Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> McParland, Re Application for Judicial Review [2001] NIQB 27 (06 July 2001)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/27.html
Cite as: [2001] NIQB 27
[New search] [Printable RTF version] [Help]
Neutral Citation no.[2001] NIQB 27
Ref:
HIGF3469
Judgment: approved by the Court for handing down
Delivered:
06.07.2001
(subject to editorial corrections)
IN THE MATTER OF AN APPLICATION BY JOSEPH McPARLAND FOR JUDICIAL REVIEW OF A DECISION OF THE DEPARTMENT OF THE ENVIRONMENT FOR NORTHERN IRELAND
HIGGINS J
This is an application for judicial review of an ongoing decision by the Department of the Environment for Northern Ireland (the Department) to refuse the applicant a road service licence under Part II of the Transport Act (Northern Ireland) 1967, as amended. By an amended Statement under Order 53 the applicant seeks the following relief:
(a) An Order of Certiorari quashing the ongoing decision of the Respondent refusing to grant him a Road Service Licence;
(b) A declaration that this ongoing decision is unreasonable, unfair and unlawful;
(c) An order of Mandamus directing the Respondent to reconsider its decision according to law;
(d) An order of Certiorari quashing the Road Transport (Qualification of Operators) (Amendment) Regulations (Northern Ireland) 1991 to the extent that they are ultra vires Section 5(2) and Section 6A(1) of the Transport Act (NI) 1967.
(e) Damages for loss of earnings.
(f) Such further and other relief as shall seem appropriate;
(g) Costs."
In September 1997 the applicant applied to the Transport Licensing and Enforcement Branch of the Department (the TLE Branch) for a road service licence. By letter dated April 1998 the applicant was informed that his application was refused on the ground that he was not of good repute. The applicant was convicted on 1 June 1990 at Belfast Crown Court of offences relating to the possession of explosives, firearms and ammunition with intent to endanger life or property and sentenced to 10 years imprisonment. The Court of Appeal dismissed his appeal on 1 March 1991. He was released from prison on 7 March 1995 and would have been under licence thereafter. The applicant applied to the Vehicle Licensing Review Body for a review of the TLE decision. This was unsuccessful.
The applicant is 52 years of age. On his release from prison he was granted a taxi driver's licence and currently has a contract with South Eastern Education and Library Board. He has Certificates of Competence in Road Transport and Management Training. LEDU has provided him with a grant and a loan and he has been awarded funding by the Down Business Centre and the Newry and Mourne Enterprise Fund. He wishes to provide a bus service. He was employed by Ulsterbus for 10 years and has 30 years experience as a driver. In addition he submitted satisfactory references from the Ulsterbus Depot Manager in Newry and a local Minister of Religion.
The application for a road service licence requires the applicant to disclose whether he has ever been convicted of any offence which resulted in a fine or imprisonment. The Notes for Guidance that accompany the application form, state that the applicant for a road service licence must be of good repute. They continue –
"In determining if a person is of good repute, regard will be given in particular to the existence and number of convictions in the preceding 5 years."
On 3 April 1998 the TLE Branch wrote to the applicant in the following terms:
"I am writing to convey the decision of the Department for determination of your application received on 29 September 1997 for a Road Service Licence under the above mentioned Act.
Section 28A(1)(a) (sic) of the above mentioned Act provides that the Department shall refuse to grant a licence unless it is satisfied that the applicant is of good repute and Section 46A(3A)(a) provides that the Department shall determine that a person is not of good repute if he has been convicted of serious offences as defined by Section 46A(3B)(a) of the Act.
You have been convicted of serious offences which under the terms of the Rehabilitation of Offenders (NI) Order 1978 can never become spent. Consequently the Department is unable to satisfy itself that you fulfil the statutory requirements pertaining to good repute and is bound to refuse your application in accordance with section 28(1)(a) (sic) of the above Act as aforesaid.
If you are aggrieved by this refusal there is an optional right of review available to you under the Road Service Licensing Regulations (NI) 1989. Should you wish to exercise that right, however, you must inform the Department in writing within 14 days from the date of this letter.
I would remind you that any person who uses an unlicensed vehicle in carrying passengers by road for reward is guilty of an offence for which a substantial penalty may be imposed by fine upon summary conviction."
The references to Section 28A(1)(a) and Section 28(1)(a) are erroneous.
