Scottish Sheriff Court Decisions

 

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

 

B128/13

		JUDGMENT   by   SHERIFF PETER G.L. HAMMOND, Advocate
		IN APPEAL UNDER PARAGRAPH 18 OF SCHEDULE 1 TO THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
		by
		GRAEME GORDON
		APPELLANT
		against
		ABERDEENSHIRE COUNCIL
		RESPONDENTS     __________________________

 

 

 

Act: Mrs Douglas

Alt: Miss Cruickshank

 

 

 

ABERDEEN, 28 August 2013.

 

The sheriff, having resumed consideration of the appeal, sustains the respondents' pleas-in-law; Refuses the appeal; Finds the appellant liable to the respondents in the expenses of the appeal as taxed; Allows the respondents to lodge an account of expenses and remits the same, when lodged, to the auditor of court to tax and report.

 

 

 

 

 

NOTE:

Introduction

[1]            This is an appeal by way of summary application in terms of the Civic Government (Scotland) Act 1982, Schedule 1, paragraph 18. The appellant, Graeme Gordon, appeals to the sheriff to reverse the decision of the respondents, Aberdeenshire Council, made on 8 February 2013 by their Policy and Resources Licensing Sub-committee, to refuse the appellant's application for a taxi driver's licence. The respondents' reason for reaching that decision was that he is not a fit and proper person to be a holder of that licence. He challenges the decision on the ground that, in reaching it, the respondents exercised their discretion in an unreasonable manner.

 

Background

[2]            The appellant resides at 2 Birch Cottages, Cluny, Inverurie. The respondents are the taxi licensing authority for Aberdeenshire under and in terms of the Act. They carry out that statutory responsibility through their Policy and Resources Licensing Sub-committee ("the Committee").

 

[3]            On 11 December 2008, the respondents granted the appellant a taxi driver's licence for a period of three years. This licence was suspended by the committee on 26 August 2011, following a series of complaints made in respect of the appellant's conduct. The appellant re-applied for his licence but this was refused by the respondents on 9 December 2011.

 

[4]            On 10 December 2012, the appellant made a further application for a taxi driver's licence.

 

[5]            Upon receipt of the application, the respondents consulted the Chief Constable. On 15 January 2013, Grampian Police submitted a letter of objection to the committee. That letter was submitted outwith the statutory period but the committee decided that it should be received and duly gave it consideration at the meeting on 8 February 2013.

 

[6]            At the committee meeting on 8 February 2013, the appellant was present and represented himself. He was given the opportunity to address the committee, which he did. The appellant also produced five letters of support from members of the public which were circulated to the committee members and considered. After hearing from the appellant and a representative of the police and considering the police letter of objection and the letters of support produced by the appellant, the committee refused the application.

 

[7]            Following the refusal of his application, the appellant requested a Statement of Reasons. These were provided to the appellant's agents on 8 March 2013.

 

Procedure in the appeal

[8]            Upon receipt of the respondents' Statement of Reasons, the appellant lodged his appeal by way of summary application. I heard the appeal on 6 August 2013. I heard evidence from the appellant and his wife, Mrs Elaine Gordon. I also heard evidence on behalf of the respondents from Miss Fiona Stewart, who is a senior solicitor in the respondents' Governance Team.

 

Evidence

The appellant

[9]            The appellant is 50 years of age. His normal occupation is a taxi driver. According to the appellant, most of the time in the committee hearing was taken up with a discussion about the appellant sitting in a public car park. No dates or details of incidents were specified. He explained that he employed female drivers, and on occasions he would have to be available to go out to help them at night. The committee questioned him about why he needed to operate his business from a public car park instead of from home, but did not ask him how he would be able to do that. He submitted letters in support but the committee did not consider the letters. The letters were handed out about half way through the meeting. In cross-examination, the appellant conceded that the written Statement of Reasons fairly represents what was discussed on the day. He said that his licence had been suspended in 2011 because three or four other taxi drivers put in complaints. He could not remember what these complaints were. He accepted that the letter from the police dated 15 January 2013 was given to him before the committee meeting. Notwithstanding paragraph 24 of the Statement of Reasons, the appellant did not remember the police letter being referred to at the hearing. However, he did ultimately accept that he was given the opportunity to address the committee on the specific incidents set out in the police letter of objection. The appellant made the point that he was not convicted in respect of any of the incidents set out in the police letter of objection. The only matter which had resulted in an adverse outcome for the appellant was the alleged incident of breach of the peace on 20 January 2011. This was dealt with by a PF fine; in other words a non-conviction disposal. It was suggested that the totality of complaints demonstrate a pattern of behaviour which included shouting and aggression, but he did not agree. The appellant was referred to a passage on the final page of the police objection letter in the following terms:-

 

"Police in Inverurie continue to receive reports about the conduct of Mr Gordon in and around Inverurie town centre and the unofficial taxi rank but when it comes to noting formal complaints from people they decide not to go ahead for fear of reprisals".

