Scottish Sheriff Court Decisions

 

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

     

JUDGEMENT   of   SHERIFF K A McLERNAN   in causa   RITCHIE   Pursuer   against   ABERDEEN CITY COUNCIL   Defenders     _____________________

 

 

 

 

ABERDEEN, 19^th October 2009.

 

In this summary application the pursuer craves reversal of the decision by the Aberdeen City Council Licensing Committee to refuse the pursuer's application to them for renewal of a taxi driver's licence.

 

Schedule 1 to the Civic Government (Scotland) Act 1982 sets out procedural rules in respect of the licensing system. Section 18 of said schedule allows a disappointed applicant to appeal to the sheriff against any decision of the licensing authority by way of summary application.

 

In terms of sub-section 7 of Section 18, the sheriff may uphold an appeal only if he considers that the licensing authority in arriving at their decision (a) erred in law; (b) based their decision on any incorrect material fact; (c) acted contrary to natural justice or (d) exercised their discretion in an unreasonable manner.

 

In terms of sub-section 9 of Section 18, on upholding an appeal under this paragraph the sheriff may (a) remit the case for reconsideration to the licensing authority or reverse or modify the decision of the authority. In this case, the appellant seeks reversal and now relies only on grounds (c) and (d) above.

 

There was no dispute on the facts and no evidence was led. The appellant had exercised his right to seek a statement of reasons (cf Section 17) from the respondents and that was produced.

 

The agreed factual background therefore appeared to be as follows.

 

The appellant had held a taxi driver's licence since September 2006. Such a licence lasts for a period of three years (cf Section 8(2)).

 

On 7^th December 2007, the appellant was convicted of a contravention of Section 5(1)(a) of the Road Traffic (Scotland) Act 1988. This offence was not committed while he was acting as a taxi driver. He was fined £300 and disqualified for a period of twelve months. The criminal court who dealt with that matter, however, also allowed the appellant to participate in the Drink Driver's Rehabilitation Course and, on satisfactory completion of that authorised reduction in disqualification period from twelve months to nine months. The appellant did successfully complete the course and the disqualification was reduced to nine months.

 

During the period of disqualification, he was, of course, unable to operate his taxi and he had surrendered to the local authority his taxi plates and certificate of authority to use his vehicle as a taxi. Once the appellant's licence to drive was restored to him he sought to recover the plate and certificate from the local authority and the local authority did return these items on 7^th September 2008.

 

The appellant required to apply for renewal of his taxi driver's licence in September 2009 and that application was made and considered by the licensing committee at their meeting of 28^th November 2008.

 

The appellant attended the meeting of the licensing committee and at the invitation of the committee addressed the committee pointing out that he owned his own taxi, had only one offence and had had his disqualification period reduced to nine months. For the purposes of the licensing committee meeting, the Chief Constable had written to the licensing committee objecting to the renewal of the appellant's taxi driver's licence on the grounds that in the opinion of the Chief Constable the appellant, due to the nature of his conviction, was not a fit and proper person to be a licensed taxi driver.

 

The appellant's first ground of appeal was that the committee had failed to accord him the provisions of natural justice in that they had failed to enquire into the circumstances of the offence and furthermore they had acted arbitrarily in that they had granted a licence to another taxi driver who had a similar conviction. In the absence of any explained distinction between the grant on the one hand and the refusal on the other hand there was a patent arbitrary use of power and denial of natural justice.

 

The second ground of appeal was that the committee had failed to exercise their discretion reasonably. The appellant appeared to rely on seven pillars of unwisdom as follows; (1) failure to comply with natural justice as forementioned was ipso facto unreasonable; (2) failure to distinguish the levels of seriousness of the offence was unreasonable; (3) failure to take into account the reduction on the period of disqualification was unreasonable; (4) acquiescence in the return of the licensing plates for his taxi and in his continuing to operate his taxi until November 2009 rendered a subsequent refusal unreasonable; (5) failure to recognise his good record prior to conviction was unreasonable; (6) finally, failure to enquire from him the details of the background to the conviction was unreasonable especially as he was not represented by a solicitor. Finally, (7) it was submitted that the decision of the licensing committee appeared to indicate that there was an irrebuttable presumption that a conviction under Section 5(1)(a) as aforesaid would lead to a decision of unfitness to hold a taxi driver's licence. Such a decision was patently wrong and should be reversed by the court.

