submitted that his name should remain on the Register as ‘I always go out of my way to make sure my pupils achieve their goals and I always treat them with respect. ‘In our view the Appellant is failing to comprehend the meaning of the term ‘fit and proper person’ in the context of the relevant legislation.

‘That context was set out in the case of Harris v. Registrar of Approved Driving Instructors , when it stated: “….. the condition is not simply that the applicant is a fit and proper person to be a driving instructor; it is that he is a fit and proper person to have his name entered in the register. Registration carries with it an official seal of approval … the maintenance of public confidence in the register is important.

“For that purpose, the Registrar must be in a position to carry out his function of scrutiny effectively, including consideration of the implications of any convictions of an applicant or a registered ADI. That is why there are stringent disclosure requirements.”

‘That is the public interest. The Register is made up of the names of individuals, however, and in cases such as these the competing private interest is that of the individual. An individual ADI is entitled to expect that the duty of the Registrar to preserve the integrity of Register through intervention and scrutiny of individual behaviours, and conduct and in assessing whether the ‘fit and proper test’ is satisfied, is exercised in an effective, fair and proportionate manner.

“In this respect it is axiomatic [self-evident or unquestionable] that we accept that the Appellant has not been convicted of any criminal offence.

“We turn to the question of the integrity of the Register. We recognise that the Registrar’s arguments concerning the standing and reputation of the Register, from the perspective of both the public and other registrants or potential registrants, is a powerful one. In these circumstances, we conclude that the Registrar was correct to set out the competing public and private interests and the balance which she struck was correct. The maintenance of public confidence through the refusal of the Appellant’s application for an extension of registration was rational and appropriate.’

So what should ADIs make of this case? Well, by refusing this appeal and upholding the ADI Registrar’s decision, the Tribunal has lowered the guilty bar for ADIs hoping to stay on the register. Not being convicted over an incident is now no defence to unacceptable behaviour and doesn’t save you from failing the ‘fit and proper’ test.

The ruminations of the CPS are often baffling. In this case they decided not to prosecute but clearly the information recorded by the police and released, together with information provided by the DVSA’s own in-house enforcement team, was enough for the ADI Registrar Jacqui Turland to act on her determination to rid the register of people who let the entire ADI community down.

I support her actions and applaud the outcome of this hearing. My only query would be the timing. While I’m aware that the wheels of justice sometimes turn exceedingly slowly, it seems to me that allowing this person to carry on teaching people, including children, from the time he admitted what he had done to police in November 2015 until his appeal was refused in April this year – nearly 18 months later – is too long.