Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

UNDER THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982

 

B375/11

 

INTERLOCUTOR

 

in causa

 

DUNCAN WILSON, residing at 26 Strathcarron Place, Springburn, Glasgow G21 (Assisted Person)

APPELLANT

against

 

GLASGOW CITY COUNCIL, City Chambers, 235 George Street, Glasgow G1 1QZ

RESPONDENTS

_____________________

 

Act: Moncrieff

Alt: Boag

 

GLASGOW, 22^nd June 2011.

 

The Sheriff, having resumed consideration of the application, Sustains the respondents' second and third pleas-in-law with the exception of the words in each "with expenses in favour of the Respondents", Repels the appellant's plea-in-law, and Refuses the appeal: Appoints parties to be heard on the question of the expenses of process and Assigns 9.30 am on the 13^th day of July 2011 within Glasgow Sheriff Courthouse as the time date and place of that hearing.

 

 

 

NOTE:

NOTE

 

[1] By this summary application the appellant, Mr Duncan Wilson, appeals to the sheriff to reverse the decision of the respondents, Glasgow City Council, made on 12 January 2011 by their Regulatory and Licensing Committee whereby they refused to renew his private hire car driver's licence. The reason they gave for reaching that decision was that he was not a fit and proper person to be the holder of that licence. He challenges the decision on the ground that in reaching it the respondents exercised their discretion in an unreasonable manner. They contest that ground but in the event of the ground being established request that instead of renewing the licence the court should remit the appellant's application to them for re-consideration. The application has been brought under and in terms of the Civic Government (Scotland) Act 1982 ("the Act").

 

The background to the present application

[2] The appellant resides at 26 Strathcarron Place, Springburn, Glasgow G21. The respondents are the taxi and private hire car licensing authority for the city of Glasgow under and in terms of the Act. They carry out that statutory responsibility through their Regulatory and Licensing Committee ("the committee"). The respondents granted the appellant his private hire car driver's licence on 29 January 2009. In due course he wished to renew it and submitted to them the necessary application form duly completed and signed by him and dated 28 September 2010. In the part of the form that required him to list all his convictions he entered three. To the earliest he ascribed the date October 2000. He described it as "Domestic", dealt with in the Sheriff Court and with the disposal being "Guilty". For the second and third he gave dates of 26 May 2009 and 7 November 2009 respectively, both dealt with in the District Court. The second he described as "Stopped on Zig Zag lines" and the third as "Speeding". The disposal for both he gave as the same: the imposition of three penalty points making a total of six points on his driver's licence.

 

[3] The respondents considered the application at their meeting on 12 January 2011. The appellant was present and represented himself. He was given the opportunity to address the Committee which he did. Throughout the hearing Miss Mairi McCallum, a qualified solicitor employed by the respondents within their Licensing Section, took notes in her own hand of what was said. That was in the form of a question and answer session. At the conclusion of the hearing the Committee retired to consider their decision. On reaching their decision they informed the appellant of it. It was to refuse his application.

 

[4] His solicitors on his behalf, by letter dated 27 January 2011, required the respondents to give their reasons in writing for arriving at their decision which they did in the form of a statement of reasons. It is dated 14 February 2011 and was signed on their behalf by Miss McCallum.

 

The procedure in the present application

[5] The appellant lodged his appeal by way of summary application on 9 February 2011. That was before the respondents issued their statement of reasons. The appellant's crave requested the court "[t]o reverse the decision of the Respondents dated 12^th January 2011 whereby the Respondent (sic) suspended the Appellant's taxi driver's licence number-PD09089 or to grant any other order proper for giving effect to this Appeal". On 25 March 2011 the action was assigned to an evidential hearing on the unopposed motion of the appellant. Rather surprisingly that mode of inquiry was chosen before the respondents had lodged Answers, which they did on 7 April 2011. For the evidential hearing the parties' pleadings were contained within the record number 9 of process. They consisted of the summary application and answers thereto, neither party having taken advantage of the opportunity to adjust given by the interlocutor dated 25 March 2011.

 

[6] The hearing took place on 6 and 12 May and 7 June 2011. I heard evidence from the appellant and, for the respondents, from Miss McCallum. The evidence of both concentrated upon what information was placed before the committee at the hearing on 12 January 2011 on the basis of which it had to reach its decision on the application. The evidence of both went far beyond the pleadings but without any objection from either solicitor. The appellant spoke to what he could remember saying to the committee, his state of mind at the time and how he interpreted the way that the committee conducted the hearing. Miss McCallum explained her role in assisting the committee and spoke to the notes that she had taken during the hearing and subsequently had typed up. At the stage of submissions the solicitor for the appellant moved to delete in lines two and three of the crave the words "or to grant any other order proper for giving effect to this Appeal" and also to repel for want of insistence the appellant's second plea-in-law. The solicitor for the respondents made a similar request on the same basis in respect of their first plea-in-law. Both motions were unopposed and I granted them. In addition, parties presented a Joint Minute of Admissions in respect of the statement of reasons whose effect was that I could have regard to the whole terms of that document, lodged as number 5/1 of process, for the purpose of reaching my decision on the merits of the application.

