Neutral Citation Number: [2013] UKUT 0287 (AAC)                            Appeal No: T/2013/12

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF NICHOLAS JONES, 
TRAFFIC COMMISSIONER for the WEST MIDLAND TRAFFIC AREA, 
DATED 10 JANUARY 2013.

Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
George Inch, Member of the Upper Tribunal.
John Robinson, Member of the Upper Tribunal.

Appellants:
SARBJIT SINGH RAJU (Transport Manager)

and

VIP CONTRACTS LTD (Operator)

Attendance:
For the Appellants: 	Mr James Backhouse, Solicitor.

Appeals heard at: 	Victory House, Kingsway, London
Date of hearing: 	21 May 2013
Date of decision: 	18 June 2013

DECISION OF THE UPPER TRIBUNAL:

IT IS ORDERED that the appeal be allowed. Mr Raju has not lost his repute and has not lost his professional competence. The Traffic Commissioner’s orders to that effect, and orders under Schedule 3, paragraph 7B(2) and 7C(2), are set aside.

Subject matter:	
Repute and Professional Competence of Transport Manager.
Employment of driver with serious sex conviction and on Sex Offenders Register.
Relevance of driver’s duties, safeguards in place, documented adherence to restrictions and safeguards, driver’s history and passage of time, and other factors.

Cases referred to:
Secretary of State for Transport, Local Government and the Regions v Snowden [2002] EWHC Admin 2394

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Traffic Commissioner for the West Midland Traffic Area made on 10 January 2013 when he found that Mr Sarbjit Singh Raju, as the operator’s transport manager, had lost his repute and professional competence. Mr Raju was disqualified from holding or applying for any position as transport manager for a period of five years under Schedule 3, paragraph 7B(2) of the Public Passenger Vehicles Act 1981 as amended (“the Act”). Additionally, under Schedule 3, paragraph 7C(2) of the Act the Traffic Commissioner directed that, prior to his being accepted in any new position as transport manager, Mr Raju must pass fresh CPC examinations.

2)	The Traffic Commissioner also issued a formal warning against the operator but, having regard to the provisions of Section 50 of the Act, we find that there is no right of appeal to the tribunal against a formal warning. However, the sustainability of that warning must be read in the light of our conclusions, as it arises from the same facts.

