Neutral Citation Number: None
TRANSPORT
ON APPEAL FROM DECISIONS OF
THE REGISTRAR of the DRIVING STANDARDS AGENCY
Dated: 16 June 2011 (Shahid); 20 July 2011 (Shah)
Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal
Case Numbers and Appellants:
D/2011/198 SHAHID; D/2011/220 SHAH
-and-
Respondent
REGISTRAR OF THE DRIVING STANDARDS AGENCY
Attendances:
For the Appellants: Hammad Shahid appearing in person and Sakahawat Shah not appearing
For the Respondent: Claire Jackson
Appeals heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX
Date of hearing: 12 September 2011
DECISIONS OF THE FIRST-TIER TRIBUNAL
The appeals be DISMISSED
SUBJECT MATTER: Fit and proper persons; convictions;
CASES REFERRED TO: Harris v Registrar of Approved Driving Instructors (2010 EWCA Civ 808)
REASONS for DECISIONS
These were appeals against the decisions of the Registrar of the Driving Standards Agency that the Appellants’ could not satisfy the statutory requirement to be a “fit and proper person”, with the result that the applications by the Appellants’ to have their names entered on the register of approved driving instructors was refused under s.125(3)(e) of the Road Traffic act 1988 (“the Act”). The burden of proving that an Appellant is not a fit and proper person is on the Registrar.
In the Registrar’s statement of case he points out that registration represents official approval; the title prescribed for use by instructors is “Driving Standards Agency Approved Driving Instructor (“ADI”). 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, concern is expressed that the good name of the register would be tarnished and the public’s confidence undermined if it were generally known that he had either allowed the Appellants’ names to be entered on the register when they had been convicted of offences or had allowed their names to remain on the register. The Registrar adds that it would be offensive to other ADI’s and persons trying to qualify as ADI’s, who had been scrupulous in observing the law, to ignore these offences. The Registrar’s approach has been approved by the Court of Appeal in Harris v Registrar of Approved Driving Instructors (2010 EWCA Civ 808), in which Richards LJ said:
“... 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. That is why there are stringent disclosure requirements”.
Applicants to become driving instructors are notified that the DSA is entitled to ask for information about spent convictions and as a result they lose the protection provided by s.4(2), Rehabilitation of Offenders Act 1974. This arises in consequence of paragraph 3(a)(ii) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended which states that “none of the provisions of s.4(2) of the Act shall apply in relation to ….. any question asked ….. in order to assess the suitability ….. of the person to whom the question relates for any office or employment specified in Part II of the said Schedule 1 ….. where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed”. Paragraph 14 of Part II of Schedule 1 states that “offices, employment and work” include “any work which is work in a regulated position” and by Part IV of Schedule 1 “regulated position” is “a position which is a regulated position for the purposes of Part II of the Criminal Justice and Court Services Act 2000”. Paragraph 36(c) of Part II of the latter Act provides that “the regulated positions for the purposes of this Part are ….. a position whose normal duties include caring for, training, supervising or being in sole charge of children”; and by paragraph 42 of Part II “ “child” means a person under the age of 18”. Since driving instructors may teach pupils aged 17 (or 16 if the pupil is disabled) it follows that the DSA is entitled to take spent convictions into account.
We heard these cases separately but now give a joint decision.
D/2011/198 Hammad Shah
Miss Jackson outlined the case for the Registrar. The Appellant made an application for initial registration on 5 May 2011for the purposes of qualifying as an ADI. In his application he notified the Registrar that on 15 March 2007 he had pleaded guilty to an offence of driving or attempting to drive a vehicle with an alcohol level above the statutory limit. The offence had taken place on 5 March 2007. He had been disqualified from driving for twelve months and fined £100.