 

The averments on record

[7] On record the appellant pleads that the decision of the respondents should be reversed because they "exercised their discretion in an unreasonable manner by refusing the appellant's application for a private taxi licence (sic) and [by] failing to take account of his actual circumstances of the case". His averments in support of that plea are contained in article 4 of condescendence and are expressed as follows: -

 

"The appellant explained the circumstances surrounding the incidents at the Appeal. The Respondents have erred in their findings that the Appellant was an unfit person. The convictions that form the basis of their opinion are for minor offences. They took place at a time that the Appellant was out of character following the death of his son. The Appellant had no previous convictions of any kind on his record prior to this. He is of good character. The Appellant stays with his sister at the address in the instance. It would be difficult for the Appellant to find alternative employment. He has been in continuous employment for the past three years. In the current financial climate there are few jobs in this field available. He requires his licence for his income and has been financially prejudiced by the decision to suspend his licence."

 

The only averment admitted by the respondents is the first sentence.

 

[8] The appellant's averments in support of the circumstances in which he committed the offences are set out in articles 2 and 3 respectively as follows: -

 

"2. On or around May 2010 the Appellant was convicted under the Road Traffic Act 1988 for stopping on a zigzag area. The Appellant had patrons within his vehicle, one of the patrons became unwell and asked the Appellant to pull in. The patron proceeded to open the car door prior to the Appellant having the opportunity to pull in at an appropriate place. The Appellant did not realise he had stopped on a marked area. He was then stopped by police and charged. His licence was endorsed with three penalty points."

 

3. Around June 2010 the Appellant was travelling along Great Western Road, Glasgow. He was travelling at a speed of 42 mph. Again the appellant was stopped by Strathclyde Police and was charged with a speeding offence. His licence was endorsed with a further three penalty points. The appellant did not seek to challenge ... either offence at the time as he was grieving the death of his son."

 

The respondents admit the conviction attributed to May 2010 and its consequences for him but not the circumstances in which he committed it and for the June offence that he was travelling at the stated speed, was stopped, charged and had his licence endorsed. Beyond that he also avers in article 2 that he obtained his private hire car licence in 2008, had held a driving licence for 21 years and until May 2010 had had no penalty points on his licence. These averments are denied. Noticeably and surprisingly he does not make express reference in his pleadings to either his application form or what occurred during the hearing or the respondents' statement of reasons and since neither party took the chance to adjust has not indicated his response to the averments of the respondents that bear upon those documents and that hearing.

 

[9] The respondents' pleas-in-law on the merits, their second and third, are to the effect that the decision was not vitiated by any exercise of discretion in an unreasonable manner and that it was well-founded in fact and law. Their averments in support of those pleas are contained in Answer 4 and are expressed as follows:-

 

"Explained and averred that in considering the Appellant's application the Committee had regard to submissions made by the Appellant to them at the Committee Hearing in support of his application and during these submissions no reference was made to the death of the Appellant's son and the committee was not asked to consider this as a mitigating factor. Further explained and averred that the appellant declared a previous conviction[s] for a "Domestic" on his application form. Further explained and averred that following full consideration of all material put before it, the Committee deemed that the Appellant was not a fit and proper person to be the holder of a licence, in terms of paragraph 5(3)(a)(ii) of Schedule 1 to the Civic Government (Scotland) Act 1982. The Respondents had before them the relevant information to this particular Applicant assessment of that material was a matter for the Respondents. The assessment of the material et separa[t]im the decision they reached based thereon was within the range of assessments and decisions available to them in the exercise of their statutory function. Further explained and averred that a Statement of reasons dated 14 February 2011 was sent to the Appellant's agent a copy of which, along with a copy of the Appellant's licence Application form is lodged in Process and both are referred to for their terms which are held to be incorporated herein brevitatis caus[a] and founded upon."

 

The respondents in answer 2 aver that the appellant had been granted his private hire car driver's licence on 29 January 2009 and that it had been issued with a final warning regarding his future conduct, which was accepted by the appellant in the course of the hearing, and in answer 3 that the speeding offence occurred on 26 May 2009 in a zone where the maximum speed limit was thirty mile per hour.

 

The statement of reasons

[10] The parts of the statement of reasons which are of relevance for the purposes of the present application are paragraphs 5 to 10 inclusive. They are in the following terms:-

 

"When considering your client's application the Committee had regard to penalty points endorsed on your client's Driving Licence since his Private Hire Car Driver's Licence was last granted and to submissions made by your client at the meeting in support of his application.

