Imran Hussain v Registrar of Approved Driving Instructors

Neutral citation number: General Regulatory Chamber Transport Case Reference: D/2023/0009 First-tier Tribunal Determined at an oral hearing on 2nd August 2023 Before HHJ DAVID DIXON K PEPPERELL G ROANTREE Between IMRAN HUSSAIN and THE REGISTRAR OF APPROVED DRIVING INSTRUCTORS Appellant Respondent Decision: The appeal is dismissed and the Registrar’s decision remains. © CROWN COPYRIGHT 2022 Background to Appeal REASONS 1. 2. 3. This appeal concerns a decision of the Registrar of Approved Driving Instructors (“the Registrar”) made 13th December 2022 to remove the Appellant from the Register. The Appellant is a driving instructor who in the Registrar’s determination is no longer fit and proper to remain on the Register pursuant to section 128 of the Road Traffic Act 1988. The Registrar’s reasons for removal, in summary, were that the Appellant was no longer a fit and proper person to be on the Register as a result of a conviction for using a mobile phone whilst in control of a car. He received a fine and 6 points as a result of the conviction. 4. The Appellant now appeals the Registrar’s decision. Appeal to the Tribunal 5. 6. 7. 8. The Appellant’s Notice of Appeal, dated 9th January 2023, indicates he now appreciates that the “error” that led to the conviction is a serious matter. He submits whilst removal might be the norm, there were extenuating circumstances at the time and they plus the effect that removal will have on the Appellant are such that such a severe step isn’t appropriate. The Respondent submitted a Response indicating that the decision letter sets out their position. The Registrar indicates the Appellant has been an ADI since 2010, albeit there was a 4 year deregistered period. The Registrar discovered the conviction via DVLA as the Appellant hadn’t notified the Registrar of the fixed penalty contrary to the conditions of his licence. In his response to the Registrar the Appellant indicated he was not on a call at the relevant time, but was reading a text in the middle of a driving lesson. He explained that the family dynamic was difficult at the time due to the ill health of his wife’s grandfather etc. The Registrar indicated that the use of the phone, the conviction and the penalty points all were such that removal had to follow. Mode of Determination 9. The Appeal was determined at an oral hearing using the CVP system. Two of the Tribunal panel were available via audio and video. One was audio only due to technical issues. 10. The Appellant attended and was represented by Lucinda Dore, solicitor. 11. The Respondent was represented by Claire Jackson of the Respondent Appeal team. 12. The Tribunal considered a bundle of evidence containing 22 pages. Evidence 13. The Respondent indicated that the Response letter set out its position. 14. The Appellant indicated that he accepted his mistakes during a difficult time for the family, in using his mobile phone. He described having a pupil who had a last minute test coming up so agreed to take her out for a lesson. He was working less at the time due to school holidays and family issues. During the lesson in the early afternoon he received a notification from his wife. He described how unusually the phone was in the centre console. He accepted picking it up and reading the message, when he should have asked his pupil to pull over and turn off the engine to check the message legally. He expressed regret and remorse and indicated he had learnt from the incident. 15. He was asked to explain his pupil’s reaction and he said she was a bit quiet and he told her not to worry about it, it was for him to deal with . He had chatted to her saying it was his issue, and explained his family emergency situation. He indicated he didn’t charge her for the lesson. 16. He said the officer gave him a ticket at the time, to which he paid the fine and took the points without issue. He said he didn’t tell the Registrar as he thought that the DVSA would be informed by the DVLA. He also indicated that around that stage the issues in the family were very difficult. His wife’s grandfather passing shortly thereafter. 17. He said he had been an instructor for over 13 years and loved it. He supplied references from a number of people that spoke of him highly, and he indicated he had never had any issues. 18. He accepted that he could have done things “a lot better”. He described the steps he had taken to learn from the offence, including extra training regarding mobile phones and indeed with audit trainers generally. 19. A statement from the Appellant’s wife was read to the panel (and later supplied by email) indicating the couple have 5 daughters ranging from 11 years to 14m. She described wishing to support husband concerning the relevant day which had been difficult for the family. She said she had sent the message asking him to go and get the girls to take them to her aunties as she was needed to do things for the wider family. She described how her husband was the “breadwinner” and his loss of licence, with the current cost of living crisis would make things incredibly difficult for them. She explained the stress and pressure was affecting her health. 20. Ms Dore submitted that the Appellant’s family situation was exceptional and that balanced with the character references supplied should be considered in the assessment of the Appellant’s fitness. She stressed that he had learnt from the whole process and as illustrated by the certificates and statements provided had engaged in extra training. She made it clear the Appellant had gone to considerable efforts to show he had moved on, learnt from the process and shown appropriate remorse and contrition for an unusual decision to be made, that allowed the Appellant to keep his Registration. She also relied upon the statement from Ashia Shahine, the Appellant’s wife, as to the effect of removal from the Register would have on the family. 