Gateshead Council v Crozier
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Clive Heaton |
| Judgment Date | 08 April 2014 |
| Neutral Citation | [2014] EWHC 2097 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5/2014 |
| Date | 08 April 2014 |
[2014] EWHC 2097 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
His Honour Judge Clive Heaton QC
(Sitting as a Judge of the High Court)
CO/5/2014
Miss J Smith appeared on behalf of the Claimant
The Defendant appeared in Person
His Honour Judge Clive Heaton QC: On 26th June 2013 the Gateshead Borough Council revoked Mr Graham Crozier's Hackney Carriage driving licence. He made a complaint to the Gateshead Magistrates' Court primarily against the Borough Council's decision and on 10th September 2013 the Magistrates upheld his complaint and reversed the Borough Council's decision. Gateshead Borough Council now appeals to this court against the decision of the Magistrates' Court by way of Case Stated.
Before coming to the facts of the case and the respective contentions of the parties it is helpful to refer to the legislative regime which governs such grants of appeals.
Section 59(1) of the Local Government (Miscellaneous Provisions) Act 1976 provides that:
"(1) Notwithstanding anything in the Act of 1847, a district council shall not grant a licence to drive a hackney carriage—
(a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's licence…"
Section 51(1) of the Local Government (Miscellaneous Provisions) Act 1976 provides so far as relevant a similar regime in respect of private hire vehicles. That is relevant here as some of the helpful authorities in relation to private vehicles as opposed to Hackney Carriages.
Section 51(1) says:
"(1) Subject to the provisions of this Part of this Act, a district council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver's licence:
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 61(1) of the Local Government (Miscellaneous Provisions) Act 1976 provides as follows:
"(1) Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district council may suspend or revoke or (on application therefor under section 46 of the Act of 1847 or section 51 of this Act, as the case may be) refuse 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."
It is to be noted that the convictions to be considered under section 61(1) are not confined to convictions whilst in the occupation of Hackney Carriage driver. As to any other reasonable cause that is something other than a conviction ( Leeds City Council v Mehfoz) and again is not restricted to something connected with the occupation of Hackney Carriage driver.
There is no statutory definition of a fit and proper person, nor sensibly could there be given the wide range of matters a District Council might take into account. In Maud v Castle Point Borough Council [2002] EWCA Civ 1526, the court said:
"What are the council's functions under this legislation in relation to the licensing of taxi cabs? As I see it they are to achieve, so far as they can, the safety, convenience and comfort of passengers in hackney carriages, the safety of other road users and to ensure that there is some way in which those who wish to use either hackney carriages or private hire vehicles can readily distinguish the one type of vehicle from another."
As the then Lord Chief Justice said in McCool (John) v Rushcliffe Borough Council:
"One must, as it seems to me, approach this case bearing in mind the objectives of this licensing regime which is plainly intended, among other things, to ensure so far as possible that those licensed to drive private hire vehicles are suitable persons to do so, namely that they are safe drivers with good driving records and adequate experience, sober, mentally and physically fit, honest, and not persons who would take advantage of their employment to abuse or assault passengers."
As to what the Borough Council or the Magistrates are entitled to take into account in coming to a view as to whether a person is or is not a proper person, again in McCool v Borough Council:
"But it is appropriate for the local authority or justices to regard as a good reason anything which a reasonable and fair-minded decision maker, acting in good faith and with proper regard to the interests both of the public and the applicant, could properly think it right to rely on. In my judgment the justices in this case did not exceed the bounds of appropriate evidence in reaching their decision."
A local authority is entitled to have a policy on the matter ( Darlington Borough Council v Malcolm Kaye). Here the appellant does have such a policy. It says in its relevant part, firstly under the heading "Objectives" at B10:
"In setting out its policy Gateshead Council seeks to promote the following objectives:-
(i) The protection of health and safety
(ii) The establishment of a professional and respected Hackney Carriage and private hire trade (iii) Access to an efficient public transport service
(iv) Protection of the environment, improved standards of service and visibility of Hackney Carriages and private hire vehicles in support of the regeneration of Gateshead. It is the Authority's wish to facility well run and responsible businesses which display sensitivity for wishes and needs of the general public."
Later under the heading "Fit and proper person":
"Some areas give rise to particular concern including—
Honesty and trustworthiness. Drivers often have knowledge that a customer is leaving a house empty. They have opportunities to defraud drunken, vulnerable or foreign people or to steal property left in cars. They must not abuse their position of trust.
Not abusive. Drivers are often subject to unpleasant or dishonest behaviour. The council does not consider that this excuses any aggressive or abusive conduct on the part of the driver. Drivers are expected to avoid confrontation and to address disputes through the proper legal channels. In no circumstances should they take the law into their own hands.
A good and safe driver. Passengers paying for transport service rely on their driver to get them to their destination safety. They are professional drivers and should be aware of all the Road Traffic Act legislation and conditions attached to the licence."
At 11 the policy goes on:
"The overriding consideration of members of the Regulatory Committee is to protect the public."
At 12 "Complaints against drivers":
"The Regulatory Committee should consider the history of all complaints made against the driver to assess any patterns. If a pattern is identified then the Regulatory Committee should consider whether the driver is a fit and proper person to hold such licence."
The Magistrates must accept and apply the policy as though standing in the shoes of the Borough Council. It does not have the right to challenge the policy ( R (on the application of) Westminster City Council v Middlesex Crown Court & Anor [2002] EWHC 1104 (Admin) 31).
As to the burden of proof as to whether a person is a fit and proper person, whether in the context of application or revocation, assistance is again obtained from McCool v Rushcliffe Borough Council at paragraph 20:
"The relevant proviso to section 51 of the 1976 Act, which we have already referred to, is expressed to show that it is for the applicant to establish that he is a fit and proper person to hold a driver's licence."
The standard of proof is the civil standard of the balance of probability.
Where a person seeks to appeal a decision of the licensing authority he may do to so the Magistrates' Court. As to the approach of the Magistrates on hearing the appeal the Court of Appeal considered the correct approach in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB at page 614. The appeal is by way of rehearing and the Magistrates are entitled to reconsider all the evidence. However, the Magistrates must play great attention to the decision of the Borough Council which is a duly elected local authority, which has to come to an opinion on the matter. The magistrates thus ought not to lightly reverse its decision.
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 [2004] EWHC 2836 (Admin)… 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."
In R (on the application of) Hope And Glory Public House Ltd v City of Westminster Magistrates' Court [2009] EWHC 1996 (Admin) and then [2011] EWCA Civ 31, further guidance was provided on the approach the appellate court should take:
"45. It is right in all cases that the magistrates' court should pay careful attention to the reasons...
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