HC Deb 15 December 1999 vol 341 cc96-103WH 12.58 pm
Mr. Eric Illsley (Barnsley, Central)

I welcome the opportunity of raising the issue of the Driving Standards Agency appeals system, which arises from the case of one of my constituents, Ms Donna Kemp, who was indecently assaulted by her driving instructor.

The driving instructor, a Mr. Kevin Hanson, eventually admitted the offence, after being charged by the police. The police and the Crown Prosecution Service eventually saw fit to deal with the matter by administering a caution. Two conditions were attached to the offer of that caution to Mr. Hanson: first, that he admit the offence and, secondly, that the instructor's name be added to the sex offenders register. It was clear that Mr. Hanson's acceptance of the caution constituted an admission of guilt of the offence for which he had been charged.

The DSA informed the driving instructor that he was to be removed from the register of approved driving instructors. He was no longer considered fit and proper to be included in that register—a decision taken by the chief executive of the DSA. The driving instructor appealed against that decision. It was then considered by an appeal board, which recommended that the instructor should be reinstated in the register. In fact, his name was never removed. Even after he had been charged, while the case was being dealt with by South Yorkshire police and the Crown Prosecution Service and throughout the entire appeal process, Mr. Hanson's name remained on the register of approved driving instructors.

The chief executive of the DSA, with whom I raised the issue, told me in his earlier letter that the DSA had tried to remove the instructor, but

As the Board's findings were not contrary to law or illogical … there was no alternative but to allow the appeal. The law that applies in such circumstances should be changed. The appeal board's findings could have been classed as illogical. The Minister and the chief executive of the DSA need more powers to review appeal board findings.

The case has raised several issues that relate to the appeal board's findings and need urgent consideration by the Government, such as whether instructors should be allowed to continue to instruct after they have been charged with an offence or during an appeal against being removed from the register. The conduct of appeals boards needs to be examined, as does the evidence that they consider, in view of the paucity of the evidence presented to the appeals board in this case, to which I shall return in a moment. The conduct of the members of an appeal body should be reviewed, in view of the attitude of members of the appeal board in this case. The lack of a mechanism to review decisions made by an appeal body is a cause for concern.

The acting chief executive of the DSA, Laraine Manley, seems to support that view. She informed me in a letter of 15 November:

There are various aspects about the way the ADI appeals system operates which also give rise for concern", referring in particular to an instructor's being allowed to continue instruction during an appeal. I hasten to add that Ms Manley has only recently assumed the position

of acting chief executive. The bulk of my correspondence on the case was with the former chief executive, a Mr. Bernard Herdan, who, I understand, now runs the Passport Office.

When I originally raised the issue with the DSA, I received a letter from Mr. Herdan, which stated that the appeal board had been influenced by the decision to administer a caution in relation to the charge and withdraw the case. However, the case was withdrawn on the basis that the instructor had accepted his guilt for the offence and the caution. Nevertheless, the chief executive said that the decision to withdraw the case had had some relevance.

Mr. Herdan went on to say that

"there was no alternative but to allow the appeal."

He continued:

I have asked the Registrar to monitor the situation closely and should the Agency receive notice of any further complaints against Mr. Hanson or become aware of any subsequent offences, serious consideration would once again be given to his position on the Register. In other words, the instructor seemed to have got away with it this time, but if he did it again, the process would start again with attempts to remove him from the register.

At that stage, I asked the chief executive for a copy of the appeal board's report. In his reply of 9 June, Mr. Herdan wrote:

Because of the Data Protection implications and the confidentiality of the Appeal Board's report, I regret that it is not possible to provide you with a copy. That was clearly not true, as I now have a copy that was faxed to me on Friday, offered by the acting chief executive, Laraine Manley, when she took over responsibility for the case. Why was I initially denied that report, when no data protection implications or confidentiality issues seem to surround the matter?

The chief executive continued, in the same letter:

The Agency takes very seriously any offence committed by an instructor, particularly those which are of a sexual nature and you can be assured that prompt removal action will continue to be initiated by the Registrar where substantiated reports are received. What caught my attention in that paragraph was the phrase

"where substantiated reports are received".

That paragraph gives the impression that the charges against Mr. Hanson were unsubstantiated—despite the fact that Mr. Hanson had already accepted the caution, admitted guilt for the offence and been placed on the sex offenders register. At that stage, I began to wonder exactly what the appeal board had been told when it considered the case and whether it was aware of the admission of guilt and the inclusion of the instructor's name on the sex offenders register. I began to question whether the appeal board had been aware that he had admitted the offence and the consequences of that.