The applicant's request for a review of the decision was heard on 19 May 1998 and the applicant was informed of its decision on 19 June 1998. In a letter to the applicant's solicitor dated 7 August 1998 the TEL Branch set out the process relating to the review and the final decision. This letter stated –
"The Review Body met on 19 May 1998 to hear Mr McParland's appeal. They listened and discussed the background to this case with McParland. They took into account all information before them which included the Department's input together with Mr McParland's personal comments and explanations including the references supplied by Mr McParland. After considering the representations made to it, it was the Review Body's unanimous recommendation that the Department's former decision on this matter be upheld ie. to refuse the application on the grounds given in the Department's letter dated 3 April 1998.
I should explain that the Review Body is not a statutory appointed body. It was set up in 1972 as an independent body to review appeal cases to make recommendations to the Department. It does not have any power to make decisions an appeal cases. The Review Body can therefore only make recommendations to the Department which then gives a final decision on the appeal case. In this case, the Review Body's recommendation, which based on all of the above factors, was to uphold the Department's decision to refuse an operator's licence on the grounds indicated in its letter of 3 April 1998 to Mr McParland. The Department consequently took a final decision on the matter and this was conveyed to Mr McParland in its letter of 9 June 1998."
The applicant's solicitor then wrote to the First Minister for the Northern Ireland Executive and Assembly. A reply to this letter in the following terms was received from the private secretary to the Minister of the Environment.
"As you will be aware from previous correspondence, the Transport Act (NI) 1967 specifically governs the issue of Road Service Licenses for bus and coach operators. Section 6A(1) of the Act reflects the requirements laid down in EC legislation and requires that all applicants satisfy criteria in relation to financial status, professional competence and good repute. The Department must refuse to grant a Road Service Licence to an applicant unless it is satisfied that the applicant is of good repute. The Department shall determine that a person is not of good repute if he has been convicted of a serious offence (as defined by Section 46A-3A(a) of the Act). Consequently the Department has no discretion in this matter in view of the sentences which have been imposed on Mr McParland and which, under the Rehabilitation of Offenders (NI) Order 1978, will never become spent. The Department must continue to uphold its earlier decision not to grant a Road Service Licence to Mr McParland.
The fact that Mr McParland holds a Taxi Driver's Licence and Public Service Vehicle Licences has no bearing on the treatment of his application for a Road Service Licence, given that different legislation is involved. The Department has no plans to change the existing legislation governing the granting of Road Service Licences."
Thus it can be seen that the Department were of the opinion that an application must be refused unless it is satisfied that a person is of good repute. A person who has been convicted of a serious offence is not of good repute and consequently the Department had no discretion but to refuse the application.
An application for judicial review of the decision to refuse a road service licence was the subject of an oral hearing before Kerr J, when leave was refused. Since then, the applicant's lawyers have twice drawn attention to articles in Commercial Motor reporting decisions of transport commissioners in England where convictions for criminal offences were determined not to bar the grant of a goods vehicle operating licence. On each occasion those lawyers have stated that on their reading of the law the department's original decision was flawed in treating the 1990 conviction as an absolute bar. Each letter asked the Department to 'confirm' that it would 'review this application'. On the first occasion the Department replied that the position had been explained in the department's letter of 3.4.98, that at the application for leave to apply for judicial review both the Court and the Applicant's representatives accepted that the Department's decision was based on the relevant legislation, and that there were no grounds for reviewing the decision given on 9.6.98. On the second occasion the Department replied that it had no discretion in the matter in view of the sentences imposed on Mr McParland, and that on the basis of current legislative requirements under the 1967 Act the Department must uphold its earlier decision not to grant an road service licence. By letter of 24.10.00 Mr McParland's lawyers asserted that on their analysis of the legislation the fact that a conviction could never become spent did not preclude the grant of an road service licence. They added that the position of the Department was incompatible with Mr McParland's rights under Article 6, 7, 8, 14 and Article 1 of the First Protocol of the European Convention on Human Rights. By letter dated 13.11.00 the Department reiterated its contention that the 1967 Act required the Department to refuse an road service licence, and added that the Department did not accept that any incompatibility with Convention rights existed.
