L Koa & Ors v Registrar of the Driving Standards Agency

Miss Jackson outlined the case for the Registrar. The Appellant’s name was first entered onto the register in May 2008. In the normal course of events, his registration would have expired in 2012. In November 2010, it came to the Registrar’s attention that the Appellant had been convicted of conspiracy to obtain pecuniary advantage by deception. The Certificate of Conviction from Canterbury Crown Court subsequently obtained by the Registrar confirmed that the Appellant had been so convicted on 7 October 2010 and that on 11 November 2010, he had been sentenced to twelve months imprisonment and disqualified from driving for a period of eighteen months. A summary of the facts upon which the conviction was based provided by the DSA Fraud and Integrity Team informed the Registrar that on 26 September 2008, Rodrigue Gouzou was booked in for a driving test at the Canterbury centre. When the candidate arrived, TCM Griffiths realised that the person who had attended was not Mr Gouzou. He was turned away because a rear brake light on the vehicle was not working and the police were called. A short distance from the centre, the Appellant was stopped driving the same vehicle. He was arrested, as was Mr Gouzou a few days later. Both were charged, tried and convicted of conspiracy. It was the prosecution case that the Appellant had impersonated Mr Gouzou (who had failed his driving test on numerous occasions prior to 26 September 2008).

As a result of this information, the Registrar considered that the Appellant may no longer satisfy the requirement of being a fit and proper person and invited representations from the Appellant. In a letter dated 24 November 2010, the Appellant stated that he had been wrongly convicted of the offence; the evidence presented by the prosecution had been inadequate; it was a case of mistaken identity, TCM Griffiths having wrongly picked the Appellant out during an identity procedure; the Appellant maintained that it was Mr Gouzou who had presented for the driving test but that the Appellant had taken over the car after Mr Gouzou had been turned away from the test centre so that Mr Gouzou could make his way to Canterbury centre to obtain a new bulb for the rear brake light; it was TCM Griffiths’ evidence against that of the Appellant as to who had presented for the test; he had been convicted at the end of a re-trial, the first jury having failed to agree. This, the Appellant submitted, established that the evidence was insufficient. He had always worked hard, he had three children to support and he was “the best instructor out there”.

By a letter dated 30 December 2010, the Appellant was informed of the Registrar’s decision to remove his name from the register.

Miss Jackson submitted that the Appellant’s conviction was for an offence that directly impacts upon the integrity of the driving test system and that it struck at the heart of the licensing system as a whole. In the circumstances, the Appellant could no longer be considered to be a fit and proper person to be an ADI.

The Appellant informed the Tribunal that he had arrived from Cameroon in 2000 without being able to speak English and without any qualification that he could utilise in the United Kingdom (he was an Electrical Engineer in Cameroon). He was now a British Citizen; he had learnt to speak English; he had worked extremely hard to make something of himself and he had never applied for benefits until after this offence. He had qualified as an ADI in 2007. He maintained that he had not impersonated Mr Gouzou and there was no evidence (apart from the unreliable evidence of TCM Griffiths) to suggest otherwise despite his flat having been searched and his diary and computer having been interrogated. He had in fact been charged with three separate offences of impersonating learner drivers at test centres and had been acquitted of two of those offences. This supported his contention that the evidence in relation to the third (Mr Gouzou) was also unreliable, particularly as the first jury could not agree. Upon conviction, he had decided to accept his sentence and had been released from custody with a tag after three months. He had been unemployed since being charged for the offences and had accrued debts as a result. He was keen to support his three children but he remained unemployed and was now on benefits as a result of being unable to work as an ADI. He had suffered a lot over the previous three years for something he had not done and he asked to be given a life line so that he could provide for his family.

During the course of the Appellant’s evidence, the Tribunal made it clear that we could not go behind his conviction and that it was an extremely serious offence. We agree with Ms Jackson’s characterisation of the offence as being one that strikes at the heart of the drivers licensing system. We cannot agree with the Appellant that he should nevertheless be considered to be a fit and proper person to be an ADI. In any event, the Appellant is disqualified from driving until April 2011. In those circumstances, he is unable to provide driving instruction whether for payment or otherwise. In all the circumstances we are satisfied that the appeal should be dismissed.

