Harris v The Registrar of Approved Driving Instructors (Rev 1)

The appellant, Mr Harris, was an approved driving instructor (“an ADI”) for some 29 years. On 9 April 2009 the Registrar of Approved Driving Instructors refused his application for the extension of his registration as an ADI. The basis of the refusal was that appellant did not fulfil the statutory condition that he continued to be a fit and proper person to have his name entered in the register. An appeal to the Transport Tribunal (“the tribunal”) pursuant to s.131 of the Road Traffic Act 1988 was dismissed by an order dated 27 August 2009. The appellant now appeals to this court against that order.

This appears to be the first, and is almost certainly the last, appeal direct to the Court of Appeal from the tribunal in respect of registration as an ADI. At the relevant time an appeal on a point of law lay direct to this court, without permission, pursuant to the Transport Act 1985, schedule 4, para 14. With effect from 1 September 2009 the functions of the tribunal were transferred to the First-tier Tribunal, and appeals on a point of law now lie with permission from there to the Upper Tribunal and beyond: see the Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009.

Part V of the Road Traffic Act 1988 provides for a registration scheme for driving instructors. By section 123, no paid instruction in the driving of a motor car shall be given unless the instructor is registered in the register of ADIs. The conditions to be satisfied for initial entry onto the register are set out in s.125(3). They are, in summary, that (a) the applicant has passed “such examination of ability to give instruction in the driving of motor cars … as may be prescribed”, (b) he holds an appropriate current driving licence, (c) he has held such a licence for at least four years out of the preceding six years, (d) he has not been disqualified from driving during any part of the preceding four years, and (e) “apart from fulfilment of the preceding conditions, he is a fit and proper person to have his name entered in the register”.

Registration lasts for four years, subject to the possibility of extension. The conditions for an extension are set out in s.127(3). They are, in summary, that (a) the applicant has not refused to undergo, if so required, a test of continued ability and fitness to give instruction, (b) his ability and fitness to give instruction continue to be of a satisfactory standard, (c) he continues to hold an appropriate driving licence, (d) he has not been disqualified from driving for any part of the preceding four years, and (e) “apart from fulfilment of the preceding conditions, he continues to be a fit and proper person to have his name entered in the register”.

Section 128 contains provisions empowering the Registrar to remove the name of a person from the register in defined circumstances, the detail of which is not material.

The appellant’s original registration as an ADI goes back to the early 1980s. He has been required to apply every four years for the extension of his registration. He made successful applications in 1997 and 2001, the relevance of which will become apparent in a moment. There was a further successful application in 2005 on which nothing turns. There then came an application on 6 January 2009, the refusal of which triggered the present proceedings.

Each application submitted by the appellant included a signed declaration acknowledging that he was required to tell the Registrar within seven days if he was convicted of an offence. Each application also asked whether he had been convicted of any offence in the last four years. For the 2009 application there was an additional requirement of a Criminal Records Bureau check.

In his 1997 and 2001 applications the appellant answered “No” to the question whether he had been convicted of an offence in the last four years. As explained below, those answers were untrue: the appellant had convictions which he had not disclosed to the Registrar within seven days as required and which he did not disclose on his application forms as required.

In his 2009 application the appellant disclosed that he had been convicted of an offence in the last four years. He explained in a letter that this was a public order offence arising out of his participation in a Fathers 4 Justice protest on the roof of the house of the Rt Hon Harriet Harman QC MP. He invited the Registrar to agree that this had no relevance to his registration as an ADI. He also said that he had applied for a CRB check but had not yet been provided with a check number, and he asked that his application for an extension of his registration should nonetheless be processed.

