Danny Cloke v Registrar of Approved Driving Instructors

Introduction

1. This appeal concerns a decision of the Registrar of Approved Driving Instructors (“the Registrar”) made on 21 March 2025 to remove the Appellant’s name from the Register of Approved Driving Instructors (the “Register”). The decision was taken on the grounds that the Appellant had ceased to be a fit and proper person to be an Approved Driving Instructor (“ADI”). This was due to the Appellant having received a fixed penalty notice (“FPN”) on 5 February 2025 for “supervisor of provisional licence holder – use of hand-held mobile phone/device.” The offence carries a mandatory 6 penalty points. The Registrar directed that the decision would not take immediate effect.

2. The proceedings were held by video (CVP). All parties joined remotely. The Appeal

3. The Appellant’s Notice of Appeal dated 11 April 2025 relies on the grounds that: (a) Whilst conducting a driving lesson with a student on 5 February 2025, the Appellant was stopped by a Police Officer for using a mobile device. At the time of the offence the Appellant’s own vehicle was under repair and he was using a temporary vehicle to continue work. The student was under tuition and in control of the vehicle. The Appellant was instructing from the passenger side and not driving the vehicle himself. (b) The lesson was dedicated to driving with the additional aid of satellite navigation via an Android phone wired connection to the vehicle main screen. The connection and setting up were completed prior to driving off on the lesson. (c) The phone was placed on the centre console of the vehicle. The Appellant had no reason to touch the phone again until the lesson had concluded. During the lesson the phone somehow came loose from the centre console upon rounding a corner whilst driving in Reigate town centre. The phone fell into the front passenger footwell by the dual controls. (d) The Appellant was concerned the phone would slip under one of the pedals whilst driving. Instinctively, he reached down to retrieve the phone thus avoiding any potential safety issues. (e) The Appellant proceeded to reconnect the lead to the phone. In doing so, he held the phone up high in order that he could continue to look around whilst the student was driving. (f) The Appellant absolutely understands that he should have waited until the vehicle had pulled over before picking up and reconnecting the phone. It was an instinctive reaction whilst driving at 10mph along a busy high street with stopping restrictions. Two Police Officers on the pavement observed the Appellant with the phone in his hand. He was later pulled over by another Officer. (g) It is understood that no learner driver can ever be capable of driving unsupervised until they pass the driving test. As an experienced ADI the Appellant would never have attempted to take his eyes off the road had the student not completed over 20 hours of tuition with himself, plus many hours with his parents and a previous ADI. (h) The Appellant is fully aware of the rules, regulations, requirements and standards required of all ADIs. As an ADI for over 20 years, the Appellant says he has never dropped those standards. The Appellant pleads for a second chance and not to take away his career, livelihood and very possibly his home. (i) It was a genuine mistake not to notify the DVSA of the FPN within the required timescale. The Appellant believed he had up to 28 days to make the notification.

4. The Registrar’s Statement of Case dated 1 September 2025 resists the appeal. The Registrar says that: (a) On 7 February 2025 the DVLA notified the Registrar that the Appellant had on 5 February 2025 accepted a FPN for “breach of requirements as to control of the vehicle (includes mobile phone offences)”. This resulted in the Appellant’s licence being endorsed with 6 penalty points. The Appellant failed to notify the DVSA within 7 days in clear breach of the declaration made on his application to extend his registration. Due to the undeclared FPN, the Registrar considered the Appellant was not a fit and proper person to have his name retained on the Register. (b) Conditions for entry onto the Register extend beyond instructional ability alone and require the applicant to be a fit and proper person. Account is taken of a person’s character, behaviour and standard of conduct. An ADI is expected to have standards of driving and behaviour above that of the ordinary motorist. (c) Teaching (generally) young people to drive as a profession is a responsible and demanding task that should only be entrusted to those with high standards and a keen regard for road safety. In committing the offence, the Registrar does not believe that the Appellant has displayed the level of responsibility or commitment to improving road safety expected of a professional ADI. (d) The Government increased penalty payment levels for serious road safety offences, including the requirement to control a vehicle (e.g. mobile phone use). Such offences contribute to a significant number of casualties. Using a mobile phone contributed in 2020 to 17 deaths, 92 serious injuries and 97 minor accidents. (e) As an officer of the Secretary of State charged with compiling and maintaining the Register, the Registrar cannot condone motoring offences of this nature. To do so would effectively sanction such behaviour, if those who transgress were allowed to remain on the Register. (f) It would be offensive to other ADIs and persons trying to qualify, who scrupulously observe the law, to ignore this recent relevant conviction. The Law

5. 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, as set out in sections 125(3) and 128(2)(e) of the Road Traffic Act 1988 (“ the Act ”).

6. The Registrar can remove a person’s name from the Register if satisfied they have ceased to be a fit and proper person to have their name on the Register ( section 128(2) (e) of the Act ). The Registrar may take the view that a person no longer meets this requirement where there has been a change in circumstances.