 

The appellant preferred that the court should simply reverse the decision as any remit back to the same committee would not appear to accord with justice being seen to be done.

 

The respondents' solicitor submitted that the reference to the Taxi Plating Regulations was irrelevant as was the fact that the committee did not seek to exercise their powers to revoke the existing licence.

 

At the time of renewal it was argued the committee is under a duty to ask themselves if an applicant is a safe and responsible person. Each application before the committee has to be dealt with separately and each depends on its own facts and circumstances. Reference was made to the case of Cashley v Dundee City Council. The very peculiar circumstances of that case were distinguishable from this case. There was absolutely no basis in this case for suggesting there was any policy. A licensing committee is entitled to regard any conviction under Section 5(1)(a) of the Road Traffic (Scotland) Act 1988 as a serious matter and it is not for the committee to enquire into whatever mitigating factors may or may not have been laid before a criminal court. The licensing committee decision was clearly stated in their statement of reasons and it is plainly well within the range of reasonable decisions open to them. Accordingly, this appeal should be refused.

 

Dealing first with the submission that the licensing committee acted contrary to natural justice, I find myself not persuaded by that argument. The content of the letter of objection was made known to the appellant and to the licensing committee. He was given and took the opportunity to address the committee and put before them any matter he wished them to consider. The committee had before them his record and his conviction and the inescapable deduction that what the licensing committee regarded as a serious offence had been committed within 15 months of his being granted a taxi driver's licence. The licensing committee are entitled to take a view on that conviction in considering whether the applicant has demonstrated that he is responsible and reliable as a taxi driver holding a licence from that licensing committee. It would seem to me there is no discernible departure from natural justice in the procedure or approach of the licensing committee.

 

With regard to the second basis of the appeal, I can see no basis in fact for the submission that the licensing committee did not take into account the appellant's record. The record was before them and the record indicates that he was a relatively new holder of a taxi driver's licence, was convicted of a significant road traffic offence within 15 months of getting his licence. He was questioned about the conviction and he gave explanation to the committee including the fact that his disqualification had been reduced. There is no basis for the submissions that the licensing committee did not take that into account. It is clear from the statement of reasons that the licensing committee considered whether the applicant was a fit and proper person. It is clear that in that consideration they used the criterion of whether he was a responsible and reliable person. They appear to have reached a conclusion that a person who has committed an offence of driving with more than the permitted amount of alcohol in his system is a person who does not disclose the standard of responsibility and reliability which they seek in a taxi driver which they licence. The fact that the licensing committee did grant a licence to another applicant who had, according to the pleadings, a record of 30 years unblemished driving indicates that there is not a policy applied to all such offenders regardless of record. On the contrary it suggests that distinction is made and that the licensing committee do in fact pay attention to a record of blameless driving as well as incidents of blameworthy driving.

 

I agree with the solicitor for the respondents that the return of the taxi licence is a purely administrative decision and it does not imply that there has been any assessment of suitability which was later changed. The fact that the licensing committee did not exercise their power to revoke the licence earlier does not seem to me to preclude the licensing committee from considering at a renewal application whether or not the applicant continues to be a fit and proper person to hold a licence. There is not apparent to me that there is any factor which the licensing committee ought to have taken into account and have failed to do so, or that there is any factor that they have taken into account that they ought not to be taken into account. The licensing committee appear to have reached a conclusion that a person who has committed a serious offence of driving contrary to Section 5(a)(1) as aforesaid during the currency of his first licence has not shown that he is a responsible and reliable person and in their view is not a fit and proper person to hold a licence. I cannot see that that view is beyond the bounds of a reasonable exercise of discretion and I require to refuse this appeal.

 

 

 

 

 

 

 

 

 

 

 

 

NOTE:

 

The following cases were referred to in the course of submissions.

 

Cashley v City of Dundee District Council 94 SLT 1111

Christie v Aberdeen City Licensing Committee 2001 SLT 167

Noble v City of Glasgow District Council 95 SLT 1315

Ward v City of Dundee Council 99 SLT 1999

Randehan v Renfrew District Council 91 SLT 625