As a result of this information the Registrar considered that the Appellant may not satisfy the requirement of being a fit and proper person and invited representations from the Appellant. In a letter dated 25 May 2011, the Appellant stated that he did not drink alcohol and never had. On the evening in question, he was out celebrating the birthday of a fellow university student and was the nominated driver for his group of friends. As a result of peer pressure he succumbed to participating in the consumption of two rounds of shots and then had consumed part of a unit of beer before feeling unwell. A friend suggested that he sit in his car, which he did, switching on the engine so that the heater would operate. It was whilst he was sitting in the car that a police car drove past and he was breathalysed. He had in fact had no intention of driving. He had not partaken of alcohol since that date and described his behaviour on the evening in question as immature. He was now about to get married and he wished to improve himself by becoming a driving instructor.
By a letter dated 16 June 2011, the Appellant was informed of the Registrar’s decision not to grant his application for initial registration.
At the hearing of this appeal, the Appellant appeared in person.
Miss Jackson opened the Registrar’s case and adopted his statement of case; the Appellant’s conviction was for a serious motoring offence and as a result, he had failed to demonstrate the responsibility expected of ADI’s.
In his evidence, the Appellant stated that he understood why the Registrar had come to his decision but it was not justified. The Appellant had made a silly mistake when he was 22 years of age and he now felt that he was being “hounded” for it. He had completed his education and he was now married. As a consequence, his life style was very much different and that apart from this conviction, he was and remained a law abiding citizen. He had considered making an application prior to the present application but had been advised by a driving school that he should allow three years from the end of his disqualification to pass, which he had. The Appellant submitted that everyone had made at least one mistake in their past which they had later regretted and that those mistakes should not be held against them indefinitely. The Registrar had been wrong to determine that the Appellant was not a fit and proper person to be an ADI.
In closing, Ms Jackson advised that the Registrar would view the Appellant’s position more favourably when a period of four years from the end of his disqualification had passed without any further blemishes upon the Appellant’s character and to that end, the Appellant could submit a fresh application after March 2012.
We agree with Ms Jackson’s submissions that the Appellant’s conviction is so serious that it cannot be ignored, despite the lapse of time between the conviction and the Appellant’s application. To do so, would be unfair to other applicants who have been scrupulous in observing the law. In the circumstances, we are satisfied that the Appellant is not, at this present moment in time, a fit and proper person. However, we note Ms Jackson’s advice and can see no reason why the Appellant could not make a fresh application in or after March 2012. Accordingly, his appeal is dismissed.
D/2011/220 Sakahawat Hussain Shah
Miss Jackson told the Tribunal that the Appellant made an application for initial registration on 16 June 2011 in which he declared a conviction for using a motor vehicle whilst uninsured against third party risks for which he was fined £170 and his licence endorsed with six points. As a result, the Registrar notified the Appellant that he was considering refusal of his application by reason of him not being a fit and proper person. He was invited to make representations. None were received.
By a letter dated 20 July 2011, the Appellant was informed that his application had been refused.
At the hearing of this appeal, the Appellant failed to attend. Miss Jackson adopted the Registrar’s case and stated that the Registrar could not condone motoring offences of this nature.
In his grounds of appeal, the Appellant submitted that his driving licence had been blemish free apart from the material offence. He had pleaded guilty to the offence because he did not want to waste court time. The circumstances of the offence were that his car insurance was being paid by direct debit through his girlfriend’s bank account as the Appellant did not have a bank account of his own. They had then fallen out. Despite this fall out, he had nevertheless paid to his partner the last two direct debit instalments that were owing so that the direct debit would be honoured but his partner had not utilised the money for that purpose and as a consequence, the direct debits had not been honoured. The Appellant described himself as a safe driver who had never caused an accident. He had been let down by his partner. He was keen to qualify as an ADI so that he could better himself and the Registrar was wrong to conclude that he was not a fit and proper person.
We agree with Miss Jackson’s submissions that an offence of using a vehicle without insurance against third party risks is a serious offence and that it cannot be ignored. We can find no mitigating circumstances in the Appellant’s explanation as to how he came to be using a vehicle without insurance and in those circumstances, we are satisfied that the Appellant is not, at present, a fit and proper person to be an ADI. The appeal is dismissed.
Her Hon. Judge J Beech
27 September 2011