Scottish Sheriff Court Decisions

SHERIFEDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B762/08

 

INTERLOCUTOR   of   SHERIFF DOUGLAS J CUSINE   in causa   GEORGE TOSH ISAAC CAMERON, 62C Ashvale Place, Aberdeen. PURSUER   against   ABERDEENSHIRE COUNCIL, a Local Authority having a place of business at Gordon House, Blackhall Road, Inverurie. DEFENDERS

 

 

ABERDEEN, 10 March 2009

 

The Sheriff, having resumed consideration of the cause, Sustains the Pursuer's first and second pleas-in-law and Reverses the decision of the Defenders' Policy and Resources Sub- Committee to refuse to grant the renewal of the pursuer's Taxi Driver's licence and Hackney Plate Application taken on 3^rd October 2008; Grants the Pursuer said licence until 30 June 2010; Finds the Defenders liable in the expenses to the Pursuer; Allows an account of same to be given in and remits the same, when lodged to the auditor of court to tax and to report.

 

 

 

NOTE:

 

This is an application by the pursuer to reverse the decision of the Policy and Resources Sub- Committee of Aberdeenshire Council ("the Committee") to refuse to grant the renewal of the pursuer's taxi driver's licence. The decision was taken on 3^rd October 2008 ("the Hearing)". No. 5/2 of process is the Statement of Reasons and Reports.

 

At the time of the Hearing, the pursuer's taxi licence had been renewed for one year only. At that time he had two convictions, one for failing to exhibit a current excise licence on his vehicle and the other for refusing to identify the driver of a motor vehicle in respect of a speeding offence. In May 2008, there is a further conviction in respect of the pursuer plying for hire without having his ID badge and other things in his possession.

 

At the hearing on 3^rd October 2008, the Committee considered matters apart from the pursuer's 2008 conviction above referred to. These matters are set out in Article 5 of Condescendence. There is no need to set these out because the respective positions of the parties is set out in that Article and the Answer.

 

The Chief Constable had lodged observations in letters dated 5^th and 19^th June 2008. These letters are attached to the Statement of Reasons, No. 5/2 of process. The letter of 5^th June deals with the 2008 conviction and the incidents narrated in Articles 5(b),(c), (d) and (e) of Condescendence. The letter of 19^th June deals with the incident narrated in Article 5(f).

 

It is a matter of admission that at the Hearing, the police representative declined the opportunity to make any further representation (Article 7 and Answer 7).

 

It is also a matter of admission that one of the members of the Committee, Councillor Mair, stated that while there may have been only four complaints, he wondered how many of the other 4,000 passengers of the pursuer would also have been able to make complaints. That too is admitted, but under explanation that this was not taken into consideration in the Committee's decision.

 

It is also admitted that that member stated that taxi drivers have, or should have, a code of conduct and that the pursuer was clearly not following that. He then moved that the pursuer's application for a licence be refused. It is further admitted that the chairman of the Committee enquired whether there was a seconder for that motion, but the third member shook his head. The chairman then said that he would second the motion for refusal, adding that undertakings had been given by the pursuer but had not been borne out and so the pursuer's licence should be refused. The motion to refuse was successful and the third member was not asked if he had any contrary motion to make.

 

The Statement of Reasons which followed the decision and which in terms of the schedule to the Civic Government (Scotland) Act 1982 must be provided within ten days of being requested by the applicant were provided, although they had not been so requested. The Statement of Reasons contains 34 numbered paragraphs. Paragraphs 12 to 18 deal with the four incidents. Paragraphs 27 and 28 set out the views of Councillor Mair and the chairman, Councillor Pratt. Paragraph 32 sets out the reasons for the pursuer not having a full licence and paragraph 33 deals with the previous convictions and the four incidents and the reason for refusal.

 

Pursuer's submissions

By way of background, the pursuer's solicitor explained that a taxi driver's licence is normally granted for five years. However, on the last two occasions the pursuer's licence had been extended for one year only.

 

On the composition of the Committee, I was advised that there would normally be twelve members but on this occasion there were only three. It was not, however, disputed that three is a quorum. One of the members was the Committee chairman.

 

The pursuer submitted that Article 5 gave the details of the incidents which were the subject of the decision. The police, however, had made observations on these, but had not opposed the renewal of the licence.

 

It was not in dispute that one member of the Committee had expressed the view that the application should be refused and that the chairman had looked to the third member for a view, but none had been expressed, the third member merely shaking his head.

 

It was submitted that the chairman did not give the third member an opportunity to make a motion but had proceeded to support the first member's views. It was noted that only one fare-paying passenger out of between four and five thousand passengers over the year had complained about the pursuer's conduct, but the police position was that that particular complainer could not remember the incident.

 

In relation to Article 5(d), the driving matter, the pursuer denied this. He had gone to the police and it was submitted that had the Committee been interested they could have asked the police about this incident.

 

So far as the complainer in Article 5(e) is concerned, she lives near the pursuer and it was submitted that that was not the first time she had complained. The pursuer himself had 'phoned the police, but no one had turned up.

 

So far as Article 5(f) is concerned, it was accepted that even if the pursuer had been sleeping in his taxi, he was not, at that point, on duty. It was, however, accepted that his vehicle was badly parked.

