Darlington Borough Council v Bishop Auckland Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Andrew Nicol QC: |
| Judgment Date | 27 February 2006 |
| Neutral Citation | [2006] EWHC 306 (Admin) |
| Docket Number | Case No: CO/10507/2005 |
| Date | 27 February 2006 |
| Court | Queen's Bench Division (Administrative Court) |
[2006] EWHC 306 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Nicol QC, sitting as a Deputy Judge of the High Court
Case No: CO/10507/2005
E. Joan Smith (instructed by Andrea Cattlerick, Corporate Services Department, Darlington Borough Council) for the Claimant
This is an application for judicial review of a decision by Bishop Auckland Magistrates Court ('the Magistrates') on 28 th November 2005 to adjourn the hearing of an appeal by George Jenkinson against the refusal of Darlington Borough Council ('the Council') to renew his taxi licence. The Council was granted permission to bring these proceedings by Fulford J. It seeks an order quashing the decision of the Magistrates to adjourn the appeal and a mandatory order compelling them to dismiss the appeal. Although notice of this application has been given to both the Magistrates and to Mr Jenkinson, neither have appeared at the hearing of this application for judicial review. However, attached to their Acknowledgement of Service, the Magistrates have provided a written account which supplements the brief reasons in writing which appear to have been given at the time. I am very grateful to them for this submission.
Mr Jenkinson had for some years been a taxi driver in the borough of Darlington. As such he required a licence from the Council to act as a driver of a hackney carriage (Town Police Clauses Act 1847 s.46) and/or as the driver of a private hire vehicle (Local Government (Miscellaneous Provisions) Act 1976 s.51).
In the summer of 2005 Mr Jenkinson applied for these licences to be renewed. Section 51 of the 1976 Act (in relation to the private hire vehicle licence) provides that a Council shall grant a licence on application, but the apparently mandatory character of that provision is deceptive since the subsection continues;
'Provided that a district council shall not grant a licence (a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's licence'
Section 59 of the 1976 Act imposes an identical qualification in relation to licences to drive a hackney carriage.
By s.57(1) of the 1976 Act:
'A district council may require any applicant for a licence under the Act of 1847 or under this Part of this Act to submit to them such information as they may reasonably consider necessary to enable them to determine whether the licence should be granted and whether any conditions should be attached to any such licence.'
Since October 2002 it has been the policy of the Council to require all applicants for renewal to take the Driving Standards Agency (DSA) taxi test. Furthermore, taxi drivers are expected to submit every 3 years an 'enhanced' Criminal Record Bureau check. 'Enhanced' means that the report from the CRB will refer to all convictions, cautions and police intelligence. A report from a Council officer to the Committee which considered Mr Jenkinson's application said that the 'The level of check for taxi drivers had been set at 'enhanced' … by Central Government, following lobbying from organisations such as the Lamplugh Trust, given the unique position of trust taxi drivers have, particularly with children and other vulnerable passengers.' The last substantive CRB check for Mr Jenkinson had been in 2002. Under this policy, therefore, he was due to provide a further CRB check in 2005.
In two letters to the Council of 20 th July 2005, Mr Jenkinson indicated that he was unwilling to provide either of these pieces of information. So far as the CRB check was concerned, he said 'I feel that as the last CRB check that the Trade had to go through was sufficient for the Council's needs. I would not object to a lesser form of investigation with no cost to the Trade.' He also said that he did not intend to undergo the DSA test.
Submissions drafted by counsel in support of both objections were put before the Licensing Committee of the Council on Mr Jenkinson's behalf. However, on 3 rd August 2005 the Committee refused his applications on the grounds that he had refused to undertake the DSA test and had refused to undertake the CRB check. Accordingly, Mr Jenkinson had failed to satisfy the Committee that he was a fit and proper person. The Committee also took into account two recent convictions for speeding.
Mr Jenkinson had the right to appeal against this decision to the Magistrates' Court (see 1976 Act s.52 in respect of the refusal of a private hire vehicle driver's licence and s.59(2) in respect of the refusal of a hackney carriage driver's licence on the grounds that he was not a fit and proper person). He exercised this right by issuing a complaint on 22 nd August 2005.
On 13 th September 2005 a meeting took place between Mr Jenkinson, representatives of the Council and their lawyers. The agreement which was reached at that meeting and which was recorded in writing and signed by all concerned included the following: 'Mr Jenkinson agrees to provide CRB enhanced disclosure. The department will disclose this information only in accordance with CRB policy and guidance, bearing in mind the purpose of disclosure and the sensitivity of this information.'
The appeal first came on for hearing on 8 th November 2005. Mr Jenkinson applied for an adjournment because his legal representative was not present. The Council opposed his application, but it was granted and the appeal was re-listed for hearing on 28 th November 2005. Until his appeal was disposed of or withdrawn or fails for want of prosecution, Mr Jenkinson is entitled to carry on his business (1976 Act s.77(2)).
At this hearing, Mr Jenkinson did not produce an up-to-date CRB check. Mr Jenkinson's counsel asked the Magistrates to accept the previous CRB check which, he said, was only 2 years old. The Magistrates say 'we were of the opinion that the two year old CRB check was inadequate and therefore we were not prepared to accept it.' In those circumstances, Mr Jenkinson had asked for the Magistrates to adjourn the hearing to allow him to obtain an up-to-date CRB check. They agreed and adjourned the hearing until 10 th February 2006.
The Magistrates explain their reasoning as follows. They say that they were advised that the appellant had submitted an application to the CRB, but neither the Council nor the appellant could say how long the process would take. They added
'In deciding whether to grant an adjournment we did take into account the fact that the Council had prepared their statements on the basis of 'not having passed the DSA test', and it was only on the day of the appeal hearing that the council filed an amended statement...
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