This aroused the Registrar’s concern and caused him to make further inquiries, which revealed the following convictions:

The Registrar requested an explanation of why the appellant had not disclosed his other convictions in the earlier applications. In answer, the appellant explained that the 1993 convictions arose because he and his former wife were in financial difficulty; they took out loans to clear their debts and, it would seem, made false claims in relation to unemployment payment cover in respect of those loans; they were also found to have been obtaining benefits to which they were not entitled. I have already referred to the nature of the firearms offence. The appellant said that the 1994 conviction for assault arose because his wife had left him, taking the children, while he was in prison; and, having heard that her new boyfriend was assaulting the children, he assaulted the boyfriend. He said that the conviction for criminal damage in 1996 arose out of frustration at the inaction of the Social Services after they had become involved in the dispute about the children: he climbed onto the roof of their office and used spray paint to attract media attention. The conviction for assault in 1998 occurred when, in the midst of a bitter custody battle with his ex-wife over the children, he found his former mother-in-law and an accomplice damaging his car: he struck them both and used excessive force to make what he described as a citizen’s arrest.

The appellant went on to argue that all the convictions were spent (though it is now common ground that the Registrar is entitled to take spent convictions into account). He said that the convictions had arisen out of his domestic difficulties and none of them posed a risk to any member of the public who took driving lessons with him. He was unable to give a proper explanation of why he had not disclosed the convictions. He noted that that he had never had any motoring convictions and no complaint had ever been made against him in relation to his work as a driving instructor.

The Registrar concluded that appellant was not a fit and proper person and decided that his 2009 application should therefore be refused. The reasons for the decision are given in the Registrar’s statement of case before the tribunal:

“The Appellant has failed to declare his various convictions to me whilst continuing his profession [as] an Approved Driving Instructor. … A Driving Instructor has a special responsibility to ensure that their driving and behaviour are beyond reproach at all times. I would therefore be failing in my public duty if I allowed a person who had been convicted of these offences to have his name retained in the Register.

(a)

Registration represents official approval; the title prescribed for use by instructors is ‘Driving Standards Agency Approved Driving Instructor’. Approval is not limited to instructional ability alone, but also extends to a person’s character, behaviour and standard of conduct. In view of this, I am concerned that the good name of the Register would be tarnished and the Public’s confidence undermined if it was generally known that I had allowed the Appellant’s name to be retained in the Register when he has been convicted of these offences and repeatedly failed to declare or inform me as required.

(b)

It would be offensive to other ADIs and persons trying to qualify as ADIs, who had been scrupulous in observing the law, for me to ignore these offences.”

The appeal to the tribunal was conducted as a rehearing rather than a review. The appellant, who represented himself, chose not to give evidence or to call witnesses, but he made oral submissions in addition to relying on his written grounds. A transcript of the hearing is included in our papers.

At para 23 of its reasons, the tribunal agreed with the Registrar that in considering the test of fit and proper person he was entitled to go beyond instructional ability and to take into account a person’s character, behaviour and standard of conduct.

At para 24 the tribunal rejected what it described as one of the appellant’s main arguments, that it would be wrong to conclude that he was not a fit and proper person on the basis of convictions most of which were spent. It stated that the Registrar had been entitled to take the appellant’s convictions into account although they were spent and that in the circumstances he had been right to do so.

The tribunal’s reasons continue as follows (I set the passage out in full because the reasoning process is central to the arguments on the appeal):

“25.

The Appellant, in effect, invited us to pay no attention to the fact that he had failed to disclose any of his convictions in the periods of four years before the applications to renew his registration in 1997 and 2001. His case was that it is now a long time ago and that he has put his past behind him and demonstrated that he is a very competent driving instructor. In our view however attractive this argument may appear superficially it does not bear more careful examination. The Appellant is only in a position to advance this argument because in 1997 and again in 2001 he led the Registrar to believe that he had had no convictions in the four years before signing each form when he must have known that that statement was untrue. In addition, of course, he failed to tell the Registrar, within 7 days, about any of the convictions …. We bear in mind, of course, that people make untrue statements for a variety of reasons, some of which may be innocent. However we are satisfied that when signing these two forms the Appellant was, quite deliberately, seeking to mislead the Registrar. Why did he do that? We have considered whether there could be some innocent explanation. No innocent explanation has been advanced by the Appellant and we cannot think of one. We are driven to the obvious conclusion that the Appellant told lies in 1997 and again in 2001 (and also failed in his duty to report the convictions) because he knew that disclosure would result in his registration being withdrawn, since he had ceased to be a fit and proper person.

26.

