Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

[2016] SC EDIN 14

B869/15

JUDGMENT OF SHERIFF PETER J BRAID

in Summary Application under Schedule 1 paragraph 18(1)

Civic Government (Scotland) Act 1982

in the cause

PATRICK BLACK

Appellant;

Against

MIDLOTHIAN COUNCIL, Midlothian House, Buccleuch Street, Dalkeith, EH22 1DJ

Respondent:

Edinburgh, 17 February 2016

The sheriff, having resumed consideration of the cause, sustains the appellant’s second plea in law;  repels the appellant’s first and third pleas in law as not insisted upon;  repels the respondent’s pleas in law;  thereafter remits the decision of the respondent dated 19 May 2015,  to refuse the appellant’s application for renewal of a grant of a taxi driver’s licence, to the respondent for reconsideration; assigns 25 February 2016 at 9.45am within Sheriff Court House, 27 Chambers Street, Edinburgh, as a hearing on expenses.  

Note

Introduction
[1]        This is an appeal by the appellant against the respondent’s decision of 19 May 2015 to refuse to grant his application for the renewal of a taxi driver’s licence.  The appeal is brought under paragraph 18 of schedule 1 to the Civic Government (Scotland) Act 1982.  A hearing took place before me on 19 January 2016.  The appellant was represented by Mr Blair, advocate and the respondent by Ms Johnston, solicitor.  The facts were not in dispute and accordingly no evidence was led, both parties being content to deal with the matter by way of submissions only. 

Agreed Factual Background

[2]        The appellant applied for the renewal of his taxi driver’s licence on 15 January 2015.  The application was referred to the police in accordance with statutory procedure.  By letter dated 20 February 2015, the chief constable confirmed that he wished to object to the renewal of the licence as he did not consider that the appellant was a fit and proper person to be the holder of a licence.  In his letter, the chief constable referred to three convictions which the appellant had declared, which it is unnecessary for me to discuss in detail, beyond pointing out that two were of some considerable vintage and that the convictions had not previously been an impediment to the appellant’s being considered a fit and proper person to hold a licence, nor as will be seen did they play any part in the respondent’s reasoning.  The chief constable also referred to a more recent contravention of the Road Traffic Act 1988 section 3 (careless driving), dated 6 February 2015, where the appellant was fined £675 and his licence endorsed.  He also referred to a pending case from 16 June 2014 being an alleged contravention of the Road Traffic Act 1988 section 41D(a) (using a mobile phone while driving).  The appellant was called to appear before the respondent’s committee on 31 March 2015.  At that hearing the appellant told the committee that he wished to prepare an appeal against his conviction for careless driving and the hearing was therefore postponed until 19 May 2015. 

[3]        The hearing duly proceeded on 19 May 2015.  The appellant represented himself.  The chief constable’s letter of 20 February was before the committee.  The outcome of the hearing was that the committee refused the application on the grounds that the appellant was not a fit and proper person to be the holder of a licence. 

[4]        Following sundry further procedure, the respondent was asked to provide a statement of reasons, which it did by letter dated 18 June 2015.  Insofar as material, that letter is in the following terms:-

“During the hearing:-

1. On behalf of the chief constable, the police inspector reiterated the terms of the report;

    

2. The [appellant] did not provide any evidence to the committee that he had in fact lodged an appeal against conviction;

    

3. The [appellant] endeavoured to explain the mitigating circumstances relating to an incident on 4 November 2014, which had resulted in a child being injured and which had led to him being convicted of careless driving on 6 February 2015, in respect of which he was fined £675 and had his ordinary driver’s licence endorsed by three penalty points;

    

4. The [appellant] stated that he had pled guilty after being advised by his lawyer to accept a plea bargain, whereas he considered that he was not guilty of any offence;

    

5. The [appellant] described the circumstances of the incident – it was in the early morning, with traffic nose to tail, with a low sun.The child had struck the side of the taxi when the sign on the pedestrian crossing was on an amber light i.e. he said that he did not drive through a red light;