 

The appellant complained that he was not given the opportunity to address the committee on the later complaints because the police did not say who the complainers were. However, he accepted he did have the opportunity to tell the committee that he did not know who the complainers were but had not done so. He accepted that, at the committee hearing, he had not denied anything raised within the Chief Constable's letter of objection. However, his position was that these incidents had all been denied the year before (at the time of the December 2011 refusal). According to the appellant the committee did not go into the details of the objection letter again. The appellant did not consider he had been fairly treated because he wanted to raise complaints about other taxi drivers, but these were treated as irrelevant. He felt he was being picked on by Grampian Police. He did address the committee on that matter, but the committee had chosen not to accept his representations. He did tell the committee that he needed to be physically present at the Inverurie taxi rank but his position on this point was not accepted either. Although the five letters of support were read by the committee, he did not consider that he got the opportunity to put his points to the committee letter by letter. In relation to the paragraph quoted earlier from the police letter of objection, the appellant considered it unfair to consider these later reports received by the police because it was never specified exactly what was the alleged conduct complained of or indeed by whom the complaints were made.

 

Mrs Elaine Gordon

[10]         She is 49 years of age and is the appellant's wife. She attended the meeting on 8 February 2013 along with the appellant. She also felt that the committee spent the majority of time considering the application in dealing with the issue of the appellant being in his car at the unofficial taxi rank in the public car park at Inverurie. The committee did not seem to be interested in how the appellant would go about conducting his business from private premises. She confirmed that her husband did the speaking at the hearing and there was an opportunity for him to address the committee. Although the appellant's letters of support had been photocopied and looked at, they were "pushed to the side" and not properly discussed or considered.

 

[11]         Miss Fiona Stewart gave evidence on behalf of the respondents. She is a senior solicitor in the Governance Team and is the monitoring solicitor for the Licensing Sub-Committee. She has clerked various meetings which the appellant has attended. She drafted the committee's Statement of Reasons which is based on her own notes. She explained in evidence how the committee treated the police objection letter. The police had been consulted but their letter of objection was not submitted to the committee within the prescribed 28 day period. In those circumstances, the committee will only circulate the objection letter if it decides that there is good reason why it was late. On 8 February 2013, the committee considered the late representations and allowed them to be received late as they accepted the reasons. Only then was the letter of objection circulated to members. The appellant had been given a copy of this in advance of the hearing, and was given a further copy at the hearing. The committee's procedures for conducting a hearing are set out in appendix 3 to the Statement of Reasons. These procedures were followed. In terms of the procedure laid down, the police spoke to make their observations in support of the objections set out in their letter, and the appellant took advantage of his right to respond, as noted in the Statement of Reasons. Miss Stewart confirmed that what she has recorded in the written Statement of Reasons was an accurate account of the consideration given by the committee to the application. All discussions took place in front of the appellant and are noted in the reasons. Nothing took place outwith the appellant's presence. The questioning is detailed on page 4 of the Statement of Reasons. She recalled that there was quite a long discussion amounting to some 15 or 20 minutes during which time the appellant was questioned on aspects of his application. The appellant's letters of support were referred to by him when he spoke to the committee. The committee agreed to allow these letters to be received, and they were copied and circulated to the members. Before questioning, the members were given an opportunity to read them. Although the committee do not always allow such letters to be lodged, in this case the committee felt it was fair to the appellant to allow them to be lodged. She confirmed that the letters were fully considered by the committee as part of the hearing. Although no questions were put to the appellant about how he would conduct his business from his home or other premises, he was questioned about why he did not do so. Miss Stewart explained that the committee members are all councillors. A new committee is in place since the last elections. Some councillors are experienced whereas some others are new. However, all members sitting on the committee had the benefit of a full day's training. The committee members took a good five or ten minutes to read the appellant's letters of support and only then did the convenor allow the hearing to continue. Although in the police letter of objection the police did not put forward information as to what exactly the specific allegations were, the appellant did not put any further questions to the police representative. Neither did he ask for further information, or deny the allegations.