I was also rather worried by the belief of my constituent, Ms Kemp, arrived at after she received a letter from the CPS, that the appeal board may have acted in the belief that a caution was administered to deal with the case because of a lack of evidence—in other words, because of the fear that a prosecution brought against the instructor might fail. However, the letter to my constituent from the chief Crown prosecutor in South Yorkshire is clear:

An experienced Crown Prosecutor carefully considered the evidence. After confirming via the police that you"— Ms Kemp—

"were willing to give evidence against him"—

the instructor—

"she was satisfied that the evidence was sufficient to provide a realistic prospect of conviction and that it was in the public interest to continue the prosecution."

Clearly, therefore, a substantial case existed against the driving instructor.

In fact, the possibility of dealing with the matter by way of a caution was raised by the driving instructor's own solicitors, who contacted South Yorkshire police and the CPS to ask whether that might be possible. At that point, the police, Ms Kemp and the CPS agreed that that would be a fair way of dealing with the matter. Again, however, I began to worry about whether the appeal board had missed that.

Ms Kemp clearly believes that she should not have agreed to the case being disposed of by a caution. Because the appeal board dismissed the offence as unimportant, she now feels that the admission of the caution diminished the offence and somewhat called her integrity into question.

I wrote again to Mr. Bernard Herdan, the chief executive, to ask whether he believed that the case was substantiated, in view of his reference to substantiated cases. On 28 June, he replied:

The Registrar's initial decision to remove Mr. Hanson's name from the Register was based on the substantiated evidence against him. However, as mentioned in my letter of 12 May, the decision to allow Mr. Hanson's name to remain on the Register was based on the recommendations of the Approval Board who heard his case against the Registrar's original decision, not on any re-examination of the evidence by myself or the Registrar. In other words, the appeal board actually allowed the instructor to deny at the appeal an offence which he had already admitted. The appeal board went on to try a case that the instructor had refused to allow to come to court and he had sought to be dealt with by means of a caution.

By that stage, I had become increasingly concerned at the conduct of the appeal and the appeal body. I raised the issue again with the Driving Standards Agency and also sought this debate. On 15 November, the acting chief executive, Laraine Manley, wrote and offered to let me see the appeal board report, while also expressing her concern about the appeals procedure, as I have mentioned. The report was not enclosed with the letter and I received it on Friday.

The appeal board report makes interesting reading. Paragraph 2 refers to all charges against the driving instructor being withdrawn. The charges were withdrawn after Mr. Hanson had admitted the offence and accepted the caution.

Perhaps the most damning paragraph is the third, which states:

We have not seen a copy of the charge, or the evidence put together by the Police and Crown Prosecution Service. We only have seen a press report of an interview given by the pupil after the charge had been dropped. We have heard evidence from Mr. Hanson. The appeal body does not even mention the papers prepared for it by the DSA that were referred to in correspondence to me. All it had seen was a press report—nothing from the Crown Prosecution Service and nothing from the police. I consider that evidence to be one-sided. Throughout the appeal, the body was influenced by a press report. Why did the appeal board not seek to interview or take a statement from Ms Kemp? Why did it not ask to see police documents or a report from the Crown Prosecution Service on the incident?

The fourth paragraph of the report begins:

We are prepared to accept the following facts". It goes on to say that the indecent assault was sufficiently minor, despite the fact that the Crown Prosecution Service believed that it had a case against the driving instructor that it was prepared to pursue. In paragraph 4(c), the appeal board accepts as fact a statement that the police interviewed more than 20 female pupils of Mr. Hanson. There is no way in which the appeal board could know that, let alone accept it as fact, but to ask Mr. Hanson itself, because it had no documentation from the police whatever. The paragraph states that

Mr. Hanson's chance of maintaining his innocence must be rated as high", despite the fact that he had accepted the caution and admitted guilt of the offence.

Paragraphs 4(c), (d), (e) and (f) of the report are all about evidence given by Mr. Hanson to the appeal body during the hearing; he was the only person before it apart from his partner. Paragraph 4(f) refers to Ms Kemp contacting the newspaper having discovered that the instructor was to be cautioned. The idea of the newspaper article runs throughout the appeal.

Paragraph 5 begins:

Mr. Hanson maintained his innocence to us, denying most vehemently that he had even attempted to indecently assault Ms Kemp". It would appear that the appeal board accepted that denial and that it tried Mr. Hanson's case, basically accepting that he was not guilty. If Mr. Hanson had been so sure of his innocence, why did he not let the case come to trial?