    

6. When asked to comment on the circumstances relating to provision of assistance, the [appellant] stated that the paramedics had left before the police arrived over 30 minutes after the incident; and 15-20 minutes later, the police had contacted the [appellant]; and, in relation to a question as to whether he should have stayed at the scene until the police arrived, he said that as the paramedics were away, he did not consider that that was needed and had left when the ambulance was getting ready to leave: he had radioed and did not receive an answer but had gone to the police station voluntarily;

    

7. When attention was drawn to the mention in the police report of the traffic light being at red, the [appellant] said that that was not correct – the child was with others and the green man was not on at 8.20 am and the medics were told the full story when they arrived;

    

8. In response to questions from the members of the committee, the [appellant] explained that the incident involving driving whilst using a mobile phone on 16 June 2014 had preceded the incident on 4 November 2014;

    

9. The [appellant] stated that he had been a taxi driver on a full-time basis for a number of years without ever having any problems; and;

    

10. The appellant was given the opportunity to respond to any concerns expressed by members of the committee as described above.

DECISIONS AND REASONS

The committee carefully considered all of the information before it, including the report by the chief constable and the statements that the [appellant] had made during the course of the hearing. 

On division, the committee decided to refuse the application on the grounds that the [appellant] was not a fit and proper person to be the holder of the licence, as described in the attached letter, dated 22 May 2015.

The material considerations centred on the [appellant’s] conviction for careless driving as described above and his responses to questions, the cumulative effect of which persuaded the majority of the members of the committee that they could not place their trust in the [appellant] and therefore did not consider the [appellant] was a fit and proper person to be the holder of the licence.”

[5]        Copies of the appellant’s application for renewal of his licence, the Police Scotland response of 20 February 2015 and the letter of 22 May 2015 are all attached to the letter dated 28 June 2015 as appendices thereto,  and the letter and its various appendices are contained in the appellant’s second inventory of productions, number 3 of process. 

The law

[6]        It is not necessary to discuss the provisions of the Civic Government (Scotland) Act 1982 in detail.  In brief, schedule 1 makes provision for the general system of licensing which applies.  In terms of paragraph 5(3) of the schedule, a licensing authority must refuse to renew a licence if, in their opinion, the applicant is not a fit and proper person to be the holder of a licence.  There is a right of appeal but in terms of paragraph 18(7) the sheriff may uphold an appeal only if he considers that the licensing authority, in arriving at their decision – (a) erred in law;  (b) based their decision on an incorrect material fact;  (c) acted contrary to natural justice;  or (d) exercised their discretion in an unreasonable manner.  If an appeal is upheld, the sheriff may either remit the case back to the licensing authority for reconsideration, or reverse or modify the decision:  it is common ground in the present appeal that should the appeal be upheld, the case should be remitted for reconsideration.

[7]        The appeal is presented on a mixture of the first and last of the grounds just mentioned, namely, that the respondent either erred in law or exercised their discretion in an unreasonable manner, or both.  However, the appeal came to be focused on whether adequate reasons were given by the respondent for its decision.  It is not in dispute between the parties that the reasons given must meet the test of adequacy set out in Wordie Property Co Limited v Secretary of State for Scotland 1984 SLT 345 which, although a planning case, has been held to apply equally to licensing decisions:  Mirza v City of Glasgow Licensing Board 1997 SC 450 and to decisions under the Civic Government (Scotland) Act: Ritchie v Aberdeen City Council 2011 SC 570.  There was also no dispute that, in ascertaining what the reasons for the decision were, the court may not look beyond the reasons given by the decision-maker:  Loosefoot Entertainment Limited v City of Glasgow District Licensing Board 1994 SCLR 584 per Sheriff GH Gordon QC at 588;  but it is sufficient for a decision-maker to make clear to the parties the basis for their decision rather than to set out something comparable to a stated case (ibid). 