 

Appellant's submissions

[12]         The summary application avers that the respondents' decision was unreasonable in that they attached excessive weight to the Grampian Police letter of objection and that the inference they drew from that, namely that the appellant was not a fit and proper person to hold a licence, was unwarranted. It is averred that the appellant was not charged with any of the allegations made against him with the exception of an assault charge. That proceeded to court whereupon the appellant was found not guilty. The letter of objection was submitted outwith the statutory 28 day period, and the number of the complaints received had come from the appellant's competitors. The last alleged incident in the letter which has been specifically referred to by date took place on 21 April 2011. The letter of objection did not disclose any specific incidents having occurred since the appellant's licence was suspended on 26 August 2011. This left a general statement that the police continued to receive reports about the conduct of the appellant. It is averred that the appellant denies behaving in the manner which causes effect to public safety. The respondents had failed to give sufficient weight to the letters of support lodged by the appellant.

 

[13]         In her oral submissions in support of the appeal, Mrs Douglas submitted that the Statement of Reasons showed that the respondents' committee had drawn an unwarranted inference from the objector's letter. A significant time at the hearing had been taken up with the matter of the appellant's presence at an unofficial taxi rank in Inverurie. The question was whether his presence amounted to misconduct, and whether that had a bearing on the appellant's fitness to hold a taxi licence. The appellant's submission was that that was not a legitimate inference to draw. There was no specification of the activity which the appellant was supposed to be guilty of and the whole tenor of the post-August 2011 matters raised by the police was very vague. Without knowing exactly what these allegations were, Mrs Douglas queried how it could be said that these concerns gave rise to issues of public safety.

 

[14]         It was apparent that the committee focussed on the appellant's behaviour since the loss of his licence in 2011. (Paragraph 28 of the written reasons at page 1(8) of the production). Nowhere does it say what the behaviour is, the dates, the conduct and the complainer etc. In those circumstances, no reasonable committee could conclude that being situated in a public car park was misconduct. The committee had therefore drawn an unwarranted inference.

 

[15]      I was reminded that in terms of paragraph 18(9) of schedule 1 to the 1982 Act, on upholding an appeal the sheriff may either remit the case for reconsideration by the licensing authority or reverse the decision of the authority. In arguing that the appeal should be allowed, Mrs Douglas indicated she would leave it to the court to decide which course of action was appropriate.

 

Respondents' submissions

[16]      The respondents dealt with the late acceptance of the Grampian Police letter of objection in their answers. It was accepted that in terms of paragraph 3(1) of schedule 1 to the 1982 Act, objections would require to be made within 28 days. However, in terms of paragraph 3(2), the licensing authority is empowered to entertain an objection received before they take a final decision on the application if they are satisfied there is sufficient reason why it was not made within the statutory period. According to the answers, Sergeant Middler of Grampian Police attended the hearing and explained that due to the time of year the appellant's application was lodged, staff holidays delayed the lengthy investigations into the application before a response could be submitted. In the light of that, the committee passed a motion that the letter of objection be accepted on the basis that a sufficient explanation had been provided.

 

[17]      The Grampian Police letter discloses six complaints were received by Grampian Police between 2009 and 2011. Three of the complaints were received from other taxi drivers in the area. One of the complaints was from a ............... who alleged that the appellant had threatened him in an aggressive manner at Westhill Service Station. The police had viewed CCTV footage showing the appellant acting in an aggressive manner and he was subsequently cautioned and a procurator fiscal fine imposed in respect of this matter. A further complaint was made by a female taxi passenger who alleged that she had been sexually assaulted by the appellant. The final complaint was from a thirteen year old boy, who complained of assault.

 

[18]      The police continue to receive complaints about the appellant's conduct from other taxi drivers and members of the public. These include reports about him intimidating other taxi drivers. The police have requested him to stay away from the taxi rank in Inverurie, but he has not complied with this request. The overriding concern is for public safety. Looking at the number and nature of complaints, the view could properly be held that such people were at risk of aggressive behaviour on the part of the appellant. It was particularly concerning that potential complainers are reluctant to commit to initiating formal complaints due to fear of reprisal.

