Transport
Appeal Reference: FT/D/2025/0381/FPP
Before
TRIBUNAL JUDGE KENNETH MULLAN
TRIBUNAL MEMBER DAVID RAWSTHORN
TRIBUNAL MEMBER RICHARD FRY
Heard by way of remote hearing using Cloud Video Platform
Between
GULUZAR KALEM
Appellant
and
REGISTRAR OF APPROVED DRIVING INSTRUCTORS
Respondent
Decision: The appeal is ALLOWED
DECISION AND REASONS
Mode of Hearing
The proceedings were held using CVP. The Tribunal was satisfied that it was fair and just to conduct the hearing this way.
The hearing was conducted by a Judge and two Tribunal Members in Chambers. The Appellant participated in the hearing and was represented by Mr Clej, Counsel. The Registrar of Approved Driving Instructors was represented by Mr Russell. The Appellant had support and assistance from an interpreter.
General Background
The appeal is against the decision of the Registrar of Approved Driving Instructors (ADIs) that the Appellant could not satisfy the statutory requirement to be a “fit and proper person”, with the result that the name of the Appellant’s name was removed from the Register under s. 128(2)(e) of the Road Traffic Act 1988 [“the Act”]. The burden of proving that an Appellant is not a fit and proper person is on the Registrar.
Conditions for entry or retention on the Register extend beyond instructional ability alone and require that the applicant be a fit and proper person. As such, account has to be taken of an applicant’s character, behaviour and standards of conduct. This involves consideration of all material matters, including convictions, cautions and other relevant behaviour, placing all matters in context, and balancing positive and negative features as appropriate.
Given that many pupils are just 17 years of age and the scheme as a whole relies upon the honesty, integrity and probity of ADIs, it is clear that substantial trust will be placed in ADIs by pupils, parents, other ADIs and road users, the public and the Agency. It is the Registrar’s function to ensure that the persons whose names appear in the Register are worthy of that trust and are fit and proper persons to have their names entered therein.
In cases involving motoring offences it is expected that anyone who is to be an ADI will have standards of driving and behaviour above that of an ordinary motorist. Teaching people of all ages to drive safely, carefully and competently is a professional vocation requiring a significant degree of responsibility. Such a demanding task should only be entrusted to those with high personal and professional standards and who themselves have demonstrated a keen regard for road safety and compliance with the law.
Additionally, in cases involving non-motoring offences, the standing of the Register could be substantially diminished, and the public’s confidence undermined, if it were known that a person’s name had been permitted onto, or allowed to remain on, the Register when they had demonstrated behaviours, or been convicted or cautioned in relation to offences, substantially material to the question of fitness. Indeed, it would be unfair to others who have been scrupulous in their behaviour, and in observing the law, if such matters were ignored or overlooked.
In the Registrar’s statement of case, he points out that registration represents official approval; the title prescribed for use by instructors is ‘Driver & Vehicle Standards Agency Approved Driving Instructor’, [“ADI”]. Approval is not limited to instructional ability alone, but also extends to a person’s character, behaviour and standard of conduct. In view of this, he expressed concern that the good name of the Register would be tarnished and the public’s confidence undermined if it was generally known that he had allowed the Appellant’s name to be retained on the Register when she had been convicted of an offence. He added that it would be offensive to other ADIs and persons trying to qualify as ADIs, who had been scrupulous in observing the law to ignore this offence. The Registrar’s approach was approved by the Court of Appeal in Harris v. Registrar of Approved Driving Instructors (2010 EWCA Civ 808), in which Richards LJ said:-
“….. 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. That is why there are stringent disclosure requirements.”
Applicants to become driving instructors are notified that the DVSA is entitled to ask for information about spent convictions and as a result they lose the protection provided by s.4(2) of the Rehabilitation of Offenders Act 1974. This arises in consequence of paragraph 3(a)(ii) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended which states that “none of the provisions of s.4(2) of the Act shall apply in relation to … any question asked … in order to assess the suitability … of the person to whom the question relates for any office or employment specified in Part II of the said Schedule 1 … where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed”. Paragraph 14 of Part II of Schedule 1 states that “offices, employment and work” include “any work which is work in a regulated position” and by Part IV of Schedule 1 “regulated position” is “a position which is a regulated position for the purposes of Part II of the Criminal Justice and Court Services Act 2000”. Paragraph 36(c) of Part II of the latter Act provides that “the regulated positions for the purposes of this Part are … a position whose normal duties include caring for, training, supervising or being in sole charge of children”; and by paragraph 42 of Part II “child” means a person under the age of 18. Since driving instructors may teach pupils aged 17 (or 16 if disabled) it follows that the DVSA is entitled to take spent convictions into account.