3)	The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision and is as follows:
(i)	Mr Raju is the sole director and transport manager of VIP Contracts Ltd, which holds a standard international public service vehicle operator’s licence authorising 16 vehicles.
(ii)	In 2011, the operator commenced a programme of recruitment of drivers because it was expanding its operation. One applicant, whom we shall refer to as ‘Driver N’, disclosed on his written application form that, in 2002, he had been sentenced to 30 months imprisonment for indecent assault against a woman.  The offence had been committed in 2001 during the course of Driver N’s employment as a bus driver with a different operator. Another matter was left on the file. At the time, no proceedings were brought, and no action was taken, in respect of Driver N’s vocational PCV licence.
(iii)	When interviewed by Mr Raju on 6/11/2011, Driver N was able to show Mr Raju his driving licence which demonstrated that his vocational entitlement had not been the subject of any action. Therefore, since the date of his release from prison to the date of his interview, it appeared that the authorities had permitted him to continue to drive buses.
(iv)	Notwithstanding the conviction, Mr Raju took the view that it may still be possible to employ Driver N because he needed a driver to undertake duties that did not routinely involve the carriage of passengers – for example, duties such as training new drivers on local routes, taking vehicles for MOT, taking vehicles to be refuelled or cleaned, and other positioning journeys not involving the carriage of passengers. However, the operator held contracts with the local Council for the carriage of vulnerable people and so, to be on the safe side, an application form for a CRB check was completed for Driver N.
(v)	Mr Raju discovered that, since Driver N and had been released from prison, he had apparently worked for a number of public transport operators without difficulty. Mr Raju spoke in person to Driver N’s previous employer and was informed that Driver N had been a good employee and there had been no problems with him at all. Driver N also told Mr Raju that the police would be visiting the operator at some stage to ensure that his employment was satisfactory and that there were no difficulties. Mr Raju noted this.
(vi)	Driver N was employed part-time for 16 hours per week, and Mr Raju put in place arrangements to ensure the Driver N did not undertake any of the following duties:
•	driving any bus under contract to carry children or vulnerable adults as passengers;
•	driving any bus carrying any other passengers without being accompanied at all times by another employee.
Mr Raju’s concerns and the arrangements put in place to prevent risk were all contemporaneously recorded in writing, as were Driver N’s subsequent duties.
(vii)	Mr Raju did not further explore the detail on the facts behind the conviction sustained some 10 years earlier because, in the light of the above arrangements, he concluded that it was not possible that Driver N could present any risk to any passenger.
(viii)	Conflicting evidence was given at the public inquiry as to whether the CRB check request was actually submitted by the operator to the Council, or whether it was sent to an incorrect address, or whether it was submitted by the Council to the CRB, or was in some other way not properly processed. Whatever happened, it is clear that Mr Raju believed that the request form had been sent to the Council (who, as a public body having contracts with the operator for the transportation of vulnerable groups, had authority to seek a CRB check). Mr Raju also accepted that, in the absence of a response from the Council, he did not follow this up.
(ix)	At some point following Driver N’s employment with the operator, the police and Council raised concerns, and the matter was referred to the Traffic Commissioner - who called Driver N to a driver’s conduct hearing, and at the same time called the operator, and Mr Raju as transport manager, to a linked public inquiry. The driver’s hearing and the public inquiry took place on 15/11/2012. Driver N had his vocational licence revoked and he was disqualified indefinitely. However, at the conclusion of the public inquiry, the Traffic Commissioner allowed Mr Raju additional time to make written representations.
(x)	Full written representations were made on 12/12/2012, supported by various documentary exhibits.
(xi)	In his written decision, the Traffic Commissioner dealt with this written evidence as follows:
“Written evidence was presented to me in December 2012… This evidence was both detailed and comprehensive. The effect of the new evidence is that, if correct, it corroborated the operator’s claim that the driver did not travel unaccompanied. It also demonstrated that the CRB check had been requested as claimed by Mr Raju…
On re-reading the transcript of evidence and the detailed additional written evidence that was sent to me in December 2012, I have come to the view that I should accept the written evidence presented to me by the operator …”
(xii)	The Traffic Commissioner referred to the facts of the 2001 offence, which were grave. The victim was a woman aged 20 with special needs. Driver N had refused to let her get off at her stop and, when he was alone with her on the bus, he exposed himself to her and forced her to engage in a sexual act. A custodial sentence was imposed, reduced to 30 months imprisonment on appeal. Driver N was placed on the Sex Offenders Register.
(xiii)	In his written decision, the Traffic Commissioner noted that the driver had worked for other bus companies since his release from prison, but this was because the conviction had not been brought to the attention of the Traffic Commissioner, either by the authorities, or by the driver, or by any of his previous employers. The Traffic Commissioner said:
“Members of the public reading this decision may assume that the commission of a serious sexual offence by a bus driver will automatically result in an order preventing that person from holding a PCV driving entitlement. That is not the case and there is currently no legal requirement for CRB checks to be carried out by third parties for PSV drivers. However in practice local authorities will require CRB checks to be carried out against PCV licence holders if they have contracts with operators, so that the public that they serve can be assured that passengers are safe. But there is no legal requirement for CRB checks to be carried out by operators for all PSV drivers. In recent years the police have started to bring sex offenders who hold a PCV vocational driving licence to the attention of Traffic Commissioners so that they, as a specialist independent tribunal, can determine whether the offender should continue to hold a PCV vocational driving entitlement or whether it should be revoked or suspended. It is highly regrettable that in this case the driver has only been brought to my attention several years after release from prison and after having driven passenger carrying vehicles unchallenged for other operators.”
(xiv)	So far as Mr Raju was concerned, the Traffic Commissioner said:
“Every transport manager for a PSV operator has a duty to ensure that checks are in place to protect the reputation of the industry and to ensure road safety. The most obvious checks relate to the holding of the necessary driving entitlements including checks as to endorsements. But that is not sufficient by itself as the travelling public should have confidence that not only is the driver competent in the physical act of driving, but he or she is an honest and law-abiding citizen. This includes ensuring that sex offenders are kept out of the industry, it being known that vulnerable passengers are at risk of unscrupulous and predatory sexual offenders. The public must have confidence that they are safe with whoever drives a PSV that they travel in. A transport manager is a gatekeeper as to the standards of the industry in which he or she will work. Mr Raju knew that he was employing someone with a conviction as a sex offender and did not prevent that individual from driving a bus. I accept that he ensured that someone was accompanying the driver, but that is not good enough and falls woefully short of the minimum acceptable standard.”
(xv)	The Traffic Commissioner went on to find that Mr Raju, having been made aware of the conviction, should have made further enquiries as to the details of it. The failure to do so was a serious one, and the Traffic Commissioner held that this failure was sufficient for him to make a finding that Mr Raju had lost his repute as a transport manager and was no longer professionally competent. The Traffic Commissioner added:
“I am conscious that it is not explicit in legislation that a convicted sex offender cannot drive a PSV. Ordinary right-thinking people would say that someone on the Sex Offenders Register would not be regarded as fit to drive a PSV. Whilst I recognise that each case has to be dealt with on its merits, I fail to envisage circumstances whereby someone on the Sex Offenders Register would be regarded by the travelling public as safe. The circumstances of this case are both exceptionally serious and specifically relate to driving buses. I would expect every transport manager who knows of a conviction for a sexual offence to stop that person driving until they know that it is safe to do so.”
(xvi)	The Traffic Commissioner found Mr Raju’s judgement to have been “crass and wholly unacceptable”. Although the Traffic Commissioner accepted that the operator took some limited, albeit inadequate, steps to protect the public, and that the operator was not acting illegally in employing Driver N, he considered that the transport manager deserved to be disqualified from holding or applying for any position as a transport manager for a period of five years, and also that the operator’s repute was “severely tarnished”. The Traffic Commissioner added that the strongest form of formal warning would be recorded against the operator.

