Cherwell District Council v Naveed Anwar
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Bidder |
| Judgment Date | 10 November 2011 |
| Neutral Citation | [2011] EWHC 2943 (Admin) |
| Date | 10 November 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7149/2010 |
[2011] EWHC 2943 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Bidder QC
Sitting as a Deputy High Court Judge
Case No: CO/7149/2010
Tom Horder (instructed by Cherwell District Council) for the Appellant
Tim Boswell (instructed by Johnson and Gaunt, Solicitors) for the Respondent
Hearing date: 2 November 2011
His Honour Judge Bidder QC:
This is an appeal by way of case stated against the decision of the North Oxfordshire Magistrate's Court sitting at Banbury on 22 January 2010, allowing an appeal by the respondent against the decision of Cherwell District Council's licensing subcommittee to refuse the Respondent's application to renew his hackney carriage and private hire vehicle drivers licenses.
The Respondent was licensed as a Hackney and private hire driver in 2003. On 7 October 2008 he assaulted his wife and on 18 March 2009, he pleaded guilty to an assault by beating contrary to section 39 of the Criminal Justice Act 1988. He was sentenced to a community order with a 15 month supervision requirement and ordered to pay £300 in costs.
In June 2009 applied to renew both his hackney and private hire driver licenses and on 14 September 2009 he met with the Appellant's licensing inspectors and informed them of the nature of his conviction.
On 29 September 2009 the Appellant wrote to the Respondent informing him of their decision to refuse his application. The ground for refusal was expressed to be that the appellant was not satisfied that the Respondent was a fit and proper person to hold such a license at that time.
He requested a review and on 29 October 2009 the licensing subcommittee met to review the decision. They heard representations made by and on behalf of the respondent but upheld the decision. Their reasons were, again, that he was not, in their view, a fit and proper person to hold a licence. They stated that they had had regard to his criminal conviction for assault, the council's guidelines and the overriding need to ensure public safety and protection.
On 2 December 2009 the respondent, by way of complaint, appealed the decision to the North Oxfordshire Magistrates Court and on 22 January 2010 the respondent's appeal was allowed by the court. The Appellant now appeals by way of case stated against that decision of the court.
The guidance of the council at the material time, so far as was relevant, is as follows:
" Convictions and driving licence endorsements
A person with a current conviction for a serious crime need not be permanently barred from obtaining a licence but will be expected to remain free of conviction for at least three years, according to the circumstances, before an application is entertained. Some discretion will be applied if the offence is isolated and there are mitigating circumstances. However, the overriding consideration will be the protection of the public.
Violence
As hackney carriage and PHV drivers maintain close contact with the public, a firm line will be taken with applicants who have convictions involving violence. At least three years free of such convictions would normally need to be shown before an application is entertained."
It should be noted that the guidelines themselves are not prescriptive and allowed for discretion and that they are specifically stated to be guidelines.
Section 51 of the Local Government (Miscellaneous Provisions) Act 1976 makes provision for the licensing of private hire vehicles and section 59 of the Act makes very similar provisions in relation to hackney carriage licences. Both sections provide that the Council shall not grant a licence to a driver unless it is satisfied that he is "a fit and proper person to hold a driver's license"
Section 61 provides for the suspension, revocation and renewal of drivers' licences:
" 61 Suspension and revocation of drivers' licenses
(1) Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district Council may suspend or revoke or (one application therefore under section 46 of the act of 1847 or section 51 of this act, as the case may be) refused to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds—
(a) that he has since the grant of the licence —
(i) been convicted of an offence involving dishonesty, indecency or violence; or
(ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act; or
(b) any other reasonable cause."
An important issue for the magistrates was whether or not the respondent was a "fit and proper person". Indeed, it would be right to say that it was the central issue.
It should also be noted, as appears from the judgement of Wilkie J. in Darlington Borough Council v Malcolm Kaye [2004] EWHC 2836 (Admin) at page 12 in my bundle of authorities, on consideration by the judge of two earlier authorities, that although the magistrates hearing an appeal against a refusal to renew under section 61 (3) do so by way of rehearing, the magistrates must have regard to the policy of the local authority and should not likely reverse the local authority's decision, or, put it another way, the magistrates must accept the policy and apply it as if they were standing in the shoes of the council considering the application.
That is not inconsistent with the decision of the Court of Appeal in Sagnata Investments v Norwich Corporation [1971] 2 All ER 1441 which held that an appeals court sessions from a decision of the local authority not to grant a permit under the Betting, Gaming and Lotteries Act 1963 was a complete re-hearing where the court had to consider all the evidence. Darlington simply makes it clear that "all the evidence" importantly includes the local authority's policies. Indeed, the Court of Appeal in Sagnata stressed that quarter Sessions must pay proper regard to the...
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Gateshead Council v Crozier
...to an opinion on the matter. The magistrates thus ought not to lightly reverse its decision. 13 In Cherwell District Council v Anwar [2011] EWHC 2943 (Admin) at paragraph 12: "It should also be noted, as appears from the judgment of Wilkie J. in Darlington Borough Council v Malcolm Kaye [20......