We have to consider the blunt question: should the Appellant be allowed to take advantage of the fact that he has concealed the true position from the Registrar for such a long time? The answer, in our judgment, has to be ‘No, he should not be entitled to do so’. The public in general, and the Registrar in particular, are entitled to expect that those who complete forms to register or re-register as ADIs will do so fully, frankly and honestly. In our view once it is demonstrated that an applicant has failed to tell the truth or the whole truth in such a form the Registrar is entitled to take that into account as evidence of a person’s character, behaviour and standard of conduct. The extent to which the Registrar takes such a matter into account and the weight which it is given will be a matter for the Registrar and will depend on the circumstances of each case. In our view not telling the truth in order to deceive the Registrar into renewing a registration, which would not have been renewed had the truth been told, comes high on the scale of seriousness. The reason is that the effect of the Appellant’s untruthful answers deprived the Registrar of the opportunity to make a timely decision on the true merits of the case. There are other important considerations. Allowing the Appellant to take advantage of what he has done would encourage others to go down the same route and it would disadvantage those who completed the form honestly and suffered the consequences at the time. In our view the Registrar would also be entitled to take into account the likely reaction of pupils and the parents of pupils if they discovered that the Registrar had been told that the instructor had no convictions when the opposite was the case.

27.

We acknowledge that all the indications are that the Appellant is an effective and successful driving instructor and that he has no convictions for driving related offences. However we are satisfied those are not the sole criteria for determining whether he is a fit and proper person to be registered as an ADI. In our view all the convictions should be taken into account. Even on the basis of the Appellant’s explanations it seems to us that the convictions reveal three aspects of his character, behaviour and standards of conduct, which ought to be taken into account in assessing whether he is a fit and proper person. The first is a tendency to react to events using an unlawful degree of violence. The second is a tendency to be too self-centred and to ignore the impact of his actions on others. For example in relation to the most recent offence he was so focussed on gaining media attention for his cause that he failed to appreciate the impact of his behaviour on those occupying the building. The third is that the first offences mainly involved dishonesty. These matters have to be added to the most serious aspect of the case namely the untrue statements in the 1997 and 2001 renewal applications and the complete failure to notify the Registrar of any of the convictions, notwithstanding the warning that failure could result in the withdrawal of the registration. In other words the dishonesty, which resulted in the 1993 offences, was not an isolated occurrence. For all these reasons we are satisfied that the Registrar correctly concluded, on the balance of probability, that the Appellant had ceased to be a fit and proper person to be registered as an ADI.”

The appellant was represented on the appeal by Mr Nicholas Leviseur and Mr Mathew Gullick, both acting pro bono. They advanced a case of high quality on the appellant’s behalf, contending (1) that the tribunal erred in its application of the “fit and proper person” condition, and (2) that the tribunal acted with procedural unfairness in reaching its conclusion that the appellant was not a fit and proper person. An additional argument, advanced under the procedural heading but strictly different in character, was (3) that there was no evidence to support certain of the tribunal’s findings. Those various submissions were stoutly resisted by Mr Richard Honey for the Registrar.

No authorities were cited to the tribunal, or referred to in its reasons, on the test of “fit and proper person”. There has been no shortage of authority cited on the appeal.

In R v Crown Court at Warrington, ex p. RBNB [2002] UKHL 24, [2002] 1 WLR 1954, at [9], Lord Bingham of Cornhill made these general observations:

“Secondly, some consideration must be given to the expression ‘fit and proper’ person. This is a portmanteau expression, widely used in many contexts. It does not lend itself to semantic exegesis or paraphrase and takes its colour from the context in which it is used. It is an expression directed to ensuring that an applicant for permission to do something has the personal qualities and professional qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do.”

In that case, which concerned the transfer of a justices’ on-licence, the focus was on the applicant’s suitability to run the particular public house. Lord Bingham said at [17] that the findings of fact made it plain that he was, personally and professionally, a fit and proper person: “In other words, he could be relied on to run the licensed premises in a competent and law-abiding manner, in accordance with the conditions of any licence granted”. In Chief Constable of Leicestershire v Tatam [2005] EWHC 912 (Admin) Mitting J described those words as “the heart of the test to be applied”.

