FT/D/2025/0435 - [2025] UKFTT 01267 (GRC)

Tribunal's review

We considered all the circumstances presented to us. Our role is defined by the Act and in the relevant legal authorities such as Harris and Hope and Glory. Our starting point is therefore to consider and give due regard to the view of, and the Decision made, by the Registrar.

The Appellant is not an ADI. However ADIs and those training to become an ADI are held to a higher standard than ordinary drivers. We accept the Registrar's position in particular noting the harm caused by any use of a mobile device. The public expects the Registrar to work to ensure ADIs are FPP in the wider Harris sense and has the right to expect them to adhere to the highest standards of motoring. It is right for the Registrar to be concerned about a person with 6 points potentially being on the Register and/or giving paid instruction as the holder of a licence. We also noted the 1986 Regs about mobile phone use and the content of the Guidance and the Code on the use of a mobile phone and FPP status.

We took note of what the Appellant said about his honesty and transparency, his commitment to continued professional development and steps taken to ensure the incident does not occur again.

Although we were sympathetic to the potential personal issues raised we did not give much weight to these because the Registrar's need to maintain the integrity of and public trust in the Register is likely always to be greater than the needs of an individual appellant.

We were sympathetic to the submissions made by the Appellant about the financial impact if he were not able to continue as a trainee (although he is not yet an ADI). This is something we expect would be of concern to almost all in this situation. However in our view, while we review all the circumstances and have taken it into account, we do not consider the likely financial impact to be a particularly impactful consideration for a decision about whether a trainee ADI is a FPP. Again the need to maintain the integrity of and public trust in the Register is likely always to be greater than the needs of an individual appellant and we gave this point little weight.

The references were useful and we accept that he is considered to be a good technical potential instructor. Many stated that he did not use a mobile. However, whatever occurred that caused the points to be given was seen by the police who issued a Notice of Intended Prosecution. It was always open to the Appellant to go to court to present his own case, challenge the police evidence and put forward any mitigation. However, he did not do so but instead accepted the 6 penalty points.

The Appellant raised a number of legal points:-

in Barreto the court considered section 41D of the Act and what regulation 110 of the 1986 Regs then said about mobile phone use and driving as at the date of that alleged offence in August 2017. However the 1986 Regs have been updated since Barreto was decided by, for example only, the addition in 2022 of clarity that "using" a mobile includedilluminating the screen and accessing an application. Additionally such submissions might have been relevant as part of any defence of a prosecution in a criminal court but not when considering whether the Registrar was right to challenge the FPP status of a trainee ADI.

the case of R-v-Spurgeon is said to be authority for there being a possible need for drivers to take immediate action in response to unexpected hazards. No copy or citation could be provided and it was not located. However, we accept that reg 110(5) of the 1986 Regs states:-

A person does not contravene a provision of this regulation if, at the time of the alleged contravention—

(a)he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;

(b)he is acting in response to a genuine emergency; and

(c)it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).

Such questions are principally for a court dealing with any prosecution but, in any event, we accept what the Registrar says about the phone being under the footbrake and so we did not conclude that reg 110(5) would have provided a defence in the situation as described to us.

Article 8 of the European Convention on Human Rights as incorporated into UK law by The Human Rights Act 1988 says:-

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "

Even if the Registrar's decision operates as a potential interference with his Article 8 rights (which we did not conclude) the relevant parts of the Act and the maintenance of the Register and other responsibilities of the Registrar exist to ensure that only those who are FPP can be trainee ADIs and then ADIs which is for public safety and to protect others. This did not add weight to his appeal.

in his letter the Appellant referred to the indirect discrimination provisions of section 19 Equality Act 2010 and said that this states that "...decisions must not disproportionately disadvantage an individual unless there is a strong justification". However the Appellant did not claim any "relevant protected characteristic" and this point was not therefore considered further.

The Appellant referred to other cases where use of a mobile and 6 points did not result in the revocation of a licence. While he did not cite any we accept that there are many First-tier Tribunal cases where an appellant with 6 penalty points wins their appeal and also where an appellant with 6 penalty points loses their appeal. Such cases are not binding on us as legal precedents and each case is specific on its facts.