Factual background
The background to this appeal is that the Appellant’s name was first entered in the Register in March 2009 and in the normal course of events her certificate expired on the last day of March 2025.
In his Statement of Case the Registrar has stated that on 11 May 2023 he received an email from the Appellant’s representative. The contents of the email were as follows:
‘I represent Kalem Guluzar (“the Registrant”) in proceedings relating to a Road Traffic Offence of careless driving at Stratford Magistrates Court.
The Registrant by this letter gives notice of the following criminal conviction:
Charge: Drive a mechanically propelled vehicle on a road in a public place without due care and attention contrary to section 3 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
Particulars: On 09/10/2022 the Registrant drove a TOYOTA AURIS index … on Stamford Hill without due care and attention in that they failed to spot a pedestrian crossing the road and hit them causing the pedestrian to hit their head and become unconscious.
Court: Stratford Magistrates’ Court
Sentence: 9 penalty points and a £660 fine
The following chronology outlines the circumstances of the Registrant’s conviction:
Date of the offence - 09/10/2022
Issue of Postal Charge and Requisition – 14/03/2023
Legal Representation Instructed – 20/03/2023
‘Not Guilty’ Plea notified to the Court – 24/03/2023
Date of Conviction ‘on the papers’ – 17/04/2023
Registrant makes written application to reopen the conviction on the basis that the ‘not guilty’ plea was not before the convicting Justices – 20/04/2023
Hearing date for application to reopen under the slip rule - 23/05/2023
In summary, upon receiving the charge, the Registrant instructed legal representation, took advice on the merits of the case and took steps to indicate a ‘not guilty’ plea and have the matter set down for case management and eventually a trial. The trial issue at hand is whether the defendant failed to react. A question arises of pedestrian conspicuity which will require the instruction of an expert. In practical terms, the Registrant asserts that a combination of road layout, lighting, presence of other road users and the way in which the pedestrian was dressed caused her not to notice the pedestrian in good time to apply the brakes. The Registrant also takes issue with the fact that no witness statement from the pedestrian and no medical evidence of his injuries have been served.
The Court failed to process the indication of a ‘not guilty’ plea and instead proceeded to try the case ‘in camera’ as an uncontested charge. They imposed a sentence of 9 penalty points and a fine. They did so not having had the benefit of any information from the Registrant and so would have applied the Sentencing Guidelines on the basis of the prosecution case alone.
The Registrant respectfully requests that the ADI stay consideration of fitness to practice until the Magistrates Court has determined the application to reopen the conviction on 23/05/2023.’
By way of email correspondence dated 12 May 2023, the Registrar gave the Appellant notice that he, the Registrar, was considering removing her name from the Register on the grounds that she had ceased to be a fir and proper person to have her name entered in it. The Registrar invited the Appellant to make representations to the Registrar within 28 days which the Registrar submitted would be taken into consideration by him before reaching a decision.
In email correspondence dated 24 May 2023, Mr Clej gave notice that on 23 May 2023 the relevant Magistrates Court had reopened the Appellant’s conviction for careless driving. A not guilty plea had been entered and the trial had been set down for 7 August 2023. Mr Clej requested that the Registrar consider staying his investigation pending the outcome the trial.
By way of email correspondence dated 30 May 2023, the Registrar informed Mr Clej that after considering the circumstances, he had decided to defer any decision until the outcome of the trial, noted in Mr Clej’s email of 24 May 2023, was known. The Registrar requested an update after 7 August 2023.
In email correspondence dated 9 August 2023, Mr Clej informed the Registrar that on 7 August 2023 the Appellant had pleaded guilty to one charge of careless driving and her driving licence had been endorsed with 6 penalty points and received a fine of £415. The Registrar has noted that a check of the DVLA database had confirmed the conviction and penalties involved.
In email correspondence dated 10 August 2023 to the Appellant and copied to Mr Clej, the Registrar gave written notice that he was considering removing her name from the register on the basis that he considered that she had ceased to be a fit and proper person to have her name retained in the Register. The Registrar invited the Appellant to make representations.
Written representations and supporting evidence were received in the office of the Registrar on 7 September 2023. The supporting evidence included a copy of CCTV footage of the incident.