Closer (but not identical) in context is a line of cases concerning licences to drive taxis and buses. McCool v Rushcliffe Borough Council [1998] 3 All ER 889 concerned fitness to hold a licence to drive a private hire vehicle. Lord Bingham stated:

“One must, as it seems to me, approach this case bearing in mind the objectives of this licensing regime which is plainly intended, among other things, to ensure so far as possible that those licensed to drive private hire vehicles are suitable persons to do so, namely that they are safe drivers with good driving records and adequate experience, sober, mentally and physically fit, honest, and not persons who would take advantage of their employment to abuse or assault passengers” (891f).

Later in his judgment Lord Bingham said that “[it] is no doubt right to regard an applicant as fit and proper if adequate evidence of good character and record is adduced and there is no reason to question or doubt it” (896b).

R (Stace) v Milton Keynes Magistrates’ Court [2006] EWHC 1049 (Admin) concerned the holder of a passenger-carrying vehicle (“PCV”) driver’s licence. Following his conviction of three offences of assaulting his wife by beating and one of failing to surrender to bail, he was made the subject of a community rehabilitation order. The question of his fitness to hold a PCV licence was referred to the Traffic Commissioner. He failed to attend two hearings before the Commissioner, who decided to revoke his entitlement to hold a licence. On appeal to the magistrates’ court he adduced evidence that he was suffering from depression. The magistrates dismissed his appeal. That decision was challenged by way of judicial review. In finding that the decision was flawed, Keith J said this about the considerations the magistrates should have addressed:

“16.

… They had to decide whether Mr Stace was ‘a fit person’ to hold a PCV driver’s licence. In deciding fitness, they had to have regard to, and only to, his conduct …. But in having regard to Mr Stace’s conduct, the magistrates were not required to look only at his convictions. They had to look at his other conduct as well – for example, his failure to appear at either of the hearings before the Traffic Commissioner and the way he had responded positively to the community rehabilitation order. And when it came to considering his convictions, they were not supposed to look at them in a vacuum. They had to look at them in the context of whether conduct of that particular kind might affect his fitness to drive passenger-carrying vehicles. That was, I think, what Mr Nigel Pleming QC, sitting as a Deputy Judge of the High Court, may have been driving at when he said in Secretary of State for Transport, Local Government and the Regions v Snowdon [2002] EWHC 2394 (Admin) at [34] that ‘an applicant’s personal circumstances [have] to be considered’. How serious was Mr Stace’s conduct? What were the risks of any repetition of violence? In what way did his propensity for violence impinge upon his abilities as a driver? And to what extent was he a risk to those passengers with whom he would come into contact?”

A case relating specifically to ADIs was R v Registrar of Approved Driving Instructors, ex parte Nixon [1992] COD 274 (we were also shown a full transcript of the judgment), in which an instructor had been removed from the register following conviction for theft and related offences concerning small amounts of money taken from the driving school which employed him. The Secretary of State upheld the decision on appeal, stating inter alia:

“… the Secretary of State considers that high standards of fitness and propriety are necessary to safeguard the reputation of the register and to reassure the public. The Minister believes that a known lack of integrity on the part of a few approved driving instructors could undermine the profession as a whole. He believes that were the profession to lose its good reputation this would affect the standard of instructors generally, the public’s confidence in them and ultimately the standard of instruction. He believes also that many members of the public see a person’s name on the register as an indication not only of his instructional ability but also that the Department regard him as a person of integrity. He believes that it is in the interest of the profession that this should remain the case and that it is important that members of the public do not feel that they had been misled in this respect.”

Otton J, dismissing a judicial review challenge to the Secretary of State’s decision, quoted that reasoning and held that the way the task had been approached was not flawed or unreasonable.