4)	At the hearing of this appeal, the Appellants were represented by Mr James Backhouse, solicitor, who submitted a skeleton argument for which we were grateful.

5)	The first point made was that the Traffic Commissioner was wrong to find that Driver N, by virtue of his entry onto the Sex Offenders Register, was inherently unfit to hold a PSV driving licence. Mr Backhouse referred the tribunal to the case of Secretary of State for Transport, Local Government and the Regions v Snowden [2002] EWHC Admin 2394. In this case, on appeal from a decision of a Traffic Commissioner, magistrates had allowed the appeal against a Traffic Commissioner’s decision to refuse to renew a bus driver’s PCV vocational licence following the driver’s conviction for two offences of indecent assault on a 15-year-old girl passenger travelling on a school trip. The Secretary of State appealed the magistrates’ decision but the appeal was dismissed by the High Court. The judge held that if it had been Parliament’s intention that conviction for a sex offence and/or entry onto the Sex Offenders Register should automatically disqualify a PCV driver from holding a vocational licence, it would have said so. But Parliament had never passed such a law. Thus, in each case, notwithstanding entry onto the Register, the decision-maker was obliged to take account of all material factors relevant to the question of the particular driver’s fitness to hold a PCV licence. The court held that the Justices had been right to have regard to the passage of time and to the actual employment status of the driver, and had been right to regard registration on the Sex Offenders Register as not being fatal to a person holding a PCV driver’s licence. An individual judgment had to be made.

6)	In the present case, the Traffic Commissioner made his own views very clear in his decision. He believed (although the basis of this is not explained) that “ordinary right-thinking people” would say that someone on the Sex Offenders Register would not be regarded as fit to drive a PCV.  He said that sex offenders must kept out of the industry – and in the absence of any qualification to this, we can only take it that the Traffic Commissioner took this view regardless of the driver’s employment status, regardless of the duties the PCV driver might perform and any effective safeguards in place, regardless of the passage of time since the offence, regardless of any intervening rehabilitation and, it seems to us, regardless of the fact that this is not what Parliament has said.