7. The powers of the Tribunal in determining this appeal are set out in section 131 of the Act . The Tribunal may make such order as it thinks fit ( section 131(3) ). The Tribunal stands in the shoes of the Registrar and takes a fresh decision on the evidence available to it, giving appropriate weight to the Registrar’s decision as the person tasked by Parliament with making such decisions (in accordance with R. (Hope and Glory Public House Ltd) v City of Westminster Magistrates Court & Ors [2011] EWCA Civ 31 ).

8. In Harris v Registrar of Approved Driving Instructors [2010] EWCA Civ 808 , the Court of Appeal described the “fit and proper person” condition as follows: “.. 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…It seems to me that the maintenance of public confidence in the register is important .” [paragraph 30]. The Evidence

9. We have considered a bundle of evidence containing 45 pages. This includes two copies of the First-tier Tribunal’s decision in Polyak v Registrar of Approved Driving Instructors [2024] UKFTT 1091 (GRC). At the hearing, Mr Cloke confirmed that there was another decision he wished to bring to the Tribunal’s attention involving mobile phone use. He had inadvertently omitted to submit it for inclusion within the bundle. As Mr Cloke could not recall or locate the details of the case, we have been unable to consider it.

10. Aside from the bundle, we have also considered the oral submissions made at the hearing by the Appellant and the Registrar. Submissions

11. At the hearing, Mr Russell summarised the Registrar’s statement of case. He added that the Appellant had said that the phone was being used as a satellite navigation device. The reasons do not mitigate or explain the offence. The Appellant said he tried to reconnect the phone to the onboard system after it had fallen into the footwell. The Appellant should have had the knowledge and experience to know how to respond safely. An ADI should teach pupils about this type of distraction. A higher standard is expected of an ADI than an ordinary motorist.

12. The Appellant recounted the circumstances leading to the FPN as recorded above. He added that the pupil under supervision was of a very high standard and passed their test the following month. The vehicle was a VW Polo with dual controls that was on loan whilst his own Ford Puma was under repair. It was his first day using the loan car. The Appellant clarified that the photographs supplied of a VW car interior within the bundle are standard stock photographs rather than the vehicle in question.

13. As he was unfamiliar with the loan car satnav, the Appellant had plugged in his own mobile phone. The image was displayed on the vehicle screen in the centre of the dashboard. When the Police Officer required them to pull over, the pupil thought he had done something wrong. Afterwards, the pupil told the Appellant he had not even seen the mobile phone in his hand.

14. It was the Appellant’s submission that he told the Police Officer that he was plugging the phone back in. The Police Officer had said something like: “ You can’t do that. You can’t have the phone in your hand ”. The Appellant had replied: “ I know ” and accepted the FPN. When asked by the Tribunal panel why he had not refused the FPN and pleaded ‘not guilty’ to explain the circumstances in the Magistrates Court, the Appellant said he appreciated what the Police Officer had said. He did not want to delay the pupil’s lesson. He preferred to accept the FPN rather than prolong things. Had he known the FPN would result in his removal from the Register, the Appellant said he would have contested it.

15. The Appellant referred to his impeccable driving record of 36 years. Never before had he needed to notify the Registrar of an offence and mistakenly believed he had 28 days. Relevant Facts

16. Apart from short periods following the expiry of his certificates of registration in 1998 and 2010, the Appellant’s name has been on the Register since December 1989. In the normal course of events his current certificate of registration will expire on 30 June 2026.

17. The Appellant accepted a FPN resulting in 6 penalty points on his driving licence for mobile phone use while supervising a pupil on 5 February 2025.

18. The Surrey Police Traffic Offence Report which describes the offence on 5 February 2025 at 11.50 as: “Supervisor of provisional licence holder use hand-held mobile phone/device”. The location is given as High Street, Reigate.

19. The Appellant failed to notify the DVSA within 7 days of accepting the FPN.

20. By letter sent by email on 20 February 2025, the DVSA notified the Appellant that the Registrar was considering removing his name from the Register on the grounds that he ceased to be a fit and proper person. The Appellant was given 28 days to make representations.

21. The Appellant made representations by email on 26 February 2025. Those representations correspond with the grounds of appeal. In addition, the Appellant made clear that the FPN was not issued in connection with him being on a phone call. At no point was a phone call in progress. The phone was simply in the Appellant’s hand having retrieved it from the car floor under his feet. All calls are diverted whilst the Appellant is working and all phone notifications are set to silent.

