Kamaljit Bains v Registrar of Approved Driving Instructors

Appeal number: D/2019/564 FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER TRANSPORT KAMALJIT BAINS Appellant - and - THE REGISTRAR OF APPROVED Respondent DRIVING INSTRUCTORS TRIBUNAL: HHJ Dixon Determined at an oral hearing, by the Judge on 10th September 2020 © CROWN COPYRIGHT 2020 DECISION 1. This appeal is dismissed with immediate effect. REASONS Background to Appeal 2. This appeal concerns a decision of the Registrar of Approved Driving Instructors (“the Registrar”) made on 15th August 2019 to remove the Appellant from the Register of Approved Driving Instructors on the basis that he was no longer a “fit and proper person” to appear on the same. 3. The Registrar set out in a detailed statement that allegations of inappropriate behaviour were made by a pupil, which were investigated by DVSA staff. The Appellant was invited for interview about the matter but failed to cooperate. The allegations involved touching of a pupil’s hand whilst driving, asking her to go to his address, sending inappropriate texts, visiting her place of work and indicating he really liked her. A copy of the email of complaint and copies of the texts are within the bundle. In one text message the Appellant indicates, “Hi Keyante I am letting you know I really like you a lot ) may be you could consult with your mum Cheers Kam.” This message was after Keyante referred to the Appellant as a “dirty old pervert.” 4. A similar allegation was made in 2015, which after a full investigation the Appellant accepted, he had fallen into “bad habits and practices,” and he received advice. Further allegations were made in 2002 and 2003, but no action was taken as a result of reluctance by the complainants. 5. The Registrar made it clear that a response was received to her initial letter from Lexton Law Solicitors where the Appellant accepted inviting the pupil for coffee in town, but this was purely a friendly thing; the Appellant taking care of his pupils was a normal thing and he didn’t see anything wrong in saying lets meet for a drink. The letter also explained that the other contact, which accepted in the main the alleged factual behaviour, was all innocent and explainable in neutral terms. 6. The Registrar indicated she took the view the behaviour alleged, and the similarity to the earlier matter, were of such note that it rendered the Appellant not a fit and proper person to be on the Register. 7. The Appellant appealed to the Tribunal on 28th August 2019. He indicates in relation to the allegation made that he felt he did act properly in the conduct of the instruction, “but I do admit in retrospect I may have acted inappropriately during my line of work as a driving instructor. I cannot stress enough this was on a friendly basis, but I may have acted incorrectly.” He made strenuous objections to inviting the pupil to his home address and never went out of his way to meet her at her place of work. 8. The hearing bundle consisted of 44 pages. Mode of Determination 9. The case was listed for oral hearing and was carried out via the CVP video enabled hearing system. 10. The Appellant attended and was represented by Mr Haresh Sood of Counsel. The Respondent was represented by Ms Claire Jackson of the ADI Appeals Team. 11. It had been expected that there would be two live witnesses in attendance, namely an investigator and Ms Keyante Guerin, the complainant. Neither attended for differing reasons. Following a discussion with Mr Sood, for the Appellant, and an indication that whilst the hearsay accounts would remain before the Tribunal, it would be for me to determine after hearing any further evidence and/or submissions what weight, if any, to attach to the relevant materials, the hearing continued without them. Evidence at the Hearing 12. Ms Jackson for the Registrar indicated that allegations had been made against the Appellant and repeated the matters highlighted within the Registrar’s full statement. 13. Mr Sood asked the Appellant, Mr Baines, a number of questions, followed by further questions from me. He accepted that over a period of 4 months or so he had become “a bit friendly” with Ms Guerin, he had developed a rapport with her and liked her. He accepted there was an occasion that he had been close to his house when he had gone in to collect his diary, but denied he had invited his pupil to come into his address. 14. 15. 16. He accepted there was an occasion, as alleged by Ms Guerin, when he invited her for a coffee, but said this was in a friendly way to assist her with her driving. I asked him explicitly why he would do this outside of a driving lesson? The Appellant didn’t have a clear answer but stressed he was just being friendly. In relation to the alleged touching of Ms Guerin’s hand whilst driving he accepted, he might have caught her on occasions when she was starting to learn to drive. The Appellant explained that sometimes an instructor has to grab the wheel to control the vehicle to avoid issues, and you may catch the pupil’s hand or arm in that process. The Appellant described how there was a lot of contact between the two of them by text and messaging as that was how they arranged lessons. I asked him about the particular series of texts, including the one where the complainant referred to him as a “dirty old pervert.” The Appellant believed the messages came in a particular order, which didn’t fit the timing on the texts, and he sought to explain that the messages were nothing other than an attempt to discuss refunds or the like. He could offer no real explanation why Ms Guerin called him “a pervert.” 17. Mr Sood on behalf of the Appellant argued, and I summarise the submissions: (1) As it was 2 years after the alleged behaviour and without witnesses being present care had to be taken; (2) There are discrepancies between the complainant’s statements, at one stage she talks of her hand being touched, another stroked, another that the Appellant’s hand “lingered” over hers. Such differences affect the reliability of the account; (3) Some of the allegations involve assumptions, not actual conduct; (4) A good deal of detail is missing that would have assisted all to look at and assess the allegations; (5) The hand touching was accidental, and not against the applicable “rules”; (6) The investigation has been one sided; (7) The alleged earlier conduct wasn’t pursued in some instances, and in the more recent one was found only to warrant “advice”, it would be wrong to rely upon it; (8) The conduct here doesn’t warrant a removal from the Register, at most a warming may be appropriate. The Law 18. Conditions for entry and retention on the Register require the Applicant to be and continue to be a “fit and proper person” to have his name on the Register of Approved Driving Instructors – see s. 125 (3) and s. 127 (3) (e) Road Traffic Act 19881. 