Adam Curylo v The Registrar of Approved Driving Instructors

‘I refer to your application to become an Approved Driving Instructor. On your application you failed to declare that you received 3 penalty points for exceeding speed limit on a public road on 20 September 2020.

This will not affect your application, but I should advise you of the obligation which lies on every motorist, and particularly on a driving instructor, to show due regard for the motoring laws. You will appreciate that the personal example of an instructor in this respect is just as important as their skill in giving driving instruction.

Although no further action will be taken on this occasion, I must point out that if it becomes necessary in the future to consider whether or not you are a 'fit and proper' person to have your name included in the register your record as a whole will be taken into account.’

‘6. The reasons for my decision are: -

The Appellant's driving licence is currently endorsed with 6 penalty points having accepted two fixed penalty notice offences for exceeding statutory speed limit on a public road. He had been warned about his future conduct when accepted to start the qualification process. The conditions for entry onto the register extend beyond instructional ability alone and require that the applicant is a fit and proper person. As such, account is taken of a person's character, behaviour and standard of conduct. Anyone who is an Approved Driving Instructor (ADI) is expected to have standards of driving and behaviour above that of the ordinary motorist. Teaching (generally) young people to drive as a profession is a responsible and demanding task and should only be entrusted to those with high standards and a keen regard for road safety. In committing these offences, the latest whilst progressing through the qualification process, I do not believe that the Appellant has displayed the level of responsibility or commitment to improving road safety that I would expect to see from a potential ADI.

The Government increased the payment levels for serious road safety offences such as speeding, the requirement to control a vehicle (including mobile phone use), passing red traffic lights, pedestrian crossings and wearing a seatbelt. These offences contribute to a significant number of casualties. For example, in 2020 excessive speed contributed to 219 deaths, 1,674 serious injuries and 4,666 minor injuries, using a mobile phone contributed to 17 deaths, 119 serious injuries and 308 minor injuries; and careless driving, reckless, or in a hurry contributed to 204 deaths, 3,487 serious injuries and 11,126 minor injuries.

As an officer of the Secretary of State charged with compiling and maintaining the Register on his behalf, I do not consider that I can condone motoring offences of this nature. To do so would effectively sanction such behaviour if those who transgress were allowed a licence to teach others.

To allow the Appellant a licence would be unfair to other applicants who had been scrupulous in observing the law and could undermine the publics' confidence in the registration system.

‘Thank you for your email of today. I hope after reading this letter that you will feel comfortable that I am, indeed, a fit and proper person to be a driving instructor.

Please be assured that I take my driving very seriously and I do not condone speeding. I consider myself to be an excellent driver with a very positive attitude to driving safely and within speed limits.

My current employment is as a private hire self employed taxi driver and have been since May 2022. Prior to this I was an HGV driver for 10 years (starting in 2012).

I have calculated, that whilst driving lorries I completed around 55,000 miles per year and, more recently, as a taxi driver it is also a very similar figure approaching 60,000 miles per annum. I passed my test in Poland in 2003.

I can only apologise and explain mycircumstances over the last few years.

I offer no excuse to exceeding the speed limits on the occasions that you describe. I am obviously human and can, despite high levels of concentration, make mistakes.

However, I can explain the details as you have requested:,.

Fixed penalty 20th September 2020

I was driving my car on the A1079 - Pocklington to Hull. Dual carriageway National speed limit of 70mph. On overtaking I inadvertently exceeded the speed limit. The speed camera recorded my speed at 74mph.

Warning of exceeding speed limit on 9th February 2023. Leading to a Speed Awareness course in March 2023.

I was driving mycar on Great Coates road, Grimsby in what I thought was a 40mph speed limit at 35mph (I've been informed this road used to be a 40mph limit). Unfortunately it was a 30mph speed limit. I only discovered this when I received the police notice. I decided to attend the speed awareness course (by the way, I found this very useful).

I was driving my car on the A1079 -from York to Hull on a dual carriageway which finished and became a single carriageway, therefore speed limit reduced to 60mph. I only became aware of my excessive speed upon receiving the police notice. As far as I can remember my speed was recorded in the high 60’s.

I have reflected on the above, I am taking much more notice of speed limits and with my new vehicle (see below) will be much more aware of speed limits.

All I ask is that you take into consideration my yearly average mileage. I believe that an average car driver completes 10,000 miles per year, therefore I have achieved over five times this normal amount overthe last ten years.

