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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Middleton v Dundee City Council & Anor [2000] ScotCS 189 (7 July 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/189.html Cite as: [2000] ScotCS 189 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Prosser Lord Philip Lord Caplan |
0/33/17(16a)/99 OPINION OF THE COURT delivered by LORD PHILIP in APPEAL From the Sheriffdom of Tayside Central and Fife at Dundee by ROBERT JOHN MILVEEN MIDDLETON Pursuer and Respondent; against (FIRST) DUNDEE CITY COUNCIL and (SECOND) THE CHIEF CONSTABLE OF TAYSIDE POLICE Defenders and Appellants: _______ |
Act: Stuart; McMichael Grieve & Alexander (Solicitors Dundee) (Pursuer and Respondent
Alt: Sir Crispin Agnew of Lochnaw, Q.C.; Haig-Scott & Co. (First Defenders and Appellants)
7 July 2000
[1] This is an appeal against an interlocutor of the sheriff at Dundee dated 4 February 1999, reversing the decision of the Licensing Committee of Dundee City Council dated 25 June 1998 suspending two taxi licences held by the appellant, one of which was granted on 11 September 1985 and the other on 11 July 1990. At the meeting of the Committee on 25 June 1998 the Committee had before them a complaint dated 25 September 1997 made on behalf of the second defender, the Chief Constable of Tayside Police, asserting that the respondent was no longer a fit and proper person to be the holder of a taxi licence. The ground for the complaint was that since the grant of the licences the respondent had been convicted of a number of offences and had incurred a fixed penalty, all as set out in appendices to the complaint. The complaint also contained the information that the respondent's conduct had previously been reported to the Committee and that on 5 October 1995 he had received a warning regarding his conduct. Since then he had been convicted on two further occasions. The convictions and fixed penalty referred to were as follows:
" Spent Convictions
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Date |
Court |
Offence |
Penalty |
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17.06.1986 |
Dundee District |
Speeding |
£40 Fine Licence Endorsed 3 Penalty Points |
|
16.06.1988 |
Dundee Sheriff |
(1) Careless driving (2) Fail to stop after an accident |
(1) £60 Fine Licence Endorsed 5 Penalty Points (2) Licence Endorsed |
|
12.06.1990 |
Dundee District |
Speeding |
£70 Fine Licence Endorsed 3 Penalty Points |
Current Convictions
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Date |
Court |
Offence |
Penalty |
|
13.09.1994 |
Dundee District |
Road Traffic Act 1988, Section 36 - fail to comply with red traffic light signal |
£90 Fine Licence Endorsed 3 Penalty Points |
|
20.06.1997 |
Cupar District |
(1) Road Vehicles Lighting Regulations 1989, Regulation 23(1) - defective lamps (2) Road Traffic Act 1988, Section 164(6) - fail to produce driving licence for examination |
(1) £70 Fine
(2) £30 Fine |
|
19.08.1997 |
Dundee District |
Road Traffic Regulation Act 1984, Section 84 And 89(1) and the Tay Road Bridge (Speed Limits) Order 1992 - speeding |
£70 Fine Licence Endorsed 3 Penalty Points |
Fixed Penalty
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Date Of Offence |
Offence |
Penalty |
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05.12.1985 |
Fail to comply with a stop sign |
Fixed Penalty Licence Endorsed 3 Penalty Points".
|
[2] After a hearing at which the respondent and the second defender were represented the Committee suspended the two licences. Their reasons were given in a letter to the respondent's agents dated 22 July 1998 in the following terms:
"The Committee suspended the two licences in terms of paragraph 11(2)(a) of Schedule 1 to the Civic Government (Scotland) Act 1982 for its unexpired period. The Committee considered that your client was no longer a fit and proper person to be the holder of two taxi operator's licences. The Committee were aware that your client had two separate taxi operators licences but considered that the same issues applied to both licences. The Committee took into account the letter from the Police and the statements made by Chief Inspector Shepherd. The Committee also considered the points made by your Mr McBean but disagreed that it was not an appalling record. Your client has illustrated over a long period of time his complete disregard for road traffic legislation. The Committee considered that what was before them was a pattern of irresponsible behaviour which illustrated that the applicant was not a fit and proper person to be the holder of these taxi operator licences. The Committee had given your client a warning on 5th October 1995 but despite that he proceeded to thereafter break the law on two occasions. In particular your client's disregard for the safety of his private car regarding driving with defective lights in Guardbridge was a serious matter which goes to the heart of the obligations of a taxi licence holder. Having been given the opportunity to fix the defect within 21 days, the Committee were very concerned that your client had failed to make the repair and failed to hand over his documentation. Your client's conviction for failing to stop at an accident was a serious offence and was of great concern to the Committee when considering the fitness of any licence holder of any type. The Committee did not accept your Mr McBean's explanation regarding his failure to stop at an accident. A note could have been left on the vehicle or alternatively the police telephoned. Whilst the other convictions for road traffic offences applied more obviously to taxi driving, the Committee considered that some weight could be given to them given that they added to the picture as a whole of an individual with scant regard for authority. Having been given a warning in 1995, your client failed to heed that warning and as such his illustrated himself to be unfit to be the holder of these two taxi licences. The Committee decided to suspend your client's licence for its unexpired period, a lesser period being inappropriate given your client's appalling record of offences over a lengthy period and given that the Committee could not trust your client to act responsibly."