In the Statement of Case, the registrar has stated that he carefully considered these representations but came to the view that the Appellant’s name should be removed from the Register. Accordingly, he made a decision that the Appellant could not satisfy the condition set out in section 128(2)(e) of the Act in that she ceased, apart from fulfilment of any of the preceding conditions to be a fit and proper person to have her name retained in the register.
The Appellant was notified of the Registrar's decision on 8 September 2023.
A notice of appeal against the decision of the Registrar dated 6 October 2023, was subsequently received in the office of the General Regulatory Chamber (GRC) of the First-tier Tribunal.
The submissions of the parties
The Registrar
At the remote oral hearing, Mr Russell appeared on behalf of the Registrar. He outlined the Registrar’s case, summarising the background to the Registrar’s decision to remove the Appellant’s name from the Register of Approved Driving Instructors. That background was set out in more detail in paragraphs 1 to 10 of the Statement of Case. Mr Russell also summarised the reasons for the Registrar’s decision to remove the Appellant’s name from the Register of Approved Driving Instructors. These were:
The appellant’s driving licence is currently endorsed with 6 penalty points having pleaded guilty to and been convicted of driving without due care and attention. This resulted in a serious accident, hitting a pedestrian crossing the road. Whilst I appreciate it was dark at the time of the incident, the CCTV footage clearly shows the appellant did not react to the presence of a pedestrian crossing the road which is wholly unacceptable for an Approved Driving Instructor. 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 this offence, 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 professional 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 2018 excessive speed contributed to 177 deaths, 1,251 serious injuries and 3,224 minor accidents, using a 21 mobile phone contributed to 25 deaths, 92 serious injuries and 306 minor accidents; and careless driving, reckless, or in a hurry contributed to 252 deaths, 3,208 serious injuries and 9,466 minor accidents.
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 to remain on an official register that allows them to teach others.
It would be offensive to other ADIs and persons trying to qualify as ADIs, who had been scrupulous in observing the law, for me to ignore this recent and relevant motoring offence.’
Mr Russell noted that having viewed the CCTV footage of the incident, he observed that the Appellant did not realise her speed or attempt to perform an emergency stop. He reiterated that the standard of her driving was not what would be expected of an ADI who is expected to give practical guidance and instruction concerning coping mechanisms for all circumstances. He submitted that the Appellant had failed to adhere to appropriate standards and, as such, the Registrar’s decision was correct.
The Appellant
The grounds of appeal, as set out in the Notice of Appeal, mirror the written representations which were submitted of behalf the Appellant to the Registrar by Mr Clej.
Mr Clej outlined the contents of the bundle and set out a chronology. In respect of the sentencing hearing on 7 August 2023, Mr Clej provided a copy of his notes of the Magistrates’ remarks as follows:
‘We have listened to the facts of this matter as set out by Mr Choudhury. We have reviewed the CCTV. We have listened to Mr Clej on your behalf. We have had the benefit of associated material provided to us through Mr Clej. We take into account your plea of guilty and your good character. We note that you are an ADI. In terms of where it sits in the Sentencing Guidelines we have considered submissions of both advocates. Based on our understanding Stamford Hill, the speed limit would have been 30mph. Having looked at the CCTV we can see you are travelling at a speed consistent with preceding cars. The bench's opinion is that you were not travelling at excessive speed. Bench does note that dust cart on opposite side which had been picking up refuse. Dustcart displays flashing lights. Those may have momentarily distracted you. The bench notes the time of day. 22:19-22:24. October and dark. In relation to the victim, we can see that he stepped out onto the road behind the dust cart. so initially cannot have seen him. Field of vision would have picked up walking across the road. And looking at the CCTV, circumstances CCTV dustcart your vehicle and victim was, you would have had albeit a limited window of opportunity to take avoiding action. CCTV is from our observation doesn't show reduction of speed. No indication that emergency stop and no swerving. No avoiding action taken by you and centre line of the road it appears that the victim may have taken 2-3 paces and is almost mid-way in the front of the car. We see what happens to him he is bowled over. Bench conclude that there was inattention on your part to your driving. And applying Sentencing Guidelines. We do not find that here is excessive speed. No indication to any other factors that would suggest higher culpability. We place it at lower Culpability. Victim in this matter nothing more injury no information offence is cat 2. Attracts a Band B fine. Range of 5-6 penalty points. We have heard that you are ADI and made reference to the potential consequences of regulatory action. As your profession requires you to have a licence without 6 or more points. Looking at the range of points available for cat 2 ... 5-6 points. In this instance we find inattention of yourself to circumstances around your vehicle cause a serious accident to the victim in this matter. And taking full account the bench does not see any justification for imposing 5 points. Considers that appropriate is 6 points.’
