‘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 on20 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.’
‘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 ofs.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): “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”. 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.’
‘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 on21 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’