19. The Registrar may take the view that a person no longer meets this requirement where there has been a change in circumstances. The burden of showing that a person does not meet the statutory criteria rests with the Registrar. 20. In Harris v Registrar of Approved Driving Instructors [2010] EWCA Civ 8082, the Court of Appeal described the “fit and proper person” condition thus: “..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. This is why there are stringent disclosure requirements”. 21. An appeal to this Tribunal against the Registrar’s decision proceeds as an appeal by way of re-hearing i.e. the Tribunal stands in the shoes of the Registrar and take a fresh decision on the evidence before it. The Tribunal must give such weight as is considered appropriate to the Registrar’s reasons3 as the Registrar is the person tasked 1 http://www.legislation.gov.uk/ukpga/1988/52/part/V/crossheading/registration 2 http://www.bailii.org/ew/cases/EWCA/Civ/2010/808.html 3 See R (Hope and Glory Public House Limited) v City of Westminster Magistrates' Court [2011] EWCA Civ 31. http://www.bailii.org/ew/cases/EWCA/Civ/2011/31.html. Approved by the Supreme Court in Hesham Ali by Parliament with making such decisions. The Tribunal does not conduct a procedural review of the Registrar’s decision-making process. Conclusion 22. I have considered carefully all of the evidence and submissions in this appeal. 23. This is not a case where there has been a finding of fact about the alleged behaviour previously. In a number of regards the Appellant denies any of what he perceives to be the inappropriate conduct. He does accept certain factual situations, but the interpretation of the same is challenged. It is always difficult in such circumstances for the Tribunal to reach conclusions on the facts. 24. It is not possible for me to determine what actually did take place as the relevant pupil is not a witness today. I have the hearsay account of the allegations, copies of some texts, and I have to be careful to determine what weight if any I can give to such matters as a result. It is crucial for me to set against the allegations the evidence that I have heard and then to determine does any of the material assist me to determine the issues that arise in the appeal. I remember these being Tribunal proceedings that the civil standard of proof applies. 25. Here I note that the Appellant accepts that his behaviour in hindsight may have been “inappropriate…during my line of work.” This is an honest interpretation of matters and a factor to be considered. 26. In relation to the hand touching, the allegation made is not consistent and without hearing from the complainant is difficult to determine. The Appellant’s account of occasionally touching whilst assisting a pupil with her control of the car is feasible and within common contemplation. Whilst the text conversations alongside this allegation cause me concern, I can not find that the contact that took place was anything other than accidental. 27. The Appellant accepts that he became too friendly with Ms Guerin. The lack of explanation why it was felt acceptable to see a young female pupil outside of a lesson in a semi-social setting is troubling. Alongside that the content of the text messages and indeed the inferences that come from them, are even more so. 28. Its right to note that the “pervert” comment and indeed the Appellant repeatedly indicating that he liked Ms Guerin come after she was no longer his pupil, but this doesn’t reduce the effect of the conduct. The obvious inference from Ms Guerin sending the Appellant the text to leave her alone and that he was a “pervert” is that his behaviour was outside of what was perceived to be acceptable and was in no way reciprocated. The fact that the Appellant failed to heed the obviously clear message shows almost a degree of infatuation with his former student. The failure to read the clear signal and the continuing request to see her is extremely worrying. 29. The voluntary ADI Code of Conduct makes it plain that driver trainers will amongst other things: (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 at paragraph 45 – see https://www.supremecourt.uk/cases/docs/uksc-2015-0126-judgment.pdf. • “at all times behave in a professional manner towards clients; • avoid the use of inappropriate language to clients • not initiate inappropriate discussions about their own personal relationships and take care to avoid becoming involved in a client’s personal affairs or discussions about a client’s personal relationships, unless safeguarding concerns are raised • avoid circumstances and situations which are or could be perceived to be of an inappropriate nature • respect client confidentiality whilst understanding the actions to take if a client reveals concerns about their private lives.” 30. 31. 32. 33. It seems to me even on the Appellant’s stance that he did invite pupils for a coffee, that is behaviour that could be perceived to be of an inappropriate nature. The text message making it clear he “likes” his pupil after she has told him in clear terms, she doesn’t appreciate contact from him, is extremely worrying. It is inappropriate language towards a client and a situation that is clearly inappropriate bearing in the mind the age of the parties and the “professional” instructor/client relationship. I note, and give due weight to, the fact that there have been previous allegations made against the Appellant over the years. The complaints are similar and show continued inappropriate behaviour over a period of time. The number of complaints and continued nature of them, whilst not sufficient for me to find are conclusive evidence that the acts here took place, are sufficient on the balance of probability to find that there are serious areas of concern. I regard the history as of some import. I conclude in light of all of the aforesaid that it would undermine public confidence in the Register for the Appellant to remain on it. Those teaching students have to be able to show that they abide by the laws and act in a proper and responsible way towards them, particularly as they are often young people. Here the Appellant’s behaviour falls far, far below that standard. If this were a trivial one off matter it may be that the warning Mr Sood advances would have had some merit, but the repeated nature of issues, the period over which matters took place and the Appellant’s failure to appreciate his approaches were unwanted and inappropriate, rules such a course completely out of the question. 34. In my view the Registrar would be failing in her duty to allow the Appellant to remain on the Register in the circumstances. 35. This appeal is dismissed. (Signed) HHJ David Dixon DATE: 10th September 2020 6