James Stuart Wiseman v Registrar of Approved Driving Instructors

This appeal was listed for hearing on 20 November 2024 for oral hearing by CVP. The Appellant attended and gave oral evidence. He was accompanied by his wife, Mrs. Tina Wiseman. She did not give oral evidence. Oral submissions were made by the Respondent’s representative.

The Appellant appealed against a decision of the Respondent dated 4 January 2024 to remove his name from the Register (‘the Register’) of Approved Driving Instructors (‘ADIs’), pursuant to section 128(2)(e) of the Road Traffic Act 1988 (‘the Act’) on the basis that he was not a fit and proper person to have his name remain on the Register due to him having been charged on 2 October 2023 with alleged sexual assault offences (by touching) on two separate females, both of whom were pupils of his, while receiving driving instruction from him at the time of the alleged offences.

The Appellant opted for trial in the Crown Court jury. He advised in oral evidence that his trial had been listed as four-day hearing in the Crown Court, commencing on 21 July 2025, but, in the meantime, he had been granted bail, on certain conditions, that allowed him to continue to work as an ADI, a suspension imposed on him by the Respondent having been lifted before the Respondent made their decision, the decision under appeal. When the Respondent made their said decision, the decision under appeal, the matter of the suspension having been imposed and then lifted, became otiose as the Respondent decided to remove the Appellant’s name from the Register for the reasons set out in paragraph 2 herein.

The Respondent, in the decision under appeal, submitted that it took account of written representations made by the Appellant on 6 December 2023 before making the said decision. Those detailed representations, in summary, were as follows

The Appellant submitted an appeal dated 29 January 2024 (accompanied by a detailed letter of the same date addressed to the Respondent), against the Respondent’s said decision, that could be summarised in the following terms:

The Appellant submitted quite a number of character references, as referred to previously.

In a separate letter, also dated 29 January 2024 to the Respondent, the Appellant made the following additional representations, in summary, as to why his name should not be removed from the Register:

In his oral evidence, the Appellant again maintained his innocence of the criminal offences with which he was charged; that any touching of the alleged injured parties was accidental and that there had been collusion between the alleged injured parties. He confirmed that his trial was listed for a hearing for four days, commencing on 21 July 2025. He confirmed that he was required to have no contact with the alleged injured parties and had not done so. He confirmed that his bail conditions also required the presence of a chaperone if he was providing driving tuition to a female pupil - even if that pupil was a family member. He emphasised that the purpose of his bail conditions was to protect both him and the public. He pointed out that there were ‘only two’ alleged injured parties. He confirmed that he had been an ADI since 2013 and had passed a Standards Check examination every four years. He accepted that higher standards were expected of an ADI than were expected of an ordinary motorist.

The Appellant confirmed the first allegation dated from 2021 but stated that this was only reported along with the second allegation in August 2022 or 2023. He confirmed that the two alleged injured parties (one in particular), were friends of his daughter and that the allegations all arose after a ’falling out’ in January 2023. The Appellant stated that he disputed the dates of the alleged offences. He confirmed that the alleged injured parties had been interviewed but that he was dissatisfied with the conduct of his own interview.

The Appellant maintained that the statements of the alleged injured parties were incorrect and that they were in collusion, maintaining that this could be shown to be the case, by reference to voice mails and social media, the contents of which were different than the contents of their written statements.

The Respondent’s representative, in answer to questions from the Appellant, stated that he was not aware of a previous statement by the Respondent dated 30 July 2024. He stated that the Respondent’s response to this appeal was late due to the Respondent having limited staff resources. He confirmed that a suspension had been imposed by a routine email dated 4 December 2023 and in deciding whether to lift a suspension, the Respondent would have reviewed the risk involved in doing so. However, the lifting of a suspension could not be allowed to continue indefinitely pending, for example, as in this case the outcome of the criminal trial due to potential risks involved.