22. Having considered the representations the Registrar decided that the Appellant cannot fulfil section 128(1) (e) of the Act and confirmed the decision to remove the Appellant’s name from the Register on 21 March 2025. That decision has not taken effect pending the outcome of this appeal. Analysis and Conclusions

23. The reasons below explain the majority view and the dissenting opinion of one member of the Tribunal panel. Majority View

24. Undoubtedly, use of a mobile phone by an ADI whilst instructing is a very serious offence. This is reflected in the 6 fixed penalty points for a single offence. The Tribunal notes that the Appellant accepted a FPN believing an offence to be committed by holding the mobile phone.

25. A printout from the Appellant’s mobile phone provider records that an outgoing text was sent at 10.29 on 5 February 2025. The Appellant explained that he texted the pupil upon arrival to say he was ready for the lesson. The Police report records that the offence occurred at 11.50. A screenshot of the Appellant’s outgoing call record is also produced with a view to demonstrating that no call was made from the phone that day. Without complete records, all this information is of very limited value. Moreover, a mobile phone can be in “use” in a multitude of ways not limited to sending or receiving calls or messages.

26. In this instance, the Appellant had picked up the mobile phone after it had fallen from the centre console into the front passenger footwell. On the evidence before us, the mobile phone was in the Appellant’s hand for only the few seconds required to pick it up, re-insert the connecting cable and to replace it in the centre console. Notwithstanding that the Appellant accepted a FPN for using a handheld phone whilst instructing, the Tribunal is satisfied from the Appellant’s account that the phone was not in use.

27. Clearly, the Appellant should have waited until the vehicle had stopped and the ignition switched off before retrieving the phone. The Appellant readily accepts this and expressed deep regret. Even if the phone was not in use, the Appellant’s action whilst supervising a pupil was dangerous however experienced the pupil, not least because he was distracted. It was not possible for the Appellant to keep his eyes on the road at all times during the episode, albeit brief. The vehicle was travelling at low speed, but it was along a busy High Street. The potential ramifications of a learner driver being unsupervised even momentarily in that environment were severe.

28. There was a failure to report the FPN, which is an aggravating factor. However, there is no automatic cut-off or tipping point in law for an ADI ceasing to be a fit and proper person upon receiving 6 penalty points. It is important to assess the circumstances as a whole.

29. This is a very finely balanced case. Of course, there is substantial trust and responsibility placed on ADIs not just by pupils, but other road users and the DVSA amongst others. There is also great importance placed on the reputation and standing of ADIs and the Register.

30. The First-tier Tribunal’s decision in Polyak which was drawn to our attention is but one case where an appeal was allowed for a mobile phone related offence. It is not binding upon us. Indeed, many others could have been produced where the appeal was dismissed. Each case is fact specific and must be assessed on its merits.

31. The majority view of the Tribunal panel is that this was a single instinctive reaction lasting a matter of seconds. Although serious, it does not in the full context of the case render the Appellant as no longer a fit and proper person. We have particular regard to the very long standing and unblemished career of the Appellant as an ADI spanning 36 years or thereabouts. There is a contrary argument that the Appellant should have known better as an experienced ADI and not responded as he did to the fallen phone. However, the Tribunal majority considers that whilst an isolated incident can suffice to warrant removal from the Register, that would be a disproportionate response to the issue of the FPN when the circumstances and Appellant’s record are examined.

32. In arriving at this view, we have taken account of the fact that the Appellant immediately accepted responsibility for his actions. We are satisfied that the Appellant has learned from the episode and will now relay the hazards and risks of handling a mobile phone within a vehicle to his pupils.

33. We have not been swayed by the screenshots of the Appellant’s online reviews. They carry little weight in the assessment of whether the Appellant is a fit and proper person by reason of the 6 penalty points. Dissenting View

34. I do not share the majority view for the reasons below.

35. The Appellant should have taken the matter to court if he disputed the offence. There is no statement from the pupil. The call data is inconclusive showing only outgoing calls. A mobile telephone under pedals would not prevent their use. The Appellant should have familiarised himself with the controls/functions of the replacement car such that it was not necessary to hard-wire his mobile device. As an experienced ADI, the Appellant should be aware of his actions, and consequences. He should be aware of the law and teach by example, avoid any distractions (and anything that could cause one) and lack of attention to the road. An instinctive reaction to a perceived hazard for a trained professional is secondary.

36. There is an expectation that ADIs will have higher standards than ordinary motorists. If an ADI’s name is allowed to remain on the Register when they have demonstrated behaviours which are relevant to fitness, this will diminish the standing of the Register and undermine the public’s confidence in the Register. It will be offensive to other ADIs who abide by the law.

37. The Registrar, in my opinion, was correct and had weighed all the relevant factors. Overall Conclusion

38. The majority view prevails that the public’s confidence in the Register would not be undermined if it were generally known that the Appellant had been allowed to have his name retained on it and the reasons for that decision. By majority decision, the Tribunal concludes on, the balance of probabilities, and by the narrowest of margins that the Appellant is a fit and proper person to have his name retained on the Register. The appeal is allowed.