A new Order 53 Statement ( subsequently amended ) was filed on 24 January 2001 and leave was granted by Kerr J on 26 January 2001. These matters suggested to the Department that the true purpose of this Application was to relitigate the refusal of the road service licence in 1998, seeking essentially the same relief as was proposed in the Application for leave for judicial review in 1998, but relying on new arguments. The Department's view is that it is in the public interest that the questions of law raised by the new arguments should be resolved. They concern the true construction, and consistency with the European Convention of Human Rights, of the Transport Act (NI) 1967 Act and amendments made to it in order to give effect to European Directives. Prior to the last Directive in 1989, European provisions requiring transport operators to be 'of good repute' had left it to national law to determine the content of that requirement: see directives 74/561/EEC (road haulage) and 74/562/EEC (road passenger transport operators). This was considered unsatisfactory, and proposals for harmonisation eventually led to the conclusion recorded in the preamble to 89/438/EEC that operators' licences should be uniformly conditional on the applicant having no convictions for serious offences. This was made subject to an exception for offences which by the law of the state where the operator seeks to be established are treated as rehabilitated.
The granting of Road Service Licences for bus and coach operators is governed by the Transport Act (Northern Ireland) 1967m Article 4 of which states:
"4.-(1)The Ministry may, subject to and in accordance with the provisions of this Part and Part IV, grant to any person applying therefore a licence (in this Act referred to as a 'road service licence') to provide such a service as may be specified therein for the carriage of passengers and their luggage by road.
(2) Subject to sections 12 and 13 and to regulations made under section 45, no person shall use a motor vehicle, or cause or permit such a motor vehicle to be used, on a road to carry passengers and their luggage for reward except under a licence granted under subsection (1)."
Under Section 5 an applicant for a road service licence is required to give certain information to the Department. Section 5 (now 5(1) by virtue of an amendment but in the same terms as enacted in 1967) reads –
"5.-(1)A person applying to the Ministry for a road service licence shall give such information as may reasonably be required to enable the Ministry to exercise the functions conferred on it by section 6, and in particular shall give (where appropriate) information as to –
(a) the type or types of motor vehicles to be used;
(b) the services which it is proposed to provide under the licence;
(c) the frequency of the services, the times to be taken on the journeys included in those services and the number of vehicles to be used on those services;
(d) any previous experience of the applicant as a person providing any facilities wheresoever for the carriage of passengers for reward;
(e) any agreement or arrangement affecting in any material respect the provision of passenger transport facilities entered into by the applicant with any other person by whom such facilities are provided;
(f) any financial interest (whether past, subsisting or proposed, and whether as a partner or shareholder or as a result of a loan, guarantee or other financial transaction) of the applicant in the provision of any facilities wheresoever for the carriage of passengers for reward, or of any such interest of any other person in any business carried on by the applicant in providing such facilities."
By a Directive dated 12 November 1974 the Council of European Communities adopted provisions on admission to the occupation of road haulage operator ( Directive 74/561 ) and on admission to the occupation of road passenger transport operator ( Directive 74/562 ) in broadly similar terms. It was agreed that the rules for the admission to the occupations road haulage operator and road passenger transport operator should cover the good repute, financial standing and professional competence of operators. Article 3(1) of Directive 74/561 and Article 2(1) of Directive 74/562 state –
Natural persons or undertakings wishing to engage in the occupation of road haulage operator shall:
(a) be of good repute.
The Road Transport (Qualification of Operators)Regulations (NI) 1977 amended the Transport Act (NI) 1967 to comply with Directives 74/561 and 74/562. These Regulations were made under Section 2(2) of the European Communities Act 1972 and Section 45 of the Transport Act (NI) 1967.
The 1977 Regulations inserted, inter alia, a new Section 5(2), a new Section 6A and a new Section 46A. I shall refer to Section 46A later in this judgment. Section 5(2) states –
"5(2) A person applying for a road service licence to which this subsection applies shall in addition to the information referred to in subsection (1) give the Department such information as may reasonably be required to enable the Department to exercise the functions conferred on it by section 6A, and in particular shall give –
(a) particulars of any convictions during the five years preceding the making of the application, and at any time thereafter until the disposal of the application, of the applicant and of any person specified in the application in pursuance of section 6A(2) or (3);
(b) particulars of the financial resources which are, or are likely to be, available to the applicant;
(c) particulars of the professional competence qualifications of the applicant and of any person specified in the application in pursuance of section 6A(2) or (3);
(d) a statement indicating whether or not the applicant intends to use vehicles operated under the licence to provide a service for the carriage of passengers by road elsewhere than in the United Kingdom."