 

The Committee was aware as a matter of record that when your client's Private Hire Car Driver's Licence had been granted by the Licensing Authority on 29 January 2009, he had been issued with a final warning regarding his future conduct.

 

The Committee was concerned therefore to note from your client's Driving Licence that since the said warning was issued he had incurred six penalty points. It noted tht he had incurred three penalty points on 26 May 2009 for exceeding the statutory speed limit on a public road (SP30) and that a further three points had been incurred on 7 November 2009 for a contravention of Pedestrian Crossing Regulations with a stationery vehicle (PC30).

 

Your client advised the Committee that the said points for speeding had been incurred due to an error in judgement on his part. The speed limit on the road had changed a few times and he had not seen the sign advising of the change from 50 miles per hour to 30 miles per hour. He advised that he had been driving at 42 miles per hour in a 30 miles per hour limited. Your client confirmed that he did not have passengers in his vehicle at the time of the incident. With regard to the points endorsed following the PC30 offence, your client advised that he had two drunk passengers at the time who said they were going to be sick. As he waited to pull out they had got out the back of his car, leaving money on the seat. He advised that he had explained what had happened to the Police but confirmed that he had accepted the fixed penalty rather than go to Court.

 

In determining to refuse your client's application in terms of Paragraph 5(3)(a)(ii) of Schedule 1 to the above Act, the Committee was of the view that the penalty points endorsed on your client's Driving Licence indicated a weakness in character on his part which could not be ignored. It was also of the view that given the type of Licence applied for the penalty points endorsed on your client's Driving Licence were very serious in licensing terms. In the Committee's opinion the penalty points endorsed on your client's Driving Licence since his Private Hire Car Driver's Licence was last granted indicated a disregard on his part for the rules of the road and it was of the view that this could have the potential for serious adverse consequences for other road users. The Committee was also concerned to note that these points had been incurred subsequent to the said warning with regard to your client's future conduct being issued. The Committee was of the view that the driver of a Private Hire Car has a responsibility with regard to the safety and well being of his passengers and it was not satisfied that in all the circumstances of this case your client could fulfil this responsibility in light of the penalty points endorsed on his Driving Licence since his Private Hire Car Driver's Licence was last granted.

 

Accordingly, after consideration the Committee was of the view that your client was not a fit and proper person to be the holder of a Licence and so decided to refuse his application in terms of Paragraph 5(3)(a)(ii) of Schedule 1 to the above Act."

 

The submissions for the appellant

[11] The solicitor for the appellant began her submissions by stating the order that she wished pronounced: that the appellant's plea-in-law be sustained, the respondents' pleas-in-law be repelled and decree granted reversing the decision appealed against. This she said was because the decision was one that no reasonable committee acting reasonably could have reached.

 

[12] What rendered the decision unreasonable in this sense was that they had not balanced properly the appellants convictions against the mitigatory factors placed before them. She sought to adduce a further ground of criticism of the decision to the effect that the committee had failed to give sufficient weight to the personal circumstances of the appellant but withdrew that on recognising that she could not bring that within the scope of paragraph 18(7)(d). The mitigatory factors were: (1) that the appellant had held his driver's licence for 21 years; (2) that he had held that licence without any endorsements until the two convictions he had incurred in 2009; and (3) the circumstances of the commission of the two offences which showed as convictions on his licence as he had put them to the Board. The appellant accepted that the terms in which he gave those circumstances to the committee were expressed accurately in the copy of the handwritten notes taken by Miss Mairi McCallum which she subsequently transcribed into typescript, both of which documents were number 10/1 of process. Furthermore he accepted that he had committed both offences whilst engaged in his duties as a private hire car driver.

 

[13] As support for the need to balance properly the adduced factors the solicitor for the appellant referred to the case of Ritchie v Aberdeen City Council [2011] CSIH 22, as yet unreported, a decision of the Second Division of the Inner House in an appeal by Mr Ritchie to the Court of Session against an interlocutor of the sheriff by which he refused an appeal by Mr Ritchie against a decision of the licensing committee of Aberdeen City Council to refuse to renew his taxi driver's licence. She cited the case solely for the observations of the Lord Justice-Clerk (Gill), with whom the other two judges who heard the appeal agreed, set out in part of paragraph [14] of his opinion.

"[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."

Relying on that passage she submitted that in the present case the committee had failed to carry out the necessary balancing exercise and that this failure was clear from the terms of the statement of reasons which gave no indication that the committee had carried out the balancing exercise or even given an indication of what they thought of the mitigatory features.

