The safety of taxis and the media beat-up

The Director of Public Transport has recently had his latest loss in the long-running battle to stop the anonymised XFJ from obtaining a taxi licence. The Court of Appeal handed down its decision last week and, like the two previous decisions, found that the Director could not use concerns over public confidence as a basis for refusing a taxi licence to a person who, 18 years ago, was found not guilty of murder due to insanity. The Court of Appeal has included a good summary of the history of the matter and its decision at the start of its judgment, which substantially reduces what I need to say about the case. My interest, instead, is on the media reaction to the decision.

The decision makes it clear (and the media reporting on the case generally overlooks) that according to standards of technical competence and passenger safety, XFJ is a safe person to drive a taxi. This decision is not based on some lingering doubts about the possibility of XFJ having another mental breakdown, or the risk of recidivism of murderers (which, as the AIC has noted, is among of the lowest of all offences). As Maxwell P notes in his conclusion at [71]-[73]:

71 Much of the reporting which surrounded the Tribunal’s decision, and Ross J’s dismissal of the Director’s appeal, carried headlines of the ‘Killer allowed to drive taxis’ and ‘Wife-killer cabbie’ variety. Misleading publicity of that kind is not conducive to public confidence in the industry.
72 It is to be hoped that the Director will now be able to inform the public that the decision to accredit XFJ is perfectly consistent with the Act. As both the Director and the Tribunal found, he is technically competent, and in good health, and he is capable of meeting reasonable community expectations by complying with the standards of service specified in the public care objective.
73 There is no other matter which renders him unsuitable. The killing of his wife occurred long ago, and was attributable to a mental illness which is not expected to recur. XFJ has been symptom-free for more than 15 years. Finally, and most importantly, there is no risk to passenger safety in any taxi which he drives, as the Director himself decided more than three years ago. (emphasis added)

Harper JA also weighs in on the media beat-up angle at [83]:

It may be that perceptions of community expectations about, and the need to maintain community confidence in, the taxi driver accreditation system, will be coloured by fear generated by media headlines. Headlines designed to attract the public’s interest rather than the public benefit might reasonably be expected to follow the success of the respondent’s application. Such headlines, if they occur, will improperly play upon the fear of mental illness and its consequences. But a decision maker’s apprehension of misleading headlines should never stand in the way of decisions otherwise properly reached.

Predictably, the Herald Sun in the days following the decision continued with the "killer cabbie" line. See, for example, here and here. More disappointingly, ABC's Law Report contained an interview with Paul Mees, a senior lecturer in transport planning at RMIT. He makes the argument that:

Damien Carrick: But Paul Mees, I understand that the medical evidence is pretty clear that this guy does not present a risk to the community if he drives taxis. Shouldn't that be enough?
Paul Mees: Well, I haven't, of course, seen the medical evidence. I've only read the court's characterisation of it, and if their characterisation of the Act is any guide then it sounds as if they treated it as being very emphatic. But, I'm not a psychiatrist, but I think that when psychiatrists are being straight with you they will admit that they're not infallible in being able to predict people's behaviour, and I don't think any qualifications of that kind have come through in the judgment. Although I note that the mental impairment was depression. Depression is not something like the measles, where once you get it you're kind of cured of it and immune to it for the rest of your life, so I don't know that it's quite right to say that there is no conceivable basis on which any member of the public would be entitled to feel concerned or less confident about a taxi driving system which felt that an acquittal on the grounds of mental impairment for murder was a completely irrelevant consideration.
Damien Carrick: Yes, I guess, though, that all we can do as a society is look at what the evidence tells us. And if we have pretty reputable, highly reputable I understand, psychiatrists saying, 'The risk is not there,' and you have the authorities accepting that the risk is not there...
Paul Mees: I don't think any psychiatrist can say that. All they can tell you is that the risk is small. But I think that's why we have statutory one strike and you're out provisions in all manner of areas, including, in fact, in this very legislation. And I think a provision that would've applied to this case if it had been drafted more correctly, so I'm not completely convinced that a psychiatrist can in fact give us complete confidence. Now, I should say, if we were talking about a parole board hearing or something like that, where we're talking about the individual's civil liberties, I think we err on the side of the individual's liberties, but a taxi driving licence is a privilege, not a fundamental human right

Now, I must say that Damian CarrickXFJ's lawyer who put his case well. My frustration was that the format did not readily allow Paul Mees' argument to be rebutted, as it is essentially an argument that public confidence in the transport system requires a test of absolute certainty and that any risk of recurrence (and possibly even a misguided perception of a risk of recurrence) is enough to put public safety at risk and so should disqualify the applicant. There are a few problems with this argument. One, it doesn't engage with the evidence in this case. The best medical evidence, and the Director of Public Transport's own views, were that XFJ does not pose a risk to the public. That point needs to be made abundantly clear - This was a case where everyone concerned, including the Director of Public Transport, accepted that XFJ was safe. The only issue was whether he was a suitable person, due to the risk of public perceptions if he was granted a licence. Two, it creates an unrealistic standard. If you accept the argument that psychiatrists cannot say 100% that serious mental illness will never recur, you would also have to accept that psychiatrists cannot say 100% for anyone that serious mental illness will never occur, and on that sort of test, no one is fit to drive a taxi because who knows, something might happen. Three, it is an argument that stigmatises mental illness. If XFJ had, 18 years ago, been acquitted of culpable driving after killing his wife due to experiencing a seizure while driving, would we be having the same debate? If the evidence established that, now that he was properly medicated, a seizure was very unlikely to reoccur, would we say that a person who was not guilty of killing his wife due to a medical condition 18 years ago that is now properly treated is not a suitable person to drive a taxi? What if he killed his wife while sleepwalking and was acquitted on the basis of automatism? A lot of the anxiety about XFJ's case seems to arise from fear of mental illness and the community is not well served when that fear is uncritically reflected and amplified in media outlets.

This case shows a surprisingly awareness of the public perceptions angle to the case and engages with those issues. Sadly, that awareness and engagement does not protect against inflammatory reporting. But it does give those of us who wish to defend the decision ready references to point to that indicate the court didn't overlook the issue, it just refused to be swayed by prejudice. And, as The Age showed in its reporting, it makes for a powerful statement, when you take the time to consider what the case is actually about, to say that this wasn't a case about public safety. It was just about perceptions and whether those perceptions should influence the Director of Public Transport's decision.