Section 6 of the Transport Act (NI) 1967 is unamended and as enacted states –
"6.-(1)The Ministry shall, in deciding whether to grant or refuse to grant a road service licence or to attach conditions to any such licence, have regard to the interests of persons likely to use the service to be provided under the licence and those of persons holding other road service licences, and in particular shall have regard (where appropriate) to the following matters:-
(a) the suitability of the routes on which the service may be provided under the licence;
(b) the extent, if any, to which the needs of persons likely to use the service to be provided are already adequately and economically served;
(c) any previous conduct of the applicant as a person providing facilities for the carriage of passengers for reward;
(d) the revocation or suspension of any road service licence held at any time by the applicant or where the applicant has or had a controlling interest in a body corporate to any refusal to grant a road service licence to, or revocation or suspension of a road service licence held by, that body corporate;
(e) where the applicant is an agent or nominee of any other person, any previous conduct of that person as a person providing facilities for the carriage of passengers for reward;
(f) where the applicant is an agent or nominee of any other person, the revocation or suspension of any road service licence held at any time by that other person;
(g) where the applicant is a body corporate, the refusal to grant a road service licence to, or the revocation or suspension of any road service licence held at any time by –
(i) any other body corporate having at the time of the application any controlling interest in the body corporate applying for the licence or in which the body corporate applying for the licence has any controlling interest;
(ii) any director of, or any shareholder having a controlling interest in, the body corporate which is applying for the licence or in such other body corporate as is mentioned in sub-paragraph (i);
(h) the general effect which the grant of the licence would be expected to have on the holders of other road service licences and on the facilities being provided under such licences for the carriage of passengers by road;
(i) the need for ensuring fair competition among persons providing facilities in Northern Ireland for the carriage for reward of passengers by road.
(2) In addition to the matters specified in subsection (1) the Ministry shall take into consideration any recommendations made by the Committee, any representations which may be made by persons who are already providing facilities for the carriage of passengers for reward on any road along or near the routes the subject of the applications or any part of those routes and any representations made by a local authority or the Northern Ireland Tourist Board.
(3) Where the Ministry is not satisfied that an application for a road service licence should be granted the Minister shall refer the matter to the Committee and shall, before deciding whether or not to grant the application, take into account any recommendation made by the Committee with respect to the application, an in making any such recommendation the Committee shall have regard to the matters specified in subsections (1) and(2)."
The new Section 6A states –
"6A-(1) Subject to the following provisions of this section, the Department shall refuse to grant to an applicant a road service licence to which section 5(2) applies, unless having regard, in addition to the matters specified in section 6, to the information given to it in pursuance to section 5(2), it is satisfied that the applicant is –
(a) of good repute,
(b) of appropriate financial standing, and
(c) professionally competent.
(2) In the case of an applicant being a body corporate the requirements of subsection (1)(a) and (c) shall be satisfied by one of the persons in the full-time employment of the applicant who is to be [continuously and effectively responsible] for the operation of the motor vehicles to be used under the licence and who is specified in the application.
(3) In the case of an applicant not being a body corporate, the requirements of subsection (1)(c) may also be regarded as satisfied where there is specified in the application a person in the full-time employment of the applicant who is to be [continuously and effectively responsible] for the operation of the motor vehicles to be used under the licence and who, the Department is satisfied, is of good repute and professionally competent.
(4) The Department shall not be required by subsection (1) to refuse to grant a road service licence on a ground mentioned in subsection (1)(a) or (b) if the applicant satisfies the Department that he is an exempt person.
(5) There shall be specified in a licence granted by the Department in pursuance of an application to which either subsection (2) or (3) applies, the person who is to be continuously and effectively responsible for the operation of the motor vehicles to be used under the licence and who is specified in the application."
The Road Transport (Qualification of Operators) (Amendment) (NI) 1991 amended further the Transport Act (NI) 1967 as amended by the 1977 Regulations. The wording of Section 6A(2) was amended and a new Section 46A(2) substituted with consequential amendments to Section 46A(3) and other subsections. The relevant parts of Section 46A stated -
"46A-(1) The following provisions of this section shall have effect for the interpretation of certain expressions used in sections 5,6A,7,10,15,15A,28A and 29."
"(2) 'Conviction' means a conviction by or before a court in a member State, not being a spent conviction within the meaning of the Rehabilitation of Offenders (Northern Ireland) Order 1978; and a reference to a person being convicted of an offence shall be construed accordingly.
(3) For the purpose of determining whether a person is or is not of good repute regard shall be had in particular to the existence and number of any [convictions (within the meaning of subsection (2)) relating to the person or any partner, employee or agent of the person or, in the case of a company, any officer of the company] during the period of 5 years ending with the date on which the matter falls to be determined."