Paragraph 7 states that, where impropriety with a pupil is alleged, careful consideration must be made about removing an instructor's name. Impropriety was not alleged in this case: the driving instructor had admitted it. The allegation had gone from a charge to an acceptance of a caution. Paragraph 8 finally states that the board believed that not removing

Mr. Hanson's name from the Register will not bring…the Agency into disrepute". I wonder how wrong the board thinks that it was.

The appeal board's report was accepted by the chief executive, despite its one-sided nature. The appeal body did not take evidence other than that from the instructor, which it believed and referred to as fact. It obviously did not believe anything that my constituent said or did in relation to the incident. It believed that a caution lessened the offence of indecent assault, ignored the instructor's admission of guilt and allowed him to deny the offence and basically try the case in the appeal hearing. The appeal board members were obviously influenced by a newspaper article rather than official documentation that could have been made available to them.

I believe that the case highlights major deficiencies in the running of the Driving Standards Agency, in which there appears to be no clear policy in relation to such incidents. It also highlights deficiencies in the appeal system. The registrar and the Minister should have clear guidelines with regard to the removal of an instructor's name from the register of approved driving instructors. I hope that my hon. Friend the Minister will consider those issues.

1.18 pm
The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Chris Mullin)

I am grateful to my hon. Friend the Member for Barnsley, Central (Mr. Illsley) for raising this important matter, which affects wider issues than the case to which he referred. I entirely share his concern about the way in which the case, which has not appeared previously before Ministers, has been handled, and I understand why he and Ms Kemp are extremely unhappy.

My hon. Friend asked why he was originally told that he could not have a copy of the appeal board judgment. That was based on a misunderstanding of data protection legislation, and has been rectified by the fact that he has now received it.

Before I deal with the case raised by my hon. Friend, I should explain the background to the regulation of driving instructors. For road safety and consumer protection reasons, anyone offering paid car-driving instruction must have his or her name entered on the register of approved driving instructors, as has been the case since 1970.

The registrar, an official of the Secretary of State, administers the register on behalf of my Department. The function is now part of the Driving Standards Agency, which is an executive agency of the Department.

To be accepted as registered instructors, applicants must satisfy the registrar that they are of good character and must pass a three-part qualifying exam. That consists of a theory test and practical tests of driving and instruction ability. On payment of a £200 registration fee, a successful applicant is accepted on to the register for four years. At the end of the four-year period, instructors can apply to renew the registration. Standards supervision is an important part of maintaining public confidence in the register. Instructors are required to take regular check-tests every two to four years depending on the standard shown at the previous test.

Failing a check-test does not lead automatically to exclusion. The system is intended to help instructors identify and overcome weaknesses. Following an unsatisfactory test, the examiner who conducted it offers the instructor a briefing and the opportunity to take remedial training to rectify the faults identified. A second check-test is conducted after an interval, usually of three to six months. If that second test proves unsatisfactory, a more senior examiner, who is given no details about why the instructor failed the two preceding tests, conducts a third test. Only if the instructor's performance on the third test in unsatisfactory are removal proceedings started.

Some 48,000 check-tests have been conducted over the past four years and only 254 of the instructors who failed the initial test were subsequently unsuccessful in their efforts to raise standards and were removed from the register. The failure rate for check-tests is about 8 per cent. on the first attempt, but falls to about 1 per cent. on the third attempt. Currently, 29,000 instructors are on the register, with a further 18,500 people in the process of qualifying.

The conduct regime applies as long as an instructor is registered. The registrar needs to ensure that behaviour that would bring the register into disrepute is not tolerated. Obviously motoring offences are relevant, but so are matters of personal conduct of the type to which my hon. Friend the Member for Barnsley, Central referred today. We should not forget that driving tuition occurs in relatively isolated circumstances in a car and often involves vulnerable young people. Any system of supervision and enforcement needs to strike a balance.

Driving instructors have a right to expect that their supervision arrangements are fair and proportionate. They have a right to expect an independent appeals handling process when their livelihood is threatened. Equally, the public have a legitimate expectation that driving instructors should deliver a reliable and satisfactory standard of tuition. They also expect swift and decisive action in cases of personal misconduct by instructors.