Mr Clej also provided details of the financial penalties which were imposed.
Turning to the substantive submissions, Mr Clej noted the decision in Harris, already referred to above and observed:
‘Two cases cited in Harris, namely Nixon and Stace, provide a useful analytical framework:
In R v Registrar of Approved Driving Instructors. ex parte Nixon (1992) COD 274, a decision of the Registrar upheld by the Secretary of State on appeal, and affirmed in Judicial Review proceedings, the Secretary of State encapsulated the question of fitness and propriety in the ADI context as follows:
“high standards of fitness and propriety are necessary to safeguard the reputation of the register and to reassure the public. The Minister believes that a known lack of integrity on the part of a few approved driving instructors could undermine the profession as a whole. He believes that were the profession to lose its good reputation this would affect the standard of instructors generally, the public's confidence in them and ultimately the standard of instruction. He believes also that many members of the public see a person's name on the register as an indication not only of his instructional ability but also that the Department regard him as a person of integrity. He believes that it is in the interest of the profession that this should remain the case and that it is important that members of the public do not feel that they had been misled in this respect."
In R (Stace v Milton Keynes Magistrates' Coun /2006/ EWHC 1049 (Admin}, a case concerning PCV licensing the registrant sought Judicial Review of Magistrates Court's dismissal of an appeal a fitness decision of the Traffic Commissioner At § 16 Keith J held that, when considering the impact of convictions on fitness and propriety, the decision-maker was not to consider convictions in a vacuum but rather look at them in the context of whether conduct of that particular kind might affect the registrant's fitness to drive passenger-carrying vehicles. The following questions, which apply mutatis mutandis to the fitness of an ADI, are relevant:
How serious was the conduct?
What were the risks of any repetition of the conduct?
Was there a propensity for engaging in the conduct?
Did the propensity impinge on his abilities as a driver?
To what extent was he a risk to those passengers with whom he would come into contact?’
Mr Clej noted that the Appellant has an unblemished record as an ADI and was otherwise of good character. He pointed to the ‘glowing’ character references provided by her students and her professional peers. Until the present endorsement, she had held a clean driving licence. There were no other matters which called her fitness to practice into question.
He observed that the Magistrates had found that the offence was mitigated by:
‘a. the fact the Registrant was not driving at excessive speed,
the fact that the flashing lights of the dustcart may have momentarily distracted the Registrant,
the fact it was dark,
the victim having stepped out into the road behind the dustcart so the Registrant may not have seen him.
the limited opportunity to take avoiding action
the lack of information about the level of injury’
Mr Clej noted that the Appellant had reported the offence promptly. He asserted that the loss of registration would lead to the concurrent loss of her livelihood as she was dependent on driving instruction for a living.
Mr Clej accepted that the incident was serious and it could have resulted in more serious charges. The Appellant took no issue with the endorsement of her licence with 6 points and no appeal against sentence was pursued. Further:
‘… the incident was short-lived and arose from a momentary lapse of attention. It is not to be considered in a vacuum. It must instead be set against the Registrant's blemish-free record with the ADI and her clean driving licence up to the point of conviction and sentence.’
Mr Clej submitted that:
‘… the single, short-lived incident fell ‘far below’ what would be required to infer a propensity to drive carelessly in general or to wilfully disregard the safety of other road users in particular.’
The offence was committed other than during lesson time and there was no suggestion that the Appellant would place her students at risk. It did not impinge on the Appellant’s abilities as a driver. She would not pose any risk to students in the future.
Mr Clej asserted that there was ‘considerable offence-related mitigation’ as acknowledged by the Magistrates. Further:
‘The plea was entered at a late stage only after enquiries had been made of experts in 'pedestrian conspicuity'. including Professor Graham Edgar, a cognitive psychologist and psycho-physicist specialising in visual perception and situational awareness. In the Scottish case of Cameron v Swan (20201 CSOH 20, Professor Edgar gave evidence of that, 'to the driver of an oncoming vehicle an unexpected thing in a roadway has the psychological effect on the human brain of lowering the conspicuity in relation to the object. Unfortunately for this Registrant the fees of Prof. Edgar (the leading expert in the field), were far in excess of what she could afford.’