Section 6A(1) provides that the Department shall refuse to grant a road service licence to a applicant unless it is satisfied that the applicant is of good repute, of appropriate financial standing and professionally competent. These requirements reflect EC legislation. Council Directive of 12 November 1974 (74/562 EEC) Article 2 of which states –
"(1) Natural persons or undertakings wishing to engage in the occupation of road haulage operator shall:
(a) be of good repute;
(b) be of appropriate financial standing;
(c) satisfy the condition as to professional competence.
The Directives 74/561 and 74/562 were amended by Council Directive 89/438 EEC on 21 June 1989. This Directive recited -
"Whereas the express aim of the common rules introduced by Directives 74/561/EEC (4), as last amended by Directive 85/578/EEC (5), and by Directive 74/562/EEC (6), as last amended by Directive 85/579/EEC (7), is to help rationalize the transport market and improve the quality of the service provided by operators and to ensure that the right to freedom of establishment is effective exercised.
Whereas these Directives lay down three conditions for admission to the occupation of transport operator, namely good repute, appropriate financial standing and professional competence; whereas, although they lay down a number of rules governing professional competence, they do not define the content of the first two conditions, leaving it to the Member States to adopt appropriate measures at national level, whereas they do, however, recommend co-ordination of such measures at a later date;
Whereas Council Regulations (EEC) No 3164/76 of 16 December 1976 on access to the market in the international carriage of goods by road (8), as last amended by Regulation.
……..
(EEC) No 1841/88 (17), provides that from 1 January 1993 access to the market of transfrontier transport operations will be governed by a system of Community licences issued on the basis of qualitative criteria;
Whereas regards the good-repute requirement, it is necessary, in order effectively to reorganise the market, to make admission to the pursuit of the occupation of transport operator uniformly conditional on the applicant having no convictions for serious criminal offences, including offences of a commercial nature, not having been declared unfit to pursue the occupation and on compliance with the regulations applicable to the occupation of transport operator;
Whereas, as regards the requirement of appropriate financial standing, it is necessary, in particular in order to ensure the equal treatment of undertakings in the various Member States, to lay down certain criteria which transport operators must satisfy, and which are applicable to transport operators seeking authorization for admission to the occupation as from 1 January 1990;
Whereas, as regards the requirement of professional competence, it is advisable to stipulate that the applicant transport operator demonstrate such competence by passing a written examination but that Member States may exempt the applicant from such an examination if he provides proof of sufficient practical experience; whereas the list of subjects of which knowledge is required in order to demonstrate the transport operator's professional competence should be supplemented;
Whereas provision should be made for a system of mutual assistance between Member States for the purpose of applying this Directive;
………
HAS ADOPTED THIS DIRECTIVE:
Article 2 Directive 74/562/EEC is hereby amended as follows:
3. Article 2(2) is replaced by the following:
'2. Member States shall determine the conditions which must be fulfilled by undertakings established within their territory in order to satisfy the good-repute requirement.
They shall provide that this requirement is not satisfied, if the natural person or persons who are deemed to satisfy this condition under Article 3(1):
- have been convicted of serious criminal offences, including offences of a commercial nature,
- have been declared unfit to pursue the occupation of transport operator under any regulations in force,
- have been convicted of serious, repeated offences against the regulations in force concerning:
- the pay and employment conditions in the profession, or
- road haulage, in particular the rules relating to drivers' driving and rest periods, the weights and dimensions of commercial vehicles, road safety and vehicle safety.
In the cases referred to in the above three indents, the good-repute requirement shall continue to be unsatisfied until rehabilitation or any other measures having an equivalent effect has taken place, pursuant to the existing relevant national provisions."
In consequence of the amendment of Directive 74/562 the Road Transport (Qualification of Operators) (Amendment) Regulations (NI) 1991 came into operation on 22 July 1991. These Regulations are made under Section 2(2) of the European Communities Act 1972 and Section 45 of the Transport Act (NI) 1967. The relevant parts of Section 45 as amended state -
"45. The Ministry may make regulations for prescribing anything which may be prescribed under Part II, Part III or this Part and generally for the purpose of carrying those Parts into effect, and, without prejudice to the generality of the foregoing, may make regulations with respect to any of the following matters:-
(a) applications for the issue of licences under those Parts;
(b) the form of, and the particulars to be included in, those licences;
(c) the procedure on applications for those licences and for the amendments of conditions attached to those licences;
(d) the procedure for the determination by the Ministry of questions in connection with the grant, refusal, suspension and revocation of those licences and the attachment of conditions to those licences;
(e) the reviewing by the Ministry of the determination of questions of the kind referred to in paragraph (d)."