[3] The respondent then appealed to the sheriff, and after a hearing the sheriff, by interlocutor dated 4 February 1999, sustained the appeal and reversed the decision of the Committee. After outlining the respondent's convictions for road traffic offences and making reference to the warning given by the Committee on 5 October 1995, the sheriff in his note gave the following reasons for his decision:
"It is clear from the statement of reasons that the first defender now founds, to some extent at least, on the cumulative affect of all the pursuer's convictions in support of the contention that the pursuer is '...an individual with scant regard for authority...' and thus no longer fit to hold two taxi operator licences.
In giving the opinion of the Court in MacDowall v. Cunninghame District Council [cit. supra], Lord Justice-Clerk Ross (at page 664) said:
'...disregard of the law in relation to speeding would not in our opinion have any [emphasis supplied] relevance to the question of whether or not an application for renewal of a taxi licence should be granted...'
In the same paragraph, His Lordship continued:
'...when considering whether to grant or renew a taxi licence, a licensing authority is principally concerned with the suitability of the vehicle to be used as a taxi and not with the suitability of the applicant as a driver...'
It seems to me, therefore, that the first defender erred in law in giving any consideration whatsoever to the speeding convictions of 17.6.86, 12.6.90 and 19.8.87. In addition, in my opinion the first defender erred in law in taking into account the convictions for careless driving (16.6.88); failure to comply with a stop sign (5.12.85); and failure to comply with a red traffic signal (13.9.94), all of which are relevant to suspension of a taxi driver licence, but not to suspension of a taxi licence. It follows that the committee's decision, insofar as founded upon those convictions, cannot be sustained.
The remaining convictions involve failure to stop after an accident (16.6.88) and, on 20.6.97, (a) using a private car with a defective rear lamp and (b) failure to produce a driving licence within the specified time. There is no substantial dispute about the facts giving rise to these convictions.
With some hesitation, I have come to the conclusion that these remaining convictions provided relevant material which the committee was entitled to take into account in relation to the suspension of the pursuer's taxi licences. I am conscious that the weight to be attached to relevant material is a matter for the committee and that unless the committee acted unreasonably it is not for me to interfere with its decision.
However, in my opinion no reasonable committee could have arrived at the view at which this committee arrived (viz. that the pursuer was a person who had illustrated over a long period of time his complete disregard for road traffic legislation; that he is an individual with scant regard for authority; and thus unfit to hold taxi licences) on the basis of these convictions, singly or cumulatively.
Accordingly, I have sustained the appeal and reversed the decision of the first defender's committee."
[4] In presenting the appeal counsel for the appellants argued that the sheriff had erred in concluding that the respondent's three speeding convictions and three other convictions, which were for offences relating to the mode of driving, could not be relevant to the question whether the respondent was a fit and proper person to be the holder of a licence in terms of paragraphs 5(3)(a)(ii) and 11(2)(a) of Schedule 1 to the 1982 Act. These other convictions were a conviction for careless driving in 1988, a conviction for failure to comply with a stop sign in 1985 and a conviction of failure to comply with a red traffic signal in 1994. The Committee were entitled to look at the respondent's convictions as a whole, together with the fact that he had received a warning in 1995, and to come to a view based upon the pattern of conduct which emerged from them on his fitness to hold a licence. The sheriff had concluded that the decision in MacDowall v. Cunninghame District Council 1987 S.L.T. 667 had the effect of prohibiting the Committee from taking into account speeding and other convictions involving the mode of driving in assessing the respondent's fitness to hold a taxi licence. That was wrong. Such driving convictions were only irrelevant in so far as they were treated as demonstrations of the quality of the respondent's driving. If, however, when considered together, they revealed a pattern of behaviour they were relevant as an indicator of the respondent's character. Counsel for the appellants also made the point that the sheriff was wrong to reverse the Committee's decision. The correct course for him to adopt would have been to remit the case back to the Committee to apply their minds to the question of suspension in the light of his view as to the correct approach in law.