 

[19]      The committee did consider the five letters of support lodged by the appellant but they concluded that the letters did not relate directly to the appellant's own behaviour. They took the view that the appellant's misconduct on the taxi rank and the operation of his business from the taxi rank was a serious matter and they therefore gave little weight to the letters of support.

 

[20]      In developing her oral submissions on behalf of the respondents, Miss Cruickshank pointed out that most of the facts were not in dispute. The Statement of Reasons was accepted as an accurate account of the hearing. The licence was refused in February 2013 as the appellant was considered not to be a fit and proper person to hold a licence.

 

[21]      In order for the appeal to succeed, the appellant would have to show that the committee had acted in a way which no reasonable committee would. This was the approach followed in Hughes v Hamilton District Council 1991 SC 251. The committee is entitled to take into account all information put before it as disclosed in the Statement of Reasons. In deciding whether an applicant is a fit and proper person, the committee can take previous convictions and other matters before it into account.

 

[22]      I was also referred to the case of Middleton v Dundee City Council 2001 SLT 287. In that case it was held that Parliament had left the decision on propriety and fitness to hold a taxi licence to local committees, and the court would be slow to lay down hard and fast rules of general application as to the matters which were relevant for consideration. The committee's approach in looking at the totality of matters brought to their attention could not be faulted. Miss Cruickshank reminded me that the letter of complaint from the police had been spoken to by the attending police officer and the appellant had an opportunity to address the committee. That having been done, it was for the committee to decide which submissions it preferred.

 

[23]      It was significant that the appellant did not deny any of the incidents alleged at the hearing. Although the appellant's position appeared to be something different in court, the appellant had not disputed these issues before the committee, as noted in the Statement of Reasons.

 

[24]      In relation to the reference in the police letter of objection to the police continuing to receive reports, the committee had a duty to consider whether complaints between 2011 and the present date impinged on whether the appellant was a fit and proper person. In the respondents' submission, the inference which was properly to be drawn was that continuing complaints followed on from what had been specifically alleged in the period leading up to August 2011, and this was a continuing course of behaviour which the committee were entitled to consider in determining the appellant's fitness to hold a licence.

 

[25]      I was also referred to the case of Malcolm v Aberdeen City Council 2004 SLT 88. That is a decision by Sheriff Cusine at Aberdeen in relation to a taxi licence. This case, it was submitted, shows that it is relevant to consider later incidents against the background of a continuing course of conduct from earlier incidents. Although this appeal failed for other reasons, it was held to be proper for the licensing committee to consider that someone who had convictions for assault in 1992 and 1993 and had not desisted from that type of conduct (as evidenced by an incident in 2000) still had aggressive tendencies which might be directed towards passengers, even though there was no evidence of such assaults in the past.

 

[26]      It was for the committee to decide whether the conduct alleged was relevant to the question of whether or not an applicant was a fit and proper person. The factors to be taken into account were a matter for the committee. In the present case, the allegations clearly impact on the appellant's fitness to hold a taxi licence. The incidents show a pattern of aggressive behaviour, and the complaints highlighted in the Statement of Reasons are sufficient to entitle the committee to come to the view they did reasonably and properly. It was submitted on behalf of the respondents that fitness does not depend on whether a person has previous convictions or not. This was apparent from the Middleton v Dundee City Council case, where behaviour, and not just convictions, were said to be relevant.

 

[27]      The appellant accepted that when he appeared before the committee on 8 February 2013, he did not deny or seek any further particulars about the incidents forming the complaints set out in the police letter of objection. The appellant's evidence was that he disputed these matters at a previous hearing. It was self-evident that the committee could only consider issues taken by the appellant before that particular committee on that day. The appellant plainly did not raise any issues of fact about these matters on the day. If he had raised any such issues, the committee would have taken them into account.

 

[28]      The case of Cameron v Aberdeenshire Council, Aberdeen Sheriff Court, unreported 23 February 2012 is a further illustration of the correct test to be applied. In that case the licensing authority successfully argued that in assessing fitness to hold a taxi driver's licence, the test was not simply whether there had been a previous conviction or convictions. Non-conviction matters could also be taken into account. It was the cumulative effect of a whole number of incidents which was crucial, and that did not depend solely on whether any particular set of circumstances had been further investigated leading to a prosecution or conviction.