Miss Jackson told us that the Appellant made an application for initial registration on 13 November 2010 in which he declared that on 13 September 2007, he had pleaded guilty to an offence of speeding for which he was fined £90 and his driving licence endorsed with 5 penalty points. The Appellant did not declare in his application, two further offences: an offence of speeding on a motorway for which he was fined £150 and his licence endorsed with 3 points on 11 September 2009 and on 1 October 2009, an offence of no insurance for which he was fined £500 and his licence endorsed with 6 penalty points.

By a letter dated 15 November 2010, the Appellant was informed that the Registrar was considering refusing his application upon the basis that he did not fulfil the criteria of being a fit and proper person and he was invited to make representations. No representations were received. By a letter dated 13 October 2010, the Registrar informed the Appellant that his application had been refused.

Miss Jackson submitted that with 14 points on his licence and having failed to declare the convictions of 11 September and 1 October 2009, the Appellant could not be considered to be a fit and proper person to have his name entered onto the register.

In his written submissions to the Tribunal, the Appellant apologised for failing to make representations to the Registrar. He described himself as being committed and dedicated to becoming an ADI. His offences arose out of his previous employment as a courier which involved making emergency medical deliveries for the Nuffield Hospital. He had been self employed and had since lost his contract with the hospital because of competition. He was reliable and hardworking and had a strong passion for driving and he was keen to pass on his knowledge to others.

Whilst the Appellant’s first speeding offence was recorded in September 2007, we note that five points were endorsed on his licence which indicate that his speed at the relevant time must have been more than marginally over the speed limit. Further, the Appellant failed to declare his most recent convictions which resulted in a further 9 points being endorsed on his licence. Whilst the Appellant has provided an explanation for the speeding offences he has not provided any explanation for his conviction for no insurance. The combination of all of these matters result in an inevitable conclusion that the Appellant is not a fit and proper person to have his name entered onto the register. His appeal is accordingly dismissed.

On 28 October 2010, the Appellant made an application for initial registration in which he declared that on 10 October 2006 he had been convicted of driving with excess alcohol and had been fined £500 and disqualified from driving for 12 months. He also declared a fixed penalty notice incurred on 7 November 2009 for speeding for which his licence was endorsed with 3 points.

By way of a letter dated 1 November 2010, the Appellant was informed that the Registrar was considering refusing his application upon the grounds that he could not be satisfied that he fulfilled the condition of being a fit and proper person and he was invited to make representations. He did so on 8 November 2010 stating that he was ashamed of the offences. The 2006 matter arose as a result of a friend falling ill during an evening out. The Appellant thought that he would be below the limit and foolishly took the risk. He had not driven with alcohol in his blood before or after. He had now matured and was a family man with employment in a managerial role.

By a letter dated 30 November 2010, the Registrar informed the Appellant that his application had been refused. The Appellant responded in a further letter stating that he disagreed with the decision that he was not a fit and proper person. He was now an Assistant General Manager of a Casino and a gaming licence had been granted to him. He also had a clear CRB history.

In his written representations to this Tribunal, the Appellant further stated that his offences had arisen as a result of a bad error of judgement on his part and that he felt that he was being punished indefinitely for the offence of driving with excess alcohol.

We are satisfied that whilst four and a half years have now passed since the conviction for driving with excess alcohol, that this serious offence when combined with the more recent speeding offence in 2009 means that the Appellant cannot at this stage be considered to be a fit and proper person to have his name entered onto the register. However, the Appellant should not be discouraged from re-applying for registration when some further time has passed. His appeal is dismissed.

The Appellant’s name was first entered onto the register of ADI’s in about 1986 (prior to the keeping of electronic records). On 31 November 2009, the Appellant allowed his registration to lapse. On 28 September 2010, the Registrar received an incomplete application for re-registration dated 22 September 2010. A Criminal Records Disclosure pack was then sent to the Appellant.

On 22 October 2010, at Ealing Magistrates Court, the Appellant pleaded guilty to an offence of giving paid instruction as a driving instructor when not registered as an ADI. The date of the offence was 22 September 2010. The Appellant was fined £300 and was ordered to pay victim surcharge of £15 and costs of £85.