Submissions for the Pursuer

[8]        Against that background, and the approach to be taken to assessing the adequacy of stated reasons, counsel for the appellant submitted that the respondent’s statement of reasons displayed multiple errors of law.  It was clear that the material considerations taken into account were the conviction and the answers to questions which, viewed cumulatively, led the respondent’s committee to the view that they could not place their trust in the appellant and therefore did not consider that he was a fit and proper person to be holder of the licence.  It was clear from Ritchie that having identified what they considered the material considerations to be, the respondent’s committee were under a duty to evaluate them.  The essence of the reasoning had to be set out.  The decision had apparently turned on the conviction and the answers to questions.  It would appear that both had equal weighting but that both, together, were considered necessary to reach the overall conclusion on fitness.  The inference was that the answers to questions tipped the balance against the appellant.  Separately from Ritchie, it was wrong to leave out of account mitigatory factors.  Evidence of previous good character was plainly a material consideration in the assessment that had to be made.  The respondent had previously regarded the pursuer as being fit and proper to hold a licence.  It was unclear to the informed reader and the court (1) which responses the respondent placed weight on, and in any event (2) what conclusions or inferences were drawn from those responses, and (3) what process or reasoning the committee followed in determining (as they must have) what it was in those responses that led them to the conclusion that they could not “place their trust in the [appellant]”.  Equally, the reasons failed to indicate what it was about the conviction that led to the conclusion that the respondent reached.  The appellant had put the conviction in issue by referring to his appeal.  He had also offered his own version of events.  If the committee did not accept his version it was incumbent upon them to explain why.  There were in any event factors which were potentially mitigatory with which the committee ought to have engaged such as a possible reason for not seeing the red light – the sun being low in the sky.  As far as the answers to questions were concerned, the court could not be clear as to what the committee had taken from those answers and why they led, cumulatively, to the view that the appellant was not fit and proper.  They did not identify any criticism of the appellant’s conduct in relation to the incident after the accident.  We must assume under reference to (f) that the questions he answered led to answers the committee did not like but the letter did not set out why.  No criticism could be imputed to the appellant for leaving the scene when he did, which had not given rise to any criminal offence.  In relation to the mobile phone, that was a matter which was not a conviction but a pending case.  It was unclear what the committee had made of the appellant’s statement about this.  Fundamentally, what was it in his answer to that question that the respondent found objectionable and led cumulatively to the conclusion that was reached?  Further, the appellant had put in issue his prior record, which the respondent must be taken to have accepted.  On any view, prior licence history was a material consideration.  It was unreasonable not to deal with it as part of the reasoning process and also an error of law as a failure of reasoning.  Overall, what was the basis for the conclusion that the committee could not place trust in the appellant?  There was apparently a belief that the appellant would be likely to act in the same way (whatever the same way was) again, but what was the basis for that view?  It was wholly unclear:  was it trust in his abilities, his honesty, his attitude to adherence to the law, his judgement, the decisions he took or something else?  We simply did not know.  The appeal should be allowed.

Submissions for the Respondent

[9]        In reply, Ms Johnston submitted that an informed reader was a person who is a party to proceedings and knows what the proceedings are about: Robertson v City of Edinburgh District Licensing Board 1994 SC 83, per Lord McCluskey at 84D.  The committee was not required to produce a detailed account of their determination of the matter dealing with all the factors before it:  Noble v City of Glasgow District Council 1995 SLT 1315.  The reasoning and disposal in Ritchie required to be viewed against the factual background in that case.  The appellant there had his application for renewal of a taxi driver’s licence refused.  There had been a police objection, as here, and the appellant had made certain representations in mitigation to the committee, describing the nature of the offence, the details as to the conviction and his previous clean criminal record.  The statement of reasons in that case contained no reference at all to the various matters put forward by the appellant in mitigation.  The court had held that the essential decision for the committee against that background was to balance the objection based on the nature and seriousness of the conviction against the mitigatory factors which were held to be material considerations.  The court found that a balancing exercise could not have taken place because there was no reference whatsoever in the statement of reasons as to the mitigatory remarks by the appellant.  In the present case, in contrast to Ritchie, the respondent had detailed the submissions made in mitigation at the hearing on 19 May 2015 and set them out in some detail at page 2 of the statement of reasons at paragraphs (a) to (k).  On page 3 of the same document it was stated that:  

“the committee carefully considered all of the information before it, including the report by the chief constable and the statements that the [appellant] had made during the course of the hearing”. 