[5] Counsel for the respondent argued on the basis of MacDowall that convictions related to the mode of driving such as speeding could never be relevant to the grant or suspension of a taxi licence, and that the sheriff was right to conclude that the Committee had erred in regarding them as such. To be relevant, any conviction must relate to an offence which has a bearing on the operation of taxis. The driving of a vehicle and the operation of a taxi are entirely different activities. In any event, counsel argued, no reasonable Committee could have concluded that the offences in question could have led to the view that the respondent had "scant regard for authority". There was nothing in the material before the Committee which was indicative of any failure or shortcomings on the part of the respondent as an operator of taxis. In relation to the argument that the sheriff should have remitted the matter back to the Committee, counsel argued that the sheriff was right to decide the matter himself, since the three convictions which he considered to be relevant to the issue before the Committee would not, on any reasonable view, on their own have given rise to an inference that the respondent was not a fit and proper person.
[6] Parliament has left the decision on propriety and fitness to hold a taxi licence to local committees because they are considered to be best placed to assess the needs of, and the standards of service appropriate to their area and, to that end, to determine the calibre of individual who is to be entrusted with the provision of this important public service. In our view the court should be slow to lay down hard and fast rules of general application as to the matters which are relevant or irrelevant to the consideration of these questions by Committees. The Committee in this case received a complaint from the police and proceeded to consider it in terms of paragraph 11 of Schedule 1 to the 1982 Act. As well as the convictions, to which we have already referred, the Committee were made aware that two of them had occurred after the respondent had received a warning about his conduct from a previous Committee. That and the fact that in 1997 he had failed to take advantage of an opportunity to remedy a defective light could be regarded as indicative of a frame of mind which treated compliance with the law as of little consequence. The Committee went on to make it clear in their decision letter that they did not have regard to the convictions from the point of view of the respondent's fitness to drive a vehicle providing a public service, but looked at the totality of matters brought to their attention with a view to determining whether he was a fit and proper person to be the holder of a licence. They concluded that the information before them disclosed a pattern of irresponsible behaviour which created a picture of "an individual with scant regard for authority". In our view the approach of the Committee cannot be faulted. Having considered the material before them they asked themselves the right question and duly came to a view which cannot be characterised as unreasonable.
[7] Counsel for the respondent placed considerable reliance on the decision of the Second Division in MacDowall. In that case the sheriff and the local authority refused to renew the appellant's taxi and taxi driver licences, basing their decision on three convictions for speeding accumulated in a six month period. The report reveals that the two applications were considered together by both the sheriff and the local authority and that both failed to recognise that different considerations might apply to the two applications. It is also clear that both the sheriff and the local authority in fact failed to give separate consideration to them. Counsel relied particularly on a passage in the opinion of the court delivered by the Lord Justice Clerk at page 664E, where his Lordship said:
"There is a second and more fundamental reason for concluding that the Committee and the sheriff had erred in law. The appellant here had these three previous convictions for speeding in a period of approximately six months. Although a licensing authority was not bound to conclude in the light of that history that he was not a fit and proper person to be the holder of a taxi drivers' licence, it is a matter of concession that a licensing authority was entitled so to conclude. To disregard the law relating to speed limits on three occasions within six months could reasonably be regarded as a reason for not renewing an application for a taxi drivers' licence. However, disregard of the law in relation to speeding would not in our opinion have any relevance to the question of whether or not an application for renewal of a taxi licence should be granted. It might be different if the disregard of the law related to some other aspects of road traffic law. Thus if an applicant for renewal of a taxi licence had contravened Motor Vehicles (Construction and Use) Regulations or a provision such as section 143(1) of the Road Traffic Act 1972 (dealing with insurance) such disregard of the law might well be held to affect the applicant's fitness to hold a taxi licence. That was not, however, the position here. The only disregard of the law relied on related to the speeding offences committee by the appellant."
[8] Counsel for the respondent argued in the light of that passage that any conviction concerned with the act or the mode of driving was irrelevant to the consideration of fitness to hold a taxi licence. In our view the passage quoted does not justify that interpretation. It must be looked at in the context of the case to which it related. In that case there was no consideration of the appellant's fitness to hold a taxi licence separate from the consideration to his fitness to hold a taxi driver's licence. The convictions for speeding were put forward as evidence of faulty driving and nothing else. There was no suggestion that they were to be looked at in any way as indicating the nature of the character of the appellant. In these circumstances we consider that the passage falls to be read as relating to convictions which are put forward as evidence of bad driving alone. It should not, in our view, be read as preventing the consideration of driving convictions as an indicator of the individual's character in the assessment of his fitness and propriety to be the holder of a licence. In the present case there were a number of features which entitled the Committee to assess the respondent as they did. There were two failures to comply with stop signs of one kind or another. There was a failure to stop after an accident. There was the failure to rectify the defective lamp within the period allowed, and the failure to produce a driving licence when requested. There was also the failure to take any notice of the warning given by the Committee. In all these circumstances we consider that the Committee had material before them on which they were entitled to conclude that the respondent was not a fit and proper person to be the holder of a licence. It follows that the sheriff erred in finding that the Committee had misdirected themselves in law. We therefore sustain the appeal and restore the decision of the licensing Committee dated 25 June 1998.