On behalf of the appellant, Mr Leviseur submitted that the relevant question for the tribunal to consider in this case was what impact the appellant’s convictions and his failure to disclose them had upon the proper performance of his functions as an ADI. A driving instructor must be able to teach properly and to drive properly, and he must not mistreat his pupils physically, sexually or financially. The appellant met those requirements. He had been a driving instructor for 29 years without complaint about his conduct in that role. His convictions arose largely from his turbulent domestic circumstances in the 1990s. They created no risk that he would mistreat his pupils in any way or would conduct himself as an ADI in a disreputable manner. The tribunal’s own acknowledgment, at the beginning of para 27 of its reasons, that the appellant “is an effective and successful driving instructor” with no convictions for driving-related offences should have led of itself to his appeal being allowed. But the tribunal went on to make findings of general character flaws and to dismiss the appeal on the basis of those findings, without making any finding that those flaws were likely to impair his ability to do his job. Mr Leviseur submitted that even if the findings of general character flaw were open to the tribunal (which is itself disputed in part), the tribunal erred in law in failing to consider or explain what impact they had on the performance of the appellant’s functions as an ADI.

Mr Leviseur also drew our attention to the Driving Standards Agency’s own published guidance on the suitability of ex-offenders to apply to join or remain on the register. The guidance reads, in relevant part:

“Having a criminal record will not necessarily bar you from being accepted as a Potential or Approved Driving Instructor.

Before reaching a decision on whether or not a person is ‘fit and proper’, we will assess the risk that they are likely to pose to their pupils by considering factors such as:

•

Whether the conviction is relevant

•

The seriousness of any offence

•

The length of time since the offence occurred

•

Whether there is a pattern of offending behaviour

•

Whether their circumstances have changed since the offending behaviour

•

The circumstances surrounding the offence and any explanation”

We were also referred to decided cases where individuals have been allowed by the tribunal to stay on the register or to rejoin the register despite relatively serious convictions and even after a failure to declare them.

In addition, Mr Leviseur informed us that since 1 February 2007 (the date was confirmed by counsel after the hearing) ADIs have been included in the notifiable occupations scheme run by the Association of Chief Police Officers, so that the Registrar should in principle receive notification through the scheme if an ADI is convicted of an offence. It was not suggested, however, that this is an infallible system or that it removes the need for individual notifications by those who are registered or are applying for registration as ADIs.

For the Registrar, Mr Honey submitted that the condition as to “fit and proper person” in s.127(3)(e) is clearly separate from the issue of instructional ability, which is covered by other conditions, in particular by s.127(3)(a) and (b). The tribunal has stated in other cases that the legislation contemplates standards of behaviour and conduct going beyond instructional ability. In terms of Lord Bingham’s observations in R v Crown Court at Warrington, ex p. RBNB, the focus in relation to fit and proper person in the present context must be mainly on “personal qualities”, since “professional qualifications” are covered by other conditions.

As to the particular context, Mr Honey submitted further that (1) an ADI is in a position of trust, spending many hours alone with young people, so that he must be trustworthy and responsible; (2) an ADI is in sole charge of, and responsible for the safety and welfare of, his pupils and also has responsibilities towards other roads users, in what may often be stressful and provoking situations, so that he needs to be patient, understanding and considerate; (3) the status is that of an approved driving instructor, and in order to maintain public confidence in the register and the registration process an ADI must set a good example by his behaviour. Personal qualities relating to those various matters need to be taken into account when determining whether an applicant is a fit and proper person. They encompass matters of character, behaviour and standards of conduct which the Registrar treated as relevant. The tribunal made no legal error in endorsing and following that approach. In particular, all three aspects of character, behaviour and standards of conduct referred to in para 27 of the tribunal’s reasons are directly relevant and were rightly taken into account by the tribunal.

Mr Honey relied on cases such as McCool v Rushcliffe Borough Council and R (Stace) v Milton Keynes Magistrates’ Court, both cited above, as supporting the view that character, behaviour and standards of conduct are relevant considerations. He placed particular emphasis on R v Registrar of Approved Driving Instructors, ex parte Nixon, cited above, as showing that the maintenance of public confidence in the register is a relevant and important consideration.