It could not be said that the reasons had merely echoed the language of the statute but rather the essence of the reasoning could clearly be discerned.  Accordingly, this case could be distinguished from Ritchie on the basis that it was clear the respondent had had regard to and carefully considered the mitigatory factors put forward.  It could not be said that the respondent considered that the appellant’s conviction was of such a nature that it was a conclusive reason for refusal regardless of any mitigatory factors that might exist.  The committee had carefully set out the statements in mitigation provided by the appellant and having set those considerations out it could not be said that the committee had failed to exercise its discretion in an unreasonable manner.  The statement of reasons had to be read as a whole: Forrestfields Hotel Limited v Monklands District Licensing Board 1993 SC 605 per Lord Prosser at page 611.  It was not necessary for the licensing committee to give detailed reasons akin to a judicial judgement nor to refer to each piece of evidence or assertion or what effect it had had on the deliberations.  If the letter stated that the committee had had regard to the evidence and to productions the court should not go behind that statement, unless it was clear that the committee had not had regard to that material:  Noble. 

[10]      In summary, the statement of reasons was adequate and thus there had been no error of law in the manner described by the appellant. 

[11]      Ms Johnston made further submissions directed towards whether or not the respondent’s committee had exercised its discretion in an unreasonable manner.  Her basic submission was that the applicable test was whether the decision was so unreasonable that no reasonable committee could have reached it.  I do not consider that proposition to be controversial; but since the present appeal came to be centred on the adequacy of the reasons, and since it is accepted that the reasons, to be valid, must satisfy the test in Ritchie, I do not consider it necessary to discuss this branch of Ms Johnston’s submissions in any detail.  The appellant’s position is not so much that the decision was one which no reasonable committee could have reached, rather that the reasons given do not stand up to scrutiny and in that sense only the decision is unreasonable, or wrong in law.  The merits of the decision itself are not under consideration.

Discussion

[12]      As was pointed out by Lord Justice Clerk Gill in Ritchie v Aberdeen City Council at paragraph 11, the duty of the decision-maker in a case of this kind is, in the classic formulation of Lord President Emslie,

“to give proper and adequate reasons for [the] decision which deal with the substantial questions in issue in an intelligible way.  The decision must, in short, leave the informed reader in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.”

(Wordie Property Limited v Secretary of State for Scotland PP 347, 348; cf Mirza v City of Glasgow Licensing Board, Lord Justice Clerk Ross, page 457 C-D).  Lord Gill went on to say:-

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

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

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

Later in his judgment, he goes on to say, in the context of that case:

“…the essential decision for the committee was to balance the objection based upon the nature and the seriousness of the conviction against the mitigatory factors…On that view of the matter, I think that the mitigatory factors were material considerations in the sense I have described.”

(Ritchie v Aberdeen City Council at pages 573, 574). 

[13]      That encapsulation of the approach the decision-maker must take to setting out a statement of reasons states three things that the reasons must do, namely:

(1)        identify what were the material considerations;

(2)        clearly and concisely set out the decision-maker’s evaluation of them; and

