Zarina Bostan v Registrar of Approved Driving Instructors

Neutral citation number: First-tier Tribunal General Regulatory Chamber Transport Case Reference: D/2022/38 Heard by CVP video hearing Heard on: 17th August 2022 Before HHJ DAVID DIXON DAVID RAWSTHORN ANDREW GUEST Between ZARINA BOSTAN and THE REGISTRAR OF APPROVED DRIVING INSTRUCTORS Appellant Respondent Representation: For the Appellant: Unrepresented For the Respondent: Claire Jackson Decision: The appeal is dismissed and the Registrar’s decision remains. © CROWN COPYRIGHT 2022 REASONS Background to Appeal 1. This appeal concerns a decision of the Registrar of Approved Driving Instructors (“the Registrar”) made on 9th March 2022 to refuse the application for extension of registration. 2. The Registrar’s reasons for the refusal, in summary, were that you had obtained a conviction for speeding on 21st May 2021, resulting in a fine and 6 penalty points. The conviction was also not reported to the Registrar. The Registrar took the view that the conviction was serious, and accordingly a refusal was appropriate. 3. The Appellant now appeals the Registrar’s decision. Appeal to the Tribunal 4. 5. The Appellant’s Notice of Appeal, dated 16th March 2022, argues that a one off speeding offence doesn’t deserve a refusal. She admits not reporting the matter to the Registrar but indicates she was unaware of the requirement to do so. The Appellant a solicitor indicates she is a fit and proper person by virtue of that status and asks for the opportunity to be able to continue as an ADI. The Appellant indicates that she had overcome a number of hurdles as a hearing impaired single mum to get to where she has and asks for the opportunity to correct her mistake. The Respondent submitted a Response indicating that the government has increased penalties for a number of motoring offences where serious safety issues arise; speeding being one of those offences. The Registrar took the view that those charged with the responsibility to teach often young people to drive have to show the highest standards of road safety and here the conviction revealed the Appellant had not. Further to that the failure to notify the conviction was a clear breach of the declaration previously given. The combination of all matters led to the refusal to extend. Mode of Determination 6. The case was listed for oral hearing and was carried out via the CVP video enabled hearing system. 7. The Appellant attended and was unrepresented. The Respondent was represented by Claire Jackson. 8. The Tribunal considered a bundle of evidence containing 30 pages. The Hearing 9. Ms Jackson indicated the Registrar’s position was as outlined within the documentation within the bundle. 10. The Appellant indicated her father passed sadly a few days before the hearing. She indicated that had obviously had a bearing upon her. 11. She said she got her ADI status after something of a battle. She studied law part time whilst teaching and became a solicitor recently. She said to achieve all of this was an achievement for her. However, having qualified as a solicitor she realised the career wasn’t what she wanted. 12. The Appellant said that she was driving along the motorway with radio loud and sat navigation system likewise. She was going to help a friend and was driving along and didn’t realise she was driving too fast. She said she simply wasn’t paying attention to her speed. The police indicated to the Appellant that she was driving at around 100mph on a standard motorway. The Appellant said the road was completely clear and that might be a reason she was complacent about matters. 13. She said the car was new to her and this was a further factor in her driving at an excessive speed. It was a bigger, more powerful and automatic car. Her unfamiliarity with the car was definitely a factor in the way she exceeded the limit. 14. She indicated that she declared the conviction on her application, but had forgotten that she had to declare it within 7 days of the conviction. 15. She argued that everyone deserved a second chance. She indicated surprise that one incident was enough to render her allegedly unfit. 16. She asked the Tribunal to give careful consideration to her specific and general situation. The Law 17. 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. 18. 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. 19. 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. 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 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”. 20. 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 21. The Tribunal considered carefully all the papers and submissions made before it. 22. On the materials available to the Tribunal the Appellant was obviously a lady of some determination who had managed despite her own difficulties to succeed in her career choice to become an ADI, and then a solicitor. By the very nature of the latter qualification that profession carried with it the obvious implication of being fit and proper generally. 23. On 6th February 2021 the Appellant was driving on a road and exceeded the speed limit. The conviction she received (SP50) resulted in 6 penalty points and a £309 fine. (The Appellant indicated the fine was higher, but her figure probably included the victim surcharge.) 6 penalty points suggests speeding some degree over the limit. The Appellant said the officers that pulled her over indicated a speed of 100mph. The Tribunal was concerned by the speed and indeed the way the Appellant described her lack of attention to her speed. 24. The Appellant said when asked that anyone found to be driving recklessly shouldn’t be allowed to teach. Ironically, this is just what she did and is one of the reasons the Tribunal agrees with her view. 25. The Registrar rightly expects ADIs to have the highest regard for road safety. To allow an ADI to remain on the Register who has not complied with the rules of the road could seem hypocritical. Here the Registrar came to the view the driving, whilst only on one occasion, was so serious that a refusal of the application to extend was appropriate. The Registrar rightly was concerned that the conviction was not reported. The Appellant’s suggestion of not appreciating that declarations had to be made, the Tribunal found difficult to believe, but is of little weight in the scheme of the speeding offence generally. 26. Having considered all aspects of the evidence in this case, balancing the Appellant’s other character against the serious offending and failure to report, the Tribunal came to the view that regrettably the conviction was so serious it renders the Appellant unfit. The Appellant was asked what she would say as the Registrar to someone, when they asked how someone who had 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 60 of at – a conviction for driving at 100 mph was allowed to teach? Her response was in effect they shouldn’t be. The Tribunal agrees. 27. This appeal is dismissed with immediate effect. (Signed) HHJ David Dixon David Rawsthorn Andrew Guest DATE: 17th August 2022 5