At the end of the hearing, the Appellant confirmed that he was satisfied that everything had been covered and was happy that the Tribunal had listened to him. He reiterated that he was a fit and proper person to have his name remain on the Register; that he was 100% law-abiding but agreed that the allegations needed to be investigated. He concluded by stating that he wanted a chance to ‘prove his innocence’.

The Respondent, in their Response dated 12 November 2024, stated:

In oral submissions, the Respondent’s representative reiterated the reasons for their said decision and the contents of the Response (as set out in the preceding paragraph). He acknowledged that, following representations made by the Appellant following his being granted bail, with conditions, the Respondent decided to lift the suspension imposed by them on the Appellant working as an ADI but, subsequently, made their decision, the said decision under appeal, that the Appellant’s name be removed from the Register. The Respondent’s representative confirmed that the said suspension had been imposed before any representations were received from the Appellant and that suspension powers were used if there was considered to be an imminent risk to the public. The Respondent’s representative confirmed further that the suspension was lifted, in advance of the decision under appeal being made as it was felt then that the bail conditions provided sufficient protection to the public and if the Appellant, having been charged with the said offences, had been acquitted in the criminal courts, his name would not have been removed from the Register. The Respondent’s representative stated that it was difficult to say that the Respondent would have been happy not to make the decision under appeal pending the outcome of the criminal trial but that the position would be reviewed if the trial date was delayed. However, the Respondent’s representative went on to maintain that the outcome of the criminal trial was, in fact, irrelevant as the Appellant, if unsuccessful in this appeal, could apply to have his name restored to the Register within 12 months (otherwise he would be required to undertake and pass examinations in Parts 1, 2 and 3 again).

The Respondent’s representative confirmed that the said decision under appeal was due to the potential risk to the public if that decision were not made. He pointed out that there were two differing accounts of what had occurred – that of the alleged injured parties and that of the Appellant. He submitted that it was open to the Tribunal to await the outcome of the Appellant’s trial in the Crown Court before determining this appeal, pointing out that the said decision under appeal was based on available information that showed there was sufficient evidence to pose a risk unless the said decision had been made. The Respondent’s representative stated that the Respondent did not know the trial date.

The basis of the Respondent’s decision was that the Appellant did not fulfil thecriteria to be a ‘fit and proper person’, as required by s.128(2)(e) of the Act, namely,

“that he ceased …. to be a fit and proper person to have his name included in the register”.

Conditions require that an ADI (the Appellant in this case) be a ‘fit and proper person’. This requires an account to be taken of an ADI'scharacter, behaviour and standards of conduct. This involves consideration of allmaterial matters, including convictions, and other relevant behaviour, placing all matters incontext, and balancing positive and negative features as appropriate. The Respondent may take theview that a person no longer meets this requirement where there has been a change incircumstances.

However, an appeal to this Tribunal against the Respondent’s decision proceeds as an appeal by way ofre-hearing, that is, the Tribunal makes a fresh decision on the evidence before it. The Tribunal must givesuch weight as it considers appropriate to the Respondent’s reasons for its decision as the Respondent is the regulatory authority tasked by Parliament with making such decisions. The Tribunal does not conduct a proceduralreview of the Respondent’s decision-making process.

As a matter of law, the standing of the Respondent could be substantially diminished, and the public’s confidenceundermined, if it were known that a person whose name was included on the Register when they had demonstrated behaviours or been convicted in relation to an offence (the latter not being the case here), substantially material to the question of fitness. This can be in respect of behaviourpertaining to motoring matters and other matters of responsibility, trustworthiness and prudence;indeed, it would, indeed, be unfair to others who have been scrupulous in their behaviour, and in observingthe law, if such matters were ignored or overlooked.

The judgment of the Court of Appeal in Harris v. Registrar of Approved Driving
Instructors [2010] EWCA Civ 808 confirmed that -

“..... 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 carrieswith 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 scrutinyeffectively, including consideration of the implications of any convictions of an applicant or aRegistered Approved Driving Instructor”.