7)	Even though it has been some 10 years since the High Court decision in Snowden, and even though it is incumbent on all decision-makers to deal with such cases with the greatest of care and caution, we consider that the basis of that decision continues to hold true. In one breath, the Traffic Commissioner appeared to accept this by indicating that each case has to be dealt with on its merits, but the overall flavour of his comments, we find, strayed beyond an individual assessment of the fitness of Driver N on the facts, and ventured into a general discussion about what ordinary right thinking people would expect. Regrettably in such a sensitive area, the Traffic Commissioner concluded with some general and sweeping statements that, in our judgment, went well beyond what was necessary in this case, and significantly undermined the coherence of the Traffic Commissioner’s approach. Having said that, as we pointed out to Mr Backhouse, this case is not about Driver N himself, but about the Traffic Commissioner’s assessment of Mr Raju’s actions in relation to Driver N.

8)	The next submission made by Mr Backhouse was that there was nothing in what Mr Raju did that was illegal or, even, inappropriate. Other operators had employed Driver N before, and there was no evidence that they had put any precautions in place. Mr Raju, on the other hand, had set up a structured risk management process, and had put restrictions in place which were fully documented, enforced and never broken. Mr Raju was not obliged to obtain a CRB check although such a check was attempted. Driver N had held a valid PCV licence for the best part of 10 years following conviction, continued to be under police supervision in his employments over that period, and there had been no re-offending at all. He had disclosed the conviction and accepted the limitations imposed on his duties. The net effect of this was that Mr Raju should have been viewed in a positive light following his initial and detailed risk assessment, and the implementation of a risk management strategy that was adhered to fully, and was extensively documented in writing. It was to be noted that, in the light of the comprehensive records, the Traffic Commissioner had accepted that these restrictions were, indeed, put in place and had never been broken.

9)	We find merit in this submission. PCV licence holders may or may not drive vehicles being used for the purpose of conveying children or vulnerable adults. Because of the possibility of PCV licence holders undertaking such duties (and in the absence of specific argument on the point) we are content with the proposition that, should they deem it appropriate to do so, authorised persons or organisations may seek an appropriate CRB check (now known as a DBS check) in relation to any bus or coach driver that they may employ directly or indirectly. However, whether or not an authorised person or organisation makes an application for a DPS check must be a matter of judgement for them, depending upon the duties envisaged, the passengers carried, and any enforceable and effective safeguards put in place. 

10)	In the present case neither Driver N nor Mr Raju showed any reluctance to initiate the process for a CRB check to be undertaken, although Mr Raju accepts that he was remiss in failing to follow up the progress of this application. On the other hand, we consider that the restrictions on the duties to be performed by Driver N, together with the fact that there was no evidence to suggest that those restrictions were not strictly complied with (and there was a good deal of contemporaneous documentary evidence to demonstrate that they were) were material considerations worthy of far greater attention from the Traffic Commissioner than they received. We further consider that the Traffic Commissioner, in undertaking an examination of the specific facts of this case, should have placed a number of other factors into the balance – for example, Mr Raju was aware that Driver N had not been deprived of his PCV entitlement, had not been suspected of any further offences since his release from prison, was subject to monitoring by the police whilst employed by others, had a positive reference, and had fully disclosed the conviction.

11)	We find, therefore, that in reaching a judgement about Mr Raju’s actions, it was incumbent upon the Traffic Commissioner to properly assess all these relevant factors and, if he found the safeguards imposed to be insufficient, he should have explained why. All we are told from the written decision is that, although the Traffic Commissioner accepted that Mr Raju always ensured that someone accompanied Driver N, this was not good enough and fell woefully short of the minimum acceptable standard. However, this view appears to contradict something said by the Traffic Commissioner to Mr Raju during the course of the public inquiry. At page 198 of the bundle the Traffic Commissioner is recorded as saying, “It does not matter if he is on the bus for five minutes, the nature of sexual offenders is that they use the opportunity to groom other people and seek opportunities. He would not have sexually assaulted someone if, in fact, there were other people on the bus.” 