21. Ms Dore also made reference to another first tier decision of the General Regulatory Chamber, namely Khaliq v Registrar of ADIs D/2021/7 dated 6th January 2021, where she argued a very similar situation to the current Appellants was accepted to allow the Registration to remain. The Tribunal noted that in the current appeal the Appellant was teaching at the time which was a distinguishable factor and a point of particular note. Whilst the Tribunal considered the same, it reminded itself that here this is determination on the evidence that it heard. Earlier decisions of the GRC may be of assistance, but are not in any way binding upon other Tribunal panels and are of course based on assessments of different witnesses in different scenarios. Law 22. The Conditions for entry and retention on the Register require the Applicant to be and continue to be a “fit and proper person” to have his name on the Register of Approved Driving Instructors – see s. 125 (3) and s. 127 (3) (e) Road Traffic Act 19881. 23. The Registrar may take the view that a person no longer meets this requirement where there has been a change in circumstances. The burden of showing that a person does not meet the statutory criteria rests with the Registrar. 24. In Harris v Registrar of Approved Driving Instructors [2010] EWCA Civ 8082, the Court of Appeal described the “fit and proper person” condition thus: “..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. This is why there are stringent disclosure requirements”. 25. An appeal to this Tribunal against the Registrar’s decision proceeds as an appeal by way of re- hearing i.e. the Tribunal stands in the shoes of the Registrar and take a fresh decision on the evidence before it. The Tribunal must give such weight as is considered appropriate to the Registrar’s reasons3 as the Registrar is the person tasked by Parliament with making such decisions. The Tribunal does not conduct a procedural review of the Registrar’s decision- making process. Conclusion 26. The Tribunal has considered carefully all the papers and evidence before it. 27. The Appellant here had been using his phone regularly during a particular period of time due to significant family pressures. Whilst the Tribunal could understand the pressures involved, the use of the mobile phone could not be condoned. 28. Parliament has made it clear that the use of mobile phones whilst in charge of a car is a very serious matter. Penalties have steadily become serious as the risk posed by those in charge of 1 http://www.legislation.gov.uk/ukpga/1988/52/part/V/crossheading/registration 2 http://www.bailii.org/ew/cases/EWCA/Civ/2010/808.html 3 See R (Hope and Glory Public House Limited) v City of Westminster Magistrates' Court [2011] EWCA Civ 31. http://www.bailii.org/ew/cases/EWCA/Civ/2011/31.html. Approved by the Supreme Court in Hesham Ali (Iraq) v Secretary see https://www.supremecourt.uk/cases/docs/uksc-2015-0126-judgment.pdf. the Home Department [2016] UKSC paragraph State for 45 of at – vehicles that use phones becomes more accepted. Whilst the Appellant was not a driver in the conventional sense he was in charge of the vehicle and his attention was not where it should have been. The same risks were present. The acceptance that the use of the phone was to read a text makes the position worse rather than mitigates matters in the Tribunal’s view. 29. The Appellant has indicated that the removal from the Register will have a significant impact upon him and his family. He expresses deep and appropriate remorse for his actions. The Tribunal gives due weight to those factors. 30. The Tribunal also notes that others speak highly of the Appellant and that he seems to understand the severity of his behaviour and has taken on board further training. 31. However, on the other side of matters the Tribunal has to look at how others would consider this case. The Register is to the public a clear indication that only assessed capable and appropriate people are on it. It reflects the Government’s intention that only those who can show themselves willing and able to teach will be allowed to. Whilst there is no issue raised with the Tribunal about the Appellant’s ability to teach, whether he is appropriate to teach is the issue for the Tribunal. 32. Here the Tribunal after detailed and careful examination of the issues decided that the Appellant was no longer appropriate to instruct; the conviction rendered him no longer fit and proper. 33. Whilst the Tribunal noted the failure to notify the Registrar of the offence the Tribunal was prepared to accept at the time that there were significant pressures on the Appellant and didn’t judge that matter harshly as a result. The suggestion that he didn’t know he had to declare the matter was less credible, but of little further assistance to the general position that the offence was simply too serious. 34. Having reached that view the Tribunal then stepped back and looked at the issue of proportionality, judging the effect of removal against the consequences to the Appellant. Whilst it was obvious that a removal would have serious consequences, it almost always will. The Appellant’s family position was carefully considered, but the Tribunal came to the view that to allow the Appellant to remain on the Register was in effect to overlook the conviction, which was not in any way appropriate. 35. In all the circumstances, the Tribunal was driven to the conclusion that the Registrar’s initial decision was correct. 36. This appeal is therefore dismissed with immediate effect. (Signed) HHJ David Dixon K Pepperell G Roantree DATE: 2nd August 2023 5