I turn to my conclusions on the rival submissions of counsel. First, I do not accept that the scope of the “fit and proper person” condition is as narrow as Mr Leviseur contended. Of course, a central question is an applicant’s fitness to be a driving instructor – that he has the requisite instructional ability and driving ability and that he does not pose a risk in any respect to his pupils or other users of the road. The “fit and proper person” condition has obvious relevance to that issue, though the more technical aspects are covered by other, more specific conditions relating to tests, driving licence and the like. But 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: those registered are known as “Driving Standards Agency Approved Driving Instructors”. I see no reason to doubt the view expressed by the Secretary of State in ex parte Nixon (see [23] above) as to how a person’s entry in the register is viewed by members of the public. It seems to me that 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. If an applicant or registered ADI fails to disclose convictions or makes a false declaration that he has no convictions, it strikes at the heart of the registration process and the reliability of the register. In my view such conduct is plainly relevant – indeed, highly relevant - to the question whether an applicant is a fit and proper person.

The tribunal would no doubt have expressed itself differently if it had had the benefit of the submissions made and authorities cited in this court. I am not persuaded, however, that there was any legal error in the tribunal’s general approach to the issue of fit and proper person; and to the extent that it erred in point of detail, I am satisfied that the error was not material.

In the course of argument, Toulson LJ raised a question which in my view needs to be addressed. It arises from the statement at the end of para 25 of the tribunal’s reasons that the appellant “knew that disclosure [of his convictions] would result in his registration being withdrawn, since he had ceased to be a fit and proper person”. The question is whether the tribunal was assuming erroneously that the appellant’s convictions would result automatically in his registration being withdrawn (whereas it is clear from the general law and the Agency’s own guidance that the decision whether to withdraw registration following a conviction must depend upon a detailed assessment of the significance of the conviction), and whether that error infected the rest of the tribunal’s reasoning.

I do not read the tribunal’s reasons as containing an error of that kind. My understanding of the reasoning process is as follows:

Taking the relevant paragraphs as a whole, I see no erroneous assumption that the convictions would automatically have led to the withdrawal of registration. On the contrary, there is a detailed, reasoned analysis of why the Registrar was entitled, in the light of the particular convictions and their non-disclosure, to refuse an extension of registration.

It is necessary, however, to examine one part of that analysis further. In para 27 the tribunal said that the convictions revealed three specific aspects of the appellant’s character, behaviour and standards of conduct. In relation to the first, namely a tendency to react to events using an unlawful degree of violence, I think that there is room for criticism of the tribunal’s finding. The offences of violence of which the appellant was convicted were limited in nature and all took place within the narrow context of the breakdown of his marriage. Neither the circumstances of those offences nor anything in the appellant’s wider background justified a generalised finding of the kind made by the tribunal. If a generalised finding had been justified, then it would certainly have been relevant to the applicant’s fitness for registration as an ADI. As it was, however, there was nothing in the offences of violence that was reasonably capable of bearing on that issue.

The second aspect, namely a tendency to be too self-centred and to ignore the impact of his actions on others, was a finding reasonably open to the tribunal on the evidence, especially having regard to the circumstances of the public order offence in 2008. I also take the view that the finding was relevant to the applicant’s fitness for registration as an ADI.

The third aspect, namely the dishonesty offences, was linked by the tribunal to what it regarded as “the most serious aspect of the case”, namely the untrue statements in the 1997 and 2001 applications and the complete failure to notify the Registrar of any of the convictions during that period, which meant that the dishonesty which resulted in the 1993 offences was not an isolated occurrence. Such dishonesty was plainly relevant even though there was no suggestion of dishonesty in relation to the actual business of driving instruction. It was relevant in particular to the integrity of the registration process, as I have indicated above and as the tribunal itself explained in para 26. The tribunal was fully justified in considering that to be the most serious aspect of the case.

Whilst the tribunal fell into error in relation to the first aspect, I have no doubt that it would have arrived at the same conclusion if it had made no such error and that factor had played no part in its reasoning. It is clear that the predominant reason for the tribunal’s decision was the appellant’s deliberate and dishonest non-disclosure of his convictions. That had also been at the heart of the Registrar’s original decision to refuse the application. The Registrar and the tribunal were both entitled to attach the weight they did to that factor. Accordingly, the error in relation to the first aspect had no effect on the outcome and was not a material error. Subject to that immaterial error, the tribunal’s reasoning was sound.

