SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Mackay of Drumadoon Lord Drummond Young	[2011] CSIH 22 XA172/09 OPINION OF THE LORD JUSTICE CLERK in the appeal by STEVEN BRIAN RITCHIE Appellant; against ABERDEEN CITY COUNCIL Respondent: ______

For the appellant: Beynon; Drummond Miller LLP (For Balfour Budge, Solicitors, Aberdeen)

For the respondent: Skinner; Morton Fraser

17 March 2011

Introduction

[1] This is an appeal against an interlocutor of Sheriff K A McLernan at Aberdeen Sheriff Court dated 19 October 2009 by which he refused an appeal by the appellant against a decision of the respondent's licensing committee to refuse to renew his taxi driver's licence.

The facts

[2] The respondent granted the licence in September 2006. In September 2007 it renewed it for the period up to 30 September 2008. On 7 December 2007 the appellant was convicted of a breach of section 5(1)(a) of the Road Traffic Act 1988 (the 1988 Act) and inter alia was disqualified from driving for one year. The appellant did not commit this offence in the course of his work as a taxi driver. After the conviction the appellant successfully completed a rehabilitation course. That entitled him to apply for early restoration of his driving licence. In August 2008 his licence was restored.

[3] On 7 September 2008 the respondent returned his taxi driver's licence to him. The appellant thereupon applied for renewal of it. The Chief Constable submitted a letter of objection to the application based on the appellant's conviction.

[4] On 26 November 2008 the licensing committee had a hearing on the application. The Chief Constable's Taxi Officer read out the letter of objection. The appellant was invited to address the committee. He said that he had successfully undertaken the rehabilitation course and had had his driving licence restored early. In reply to questions from the committee he said that he realised that this was a serious conviction; that he owned his own taxi and that this was his only conviction.

The decision of the Committee

[5] The committee refused the application. It is agreed that its reasons are set out in the following words:

"The Committee was extremely concerned at the nature of the conviction. The applicant was applying to be a taxi driver, a position of trust and responsibility, where the general public would be relying on him to get them to their destination safely, responsibly and legally. As a professional driver the Committee considered he was under a more onerous duty than "domestic" drivers to ensure that his standards of driving and responsibility were maintained. Driving whilst under the influence of alcohol put other road users at risk and was an offence that the Committee viewed very seriously.

The Committee has responsibility to the citizens of Aberdeen to ensure that any person it gives a licence to is a fit and proper person to hold that licence and that the general public can rely on the fact that a licence has been granted as a guarantee that the licence holder is responsible and reliable. The Committee was of the opinion that the applicant could not be relied on to be a responsible taxi driver if he was prepared to drive whilst under the influence of alcohol.

For these reasons the Committee considered that the applicant was not a fit and proper person to be the holder of a taxi driver's licence and refused the application."

The statutory provisions

[6] Schedule 1 to the Civic Government (Scotland) Act 1982 provides inter alia that "a licensing authority shall refuse an application to grant or renew a licence if, in their opinion - (a) the applicant ... is ... (ii) not a fit and proper person to be a holder of the licence" (para 5(3)). The Schedule entitles an applicant to appeal to the sheriff against a refusal (para 18(1)). The sheriff may sustain such an appeal only if he considers that the licensing authority in arriving at its decision (a) erred in law; (b) based its decision on any incorrect material fact; (c) acted contrary to natural justice or (d) exercised its discretion in an unreasonable manner (para 18(7)). There is an appeal from a decision of the sheriff to this court on a point of law (para 18(12)).

The decision of the sheriff

[7] Before the sheriff certain submissions were made for the appellant that have not been renewed in this court. So far as they are relevant to this appeal, the sheriff's conclusions were that the appellant was a relatively new holder of a taxi driver's licence and was convicted of a significant road traffic offence within 15 months of his being given the licence. The appellant was questioned about the conviction and gave his explanation. He referred to the fact that the period of his disqualification had been reduced. There was therefore no basis for the submission that the licensing committee did not take that factor into account. It was clear from its statement of reasons that the committee considered the question whether the appellant was a fit and proper person to hold the licence and in doing so applied the criterion of whether he was responsible and reliable. It was not apparent to the sheriff that there was any factor that the committee ought to have taken into account that it had failed to take into account, or any factor that it had taken into account that it ought not to have taken into account. As to the reasonableness of the decision, the sheriff's conclusion was as follows:

"The licensing committee appear to have reached the conclusion that a person who has committed a serious offence of driving contrary to section 5(1)(a) 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 this view is beyond the bounds of a reasonable exercise of discretion and I require to refuse this appeal."

The reference to the appellant's "first" licence was made per incuriam, but nothing turns on that.

The submissions for the parties

[8] The submission for the appellant was that the statement of reasons failed to indicate to an informed reader in an intelligible way (i) why the committee refused the application and (ii) what material considerations it took into account (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345; Mirza v City of Glasgow Licensing Board 1996 SLT 1029). The statement of reasons failed to meet the minimum requirements of adequacy and intelligibility. The committee had failed to balance the competing material factors and had thereby failed to arrive at a reasoned decision. Its stated reasons failed properly to disclose why it considered that a single conviction, irrespective of the factors relied on by the appellant, necessitated the refusal of the application, and in any event why it had adopted an approach based on an attempt to guarantee that a taxi licence holder was responsible and reliable. In these respects the decision was unreasonable. There had been a breach of natural justice. The sheriff had erred in law in failing to apply the three principal decisions on the point in the context of licensing (Ranachan v Renfrew District Council 1991 SLT 625; Cashley v City of Dundee District Council 1994 SLT 1111; Noble v City of Glasgow District Council 1995 SLT 1315).