 

[29]      The reasons for the committee's decision are set out in the Statement of Reasons from paragraph 21 onwards. In accordance with the test in Hughes v Hamilton District Council, the appellant requires to make out that the licensing authority acted unreasonably and that no other licensing committee would have arrived at the same decision. There was nothing in the procedure followed by the respondents or the decision which they arrived at which would allow it to be said that they acted unreasonably. The respondents took into account the appellant's position and that of the objector. It is obvious from the Statement of Reasons they carried out a proper exercise of assessing the credibility of the positions put forward and have indicated a clear basis for preferring the submissions made on behalf of the police. The committee decided on a balance that the police had established that the appellant's conduct fell short of that of a proper taxi driver and that carried the potential to undermine public safety and the safety of other operators using the unofficial taxi rank in Inverurie. Their decision was based on a number of complaints documented in the police letter of objections, and a number of incidents subsequently. It was submitted that the committee had acted reasonably and took into account everything they were required to. The committee had considered all the information available to them for the purposes of conducting the hearing. They carried out a proper exercise of weighing up and balancing the credibility of the appellant's position against that of the police information. They heard both parties and decided on the basis of submissions. They followed the procedure set out in appendix 3 to the Statement of Reasons in conducting the hearing.

 

[30]      The appellant accepted that the Statement of Reasons was accurate. He did not indicate at that hearing any challenge to the basis of the complaints set out in the letter, although he had done so at a previous hearing (at the time of the previous refusal in December 2011), it was a different application. The committee were under no duty to consider submissions or arguments addressed to a different committee and not before them at the hearing with which they were concerned.

 

[31]      In relation to the paragraph, page 2 (15) in the police letter of objection, this was the reason for the committee's questioning about why the appellant needed to be present at the taxi rank. Although the details of these subsequent incidents was not specified, in the absence of a denial or request for further information, the committee were entitled to have regard to the allegations to explain the up-to-date situation in the context of the previous complaints. The volume of complaints showed that the appellant continued to be a person who was the subject of adverse attention.

 

[32]      For these reasons I was invited by the respondents to refuse the appeal.

 

Decision

[33]      From the decided cases that were referred to in the course of the hearing, a number of propositions emerge which are in point. 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 (Hughes at page 254). 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 taxi driver's licence (Hughes at page 255). In forming their opinion on the question of who is a fit and proper person to be the holder of a taxi driver's licence, a licensing authority have to take into account all information properly placed before them which bears upon the question (Hughes at page 255). 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 come to a view based on the pattern of conduct which emerges from them or his fitness to hold a taxi driver's licence. (Middleton at page 290).

 

[34]      In relation to the timing of the police letter of objection, it was accepted by the respondents that the letter was submitted outwith the statutory 28 day period. Sergeant Middler of Grampian Police informed the committee hearing that due to the time of year the lengthy investigations into the application were delayed by staff holiday commitments over the festive season. He explained that the objection was relevant to the application. It was explained that there were no other officers to cover Sergeant Middler's work when he was not there. Paragraph 3(2) of schedule 1 to the 1982 Act makes it competent for a licensing authority to entertain a late objection received before they take a final decision on the application if it is satisfied that there is sufficient reason why it was not made in time. The matter was debated by the committee members. They concluded that a sufficient explanation had been provided, and a motion to allow the objection to be received was passed by a majority. I am satisfied that it was the committee's decision to determine whether the explanation amounted to a sufficient reason in terms of paragraph 3(2). Although different views might be arrived at, it is not possible to say that the decision to allow the late objection was one which no reasonable committee would have entertained.

 

[35]      The police letter of objection dated 15 January 2013 details six specific complaints between 16 August 2009 and 11 March 2011. On 16 August 2009, Grampian Police received a complaint from a named taxi driver who reported a racial breach of the peace at the unofficial taxi rank in Inverurie. This went to court but did not result in a conviction. On 15 May 2010, the police received a complaint from another taxi driver regarding a breach of the peace. This was not progressed because of a lack of corroborated evidence. On 1 June 2010, the police received a complaint from a female who alleged to have been sexually assaulted by the appellant in one of his taxis. The case was not proceeded with due to a lack of corroborated evidence. On 1 July 2010, the police received a complaint of a racial breach of the peace. Again, due to a lack of corroborated evidence this was not proceeded with. On 20 January 2011, the police received a complaint regarding a breach of the peace from the manager of the Westhill Service Station in Westhill. The complaint was that the appellant had approached the manager at his workplace and threatened him in an aggressive manner. There was apparently CCTV footage which showed the appellant acting in an aggressive manner and he was subsequently cautioned and charged, but the case was disposed of at Aberdeen District Court on 29 April 2011 by means of a procurator fiscal fine. This is classified as a non-conviction disposal. On 21 April 2011, the police received a complaint of assault by the appellant on a thirteen year old boy near the unofficial taxi rank in Inverurie. The appellant was cautioned and charged but the case was not proceeded with.