The relative informality of proceedings before the tribunal is apparent from the transcript of the hearing. Such an approach was in accordance with the rules. Rule 30 of the Transport Tribunal Rules 2000 provided that the tribunal might adopt any method of proceeding at a hearing that it considered to be fair, and that hearings were to be informal. In addition, certain limitations in rule 32 as to the grounds and evidence that could be relied on were disapplied by rule 18A(2) in relation to appeals under s.131 of the 1988 Act.

Despite that permissible informality, it is elementary and is not in dispute that the basic requirements of procedural fairness had to be observed. Mr Gullick, who presented this part of the case on behalf of the appellant, submitted that the tribunal acted unfairly by relying in para 27 on matters that had not been raised by the Registrar and in doing so without giving the appellant an opportunity to deal with them. He referred in particular to the findings of (i) a tendency to react with an unlawful degree of violence and (ii) a tendency to be too self-centred and to ignore the impact of his actions on others. He submitted that it was for the Registrar to advance a case in defence of his decision and that the Registrar did not include those matters in his case. The tribunal went too far in making the Registrar’s case for him (cf. Senate Electrical v STC [1999] 2 Lloyd’s Rep 423, paras 49-55). Moreover, if the additional points were to be relied on by the tribunal, the appellant ought to have been given notice of them and the opportunity to meet them (cf. Lau Liat Meng v Disciplinary Committee [1968] AC 391, 404D; O’Reilly v Mackman [1983] 2 AC 237, 276B-C).

I do not accept that there was any procedural unfairness. It was obvious to the appellant from the Registrar’s decision and statement of case that the appellant’s character, behaviour and standards of conduct were directly in issue and that he had to address the implications of his convictions and his failure to disclose them. He was given a fair opportunity to put his case on those matters and he availed himself of that opportunity. The tribunal based itself on his own explanations when making the findings it did in para 27. Those findings represented conclusions reached by the tribunal on the issues before it. It was for the tribunal to make its own assessment, irrespective of how precisely the case had been put by the Registrar. The findings did not amount to fresh charges or accusations, so as to fall within the scope of the reasoning in cases such as Lau Liat Meng v Disciplinary Committee.

There is a much closer analogy with Secretary of State for Communities and Local Government v Peak District National Park Authority and Others [2009] EWCA Civ 206, a development control case in which the inspector had applied a specific ratio which had not been put to witnesses at the inquiry. Keene LJ held at para 43 that there had been no unfairness: the question whether ratios were appropriate or not had been debated; the specific ratio had not been debated, but it “represents a conclusion arrived at by the inspector, following his consideration of the evidence and arguments” and he was not obliged to put some form of draft conclusion to the parties. That reasoning applies, with the necessary modifications, to this case too. The issue of character, behaviour and standards of conduct had been debated. Fairness did not require the tribunal’s findings to be put in draft to the appellant.

Mr Gullick relied in addition on article 6 ECHR, submitting by reference to Albert and Le Compte v Belgium (1983) 5 EHRR 533, para 39, that the principles in article 6(3) apply to disciplinary proceedings and require details of a disciplinary charge to be communicated and an adequate opportunity to be given for preparation of the defence. In my judgment, however, article 6 would add nothing material to the common law principles of fairness relevant to this case, and in the circumstances I need give no further consideration to whether the article can be invoked at all in this context.

The points under this heading can be dealt with very briefly. Mr Gullick submitted that there was no evidence to support the tribunal’s findings in para 27 as to a tendency to violence and a tendency to be self-centred and to ignore the impact on others. As to the first matter, I have already expressed my view that the tribunal’s generalised finding was not open to it on the evidence but that this was not a material error (see [35] and [38] above). As to the second matter, I have expressed my view that the finding was reasonably open on the evidence (see [36] above). There is nothing that I need to add.

As to the tribunal’s finding concerning dishonesty, Mr Gullick suggested that this failed to take into account the appellant’s explanations and the fact that he had disclosed the 2008 conviction. I am satisfied that the tribunal took those matters into account, and there can be no doubt that the finding was reasonably open on the evidence.

I would dismiss this appeal.

I agree.

I also agree.