[9] Counsel for the respondent relied on the principle that where there was relevant material before the committee, it was for the committee to decide what weight to give to it (Hughes v Hamilton District Council 1991 SLT 628; Chief Constable, Strathclyde Police v North Lanarkshire Licensing Board 2003 SLT 1268). The procedure before the committee was fair. The appellant had prior notice of the objection and was given the opportunity to address the committee. The case for the appellant could best be characterised as a complaint of an unreasonable exercise of discretion. There was nothing to suggest that the committee failed to take account of the fact that the period of disqualification had been reduced, or any other material fact. The committee's reasons met the test of adequacy set out in Wordie Property Co Ltd v Secretary of State for Scotland (supra).

Conclusions

[10] This appeal was presented on narrower grounds than those put before the sheriff. Both counsel treated the appeal as involving straightforward questions as to the reasonableness and the adequacy of the committee's stated reasons.

[11] In the now-classic formulation of Lord President Emslie, the duty of the decision-maker in a case of this kind is

"to give proper and adequate reasons for [the] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it" (Wordie Property Co Ltd v Secretary of State for Scotland, supra, at pp 347-348; cf Mirza v City of Glasgow Licensing Board, supra, Lord Justice Clerk Ross at p1043G-H).

A consideration is material, in my opinion, if the decision-maker decides that it is one that ought to be taken into account. The court may of course interfere if he perversely disregards a consideration that in the view of the court is manifestly material.

[12] The decision-maker, having taken a particular consideration into account, may in the event decide that other considerations outweigh it. Such a consideration, being thus outweighed, is not a determining consideration; but it is material nonetheless because it has formed part of the decision-making process. In fulfilling his duty to give proper and adequate reasons, the decision-maker need not engage in an elaborate and detailed evaluation of each and every point that has arisen at the hearing. But his statement of reasons must identify what he decided to be the material considerations; must clearly and concisely set out his evaluation of them; and must set out the essence of the reasoning that has led him to his decision.

[13] The general principles governing the matter are well established; but in every case the validity of the decision complained of must turn on the wording of the statement of reasons.

[14] The narrative of the hearing that I have given suggests to me that the essential decision for the committee was to balance the objection based on the nature and the seriousness of the conviction against the mitigatory factors, some of which were elicited by the committee's own questions. On that view of the matter, I think that the mitigatory factors were material considerations in the sense that I have described.

[15] In this case there are two interpretations of the committee's reasons, on either of which they are unsound. The first is that the committee regarded itself as having to carry out a balancing exercise such as I have described. If that interpretation is right, the statement of reasons fails, in my opinion, to specify how the committee carried out its evaluation of the competing considerations and in particular why it decided that the mitigatory factors were outweighed by the conviction. The decision therefore fails to set out proper and adequate reasons and cannot stand.

[16] The other interpretation of the decision which, like the sheriff, I prefer, is that the committee considered that the conviction was of such a nature that it was a conclusive reason for refusal, regardless of any mitigatory factors that might exist. On that interpretation, I consider that the committee's approach was misguided. There could be reasons, relating perhaps to the date of the offence or to the circumstances in which it was committed, that might justify the grant or renewal of a licence notwithstanding a conviction of this kind. Simply to decide that any such conviction is per se a conclusive ground for refusal in all cases is in my opinion unreasonable. On that interpretation of the decision I consider that it is invalid.

Disposal

[17] I propose to your Lordships that we should allow the appeal, recall the interlocutor of the sheriff and return the case to the committee for reconsideration in the light of our decision.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Mackay of Drumadoon Lord Drummond Young	[2011] CSIH 22 XA172/09 OPINION OF LORD MACKAY OF DRUMADOON in the appeal by STEVEN BRIAN RITCHIE Appellant; against ABERDEEN CITY COUNCIL Respondent: ______

For the appellant: Beynon; Drummond Miller LLP (For Balfour Budge, Solicitors, Aberdeen)

For the respondent: Skinner; Morton Fraser

17 March 2011

[18] For the reasons given by your Lordship in the Chair, I agree that this appeal should be allowed and that the application should be returned to the committee for reconsideration in the light of our decision.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Mackay of Drumadoon Lord Drummond Young	[2011] CSIH 22 XA172/09 OPINION OF LORD DRUMMOND YOUNG in the appeal by STEVEN BRIAN RITCHIE Appellant; against ABERDEEN CITY COUNCIL Respondent: ______

For the appellant: Beynon; Drummond Miller LLP (For Balfour Budge, Solicitors, Aberdeen)

For the respondent: Skinner; Morton Fraser

17 March 2011

[19] I am in complete agreement with your Lordship in the chair. In my view it is significant that, in the committee's statement of the reasons for its decision, which are quoted at paragraph [5], no reference is made to the various matters put forward by the appellant in mitigation. It is therefore impossible to discover how those matters were weighed against the appellant's conviction. That in itself would constitute a lack of proper reasons. Like your Lordship, I think that the most probable explanation for the lack of reference to mitigating factors is that the committee regarded the conviction as being so serious that it was in itself sufficient to justify refusal of the licence, regardless of any matters operating in mitigation. If that is so, I agree that the decision cannot stand; the matters put forward by the appellant in mitigation were relevant and ought to have been weighed against the conviction.

[20] I accordingly agree that the appeal should be allowed and that the case should be returned to the committee for reconsideration.