The registrar's decision to deregister an instructor is subject to an independent appeals procedure. Instructors can ask for their case to be reviewed by an appeal board, which is chaired by a person with a legal background who is approved by the Lord Chancellor's Department. The board makes recommendations to the Secretary of State. Once an appeal has been made, an instructor can continue to offer tuition until the Secretary of State issues his decision. Since 1992, the chief executive of the Driving Standards Agency has had delegated authority to determine appeal cases without reference to Ministers when there is no intention to depart from the appeal board's recommendations. We are conscious that different interests have expressed several concerns about the supervision and appeal arrangements. As I said at the outset, I share those concerns, given the experience of my hon. Friend's constituent.

Some instructors have complained that it is difficult for an instructor who fails a check-test to challenge the examiner's assessment and the appeals systems does not command confidence. However, the instructor's position is protected by the triple check-test procedure, which I have just outlined. Even if the instructor's standards are found wanting on three successive occasions, the instructor can still appeal to an independent appeal board. There are also public concerns that the current arrangements are not tough enough when dealing with instructors whose performance is unsatisfactory, either in the quality of the instruction or in their conduct. There has also been criticism that current arrangements allow instructors to continue operating while they drag out the appeals procedure, a point referred to by my hon. Friend.

In the case to which my hon. Friend referred, the driving instructor was charged with indecent assault on a pupil during a lesson and he accepted a formal caution from the police. When the registrar became aware of the case, he wrote to the instructor advising him that, in view of the offence, his removal from the register was proposed. The instructor appealed. At the appeal board, the instructor pleaded that he had accepted a caution only to avoid the cost, publicity and anxiety of fighting the case. That, together with testimonials from other female pupils and his employer, persuaded the board to recommend that the instructor should not be removed from the register. The board's view was that allowing the appeal would not bring the register into disrepute.

The recommendation was accepted. The then chief executive of the Driving Standards Agency accepted the board's recommendation and the instructor was notified that his name would be allowed to remain on the register. In accordance with agreed procedures, the case was not referred to Ministers. I recognise that my hon. Friend has been expressing his concern to the Driving Standards Agency since that decision was issued earlier this year and I deeply regret the distress that has been caused to his constituent. The outcome of the case is no reflection on her integrity. However, as due process has been followed and the decision has been taken and issued—however unsatisfactorily—I regret to say that the case cannot be re-opened.

I reassure hon. Members that the Government are not complacent about the matter. We are working to avoid the risk of instructors concealing their misconduct. The registrar now requires them to provide references when applying for registration, but the system is still too reliance on self-declaration. The registrar can check records for motoring offences at the Driver and Vehicle Licensing Agency, but he has no access to the police national computer to check for other types of conviction. That will be remedied when the Criminal Records Bureau becomes operational. At that point, the registrar can require applicants to supply certificates showing an absence of relevant convictions.

Most of the complaints that the registrar receives from members of the public about instructors relate to relatively minor matters, and may be misunderstandings. The registrar seeks to act as honest broker in such cases. To avoid problems, the registrar has worked in partnership with the national Driving Instructors Association to develop a code of practice and has invited all instructors to sign up to its principles. About 4,000 instructors have done that so far. The Government also want the appeals process modernised.

All parties have an interest in the prompt resolution of cases. Obviously, an instructor facing loss of livelihood should be able to expect his or her appeal to be resolved speedily and effectively. Equally, the appeals system should not leave the public at risk by enabling failing or undesirable instructors to ply their trade for longer than necessary. Others in the profession must also be able to expect that the registrar will act promptly, and thus help maintain public confidence in the system.

To ensure swift action, the Driving Standards Agency has adopted active case management for appeals, with an internal target for issuing the decision within 13 weeks from the date of receipt of the appeal. The Government are also considering whether an instructor convicted of serious offences, but who wishes to appeal against deregistration, should be able to offer driving lessons while the appeal is being considered—a matter that my hon. Friend raised. However, perhaps conviction for some offences should constitute an absolute bar to registration.

We are considering whether it would be better for appeal boards to decide appeals cases, instead of just making recommendations with recourse to the courts on any point of law. Many of the ideas that I have floated in this debate would require legislation and that must depend on the competing pressures for legislative time. The details will need to be carefully thought through. They will need to fit in with our broader plans to modernise driving training for different sectors.

I am sorry to say that I cannot offer my hon. Friend further reassurance about the case that he has raised, beyond saying that I share his dissatisfaction. He has, however, highlighted some issues that will be addressed. If they require legislation—some of them will—that will depend on legislative time. I am grateful to my hon. Friend for raising the issue and I repeat that I share his dissatisfaction about the way in which this particular case was handled.