 

[14] As an example of what fate would await a licensing committee that failed to carry out such a balancing exercise she referred to the case of Hart v Aberdeen City Council 2006 Hous LR 93 and sought to abstract from the decision of the sheriff that not only does a licensing committee have to make that balance, they have to set out in the reasons for their decision how they dealt with that balancing act. When it was suggested to her that this requirement that she sought to impose on the committee went beyond what the court required in Ranachan she conceded that of the two cases it was Ranachan that was binding on me and not Hart but she submitted that what she proposed did not go beyond the dicta in Ranachan because the failure on the part of the committee to set out clearly how they had arrived at their decision in the present case and not leave matters at what the decision was, rendered it other than intelligible. She accepted that the word intelligible meant being able to be understood. She maintained that the way they expressed their decision rendered it unintelligible even although the statement of reasons referred to the mitigatory factors because it did not do that in the penultimate paragraph, the one that set out the committee's reasons and there was no suggestion in that paragraph that they took it into account. What they should have said was something along the lines that they, having taken into account the mitigatory factors, nonetheless concluded that they should refuse the application. She sought support for this approach in the case of Ritchie where she said something similar had happened and she accepted that to acceded to this submission went beyond what Ranachan said was required. Under reference to the appellant's averment that the convictions were for minor offences she accepted that the appellant did not describe them as such to the committee, but submitted that that qualification could be inferred from what he did say about the circumstances in which he committed each offence. She accepted that the onus of proof in the appeal lay on the appellant.

The submissions for the respondents

[15] The solicitor for the respondents began his submissions by referring to paragraph 18(7) of Schedule 1 to the Act which sets out the grounds upon which the sheriff may uphold an appeal of the kind under consideration. He said that the appellant's application was founded in 18(7)(d) and that it could not succeed given the terms of the summary application and statement of reasons and the evidence led in the course of the hearing because the decision appealed against could not be said to involve an unreasonable exercise of discretion. There was no dispute between the parties about the content of the statement of reasons. In it the committee stated that it had regard to the two convictions which the appellant had acquired in 2009 and paragraph 9 set out the committee's reasons for their decision. The statement of reasons set out expressly and clearly what information there was before the committee and that the committee had refused the application under paragraph 5(3)(a)(ii) because the appellant was not a fit and proper person to be the holder of the licence. Furthermore, the statement referred expressly and clearly to the appellant's two convictions and that the committee had taken account of those convictions and what he had said before the committee. From all of this there was material before the committee that allowed them to make their decision. Once they had formed a view that he was not a fit and proper person the committee as the Licensing Authority were required to refuse his application.

 

[16] The solicitor for the respondents then referred to the publication "Scottish Civic Government Licensing Law, 3^rd edition (2009) at page 131 for the observation in a passage in the commentary on subparagraph 3(a)(ii) that, "[i]t is for the authority to satisfy themselves on the material before them that the applicant is not a fit and proper person." In light of that he submitted that there was sufficient material for the respondents to arrive at their decision to refuse the application, that the appellant's convictions were relevant to the application, that the decision which the Committee reached was one that was open to them and that it was not unreasonable and that for all these reasons the appellant's plea-in-law could not be supported.

[17] The solicitor for the respondents then turned to look at the law as stated in various reported cases, principally from the Court of Session, and then in light of what he founded upon from them he commented on how that law applied to the present case. The cases he referred to were Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345; Hughes v Hamilton District Council 1991 SC 251; Ranachan v Renfrew District Council 1991 SLT 625; Loosefoot v Glasgow District Licensing Board 1991 SLT 843; Ward v Dundee City Council 1999 SLT (Sh Ct) 56; Middleton v Dundee City Council 2001 SLT 287; Ferguson v Dundee City Council [2006] CSIH 51; and Ritchie v Glasgow City Council, Glasgow Sheriff Court, Sheriff Convery, 15 December 2010 (unreported).

 

[18] From Wordie Property Co Ltd he founded upon the celebrated passage in the opinion of the Lord President (Lord Emslie) at pages 347 and 348. That passage was in the following terms:-

"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it. These propositions ...are, it appears to me, amply vouched by many decided cases..."

 

[19] Hughes was a case in which the licensing authority refused the appellant's application for renewal of his street trader's licence on the ground that he was not a fit and proper person by reason of his previous convictions. The street trader appealed to the sheriff who allowed the appeal. The local authority appealed to the Court of Session who allowed the appeal. The passage from the opinion of the court delivered by Lord McCluskey which the solicitor for the respondents founded upon was at pages 256 and 257 as follows:-

"Upon the basis that the previous convictions disclosed to the committee had a bearing upon the fitness of the applicant to hold a licence of the kind for which he was applying, the question as to what weight fell to be attached to the recorded convictions was plainly a matter upon which the committee was obliged to form an opinion. Once there is relevant material before a licensing authority the question as to the weight to be attached to that material and the significance of any other balancing factors must be for the authority to assess. The sheriff describes the record as "trivial". We can well understand his view that it was not particularly serious, especially in the context of the allegation he made that others were operating loudspeaker chimes in the very areas where he was trying to trade. Nonetheless the question as to the weight that fell to be attached to all these matters was one for the committee to address. In our opinion, it cannot possibly be said that no reasonable committee could have arrived at the view at which this committee arrived, and we do not consider that it was open to the sheriff to conclude that the committee exercised its discretion in an unreasonable manner."

