Adrian Whiting v The Registrar of Approved Driving Instructors

This is the appeal of the Appellant, Mr Adrian Whiting, against the decision of the Respondent (‘the Registrar’) contained in a letter dated 5 July 2023 to remove his name from the register of Approved Driving Instructors (‘the Register’) on the ground that he had ceased to be a ‘fit and proper person’ to have his name entered on the Register.

The matter came before us in the form of a ‘remote’ hearing by CVP, with the agreement of both sides. We were satisfied that it was just and proper to proceed in that way. Mr Whiting attended in person. The Registrar did not attend, being content to rely on his written case. Bundles of documents running to 37 and 74 pages were before us. Having heard from Mr Whiting at some length, we reserved our decision.

The Road Traffic Act 1988 (‘the Act’), s123(1) prohibits the giving of paid driving instruction except where the instructor’s name is included in the Register or he or she holds a trainee licence under s129 (not applicable here).

By s125(3) of the Act, certain conditions for initial entry of an Approved Driving Instructor (‘ADI’) on the Register are specified. These include the requirement for him/her to be a ‘fit and proper person to have [his/her] name entered in the Register’.

Under s128 of the Act, the Registrar has power to remove an ADI from the Register in specified circumstances. These include where he/she has ceased to be a fit and proper person to have his/her name included in the Register (s128(2)(e)).

By the Act, s131(1) an appeal lies to the First-tier Tribunal against a decision to remove an ADI’s name from the Register. (Footnote: ¹) On the appeal, the Tribunal may make such order for the removal from, or retention on, the Register as it sees fit (s131(3)).

Where a decision to remove an ADI’s name from the Register is challenged on appeal, s128(7) of the Act permits the Registrar to apply what amounts to a stay of his decision pending the appeal. That power is routinely exercised and was exercised in this case.

In In the matter of the Bonas Group Pension Scheme [2011] UKUT B 33 (TCC), which arose in a different but analogous statutory context, Warren J, sitting in the Upper Tribunal, held that there was nothing to constrain the first-instance tribunal’s approach on appeal. Its function is simply to make its own decision on the evidence before it (which may differ from that before the statutory body whose decision is under challenge). Despite this latitude, however, high authority of general application recognises two important points. First, the burden is on an appellant to persuade the tribunal that the relevant decision should be overturned or otherwise interfered with. Second, the tribunal should give careful consideration to the reasons for the decision under challenge, given that Parliament has invested the relevant body with exclusive authority (subject to appeal) to make decisions on such matters. (Footnote: ²)

On the proper approach to the ‘fit and proper person‘ condition, we have been assisted by the judgment of the Court of Appeal in Harris v Registrar of Approved Driving Instructors [2010] EWCA Civ 808 (15 July 2010). Giving the only substantial judgment, Richards LJ observed (para 30):

The main facts can be summarised as follows. We include some events which postdate the decision under challenge.

Mr Whiting’s name first appeared on the Register in April 2008 and his registration was renewed at four-year intervals thereafter.

On 23 September 2019 the Registrar wrote to Mr Whiting about reports of his behaviour towards a female driving examiner at his local Driving Test Centre. The letter also referred to allegedly unprofessional and unacceptable behaviour towards another individual. Mr Whiting was reminded of the importance of maintaining proper standards of behaviour.

On 18 May 2022 the Registrar wrote to Mr Whiting about a complaint made against him arising out of his behaviour at the local Driving Test Centre. The Registrar reminded Mr Whiting that DVS staff are entitled to work ‘without fear of reprisal or intimidation’ and pointed out that ‘further incidents’ could result in his name being removed from the Register. His attention was drawn to the code of practice for ADIs and he was urged to read it and ensure that his behaviour was in conformity with it.

On 13 June 2022 an Operations Manager at DVSA wrote to Mr Whiting on the subject of his behaviour. The communication appears to have arisen out of the complaint referred to at para 10.3 above and confirmed an instruction to abide by certain ‘measures’ intended to avoid further similar incidents.

On 23 September 2022 the local Driving Test Centre Manager wrote to Mr Whiting adjusting and extending for a further period of three months the ‘measures’ outlined in the letter of 13 June 2022.

On 17 January 2023 wrote again to Mr Whiting as a consequence of further complaints about his behaviour at and around his local Driving Test Centre, particularly in relation to an identified female Driving Examiner (‘the Examiner’). Reference was made to his aggressive manner, aggressive hand gestures and foul language. The letter pointed out that, regardless of the reason for antipathy between him and the Examiner, he was under a duty to behave in a proper and professional manner at all times. The Registrar stated that he would not be taking the complaint any further on that occasion but that if there was any further complaint over the next two years, further action might follow. The ‘measures’ were further tightened and Mr Whiting was reminded again of the terms of the code of practice for ADIs.

On 24 February 2023 Mr Whiting spoke by telephone to the local Driving Test Manager about the Examiner, stating that he ‘fucking hated her’ and that she was a ‘cunt’. He further said that he would drive his car at her and run her over and would get a baseball bat and cave her head in until she died.