The 1991 Regulations amended Section 46A by the substitution of a new subsection (2), inserted after subsection (3) new Sections (3A), (3B), (3C), (3D) and (3E) and declared that subsections (5)(b), (5A)(b), (6)(b) and (6A)(b) should cease to have effect.
Thus for the purposes of this application for judicial review the relevant parts of Section 46A are -
"46A-(1) The following provisions of this section shall have effect for the interpretation of certain expressions used in sections 5,6A,7,10,15,15A,28A and 29."
"(2) 'Conviction' means a conviction by or before a court in a member State, not being a spent conviction within the meaning of the Rehabilitation of Offenders (Northern Ireland) Order 1978, and a reference to a person being convicted of an offence shall be construed accordingly."
(3) For the purpose of determining whether a person is or is not of good repute regard shall be had in particular to the existence and number of any convictions (within the meaning of subsection (2)) relating to the person or any partner, employee or agent of the person or, in the case of a company, any officer of the company during the period of 5 years ending with the date on which the matter falls to be determined." "(3A) The Department shall determine that a person or any partner, employee or agent of the person or, in the case of a company, any officer of the company is not of good repute if he –
(a) has been convicted of serious offences; or
(b) has been repeatedly convicted of road transport offences.
"(3B) For the purposes of subsection (3A)(a) a serious offence is –
(a) an offence under the law in force in any part of the United Kingdom for which a sentence of imprisonment for a term exceeding 3 months, a fine exceeding level 4 on the standard scale or a community service order for more than 60 hours was imposed; and
(b) any corresponding offence under the law of a country or territory outside the United Kingdom for which a corresponding punishment was imposed."
"(3C) For the purposes of subsection (3A)(b) a road transport offence is –
(a) an offence under the law in force in any part of the United Kingdom relating to road transport, including in particular driver's hours and rest periods, the weights, dimensions and taxation of commercial vehicles and road and vehicle safety; and
(b) any corresponding offence under the law of a country or territory outside the United Kingdom."
(3D) For the purposes of subsection (3A) spent convictions shall be disregarded.
(3E) Subsection (3A0 is without prejudice to the Department to determine that a person is not of good repute for reasons other than convictions of the kind there mentioned."
Section 46A (3A) provides that the Department shall determine that a person is not of good repute if he has been convicted of serious offences, that is one for which a sentence of imprisonment exceeding three months was imposed. Consequently where a person has been convicted of a serious offence and so sentenced the Department consider they have no discretion in the matter and must refuse the application for a road service licence.
The Rehabilitation of Offenders (NI) Order 1978 made provision for the rehabilitation, after specified periods, of offenders who have been convicted of offences and sentenced to certain specified sentences. Rehabilitation under the Order determines that a person shall be treated for all purposes in law as, a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for a particular offence – see Article 5(1). Article 3(1) of the Order states:
"3.-(1)Subject to paragraph (2), where an individual has been convicted, whether before or after the commencement of this Article, of any offence or offences, and the following conditions are satisfied, that is to say –
(a) he did not have imposed on him in respect of that conviction a sentence which is excluded from rehabilitation under this Order; and
(b) he has not had imposed on him in respect of a subsequent conviction during the rehabilitation period applicable to the first-mentioned conviction in accordance with Article 7 a sentence which is excluded from rehabilitation under this Order;
then, after the end of the rehabilitation period so applicable (including where appropriate, any extension under Article 7(4) of the period originally applicable to the first-mentioned conviction) or, where that rehabilitation period ended before the commencement of this Article, after the commencement of this Article, that individual shall for the purposes of this Order be treated as a rehabilitated person in respect of the first-mentioned conviction and that conviction shall for those purposes be treated as spent."
Thus a person sentenced to a sentence that is excluded from rehabilitation under the 1978 Order cannot be rehabilitated. Article 6 declares the sentences excluded from rehabilitation:
"6.-(1)The sentences excluded from rehabilitation under this Order are –
(b) a sentence of imprisonment or corrective training for a term exceeding thirty months;
and any other sentence is a sentence subject to rehabilitation under this Order."
A sentence not exceeding 30 months may be rehabilitated after 10 years reckonable from the date of conviction – see Article 6(2) and Table A. However a person sentenced to 10 yeas imprisonment cannot be treated or regarded as a rehabilitated person nor can his conviction be regarded as spent.