 

[20] From the case of Ranachan v Renfrew District Council 1991 SLT 625 he founded upon a passage in the opinion of the court delivered by Lord McCluskey at page 628 in the following terms:-

"In our opinion, it was for the committee to make their own assessment as to whether or not the fact that the applicant had, on the occasion which resulted in these convictions, behaved in the manner outlined to them was something that bore upon the fitness of that person to hold a taxi driver's licence. It is impossible to say that they would have been unreasonable had they taken into account, for example, the possibility that the respondent, if granted a licence, might well find himself late at night faced with difficult customers whose behaviour might provoke him to some reaction, and had been apprehensive as to how he might react. Equally it would be impossible to say that members of the committee would have been unreasonable if they had felt that, as elected representatives answerable to the general public, they should restrict the grant of such a licence to persons who came before them with no unspent convictions, and against whom there was no other similar black mark. In our view, it is not necessary for a "statement of reasons" to condescend in detail upon the precise thinking which lies behind the reasons actually given; indeed, there being several members of the subcommittee, it is clear that different members might have attached different weight and significance to the various considerations before the subcommittee. In our opinion, the statement of reasons in this instance is both intelligible and sufficient."

 

[21] All that he took from the case of Loosefoot was that its reasoning and approach followed and applied that taken in Wordie.

 

[22] He referred to the case of Ward purely for the observation of Temporary Sheriff Hajducki QC at page 58 that where a committee were considering whether an applicant was a fit and proper person to hold a licence, "it would appear clear that there must be an element of culpability on the part of the pursuer before he can be declared to be not a fit and proper person in the context of 1982 Act and one therefore look for an act or an omission on his part which would justify any such finding."

 

[23] The solicitor for the respondents then turned to the case of Middleton v Dundee City Council 2001 SLT 287 for two passages in the opinion of the court delivered by Lord Philip. The first was the first sentence of paragraph [6] at page 290:-

"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 second was in paragraph [8] at page 291:-

"There was also the failure to take any notice of the warning given by the committee".

 

[24] . He then referred to the case of Ferguson for part of paragraph [7] of the opinion of the court delivered by Lord Philip, as follows:-

"They are entitled to proceed on any type of material which has a bearing on the question which they have to decide, and it is for them to decide on its sufficient and quality, and the appropriate weight to be given to it. Accordingly, it was for the Committee to decide whether to proceed on the basis of the information provided by the Chief Constable's representative."

 

[25] He turned to the case of Ritchie because he submitted the facts of the case were similar to the present case, involving an unsuccessful appeal against the refusal to grant a private hire car driver's licence in a situation where the appellant had six penalty points on his driving licence. He founded upon the terms of paragraph [3] of the learned sheriff's note, which was in the following terms:-

"Mr Boag, responding for the licensing authority, submitted that it could not be said that their refusal of the licence was an unreasonable exercise of their discretion. In terms of paragraph 5(3)(ii) of Schedule 1 of the Act a licensing authority was bound to refuse an application if in their opinion the applicant was not a fit and proper person to be the holder of the licence. There was ample material before them (and to which they had regard) in reaching their conclusion. They were entitled to attach the weight they did to the appellant's convictions. They were entitled to take account of the letter from the Chief Constable in that regard. There was ample material before them to justify differentiating between the applications of the appellant on the one hand and the other applicant to whom Ms McCracken referred."

 

[26] From these authorities he submitted that the passage in Wordie endorsed the Wednesbury principle (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and in particular per Lord Greene M.R. at page 233) that a court would not interfere with a decision unless that decision were so unreasonable that no authority acting reasonably could have come to it and that this approach was followed in Hughes, Ranachan and Loosefoot. If the appellant were to succeed he had to meet a very high test and the committee had a very wide discretion in respect of the decision which they had to make. The present case was not a review of the decision of the committee but an appeal under the Act. The decision was a matter for the local authority alone and, as pointed out in Hughes, it was not open to the sheriff to substitute his decision for that of the committee. The appellant's convictions were relevant and the committee were entitled to take them into account. They also took account of the appellant's submissions. They had ample information to conclude that the appellant had been culpable, based upon the criminal offences, and his culpability still existed despite the mitigation which he had proffered at the hearing. The weight to be given to convictions and any balancing factors was a matter for them and their decision in the present case fell within the band of reasonableness that was open to them. The decision of the committee to refuse the application was one that was clearly open to them as licensing authority. The statement of reasons showed that the committee took account of those convictions, the applicant's responses and the circumstances of the convictions. The reasons the Committee as set out in paragraph 9 of the statement of reasons were both intelligible and sufficient. With regard to the appellant's history of driving and the state of his driving licence, he submitted that there was nothing to say that the Committee were made aware that the appellant had held a driving licence for 21 years and had held that as a clean licence until May 2010. Similarly there was no evidence before the court that the committee had been made aware that the appellant considered his two convictions to be minor or wished them to view them in the same way. The appellant had been granted his licence subject to a warning.