As a result of receiving the memorandum of conviction in relation to this offence, the Registrar gave notice to the Appellant that he was considering refusing his application to have his name re-entered onto the register and invited representations. On 23 November 2010, the Appellant wrote to the Registrar stating that he had allowed his registration to lapse because he had to care for his mother who lived abroad. The Appellant had lent his car to another ADI and had asked him to look afterhis pupils whilst he was away. Upon the Appellant’s return from abroad, a pupil rang him asking if he would assess her to see whether she was ready for her driving test. No discussions took place about payment. It was whilst he was making an assessment of this pupil that he was stopped by the police. He telephoned the DSA immediately to inform the Registrar about what had taken place. In his representations, the Appellant told the Registrar that he was of good character and that he had held a driving licence since 1969 and had been instructing for 24 years.

By way of a letter dated 30 December 2010, the Appellant was informed that the Registrar had refused his application to have his name re-entered onto the register upon the ground that he could not be satisfied that he fulfilled the condition of being a fit and proper person.

At the hearing of this appeal, Miss Jackson submitted that the Appellant had pleaded guilty to a serious offence which struck at the heart of the registration system and that the Registrar’s refusal to re-enter his name onto the register was correct.

The Appellant told the Tribunal that he was 60 years of age and prior to his plea of guilty, he had been a man of good character who always believed in abiding by the law. He had held an unblemished driving licence since 1969 and his career as an ADI was likewise unblemished. In November 2009 he informed the DSA that he was going to allow his registration to lapse so that he could travel abroad to care for his mother. He was advised that he must renew his registration within one year. The Appellant left the country in March 2010 but had already made arrangements for a colleague to take on his pupils and his car. The Appellant returned to the UK in September 2010. He had not been back long when he received a call from a pupil who asked for an assessment of her readiness for taking her driving test. The Appellant explained to her that he had not returned to work but he nevertheless agreed to take her out for an assessment as a favour. No discussions had taken place about payment and if he had intended to receive payment, he would have obtained it from his pupil prior to the lesson taking place, which was his standard practice. They had only been out on the road for about twenty minutes when they were stopped by a police and DSA “special patrol”. The Appellant told the police that he was not charging but his pupil told them that she was going to pay for instruction at the end of the lesson. When the Appellant was arrested at the scene, his pupil then stated that she was not going to pay him, but then the police threatened her with arrest for telling lies. The Appellant maintained a diary and there was no evidence in it to suggest that he had been giving unlawful instruction to any pupils.

The Appellant pleaded guilty to the offence having taken legal advice. He was confused. He did not think that he had any choice because his pupil had said that she was going to pay for a lesson. In fining him £300, the Magistrates informed the Appellant that they could have fined him £2,000 but that they had taken into account his good character.

In his closing submissions, Mr Senior submitted that in coming to his determination as to whether an ADI remained a fit and proper person, the Registrar must take all of the surrounding circumstances of a conviction and the surrounding circumstances of the ADI into account. It would appear that the Registrar had based his decision simply upon the certificate of conviction without taking account of the circumstances, nature and seriousness of the actual offence. The Registrar did not give sufficient, if any weight, to the following matters: the Appellant’s age and good character; his blemish free driving licence held since 1969; that his diary showed that he had not been giving lessons; that the only profession that the Appellant had worked in was driving instruction and that without registration, his working life was over. In all the circumstances, the Registrar should have held back from finding that the Appellant was no longer a fit and proper person.

We advised the Appellant during the course of the hearing that we could not go behind his plea of guilty to a very serious offence of providing paid instruction without being registered as an ADI. This offence was of such a serious nature, it being one that does, as Miss Jackson stated, strike at the heart of the registration system, that it was inevitable that the Registrar would consider whether the Appellant was a fit and proper person. Its nature and recent commission meant that it could not be ignored and to allow the Appellant’s name to be re-entered onto the register would be unfair to other ADI’s who are scrupulous in observing the law and it would undermine the public’s confidence in the register. In the circumstances, we are satisfied that the Appellant is not a fit and proper person to have his name re-entered onto the register and his appeal is dismissed.

Her Hon. Judge J Beech