Canterbury City Council v Ali
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 18 June 2013 |
| Neutral Citation | [2013] EWHC 2360 (Admin) |
| Docket Number | CO/7175/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2013 |
[2013] EWHC 2360 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Carr
CO/7175/2012
Mr J Bishop (instructed by Sharpe Pritchard) appeared on behalf of the Appellant
The defendant did not attend and was not represented
This is an appeal by way of case stated brought by Canterbury City Council against the decision of the lay magistrates sitting at Canterbury Magistrates' Court on 9 March 2012. By that decision, the Magistrates allowed the appeal of the respondent, Mr Monshad Ali, against the council's decision of 6 October 2011 to revoke his Hackney Carriage Licence, pursuant to section 61 of the Local Government (Miscellaneous Provisions Act) 1976 ("the Act"). The revocation was based on grounds of public safety. Mr Ali had been involved in a head-on collision involving another taxi in the early hours of the morning of 18 September 2011.
On his own case, Mr Ali had been overtaking another vehicle and was on the wrong side of the road at the time of the accident. Photographs of the scene of the accident are and were available to the Magistrates.
The Council also challenges by way of case stated the subsequent decision of a differently constituted bench of lay magistrates, again sitting at Canterbury Magistrates' Court, this time on 2 April 2012, to order the Council to pay costs to the respondent in a sum of just over £4,000.
The Council was represented both in this court and below by Mr John Bishop. Mr Ali was neither represented nor present at the hearing before me. He was, however, represented and present at the hearing before the Magistrates.
I have been informed that his solicitors have been informed by the court of today's hearing date and Mr Bishop has informed me that all of the Council's papers have also been served on Mr Ali' solicitors. The hearing has in those circumstances proceeded. The facts as found by the Magistrates in the case stated I will shortly set out. It is, however, important to record that those facts are either not entirely correct, or materially correct, or complete. I will identify material errors as I go along.
The Case Stated and Relevant Factual Background
The Magistrates in their case stated state that the Council licenses Hackney Carriage and private hire taxi drivers pursuant to the 1976 Act, and that section 61 sub-paragraph 2(b) allows revocation of licences with immediate effect if this appears to be in the interests of public safety, and a statement is given to the driver and an explanation why. The Council has policies and procedures including a policy that revocation should be dealt with at an oral hearing of a licensing committee at which the driver can attend.
Internal guidance gives the committee discretion as to whether to revoke a licence on the grounds of public safety, so held the Magistrates.
In fact, that is not correct and on my reading of the relevant policy and rules, there is in fact no discretion not to disbar if it is the case, as here, that the Council believes that the licence holder is not a fit and proper person. The Magistrates state in their case that Mr Ali held a UK driving licence since 1990 and that it was a clean driving licence. He had licensed for some 8 years as a private hire and Hackney carriage user.
The Magistrates in their case stated refer to a prior incident, this time on 24 April 2009, when a passenger had complained of being locked in Mr Ali's taxi and being verbally abused by him. This had led to a suspension in 2009 for some 3 months, followed by a requirement for retraining. The respondent had been provided with the full reasons in relation to this incident in a previous letter.
I record, however, that it was common ground at the hearing below that this previous incident was in fact irrelevant to the issues before the Magistrates because the decision, as I have already identified, to revoke was taken in relation to the accident of 18 September 2011 and that alone.
The Magistrates went on to state in relation to the incident of 18 September that, as was the case, Mr Ali had been involved in a road traffic accident on the A28 in Chartham, Canterbury. He had been driving a licensed taxi, himself having no passengers. He collided with another licensed taxi, driven by a Mr Correr carrying three passengers. The respondent was alleged to have overtaken another vehicle on a bend and collided head on with Mr Correr's vehicle. Mr Korra and his passengers received slight injuries. Mr Ali himself was not injured. Mr Korra took photographs of the scene. The Council took statements from Mr Korra and his passengers and compiled a report. The Magistrates record in their case stated that police attended the scene. That appears to be correct. It is also stated that the police decided not to bring a prosecution. However, it was common ground as I understand it, as a result of objection taken by Mr Bishop at the hearing below, that it could not be said that the police had decide not prosecute. The reasons for the lack of prosecution were in fact unknown.
The Magistrates went on to deal with an incident on 21 September 2011, namely, the suspension of the respondent's licence on the ground that his fitness was being called into question, that suspension being with a view to a hearing before a Licensing Committee. The Magistrates then referred to a report prepared on behalf of the Council attaching the statements of Mr Korra and his passengers. That report also went on to describe the previous incidents of April 2009, and also attached statements from 2011 dealing with other unidentified occasions. Again, I record, although this is not apparent from the case stated by the Magistrates, that it was agreed that these matters were irrelevant in relation to the revocation, the subject of the appeal.
The report prepared by the Council advised that the committee had to have consideration to any representations by Mr Ali, and that the Committee had to ensure so far as possible that any hearing was fair to both the licence holder and those complaining of his conduct; and that the committee had to consider the effect on the right to family and private life, including Mr Ali's right to make a living.
On 6 October 2011, it is recorded in the case stated that the Council's Commercial Health Manager, acting on the advice of the Council's Legal Department, revoked Mr Ali's licence on the ground that he was not a fit and proper person to hold a licence. As I have said, the sole reason given was public safety and the letter referred to the accident on 18 September 2011.
Mr Ali was advised of his right of appeal and the letter was sent in purported compliance with section 61 of the 1976 Act. The case stated goes on to refer to a lack of record of reasoning by the Council's Committee. However, as a matter of fact, as I have made clear, there was never a committee decision or a committee meeting to reach the decision. The reference to a lack of record is therefore somewhat misleading. The revocation was dealt with by Council officers under Section 61 of the Act and delegated powers. The case stated went on to record that an incorrect letter on a date unknown was sent to Mr Ali and it concluded with the sentence that the Council did not follow its own policies and procedures on its decision to revoke.
As to the Magistrates' conclusion on the appeal, the case stated bears some consideration. I should, however, record that it is notable that the judgment delivered at the end of the hearing before the Magistrates itself, was extremely short. Both counsel present at the time appear to have a similar note which says roughly the following:
"Ali had his licence revoked for reason of public safety. Had the matter been taken to the full Licensing Committee they would have had to give reasons but we have been given no record of the decision, nor how it was reached. Ali was not given any indication of it either.
"We suspect that the decision was based in part on witnesses that were not tested in cross-examination and to which we have attached little weight because they were unsigned. The appeal is allowed."
That reasoning is considerably expanded upon in the case stated. In summary, the case stated prepared by the Magistrates concluded as follows on the substantive appeal:
"1) That the Council had breached its own procedures and policy and the rules of natural justice in failing to give Mr Ali the opportunity to appear at an oral hearing before the licencing committee.
2) That the Council had acted unreasonably in relying on unsigned and unchallenged witness statements about previous alleged bad driving.
3) That the Council had placed undue weight on the evidence of the accident on 18 September 2011, which had not led to any criminal prosecution despite police attendance and given that Mr Ali held a clean driving licence.
4) That the Council in breach of its own procedures and policy and the rules of natural justice failed to give reasons for its decision.
The Magistrates also concluded, according to the case stated, that there was insufficient evidence of dangerous driving on 18 September 2011 in all of the circumstances, and that:
"No reasonable tribunal could have concluded that the respondent had driven dangerously and was not therefore a fit person to hold a licence".
Secondly, that there was therefore insufficient reliable evidence that Mr Ali was a danger to public safety and not a fit person to hold a...
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