[27] The solicitor for the respondents concluded by submitting that in the whole circumstances I should sustain the respondents' second and third pleas-in-law, repel the respondents' first plea-in-law for want of insistence, repel the plea-in-law for the appellant and refuse the appeal. If I were not with him in that motion, but instead sustained the appellant's plea-in-law, then I should sustain the respondents' fourth plea-in-law and remit to the committee to reconsider the application. I repelled the respondent's first plea there and then, unopposed by the appellant.

 

The response on behalf of the appellant

[28] In response the solicitor for the appellant submitted that in their deliberations the Committee had before them the appellant's driving licence but having made that submission readily conceded that there was nothing in either the papers, the evidence or the agreed documentation that made it clear that the Committee had had that driving licence drawn to their attention or that they were under a duty or obligation to take it into account when they had the application form with the information contained in it and chose to work with that. Beyond that she submitted that if I were to sustain the appellant's plea-in-law she had no difficulty in my sustaining the respondents' fourth plea-in-law and remitting to the Committee the task of reconsidering the appellant's application.

 

Discussion

The issues in controversy

[29] In light of the pleadings, the joint minute, the evidence led and the submissions thereon, I consider that there are two issues in controversy: (1) beyond what has been admitted on record that relates to the hearing and agreed in the joint minute and conceded in the course of submissions, what has the appellant proved was the information before the committee on which it had to arrive at its decision on his application; and (2) on the basis of the information before the committee was their decision one that was so unreasonable that no reasonable licensing authority could have arrived at it? The first raises a question of fact, the second a question of law. For both the onus of proof is on the appellant, and the standard of proof is on the balance of probabilities.

 

The first issue

[30] For the first issue, the averment admitted on record that is concerned with the content of the hearing is the single sentence in answer 4 that the appellant explained the circumstances surrounding the incidents that grounded both convictions and the joint minute introduced the statement of reasons. Beyond that material, as a result of the evidence allowed without objection there is no dispute that the committee had before them at the hearing on 12 January 2011 the appellant's application form dated 28 September 2010. Moreover, the appellant conceded that the information he gave them about the circumstances of his commission in 2009 of both the road traffic offences which he had listed in that form and which showed as convictions on his driving licence were expressed accurately in the notes taken by Miss McCallum during the hearing. Although both the appellant and Miss McCallum were asked about the notes they were not put to either of them in full and are not included in the Joint Minute. In so far as they were spoken to in the course of the evidence, they relate solely to the conviction for contravening the pedestrian crossing regulations with a stationary vehicle, as follows:

 

Chair (Cllr Frank Docherty) Last time - final warning re future conduct - 6 points

since?

 

Applicant: PC30 - 2 drunk passengers - said going to be sick -

couldn't stop - waiting to turn - police came up behind

- they got out - couldn't stop them

 

Cllr Morrison: Fixed penalty - why not go to court?

 

Applicant: Annoyed - not VOSA MOT - said did have GCC - not

need MOT - off road until the Monday

 

The practical effect of both the joint minute and the concession is to displace and supersede the averments in articles 2 and 3 of condescendence concerning the circumstances in which the appellant committed both offences.

 

[31] What that leaves in dispute on record is whether the committee were made aware that the appellant had held his driving licence for 21 years without any endorsements until the two convictions he incurred in 2009. The appellant was not asked that in the course of his evidence. Furthermore and in any event there is no mention of these facts in either the statement of reasons or Miss McCallum's notes in so far as spoken to in evidence (or indeed at all, if I had been able to look at all that they said). There is therefore no evidence to support this averment and he has accordingly failed to prove it.

 

[32] Furthermore, in so far as he seeks to prove that he did not challenge either conviction at the time of their respective occurrence because he was grieving over the death of his son, I consider that he has failed to do that. When he was asked in the course of his evidence if he had told the committee that he was upset because his son had been drowned on 29 January 2009 while on holiday, he replied, somewhat opaquely, that "he cut me off" and "I saw no point in saying that". I infer that "he" was a member of the committee who was involved in the question and answer session that took place during the hearing, but what is clear is that the appellant did not communicate that message to the committee and accordingly that element of his personal circumstances was not before them. That this is the correct conclusion to draw comes also from the evidence of Miss McCallum whom I am satisfied was an entirely reliable witness in all the evidence that she gave and where she and the appellant differed on the facts of what happened at the hearing I unhesitatingly preferred her evidence. She said that she had no note or recollection of the appellant mentioning this family tragedy and that if he had she would have recorded it in her notes. Her notes contain no such statement. I accept from her that the appellant did not place that information before the committee.

