Harris v Registrar of Approved Driving Instructors
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Sullivan,Lord Justice Toulson |
| Judgment Date | 15 July 2010 |
| Neutral Citation | [2010] EWCA Civ 808 |
| Date | 15 July 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/2013 |
[2010] EWCA Civ 808
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRANSPORT TRIBUNAL
(His Honour Michael Brodrick, Ms Patricia Steel and Mr George Inch)
Before: Lord Justice Richards
Lord Justice Toulson
and
Lord Justice Sullivan
Case No: C1/2009/2013
Nicholas Leviseur and Mathew Gullick (assigned by the Bar Pro Bono Unit) for the Appellant
Richard Honey (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 22 June 2010
Lord Justice Richards:
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.
Legislative framework
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 facts
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:
i) On 13 October 1993 the appellant was convicted of a number of offences of obtaining property by deception, attempting to obtain a pecuniary advantage by deception and false accounting, and a firearms offence (which related to the possession of more ammunition than permitted under the firearms certificate he held at the time). He was sentenced to a total of 12 months' imprisonment for the dishonesty offences, with a conditional discharge for the firearms offence.
ii) On 31 August 1994 he was convicted of an offence of unlawful beating contrary to s.39 of the Criminal Justice Act 1988 and was sentenced to 2 months' imprisonment suspended for 1 year.
iii) On 7 June 1996 he was convicted of an offence of criminal damage, in relation to a property owned by Devon Social Services, for which he was made the subject of a conditional discharge for 12 months.
iv) On 25 June 1998 he was convicted of assault contrary to s.39 of the Criminal Justice Act 1988 and was made the subject of a probation order for 18 months.
v) On 12 November 2008 he was convicted of using threatening abusive or insulting words or behaviour or disorderly behaviour, contrary to s.5(1) and (6) of the Public Order Act 1986, for which he was made the subject of a conditional discharge for 2 years. This was the conviction disclosed in the appellant's 2009 application.
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...
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