Since starting my instructor training, I am also much more aware of modern technology and use cruise control and speed limiters to help with my speed management. Although this doesn't eradicate exceeding speed limits, it certainly helps.

I have recently helped a friend of mine to pass her driving test.

Her name is … (she prefers to be called 'Body'). Body comes from Nigeria and passed her test there and had ten years of driving in Nigeria.

Body asked me to help her improve her driving standard and through her UK driving test.

I accompanied her in her own car on two short lessons (3 hours in total) and went with her on her first UK driving test.

Unfortunately she failed due to a late change of lane without effective observation. She continued to wont me to help her. I spent a further ten hours with her and improved her driving. Body's driving improved and I am very pleased to tell you that she passed this morning (10.24am/Hull Clough road test centre/ Body's car registration number is …).

I accompanied her on this test. The examiners name is L, I introduced myself to L, explaining that I am about to go on a trainee licence. She was very accommodating and was pleased that I had accompanied Body of her test.

I have also purchased a brand new Toyota Yaris Hybrid Cross (registration number …). So, hopefully, you can see that I am taking this new career very seriously.

I believe my ORDIT trainer is also writing to this afternoon to vouch for me. I hope this ok and await the Registrars decision.

‘I'm Adam's ORDIT trainer.

Adam informs me that you have emailed him today saying that you are considering not allowing him to have a 'Trainee licence'.

He has sent you a reply this afternoon.

I have been training PDI 's since 2003, an ORDIT Trainer since 2008 and achieved two straight grade 6's, 50 out of 51 in my last standards check and, obviously achieved Grade A on my last ORDIT inspection. I have also owned A… Driving Centre since 2005, having around 30 franchised instructors currently in my team.

I have and am very proud of my high standard of instructor training and only allow people of quality to join my team. I have, so far, trained 135 instructors, all qualifying as ADI's.

I have also been a manager for almost 50 years and can certainly vouch for Adams' professionalism, keeness to learn and driving standard. I am proud to have him on my team.

Please therefore be kind enough to approve him as a 'fit and proper' person.’

‘This appeal raises a general issue as to the approach which the Registrar should take to penalty points endorsed on the driving licences of existing and prospective ADI’s. This issue was touched upon in the appeal D/2010/Jeffrey Bell, which concerned an inconsistency between the application form for initial registration, which requested details of fixed penalties received in the previous three years and the Registrar’s policy of then taking into account all penalty points endorsed on a licence in the previous four years. It was noted in that appeal that whilst all endorsements (and accordingly all penalty points) remain on a driving licence for four years from date of offence (by virtue of s.45(5) of the Road Traffic Act 1988), only those penalty points endorsed in the previous three years are taken into account for the purposes of the “totting up procedure” in the Magistrates Court when disqualification is being considered. We are satisfied that the difference in approach between the Registrar and the Magistrates Court gives rise to confusion and a perception of disparity and unfairness. Whilst we appreciate that the Magistrates Court and the Registrar are guided by differing considerations, disqualification on the one hand and the fitness of a person to be an ADI on the other, we are nevertheless satisfied that a consistency in approach to the consequences of penalty points between the Magistrates Courts and the Registrar would be fair and proportionate. This approach would have the advantage of dispelling the confusion that currently exists as to the criteria applied by him. Whilst each case must of course be determined on its own facts and that in appropriate cases a stricter approach may be warranted, the Tribunal will in future be guided by the “totting up” procedure when considering the Registrar’s case that an Appellant is not a fit and proper person by reason of penalty point endorsements. It will be for the Registrar to justify a more stringent test.’

‘Our main concern relates to the fixed penalty notices for the use of a mobile phone when driving. We say that because the 3 penalty points, for the speeding offence in 2009, no longer count towards the ‘totting up’ provisions and will be removed from the Appellant’s licence in November 2013. In D/2012/366 Handa and D/2012/371 Goldwater the Tribunal considered the correct approach to the fact that all endorsements (and therefore penalty points) remain on a licence for 4 years, (by virtue of s. 45(5) of the Act), whereas penalty points only count towards disqualification under the ‘totting-up’ procedure for a period of 3 years. The Tribunal said this at paragraph 5(ix):

We are not aware of any specific justification put forward by the Registrar as to why he took into account the penalty points for speeding in 2009. There is a two year gap between the speeding offence and the first mobile phone offence. Given the difference between the two offences it seems to us that this gap is not merely relevant but makes it difficult to justify taking the 2009 offence into account. Had the 2009 offence been a further mobile phone offence different considerations might have applied.’