[33] Accordingly the appellant has failed to prove that the committee had before it any information beyond what has been admitted on record that relates to the hearing and agreed in the joint minute and conceded in the course of submissions.

 

The second issue

[34] Let me begin my discussion of this issue with the relevant law as it is in the Act and as it has been interpreted by the courts in those decided cases that were referred to in the hearing.

 

The Act

[35] The appellant's application for the renewal of his private hire car driver's licence was made, determined and appealed under schedule 1 to the Act. He made the application in accordance with the requirements of paragraph 1. At the hearing on 12 January 2011 the respondents as licensing authority and through the medium of their regulatory and licensing committee considered his application as required by paragraph 4. They decided to refuse to renew his licence which is a decision falling within paragraph 5(1)(c). They reached that decision because in the exercise of the statutorily conferred discretion in their opinion the appellant was not a fit and proper person to be the holder of the licence which is the reason permitted by paragraph 5(3)(a)(ii). They notified the appellant of their decision as required by paragraph 5(5)(a). The date was not disclosed in the appeal papers or in the course of the hearing so I proceed on the basis that it was done in conformity with that subparagraph. The appellant required the respondents, under paragraph 17(1)(a), to give their reasons in writing for arriving at their decision to refuse to renew his licence. The respondents did that but not within the prescribed period of 28 days of the date of the decision. Nothing was made of this in the appeal and therefore I proceed on the basis that it raises no live issue. The appellant appealed to the sheriff against the decision to refuse to renew as required by paragraph 18(1). The appeal is framed correctly as a summary application and was lodged within 28 days of the decision appealed against as required by paragraph 18(4).

 

[36] The test in law to apply to an appeal is given in paragraph 18(7): the sheriff may uphold an appeal only if he considers that the authority in reaching their decision did one of four things. In this case the appellant relies on the fourth, that the authority exercised their discretion in an unreasonable manner. It is competent to hear evidence by or on behalf of any party, paragraph 18(8). The sheriff may include in his decision such order as to the expenses as he thinks proper, paragraph 18(11).

 

The case law

[37] From the decided cases that were referred to in the course of the hearing I abstract the following propositions that are relevant to the present application and which I consider to be in point and binding upon me.

 

1.      The decision of a licensing authority will fall to be quashed if they exercised improperly the discretion conferred on them by the Act by reaching a decision that was so unreasonable that no reasonable licensing authority could have arrived at it (Wordie at pages 347 and 348, Hughes at page 254, Loosefoot at page 845, and Ranachan at page 628).

2.      It is for the licensing authority and not the court to decide who is a fit and proper person to be the holder of a private hire car licence (Hughes at page 255, Ranachan at page 628 and Middleton at page 290) because the Act has left all matters of fact to the licensing authority and the sheriff is entitled to interfere with them only to the very limited extent allowed by the Act (Loosefoot at page 845).

3.      In forming their opinion on the question of who is a fit and proper person to be the holder of a private hire car licence, a licensing authority have to take into account all information properly placed before them which bears upon the question (Hughes at page 255).

4.      The question is always one that relates to the particular licence under consideration (Hughes at page 255).

5.      It is for the licensing authority to determine whether previous convictions of an applicant disclosed to them have a bearing upon an applicant's fitness to hold a private hire car licence (Hughes at page 256).

6.      If the licensing authority are satisfied that previous convictions do have a bearing on the appellant's fitness to hold the particular licence in question, then it is for them to form an opinion on what weight falls to be attached to the convictions that they consider have such a bearing and also to the significance of any other balancing factors put before them (Hughes at page 256, Ferguson at paragraph [7] and Ritchie at paragraph [14]).

7.      It is open to the licensing authority to conclude in an application involving a private hire car licence that an applicant convicted of road traffic offences, including a conviction for speeding, is not a fit and proper person to be the holder of such a licence (Middleton at page 290 paragraph [7] quoting with approval from the decision of the Second Division in the case of MacDowall v Cunninghame District Council 1987 S.L.T. 662 at page 624).

8.      Convictions for speeding should be put forward as evidence of faulty driving and nothing else - not as in any way indicating the nature of the character of the applicant (Middleton at page 290 paragraph [7]).

9.      It is open to the licensing authority to look at an applicant's convictions as a whole, together with the fact that he had received a prior warning, and to come to a view based upon the pattern of conduct which emerges from them on his fitness to hold a private car hire licence (Middleton at page 290).

10.  It is not sufficient for success that the sheriff be satisfied on the information before him that he would have reached a decision different from the committee (Hughes at page 254) because he is not entitled to substitute his decision on the facts for those of the committee (Loosefoot at page 845).

11.  The onus of showing that in reaching their decision the committee exercised their discretion unreasonably rests upon the appellant (Hughes at page 254).