The thrust of the Appellant’s case was that he was innocent of the criminal charges brought against him unless and untilhe was proven guilty of any criminal offence. This, of course is a correct proposition in criminal law. In fact, the Appellant does not need to prove anything in a criminal trial: it is for the prosecution, the Crown, to prove all elements of any criminal charges faced by the Appellant beyond a reasonable doubt.However, an entirely different legal test applies in these appeal proceedings: here a burden of proof does lie on the Appellant, namely, to prove to the satisfaction of the Tribunal that, on the balance of probabilities, he remained a fit and proper person to have his name remain on the Register despite having been charged with what can only be described as serious criminal offences of a sexual nature, by touching, involving two separate females, at different times, while providingdriving tuition to each of those alleged injured parties. It is outside the jurisdiction of the Tribunal to decide whether or not the Appellant was guilty of any criminal offence faced by him. An important factor, however, is that the CPS, an independent prosecuting authority concerned with matters of criminal law, having regard to the high thresholds that exist to bring a successful criminal prosecution, will have been satisfied, firstly, that there is sufficient evidence to bring the criminal charges faced by the Appellant and, secondly, that it is in the public interest to bring that prosecution on those charges.

In particular, therefore, the Appellant’s concluding remark in his oral evidence that he ‘wanted a chance to prove his innocence’ of the criminal charges faced by him was not a matter within the jurisdiction of the Tribunal but, instead, will be a matter for the jury in the Crown Court.

Significantly, while the Appellant sought to be allowed to have his name remain on the Register subject to the bail conditions imposed on him, the Appellant, in representations to the Respondent, advised that he wanted the bail conditions eased but was advised against making such application by his legal advisers. Clearly, however, he was unhappy with the bail conditions imposed on him.

While the Appellant stated his understanding of the date his trial was to commence, and its anticipated duration, the reality is that there was no way of knowing whether the stated date for commencement and duration of the trial would be maintained and, if convicted of any criminal offence, whether there would be an appeal(s). In any event, the Tribunal had no jurisdiction to decide on the guilt or otherwise of the Appellant in respect of the criminal charges faced by him but this seemed to be exactly what the Appellant sought in bringing this appeal.

It is always open to the Appellant to apply, at any time, within 12 months of this Decision of the Tribunal, to have his name restored to the Register, albeit the Respondent, in its decision, submitted that such application was unlikely to be successful while his criminal trial was pending, save where he could show good reason to the contrary and all relevant requirements of the Act were met.

As properly accepted by the Appellant in his oral evidence, the very highest standards, not only of driving instructional ability, but of character, behaviour and standards of conduct were expected of an ADI.

On the balance of probabilities, the Tribunal decided that if the Appellant’s name were not to be removed from the Register at this stage, too great a potential of risk to the public would exist or be perceived to exist.

In reaching its Decision, the Tribunal considered all of the evidence and submissions that it received, written and oral, and took into account all of the circumstances relevant to this appeal.

The Tribunal must bear in mind the significant importance attached to the integrity ofthe Register. For the public to have trust inthe integrity of the Register, the Respondent must act in a way that encourages belief that those whose names were entered onto it, had high standards. Allowing those who do not meet those standards would undermine the trust placed in it, and it would have serious consequences for those who do maintain the necessary high standards.These are matters of wider, and public interest, which attract significant weight even where, as in this case, having his name removed from the Register may potentially have significant financial or otherwise consequences for the Appellant.

While the character references submitted by the Appellant were, prima facie, impressive, those, in themselves, having regard to the entirety of the written and oral evidence and submissions of both parties, did not alter the Tribunal’s decision to dismiss this appeal as they were not of sufficient persuasive value to alter the Tribunal’s Decision on the balance of probabilities.

Taking all of these factors into account and, noting that the Tribunal needs to maintain publictrust in the Register and to prioritise consumer protection over the interests of the Appellant as an individual ADI, the Tribunal concluded that the Appellant, at the time of the decision under appeal, was not a fit and proper person tohave his name remain on the ADI Register.

Accordingly, the appeal is dismissed.