‘(xi) Another point raised by the Appellant, namely the age of these offences, requires more detailed consideration. We have already referred when dealing with the appeal of Thomas, above, to the decision of the Tribunal in the appeals of D/2012/366 Handa and D/2012/371 Goldwater. The question which we must now consider is whether or not it is appropriate to apply the principle set out in that decision to the facts of the present case. The general principle is that the Registrar and the Tribunal should, normally, have regard only to those endorsements and penalty points which would still count towards disqualification under the totting-up procedure. If that principle were to be strictly applied to the present case only the penalty points imposed in 2010 would be taken into account.

However it is important to note that the Tribunal made it perfectly clear that it was not laying down an unqualified principle to which there are no exceptions. The point is so important that we repeat the quotation from Handa and Goldwater, which we set out in the previous appeal.

‘It follows that we must consider whether this is a case in which a stricter approach should be followed and whether a more stringent test is justified. In coming to a conclusion on this point we believe that it is instructive to consider what would have been likely to happen if the Appellant had complied with the obligation to report each fixed penalty notice, within 7 days. Past experience suggests that following receipt of a report of the first fixed penalty notice the Registrar would have written to the Appellant, first, to say that he would take no further action, second, to remind the Appellant of his obligation as an ADI to set a good example and to drive to a higher standard than other motorists and third, to warn him that the matter would be taken into account should the Appellant offend again. Following notification of a second offence of speeding some two months later the strong probability must be that the Registrar would have written to the Appellant to warn him that he was considering the removal of his name from the Register. Whether or not the Registrar would have done so is more difficult to assess because it would have depended on the view the Registrar took about the Appellant’s explanation. Our best estimate is that the probability is that the Appellant’s name would have been removed, though it is possible that it would have remained, subject to a stern warning. We have no doubt at all about the consequences of notification of the third offence, which occurred on 21 April 2010. By that stage the Appellant would have received 9 penalty points in a period of just under a year. In our view it is inconceivable, in that situation, that the Registrar would have done anything other than remove the Appellant’s name from the Register. As we have already pointed out in the previous appeal we are not aware of any successful appeal by an Appellant with more than 6 penalty points so the prospect of a successful appeal against the removal of the Appellant’s name, in that situation, is, in our view, vanishingly small.

In our judgment the consequences of complying with the obligation to report convictions and fixed penalties only have to be stated to make it quite clear that this is a case in which a stricter approach is appropriate and a case in which the Registrar and the Tribunal are justified in applying a more stringent test. To take any other course would be to reward and encourage non-disclosure and to disadvantage those who, fully and correctly, comply with their obligations. Rewarding and encouraging non-disclosure is not in the public interest nor will it contribute to maintaining public confidence in the Register.

In our experience when the Registrar becomes aware that an ADI, (or prospective ADI), has failed to comply with an obligation to disclose, convictions, fixed penalties or the like he invariably asks for an explanation for the failure. In our view it is important that that opportunity is given because there may be cases in which the explanation justifies the Registrar taking a different course. The Registrar will need to consider any explanation put forward asking questions such as: Is it credible? Is it acceptable? Does it explain or justify the non-disclosure?

In the present case the Appellant has said in effect: ‘Believe it or not I forgot about the fixed penalties and that is why I did not report them’. We find it difficult to believe that the Appellant forget not once, not twice but three times. We find it all the more difficult to believe because he must have known that between April 2010 and May 2012 he was within three penalty points of losing his licence under the totting-up provisions. In our view the explanation given by the Appellant is not acceptable nor does it justify the non-disclosure.

It seems to us that, once the Registrar is satisfied that there is no acceptable explanation for non-disclosure and no justification for taking a different course, he is entitled to take into account all the offences which have not been disclosed. In the present case that means that the Registrar was correct to have regard to the fact that for a time the Appellant had 9 penalty points on his licence, albeit three were taken off in May 2013 and three more can be removed on 17 July 2013.

In our view the combination of non-disclosure, which is a serious matter in its own right, and the fact that for three years the Appellant had 9 penalty points on his licence means that the Registrar was correct in concluding that the Appellant cannot meet the requirement to be a fit and proper person to have his name on the Register. The Appeal is accordingly dismissed.’