The skeleton argument and oral submissions made on behalf of the applicant were distilled and refined during the course of the hearing. All of the points under the European Convention on Human Rights were abandoned. So were the contentions that the only information which could be considered by the Department relating to convictions, was limited to those imposed during the period of five years ending with the date on which the application for a road service licence fell to be determined, as well as the submission that the Northern Ireland Regulations were ultra vires the Northern Ireland legislation. Thus the submissions made on behalf of the applicant can be summarised as follows. The effect of the Transport Act (Northern Ireland) 1967 as amended, together with the Rehabilitation of Offenders (NI) Order 1978 was that any person convicted of an offence and sentenced to 3 months imprisonment could never be rehabilitated and could never be granted a road service licence. This created an absolute bar to anyone who fell within that category of person. The Directive 89/438 did not intend or impel the creation of an absolute bar on persons so convicted. The Department responsible for drafting the 1991 Regulations had misunderstood the true and intended effect of Directive 89/438. Furthermore that the Directive 89/438 had imported a discretion to the implementing state to grant a road service licence despite the existence of convictions for serious offences and that the 1991 Regulations made no provision for such a discretion. This discretion was to be found in the words "or any other measure having an equivalent effect has taken place, pursuant to the existing relevant national provisions". It was submitted that the authorities in England and Wales recognised the existence of such a discretion and that the Transport Commissioners ( exercising the same powers as the TEL Branch of the Department ) exercised that discretion and granted licences despite the existence of such convictions. That the authorities in England and Wales had correctly interpretated Directive 89/438 and that the Department had done so incorrectly. Consequently the amending 1991 Regulations were ultra vires the effect of Directive 89/438.
Mr Walker QC who with Mr Maguire BL appeared on behalf of the Department submitted that the Department had interpreted the Directive correctly and that the 1991 Regulations reflected the intention of the Council of Member States and that no such discretion, as contended for, was permitted by the Directive. It was accepted by Mr Walker that an important point of construction arose, because if the Directive had been correctly interpreted by the Department in Northern Ireland then the equivalent legislative provision in England and Wales and/or its implementation, did not comply with the Directive.
Since 1967 the conditions for the granting of a road service licence by the Department have been narrowed and refined. Between 1967 and 1977 Section 6 of the Transport Act (NI) 1967 required the Department to have regard to the interests of persons likely to use the service. In exercising that function it would be a reasonable requirement of the Department to request information about any convictions imposed on an applicant. It would be relevant for the Department to know whether an applicant for a road service licence had a conviction for murder ( or other serious offence ) or a conviction for a sexual offence, for example, indecent assault on a child. Sections 5 and 6 do not refer to such information specifically. However it is implicit in the requirement of the Department to have regard to the interests of users and as such can reasonably be required to be furnished by applicants for a road service licence. As a consequence of the Directives 74/561 and 74/562, the 1977 Regulations required further information to be given, in addition to that required under Section 5 until 1977. This further information was of a type as may reasonably be required to enable the Department to exercise its function under Section 6A. The principal function to be exercised under Section 6A, was to refuse to grant a road service licence, unless having regard to the matters specified in Section 6 and the information reasonably required under Section 5(2), the Department was satisfied that the applicant was of good repute. Therefore the applicant could reasonably be required to provide information as to his good reputation or otherwise, which would include information relating to any criminal convictions. It would not make sense to interpret Section 6A as requiring information relating to convictions within the previous five years, when the Department was authorised to refuse a road service licence unless satisfied that the applicant was of good repute. An applicant convicted of a serious offence outside the five year period could hardly be of good repute by comparison with an applicant convicted of a minor offence within the five year period. If the draftsman wished to limit the convictions to which the Department should have regard, it would have been simple to draft the legislation with that clear purpose. The use of the words "and in particular shall give" do not mean "shall only give". These words also govern and require information about convictions at any time after the application is made and up to the time of the disposal of the application. However, if there was any doubt about that interpretation, the insertion of Section 46A(3) laid it to rest. Section 46A(3) stipulated that for the purpose of determining whether a person was of good repute, regard should be had in particular, to convictions during the five year period ending with the date on which the matter fell to be determined. Therefore reputation did not depend solely on convictions that fell within the five year period. However convictions which fell within that period would be given more regard than convictions outside it, when determining good repute. This approach continued until 1991, with a further refinement introduced in 1981, whereby the convictions, to which the Department would have regard, would not include spent convictions.