(3)        set out the essence of the decision-maker’s reasoning, in other words what it was about his evaluation of the material considerations which led him to the decision which he reached,

which must all be done in a manner which is intelligible to the informed reader and to the court.  Lord Gill’s statement that a decision-maker need not engage in a detailed discussion and evaluation of each and every point that has arisen at the hearing echoes the decision in Noble v City of Glasgow District Council 1995 SLT 1315 that a decision on an application need not canvass each piece of evidence on each assertion put to a licensing authority.  The court in Noble also held that if an authority stated that it had had regard to the evidence and productions, it was not possible for the court to go behind such a statement unless something else made it clear that the authority had not had regard to such a statement.  However, I do not take from Noble that it is enough for a decision-maker simply to state that he has had regard to all the material before it, if his statement of reasons does not otherwise comply with the three requirements set out in Ritchie.  To put this another way, a statement of reasons which sets out all the material before the decision-maker and then states simply that the decision-maker has had regard to all of it in reaching a decision is neither necessary nor sufficient:  not necessary, because the statement need not list all the material before the decision-maker; and not sufficient, because such an approach does not identify the material considerations, nor contain an evaluation nor any reasoning.   Thus, I do not accept the respondent’s argument that the letter in the present case is sufficient simply because it narrates everything that was stated at the hearing and states that the committee carefully considered all of the information before it.   More is required.   I will now test the letter of 18 June 2015 against the three-stage approach in Ritchie.

Material considerations
[14]      The letter begins by giving a reasonably detailed narrative of what transpired at the hearing but does not, at the narrative stage, identify which of the factors were deemed to be material, and which not.  It is unlikely that everything that was said was considered to be material.  I accept Ms Johnston’s submission that the reasons letter must be read as a whole, and that the letter does, on the last page, make an attempt to identify material considerations.  However, the letter states that these “centred on” the appellant’s conviction for careless driving “as described above” and his responses to questions.  In the first place, it is unclear which description of the careless driving is being referred to:  is it the version in the police report with the red light having been driven through (paragraph (g) of the letter);  or the appellant’s version as contained in paragraph (f)?  Further, the words “centred on” are also open to criticism, since they leave the reader unclear as to whether the two matters referred to were the only material considerations (in which case, why not simply say that);  or whether there were also other material considerations to which the committee attached some, but less, weight and if so what they were.  It certainly can be inferred that not everything listed on the second page of the letter was considered to be material^[1].

[15]      This leads on to a further issue.  Whilst I do not consider that Ritchie lays down any general rule that mitigatory factors relied upon must always be seen as material, since each case must turn on its own facts and it is possible to conceive of cases where so-called mitigation is not material, nonetheless I consider that the facts in Ritchie were sufficiently close to the present case, and the terms in which the letter of 18 June 2015 were expressed are such, that there was at least one mitigatory factor relied upon by the appellant – that he had been a full-time taxi driver for a number of years without having any problems – which was clearly material to the question of whether he was a fit and proper person and which therefore ought to have been weighed in the balance.  However, it would appear from the failure to identify the driving record as a material consideration, that the committee did not consider that it was material and as such it must be regarded as having fallen into error. 

[16]      It is also appropriate to record here that the reference to the appellant’s answers to questions does not really inform even the informed observer, or the court, what facts or factors were regarded by the committee as being material.  Rather, the reader of the letter is left in the dark as to whether it was the content of the answers which was considered material, or the manner in which the answers were given.  Since there is reference to the committee being unable to place trust in the appellant, did they consider that his answers were untruthful, and if so, which ones?  I revert to this issue in the context of discussing evaluation of the material issues, to which I now turn. 

Evaluation
[17]      The letter is completely lacking in any evaluation of the material considerations identified.  In particular, the committee has failed to say what it was about the conviction for careless driving that it considered to be material.  Was it the fact that the appellant had been convicted per se?  It is unlikely that a conviction of what is after all merely careless driving will in itself lead to a finding that someone is not a fit and proper person to hold a licence, and in any event an approach whereby the committee automatically took such a view would clearly be wrong.  Was it then the fact that he had hit a child?  Or was it the fact that he had, at least according to the police report, driven through a red light (or even an amber light, as the appellant claimed?)  Indeed, did the committee proceed on the basis that the police report must be correct and that the appellant’s version must be wrong, and find him untrustworthy for no other reason than that his account contradicted what was contained in the police report, or did they find his account of having driven through an amber light to be incredible or unreliable and, if so, why?  For that matter, how did a conviction for careless driving impinge in any way upon whether or not the committee could place trust in the appellant (which was said to be the reason for the finding that he was not a fit and proper person to hold a licence, rather than the quality of his driving or his adherence to road traffic legislation)?  Finally on this point, as counsel for the appellant asked, in what respect could the committee not place their trust in the appellant?  Was it trust in his ability or willingness to comply with road traffic legislation (in which event what relevance did his answers to questions have?)  Or was it trust in his honesty (in which event what relevance does his careless driving have?)  Or was it something else, and if so, what?