 

[36]      It is noted in the police letter of objection that since having his taxi driver licence suspended, and right up until the present, the appellant continued to frequent the taxi ranks in Inverurie. Taxi drivers were of the view that this was being done in an attempt to intimidate other drivers. Although this was not in itself illegal, the appellant had been spoken to by the police and advised that it may appear that his presence is done to deliberately antagonise drivers and he was advised to avoid the area. The appellant maintained that he needs to be in the area to run his business and stated that he would continue to do so.

 

[37]      As previously noted, the police state that they continue to receive reports about the conduct of the appellant in and around Inverurie town centre and the unofficial taxi rank, but when it comes to noting formal complaints from people they decide not to go ahead for fear of reprisals. The police position was that the overriding concern was for public safety. The expectation among members of the public is that licensed taxi drivers are fit and suitable persons who can be trusted to both act in an appropriate and professional manner and treat their patrons with respect. The "unsavoury" nature and the volume of incidents involving the appellant are such that it was the Chief Constable's opinion that the appellant was not a fit and proper person to hold a taxi driver's licence.

 

[38]      It was accepted by the respondents that none of these complaints had resulted in a criminal conviction, although a non-conviction procurator fiscal fine was issued on 29 April 2011 in respect of the breach of the peace allegation. The appellant argued that the committee was not entitled to afford weight to these untested allegations. However, a criminal prosecution is a unique procedure which has its own rules and very high standard of proof. Corroborated evidence is required from at least two sources if a criminal conviction is to result. The prosecutor must then prove the case beyond reasonable doubt. Although a criminal conviction would no doubt have a strong evidential significance, it cannot, in my view, be correct that complaints which do not result in a criminal conviction cannot be taken into account. The licensing authority has a duty to act in the public interest in ensuring that applicants for a taxi driver's licence qualify are fit and proper persons. The incidents narrated in the police objection letter are numerous. Although it is for the licensing authority to weigh the relevance of the complaints to the application, it seems to me that it could not be said they were acting unreasonably if they decided that they pointed towards the appellant not being a fit and proper person to hold a taxi licence. I regard the case of Middleton as authority for the proposition that fitness does not depend on whether the person has previous convictions or not, and the correct approach is to look at all the evidence of the applicant's conduct, including any convictions, as a whole and come to a view based on the pattern of conduct which emerges.

 

[39]      In relation to the unspecified later reports received by the police, the appellant's position was that the only issue raised about his behaviour since 2011 was the matter of his attendance at the taxi rank. The taxi rank was a public place and the appellant had explained the reasons why he felt he needed to be there. Beyond that there was no conduct alleged in relation to which he could have made a denial because he did not know where the complaints came from. If anyone felt they had been intimidated by the appellant, these were matters which could have been pursued by the police. According to the appellant it could not be said without knowing what the allegations were that the appellant's behaviour had a bearing on the overriding concern of the police for the public safety.

 

[40]      However, in my view, it is significant that the appellant did not deny any of the matters raised within the police letter of objection, other than to indicate that he had been found not guilty in relation to those matters which had been referred to the court. Had the appellant denied anything raised in the Chief Constable's letter, the matter would have been different. However, in the absence of any challenge, the committee were entitled to proceed on the basis of the representations made and positions adopted by the appellant and the objector on the day of the hearing.

 

[41]      In my view it is impossible to say that the allegations contained in the letter of complaint are irrelevant to an applicant's suitability for holding a taxi driver's licence.

 

[42]      Although the last of the specific incidents referred to in the letter of objection was on 21 April 2011, I would endorse the comments of the sheriff in the case of Cameron v Aberdeenshire Council that the licensing authority was entitled to have regard to the entirety of the situations in which the appellant had found himself involved with the police or been the subject of complaints by members of the public or other taxi drivers. No argument was presented that aspects of conduct which have caused concern to the police or to members of the public cease to be relevant after the expiry of any particular period of time. It seems to me that each situation must be considered by the licensing authority on its merits and it is for them to take into account the nature of the allegations and the passage of time and weigh these matters in the balance.