The 1991 Regulations, based on Directive 89/438, narrowed the approach to be adopted by the Department still further. These Regulations introduced the criteria of 'serious offence'. The purpose of the Directive 89/438 was to introduce a standard criteria within each member State for admission to the occupation of transport operator. The standard criteria are that applicants for such an occupation have no convictions for serious offences. It left member States free to determine the conditions which must be fulfilled in order to satisfy the good repute requirement. However, it stipulated that the requirement of good repute would not be satisfied if the applicant had been convicted of a serious offence. It further stipulated that the requirement of good repute would continue to be unsatisfied until rehabilitation under the law of the individual State. Member States were left free to determine what did and did not constitute a serious criminal offence. How did the Department deal with this Directive? Section 46A(3A) inserted by the 1991 Regulations declared that a person was not of good repute if he had been convicted of serious offences. A serious offence was defined in Section 46A(3B) as an offence under the law in force in any part of the United Kingdom for which a sentence of imprisonment for a term exceeding 3 months, a fine exceeding level 4 on the standard scale or a community service order for more than 60 hours, was imposed. Section 46A(3D) preserved a right to the Department to determine that a person was not of good repute for reasons other than convictions for serious offences. Section 46A(3D) declared that spent convictions would be disregarded in the determination of good repute based on serious offences and Section 46A(2a) defined a spent conviction as being one within the Rehabilitation of Offenders (NI) Order 1978. Those provisions contained in Section 46A mirror the requirements of Directive 89/438 and are not outwith them. It is implicit in the Directive that if a serious offence cannot be rehabilitated, this would create an absolute bar to the grant of a road service licence. The applicant has been convicted of serious offences that cannot, under the law in force in Northern Ireland, be rehabilitated and therefore he is not a person of good repute to whom a road service licence may be granted. Directive 89/438 does not permit of a discretion nor does the Transport Act (NI) 1967, as amended by the various Regulations. The words "or other measure having an equivalent effect has taken place, pursuant to the existing relevant national provisions" do not create such a discretion. The measure contemplated is one that has the same, similar or equal effect as rehabilitation. In this context to rehabilitate is to restore a person to his former good reputation. Thus the equivalent measure is one that has that effect. I do not read that provision as providing an 'either or' situation within the one jurisdiction. Rather it caters for jurisdictions which do not have rehabilitation provisions as such, but do have some equivalent provision. In this jurisdiction there are rehabilitation provisions in the 1978 Order and a person is either rehabilitated under its provisions or not at all.
In England and Wales road transport legislation is contained in the Public Passenger Vehicles Act 1981 as amended. Schedule 3 to that Act, as amended by the Public Service Vehicle Operators (Qualifications) Regulations 1990, makes provision for the implementation of Directive 89/438, in broadly similar terms to the 1991 Regulations in Northern Ireland. In England and Wales the granting of licences is undertaken by Traffic Commissioners. Paragraph 3 of Schedule 3 requires a Traffic Commissioner to determine that a person, who has been convicted of a serious offence, is not of good repute and paragraph 4 defines serious offence in the same terms as Section 46A(3B) in Northern Ireland. Paragraph 8 of Schedule 3 provides –
"For the purpose of sub-paragraph (3) above spent convictions shall be disregarded; and a traffic commissioner may also disregard an offence if such time as he considers appropriate has elapsed since the date of the conviction."
The origins of the latter part of paragraph 8 are not revealed. They would give a wide discretion to a Traffic Commissioner. I was referred to several cases (not officially reported) determined by Traffic Commissioners, in which licences were granted to persons with convictions for serious offences that were not otherwise spent. It is not for this court to adjudge whether or not the Public Passenger Vehicle Act 1981 as amended complies with Directive 89/438 or to resolve any apparent discrepancy in the approach to the granting of road service licence in England and Wales and in Northern Ireland. However this court is required and does adjudge that the Transport Act (NI) 1967 does comply with Directive 89/438 and that no discretion is created by Directive 89/438. Therefore the Department has correctly interpreted Directive 89/438 in its amendment to the Transport Act (NI) 1967, and were correct to determine that the applicant was not of good repute and thereby to refuse to grant him a road service licence.
Therefore the application for judicial review is refused. There will be a declaration that the Transport Act (NI) 1967 as amended complies with the Directive 89/438 and that the Department has no discretion beyond the wording of the legislation.
IN THE MATTER OF AN APPLICATION BY JOSEPH McPARLAND FOR JUDICIAL REVIEW OF A DECISION OF THE DEPARTMENT OF THE ENVIRONMENT FOR NORTHERN IRELAND