The Registrar was made aware of the incident of 24 February 2023 and, on 1 March 2023, wrote to Mr Whiting stating that, in light of that incident, he was considering removing him from the Register. Written representations were invited.

Mr Whiting responded the same day, insisting that he had spoken ‘very calmly’ during the telephone conversation and had explained that he was the innocent victim of a long campaign of hateful and malicious lies directed at him by the Examiner, which had been harmful to his mental health. He also angrily attacked the Registrar for (as he saw it) taking the Examiner’s side and failing to protect him.

There was a police investigation into the incident of 24 February 2023 and, on 21 April 2023, Mr Whiting was arrested and bailed with conditions prohibiting him from contacting the Examiner and (save for work purposes) the local Driving Test Manager.

On 9 June 2023 the Registrar was informed that Mr Whiting had made further threats towards the Examiner when attending an appointment with his GP. This had resulted in the police being contacted. By an email of 19 June 2023 a police officer told the Registrar that the threats had been in the nature of a ‘throwaway comment’.

Also on 19 June 2023 the Registrar wrote to Mr Whiting advising that he was considering removing his name from the Register on the ground that he had ceased to be a ‘fit and proper person’ to have his name entered on the Register. The Registrar cited in support the events of 24 February and 19 June.

On 4 July 2023 solicitors instructed on behalf of Mr Whiting wrote to the Registrar on his behalf. They accepted that his behaviour on 24 February 2023 had been ‘extremely angry and emotional’ and explained that the Examiner’s ‘harassment’ over an extended period had harmed his mental health. That said, as had been explained to the police, there had never been any possibility of the threats being put into effect. As for the events of 19 June 2023, Mr Whiting had merely referred to mental health difficulties (including suicidal ideation) consequential (he said) upon the Examiner’s treatment of him. He had made no threat to harm the Examiner. Moreover, the bail conditions imposed by the police were unremarkable and nothing of significance could be read into them and Mr Whiting expected to receive confirmation that the police would be taking no further action.

As we have mentioned, the Registrar’s decision to remove Mr Whiting from the Register was conveyed in a letter of 5 July 2023. His reasons were stated as follows:

At a hearing before the Magistrates’ Court on 27 March 2024 Mr Whiting was convicted upon a plea of not guilty of an offence arising out of the telephone conversation of 24 February 2023. He was fined, ordered to pay costs and made the subject of a restraining order.

Mr Whiting told us that he has appealed (presumably against both conviction and sentence) and is awaiting a hearing date in the Crown Court.

The quality of Mr Whiting’s performance as a driving instructor over many years is not in question in this appeal.

Mr Whiting made many points in support of his appeal before us. They did not depart materially from his written case. The central theme, much repeated, was that he is the victim of a huge injustice in having suffered harassment over many years in numerous forms at the hands of the Examiner and that the injustice was now aggravated to an intolerable degree by the action of the Registrar in seeking, quite without justification, to penalise him for his victimhood. He also placed emphasis on his long career as a driving instructor, his unquestioned competence in the role and the damage which he would suffer if he was precluded from pursuing it.

In our view, the Registrar’s decision was right and there is no good reason to interfere with it. We have several reasons. In the first place, it is obviously a matter of public importance that the profession of driving instructor is properly and firmly regulated. This involves ensuring not only that practitioners have the necessary skills and aptitude but also that their behaviour is such that the public can place trust in them generally. This priority finds expression in the Act, as was pointed out in the passage from Harris cited above, which stresses that the ‘fit and proper person’ condition is related explicitly to membership of the Register.

Secondly, the history of warnings is eloquent of Mr Whiting’s resistance to guidance about his conduct. This is not a case of a penalty which comes out of the blue. Quite the reverse. Moreover, it is as well to remember that the episode of 24 February 2023 came a mere five weeks after the most recent warning.

Thirdly, it was, to us, disappointing and surprising that Mr Whiting showed no sign of remorse in arguing his case before us. Despite the wise approach of his solicitors in acknowledging what had to be acknowledged regarding the events of 24 February 2023, in his presentation before us he accepted no fault and expressed no regret. Even when directly offered the chance to say whether he would reproach himself in any respect regarding his behaviour, his answer was a firm no. That answer served only to strengthen our impression of an individual with no intention of behaving differently in the future if given yet another chance.

Fourth, while it is certainly right that no doubt has been raised concerning the quality of Mr Whiting’s work when giving driving instruction, that point carries fairly limited weight. He is, after all, an instructor of many years’ experience. What is troubling to us is that that experience seems not to have brought with it the capacity to control his behaviour towards persons with whom his work brings him into contact.

Fifth, we acknowledge (with regret) the serious blow which our decision will represent for Mr Whiting, but we judge it necessary on the material before us. Those trusted with membership of the Register are under a continuing duty to maintain proper standards of behaviour. It is the duty of the regulatory system to uphold those standards and not permit them to be eroded.

For the reasons stated, we must dismiss the appeal.