 

[43]      So far as the more recent unspecified reports received by the police are concerned, it seems to me that in the absence of a challenge or denial by the appellant, the committee cannot be criticised for coming to the view that these reports provided evidence of misconduct on the part of the appellant.

 

[44]      The appellant made allegations relating to the way other operators conducted their businesses and felt that he was being picked on by the police. This matter was considered by the committee as noted in the Statement of Reasons, but in my view the committee were correct to discount these as being irrelevant to the issues which arose for consideration when deciding the appellant's application.

 

[45]      The committee questioned the appellant repeatedly on the issue of why he needed to be physically present at the taxi rank in order to run his business. They gave him an opportunity to explain the position but did not accept the appellant's position. The committee came to the view that the appellant was present at the rank to interfere with the peaceful operation of the taxi rank. That was a decision for the committee on the information before them.

 

[46]      Turning to the five letters of support produced by the appellant in support of his application, the committee accepted these letters, they were copied to the members and time was allowed for them to be read. The committee clearly gave the appellant the credit of the positive comments in the letters and took from that that the business operated well without incident. They took the view that the letters were chiefly evidence of the good conduct of the drivers employed by the appellant and the good standard of his vehicles. They took the view that this did not relate directly to the appellant's own behaviour which was the crucial consideration in deciding whether he was a fit and proper person to hold a taxi driver's licence.

 

[47]      A letter from Joanne McDonald dated 6 February 2013 was produced. According to the letter the appellant is a hardworking family man who is honest, reliable and trustworthy.

[48]      An undated letter from Nicola Summers, Assistant Manager, William Wilson, Inverurie was produced. This reference is glowing and is to the effect that the taxis are always on time, efficiently run, well priced and the drivers are all kind and polite. The appellant's firm (Cluny Cabs) is also commended as being safe for female clients. A letter from Mr & Mrs Barry Gibb dated 27 January 2013 was produced. This commends the appellant's business as providing an impeccable service and notes that the appellant himself has a very friendly and genuine manner.

 

[49]      A letter from Alan Whiteford Contracts Limited confirms that Cluny Cabs provide an invaluable local service.

 

[50]      A letter from Brian Turnbull a retired board member of Aberdeen Harbour Board also commends the appellant and other members of the Cluny Cabs team as very pleasant and extremely accommodating and the cabs are in good condition.

 

[51]      The committee decided that these letters principally related to the business of Cluny Cabs rather than the appellant personally. In the case of some of the letters, that is true but it is right to acknowledge that some of the letters do make reference to the appellant personally in very positive terms. Nevertheless, it was the committee's decision what weight to give to these letters of support and against the background of complaints and reports received. In my view, it cannot be said that the committee acted unreasonably in attaching little weight to these letters.

 

[52]      I am satisfied that the respondents' committee followed the correct procedure and considered the respective positions of the appellant and Grampian Police as put forward in the submissions to the committee meeting. They have given an account of their reasons for refusing the appellant's licence in the written Statement of Reasons. They concluded that the appellant's behaviour did not meet the high standard expected of a taxi driver. They had information before them, which was not denied by the appellant, that specific complaints were made by members of the public between August 2009 and March 2011. These were of a concerning nature. Subsequent reports to the police gave grounds which, in the committee's view, suggested that this pattern of unacceptable behaviour persisted. They found it credible that members of the public were afraid of reprisal, which prevented them from coming forward to put their name to and pursue individual formal complaints. Having regard to the nature of the allegations, in my opinion, it cannot be said that the committee's decision amounted to an unreasonable exercise of its discretion. On the basis of what they had before them, the committee were entitled to reach the decision that they did. They did consider the submissions made to them, and it was for them to decide what weight to attach to all the circumstances. In my view, they cannot be said to have reached a conclusion which failed to make a correct balance and it was open to them to conclude that the appellant was not a fit and proper person to hold a taxi driver's licence and refused the application. 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 which was before them. Accordingly, the challenge to that decision fails, as does the appeal.

 

Conclusion

[53]      For the foregoing reasons, I will sustain the respondents' pleas-in-law and refuse the appeal.

 

Expenses

[54]      Both parties agreed that it would be appropriate to award expenses on the usual principle that expenses follow success. Accordingly, I will find the respondents entitled to the expenses of the appeal.

 

 

 

Advocate

Sheriff of Grampian Highland and Islands at Aberdeen