[18]      Turning to the other material consideration which is identified, the appellant’s answers to questions, the reference to that is essentially meaningless.  In the decision letter, only paragraphs (f), (g) and (h) refer explicitly to questions.  The first of these, (f) relates to the provision of assistance, and the appellant having left the scene before police arrived.  How did the committee evaluate that?  Did they consider that the appellant had breached the criminal law and, if so, in what respect?  Or did they consider that, morally, the appellant ought to have waited, and if so, why?  Or did they consider that there was some other reason why he ought to have waited for the police and if so, what was it?  How did such conduct impinge upon his trustworthiness, given that the appellant contacted the police later and was not charged with any offence of failing to report an accident?  In relation to (g), did the committee disbelieve the appellant when he said that the police report was wrong, and if so, what was their basis for that?  Did they attempt to assess his credibility and reliability, or simply assume that the police report must be correct?  Finally, in relation to (h), what did they make of the alleged incident involving the mobile phone?  Did they proceed on the basis that the appellant was guilty of that offence (which they would not have been entitled to do)?  As the charge was merely a pending one, what relevance did it have at all, let alone the appellant’s answers to questions about it?  The reference to there having been “an incident” would suggest, perhaps, that the respondent’s committee proceeded on the basis that the appellant had indeed driven whilst using a mobile phone.  That would have been an error, but again, in the absence of any evaluation, we simply do not know.  Overall, in relation to the answers to questions, the reader of the decision letter is entitled to assume that there was something about the answers to questions which the committee did not like, but is left in the dark as to what it was. 

Reasoning

[19]      Since there is no evaluation of the material considerations, it is perhaps unsurprising that there is no explanation of how any evaluation led to the decision that the appellant was not a fit and proper person to hold a licence.  To the extent that the committee say that it was the cumulative effect of the careless driving and the answers to questions which led to that conclusion, the reader can infer that each of those factors on its own would not have sufficed^[2], but beyond that it is impossible to discern any coherent explanation of the reasoning.  There is no explanation as to why those factors, together, had any bearing upon the committee’s view that they could not place trust in the appellant.  There is nothing in the description of the answers given – in so far as there is any description – which suggests any untrustworthiness (or, for that matter, as counsel for the appellant pointed out, any indication as to untrustworthiness in what respect).  Further, completely absent from the reasoning is any reference to any balancing exercise having been carried out.  To the extent that the reasoning is explained, it discloses that the committee did not carry out the exercise before it in the proper manner. 

[20]      The net result of all of this is that neither the informed reader nor the court can learn from the statement of reasons why the committee reached the decision that it did.  Reading the letter as a whole, it is not possible to determine why the committee considered trust could not be placed in the appellant and hence that he was not a fit and proper person.  The material considerations were not sufficiently identified.  There was no evaluation of material considerations, and the reasoning process was not explained.  In addition the committee in substance fell into the same trap as the committee in Ritchie, by failing to recognise that the mitigatory factors relied upon were material and by failing to carry out a balancing exercise of the type they were bound to do.

[21]      It follows that the decision cannot stand, either because (as expressed) it is unreasonable, or because it is simply wrong in law, because it fails to set out proper and adequate reasons.

[22]      I will therefore allow the appeal and remit the case to the committee for reconsideration. 

[23]      I have reserved the question of expenses and assigned a hearing for 25 February 2016 at 9.45 am.  The parties appeared to be at one in agreeing that the expenses should follow success but the issue as to whether or not the case is suitable for the certification of junior counsel requires to be resolved.