12.  In an application that founds upon fitness it is sufficient for the respondents in their statement of reasons for their decision to state the reason for refusal in terms that made the reason intelligible and it is not necessary to condescend in detail upon the precise thinking which lies behind the reason actually given (Ranachan at page 628).

 

The application of the law to the facts

[38] Applying the foregoing propositions to the facts I conclude that the appellant has failed to prove that the decision of the committee was unreasonable in the specialised sense demanded in an appeal of this kind.

 

[39] In a case of this kind the application is concerned with the legality of the decision of the licensing committee of the respondents that he is not a fit and proper person to be the holder of a private hire car licence. That is a finding in law. The case is not concerned with the merits of the appellant's application for renewal in respect of which the respondents had to make the decision complained against. The test that a successful challenge has to meet is an exacting one and places a heavy burden on the appellant to establish that the respondents acted unreasonably in the way and to the extent required. In the context of appeals relying on paragraph 18(7)(d) the word unreasonable means much more when applied to a decision of a licensing authority than its ordinary usage which regularly conveys the idea of an act that is unwise, ill-considered or ill-advised. The idea of irrationality expresses more adequately the standard which normally has to be achieved if a challenge is to be successful.

 

[40] The decision is contained in paragraph 9 of the statement of reasons. It is said to be based on the considerations and information narrated in paragraphs 5 to 8 inclusive. Those paragraphs incorporate all the relevant information contained in the appellant's application form. It is a matter of agreement that those paragraphs contain the information that was placed before the committee which they could take account of and which bears upon the question of whether to renew the appellant's private hire car driver's licence. From those paragraphs I readily infer that the committee took into account all the information that was properly placed before them which bore upon the question of whether, in the context of his particular licence, the appellant was a fit and proper person to be the holder of a private hire car licence. That included the fact that he committed both offences whilst engaged in duties authorised by the licence.

 

[41] It was open to the committee to look at the convictions together with the fact that when he was granted his licence in 2009 he had been issued with a final warning regarding his future conduct, and to come to a view based upon the pattern of conduct which emerged from them on his fitness to hold a licence. The committee took the view that the appellant's previous convictions for the road traffic offences committed in 2009 after being granted his licence and during its lifetime had a bearing upon his fitness to hold such a licence. That is a judgement that fell within their statutorily conferred discretion and their entitlement to exercise that judgment is undisputed. Having taken that view it was for the committee to form an opinion on what weight fell to be attached to the convictions and what significance to attach to any other balancing factors put before them. Such as they were, they are as set out in paragraph 8 of the statement of reasons.

 

[42] In this case the criticism is that the committee failed to carry out the necessary balancing exercise. As she developed this argument I understood the solicitor for the appellant to attack not only the way they reached their decision but also the way that they expressed it in the statement of reasons. I am not persuaded of the soundness of either attack. The appellant has for the reasons set out above failed to prove what on record he averred were mitigating factors. In so far as he characterises the offences as being minor he has not proved that he made that submission to the committee and in the absence of that he must be held to have left to the committee the task of characterising the nature of the offences. The statement of reasons demonstrates that they took a view of them that was serious rather than minor and they were entitled to take that view in the exercise of their discretion. That they took that view cannot have come as a surprise to the appellant because in the course of his evidence he admitted that he expected further convictions beyond that of October 2000 to lead to his licence not being renewed.

 

[43] There is one respect in which I am of the opinion that the committee erred in their decision as recorded in paragraph 9. That is where in the first sentence of the paragraph they describe the penalty points that the appellant accrued as reflecting "a weakness in character on his part which could not be ignored." The committee ought to have directed their attention in dealing with the existence of the penalty points to what it indicated about his quality of the appellant's driving rather than to what it might say about his character. That way of looking at convictions was endorsed in Middleton. However, I am satisfied that that mistaken observation did not have the effect of tainting the rest of the reasoning in the paragraph which concentrates upon the appellant's fitness to hold a private hire car licence.

 

[44] On the basis of what they had before them the committee were entitled to reach the decision that they did. They did accord correct weight to such mitigatory features as they were presented with, which was precious little. They did not reach a conclusion that could be said to have failed to make a correct balance. It was open to them to conclude that he was not a fit and proper person to hold a private hire car licence and therefore refuse his application for its renewal. In the whole circumstances their decision was not one that was so unreasonable that no reasonable licensing authority could have made it on the same information that they had to work with. Accordingly the challenge to that decision fails and with it the appeal. As a consequence I do not need to deal with the respondents' secondary position requesting a remit to the committee for them to re-consider the application.

 

Conclusion

[45] For the foregoing reasons I will sustain the respondents' second and third pleas-in-law, repel the appellant's plea-in-law and refuse the appeal.

 

Expenses

[46] I was not addressed on the question of the expenses of process. I have therefore appointed a hearing for that purpose.