Finally, Mr Clej submitted:
‘This short lived, isolated incident when considered in light of the offence-specific mitigation and the unblemished record and good character of the Registrant is not one that shows a propensity to bad driving or a lack of integrity on the part of the Registrant. It is not a matter which would stand to undermine the profession of driving instructor and as a whole or its reputation in the eyes of the public. No member of the public would feel they were misled as to the integrity of the Registrant or the Register as a regulatory entity were they to be fully apprised of the circumstances of this case.’
At the remote oral hearing, Mr Clej expanded on his written submissions. He provided copies of 7 decisions of the General Regulatory Chamber in its transport jurisdiction while accepting that, as decisions of the First-tier tribunal, they were not binding on this tribunal as precedents. My Clej also expanded on why Professor Edgar was not engaged for the sentencing hearing before the Magistrates. He also noted the lengthy delay which there had been in bringing this appeal to hearing and informed us that there were additional High Court proceedings relating to the retention of the Appellant’s name on the Register pending this appeal.
As noted above, the Appellant participated in the remote oral hearing. She gave oral evidence in response to questions from members of the tribunal.
She told us that she had informed her insurance company about the accident but there had been no compensation claim arising. Further, there had been no complaint by the victim to the police. She told us that she did not see the pedestrian and was not wearing spectacles at the time. There was no dashcam attached to the vehicle at the time but there was one now. She was aware of the ‘A pillar’ blind spot and felt that this had contributed to the accident.
In general terms, and having heard from and seen the Appellant, we found her to be honest and credible.
Analysis
The Registrar has centred his arguments for the removal of the Appellant’s name from the Register around two main concerns.
The first of these focused on the general but significant statistical evidence relating to serious road safety offences and the contribution which these offences made to a substantial number of casualties.
The second concentrated on the benchmarks which are expected of ADIs, their character, behaviour, general standards of conduct including as drivers themselves, the requirement to have standards of driving above that of the ordinary motorist and the need for ADIs to promote high standards of driving while instructing their pupils and to ensure public safety. To repeat what was stated at paragraph 6 above:
‘ 6. In cases involving motoring offences it is expected that anyone who is to be an ADI will have standards of driving and behaviour above that of an ordinary motorist. Teaching people of all ages to drive safely, carefully and competently is a professional vocation requiring a significant degree of responsibility. Such a demanding task should only be entrusted to those with high personal and professional standards and who themselves have demonstrated a keen regard for road safety and compliance with the law.’
Given all of that, the argument for the removal of the Appellant’s name from the Register is a powerful one.
Against that, however, we are of the view that there are equally convincing grounds for the retention of the Appellant’s name on the Register.
We begin with the incident itself. We have viewed the CCTV footage. Having done so, we agree with Mr Clej’s acceptance that the incident was a serious one which could have resulted in more serious charges.
Nonetheless, and mindful that they were made in the context of a sentencing hearing with respect to a criminal offence, we agree with the findings of the Magistrates, as set out in paragraph 24 above and Mr Clej’s summary of them in paragraph 28 above. We also concur with Mr Clej’s conclusion that there was‘ considerable offence-related mitigation’ for this ‘single, short-lived incident’. That is supported by the oral evidence of the Appellant which, as noted above, we found to be honest and credible.
We have also observed that there is no evidence that the pedestrian suffered anything other than minor injuries aa a consequence of the incident. There was no legal claim for compensation and no complaint was made to the police.
We would add the following additional factors, which are in the Appellant’s favour:
The Appellant’s clean driving record until this endorsement of her driving licence, with no reoffending and no propensity to drive carelessly in general
Her lengthy career (16 years) as an ADI with no other regulatory interventions by the Registrar, particularly with respect to fitness
Her commitment to the ADI profession
Her good character as evidenced by the references provided by her pupils and professional peers
We are asked to determine whether the Appellant has failed the statutory test to be a fit and proper person to have her name retained in the Register. On balance, we find that the Appellant has not failed that test. There is, in our view, no risk to the integrity of the Register and the standing of the Register will not be substantially diminished by the retention of the Appellant’s name on it.
Disposal
For the reasons which are set out above, the appeal is allowed.
We would ask the Appellant to note the following. Following the endorsement of her driving licence with 6 points she has come very close to losing her professional career and employment. It should be self-evident that there are significant learning outcomes from this process and that any future legal or professional transgressions are likely to have considerable adverse consequences.
Kenneth Mullan
Judge of the Upper Tribunal
17 September 2025