 

It was submitted that in terms of the legislation, the court could grant the licence, grant the licence for a different period, or remit the matter. The pursuer submitted that if matters were remitted there could be no guarantee that it would go to a differently-constituted committee and accordingly, I was invited to grant the pursuer's licence until June of 2010.

 

Defenders' submission

It was submitted that the principle set out in the Wednesbury case, i.e. Associated Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 had been adopted in Scots Law and reference was made to the cases of Wordie Property Co. Ltd v. Secretary of State for Scotland 1984 SLT 345, Mecca Leisure Ltd. v. City of Glasgow District Licensing Board 1987 SLT 483 and Imperial Chemical Industries plc v. Central Region Valuation Appeal Committee 1988 SLT 106. It was submitted that the Committee had listened carefully and that their Statements of Reasons especially at paragraphs 31, 32 and 33 bore that out. The "aside" by the first member was described as "unfortunate," but it was submitted that that had not entered into the thinking of the Committee who were entitled to and had weighed up all matters.

 

I was invited to refuse the appeal, but if I were reminded to allow it, I should therefore remit it to the Committee.

 

Decision

In my opinion the decision of the Committee cannot stand for a number of reasons.

 

In the first place, Councillor Mair's comment referred to in Article 7 which is admitted, is one which could be described as, "There is no smoke without fire". The solicitor for the defenders candidly accepted that that remark was unfortunate. Any spectator, and more important, the pursuer would, in my opinion, be entitled in the circumstances, to regard that comment as being the reason for Councillor Mair's vote to refuse the licence. Councillor Mair as is disclosed in the pleadings, went on to mention a code of conduct, but he does not seem to have said whether such a code existed or not and yet he went on to say that the pursuer was not following this code and so the application should be refused. That observation clearly relates to the four incidents above referred to. That is not a valid reason for refusal.

 

Of the incidents in Articles 5(b),(c),(d) and (e), these were not investigated by the police (Article 5(b)), or were investigated and no further action was taken. It is at least likely that the decision not to proceed further was based on a view by the police that there was a lack of evidence. By contrast, the matter at Article 5(f) is one in respect of which the pursuer gave an explanation. Having looked at it and the photographs attached to the letter from the police dated 19^th June, the Committee rejected the pursuer's account and in my opinion they were entitled to take that approach.

 

The chairman then agreed to second the motion saying that undertakings had been given by the pursuer in the past but had not been met. Again, any spectator and the pursuer would be entitled to assume that that was the Committee chairman's reason for refusing a licence.

 

In my opinion these two remarks at the conclusion of the hearing cannot be ignored. They were reasons and different ones at that. It was, however, only one of the four incidents which the Committee were entitled to consider, because the remainder had not been established. There may have been insufficient evidence to support them; equally they may have been malicious and yet the Committee seemed to have proceeded on the basis that they had in fact been established, without further inquiry. The chairman gave no indication of the undertakings which had been given and the ones which had not been complied with and on that basis alone the decision is, in my view, also flawed.

 

However, even if it is correct to say that the comments made at the end of the Hearing can be ignored, paragraph 27 makes it clear that Councillor Mair's decision was based on "the incidents and the previous convictions." There is no doubt the Committee were entitled to take into consideration an incident had it been established, but it is not clear what weight they gave to the 2008 conviction, bearing in mind that the despite the two previous convictions, the licence had been restricted, not refused.

 

Paragraph 28 sets out the chairman, Councillor Pratt's, approach which referred to the undertakings not met. No detail is given. He goes on to refer to "the new incidents" and the same criticism which was made of Councillor Mair's approach can be made of his approach in relation to these.

 

While I accept that, strictly speaking, the chairman ought to have asked the remaining member if he wished to put a contrary motion, given the comments made by the others, it is unlikely that any such motion would have been successful, even if put. I am also of the opinion that the Committee are entitled to refuse a licence, even if the police do not oppose its being granted.

 

I will sustain the pursuer's first plea-in-law because the Committee's reasons as expressed at the end of the Hearing differ from those set out in the Statement of Reasons and I will sustain the second plea-in-law because the Committee has treated as proven four incidents which had not been proven, and the reasons for refusal were, at least in part, based on these incidents. The reasons given by two of the members for refusal differ significantly from each other and do not represent a coherent Committee decision.

 

In terms of the legislation, it would be open to me to (a) remit the matter to the Committee; (b) grant the pursuer an unrestricted licence; or (c) grant a licence for a restricted period.

 

I have decided not to remit the matter to the Committee. The solicitor for the defenders fairly accepted that while he hoped that any committee looking at the matter afresh would be differently-constituted, he could not guarantee that. It would therefore be a possibility that the members of the "new" committee would be exactly the same, and so, they might have some difficulty in reaching a decision which was not coloured in any way by their previous deliberations.

 

I could grant a full licence. I say no more about that, because the pursuer's solicitor invited me to grant a licence, but for a shorter period. There is merit in that suggestion that I grant the pursuer a licence until June 2010 which I shall do. The effect of that is that he will have licence for slightly longer than twelve-month period previously granted, but it will also allow the committee an opportunity in the not too distant future to consider the pursuer's continuing fitness to hold such a licence.

 

Given the pursuer's success in relation to this matter, I shall make an award of expenses in his favour.