12)	We note that the Traffic Commissioner also criticised Mr Raju during the course of the public inquiry for not bringing the convictions sustained by Driver N to his attention. At page 197 the Traffic Commissioner said, “You are completely missing the point. Anyone who has a sexual offence should be brought to the attention of the Traffic Commissioner.” And at page 198: “My concern is you did know about it, and you took no steps to bring it to my attention”.

13)	The duty to inform Traffic Commissioners of any relevant convictions arises from the terms of Section 19 of the Act. We have underlined the relevant part of Section 19(2):

(2) It shall be the duty of the holder of a PSV operator's licence to give notice in writing to the Traffic Commissioner by whom the licence was granted of-
(a) any relevant conviction of the holder; and
(b) any relevant conviction of any officer, employee or agent of the holder for an offence committed in the course of the holder's road passenger transport business,
and to do so within 28 days of the conviction in the case of a conviction of the holder or his transport manager, and within 28 days of the conviction coming to the holder's knowledge in any other case.

14)	We note that the Traffic Commissioner took the view that Mr Raju should have done more to find out what the facts of the offence were. Mr Raju explained to the Traffic Commissioner that he knew it was a sexual assault on a woman but, given the restrictions to be imposed on the duties that Driver N could perform, and in ensuring that there was always another employee on the bus with him, it was not necessary to have further details before deciding to employ Driver N on the very restricted, part-time basis described. We find that the Traffic Commissioner could have done more to analyse the extent to which the restrictions on Driver N’s duties, and the strict safeguards put in place, sufficiently dealt with any real risk arising – even if Mr Raju did not know the specific facts of the offence.

15)	In all the circumstances, whilst the most prudent course would have been for Mr Raju to have given Driver N a wide berth from the start, we consider that the Traffic Commissioner’s approach to the assessment of Mr Raju’s repute and professional competence was such as to require us to set-aside his decision.

16)	Driver N no longer works for the operator, and the facts are not in dispute. In the circumstances, we consider that we can ourselves substitute our own decision, and we need not remit the matter back for a fresh public inquiry. Our view is that Parliament requires a balancing exercise to be undertaken. On the one hand, persons convicted of offences, even serious offences, should at some point have the chance to rehabilitate themselves unless the occupation that they seek to pursue is such that no rehabilitation will ever be possible. On the other hand the public, especially members of vulnerable groups, must be protected from the risk of harm, and all reasonable steps must be taken to prevent any real risk arising.

17)	In our judgement, Mr Raju was entitled to take account of the fact that Driver N continued to hold a PCV licence and had enjoyed previous employments as a driver whilst subject to police monitoring and after being registered in the Sex Offenders Register. Mr Raju decided that Driver N could be employed in circumstances that removed any possible risk to children, vulnerable adults or other passengers. In the circumstances, we do not think that this judgment was either “crass or wholly unacceptable”. Mr Raju accepted the criticism levelled at him for not following up the request for a CRB check but, given the enforced limitations on the duties to be performed by Driver N, we do not consider that this should lead to a loss of repute or professional competence. This, in our view, would be disproportionate. The documentary evidence submitted to the Traffic Commissioner in support of the contention that all the restrictions on duties were strictly enforced and adhered to was, in our view, a positive point of some significance.

18)	The appeal is allowed. We conclude that Mr Raju has not lost his repute and has not lost his professional competence. The Traffic Commissioner’s orders to that effect, and his orders under Schedule 3, paragraph 7B(2) and 7C(2) of the Act, are set aside.

19)	As we said at the beginning of this decision, although there is no right of appeal to the tribunal against a formal warning, the sustainability of that warning must be read in the light of our conclusions in this case, as it arises from the same facts.

Judge Mark Hinchliffe, DCP
18 June 2013