Mehrdad Kaivanpor v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie,Lord Justice Beatson |
| Judgment Date | 28 October 2015 |
| Neutral Citation | [2015] EWHC 4127 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1922/2015 |
| Date | 28 October 2015 |
[2015] EWHC 4127 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Wilkie
CO/1922/2015
Mr David Lewis-Hall (instructed by Howlett Clarke) appeared on behalf of the Appellant
The Respondent did not attend and was not represented
This is an appeal by way of case stated against the decision of the Sussex Central Magistrates' Court on 28 November 2014 following hearings on 29 October and 25 November 2014 whereby they dismissed Mr Kaivanpor's appeal against a decision of the Brighton and Hove City Council contained in a letter of 1 August 2014, given to him on 4 August 2014, to revoke his private hire driver's licence and hackney carriage driver's licence pursuant to section 61 of the Local Government (Miscellaneous Provisions) Act 1976.
The stated case sets out the background. Mr Kaivanpor is Iranian. He was a traffic policeman in Iran and had driven for some 10 years there accident-free. He came to the United Kingdom in about 2010 with his family to seek asylum. Having learned English, attending college to do so, in 2013 he took the taxi drivers' Knowledge tests sponsored by Streamline Taxis and passed. By the date of the events with which we are concerned, he had been driving for some three years in the United Kingdom, apparently without incident.
On 12 May 2014, whilst on his way to pick up a fare at 7.08 am, he was driving north up London Road and had to turn right into Harrington Road. As he did so, he drove across in front of a cyclist who was cycling south on London Road in a cycle lane. She had no time or opportunity to stop or avoid a collision with Mr Kaivanpor's vehicle. She collided with his vehicle, was thrown up into the air, landed on the road and was injured and subsequently taken to hospital for treatment.
Mr Kaivanpor completed his manoeuvre, driving into Harrington Road, and initially stopped for a short time, then drove on up Harrington road, stopped again for a short time, and then drove off to pick up his fare. He did not at any stage get out of his vehicle in order to ascertain the well-being of the cyclist or to exchange details. However, within an hour of the accident, he reported it to the police and he also informed the owner of his vehicle. In due course, he was charged by the police with driving without due care and attention and failing to stop after an accident. He attended the magistrates' court on 31 July 2014 and pleaded not guilty to both charges. A trial of both charges was fixed to take place on 29 October 2014.
In the meantime, on 14 May, the Council received an email from the aggrieved cyclist, which caused them to undertake consideration of whether or not to revoke his licence pursuant to section 61. On 1 August 2014 he attended an interview with a Mr Kennedy, the licensing enforcement officer. Mr Kennedy decided to revoke the licence and, as I have indicated, handed a letter dated 1 August to Mr Kaivanpor on 4 August, upon receipt of which he reacted extremely emotionally.
The terms of the letter in so far as are relevant are as follows:
"As you are aware, the Council's overriding concern must be the protection of the public and it is therefore required by law to ensure that the holder of a hackney carriage or private hire drivers licence is a fit and proper person to hold such a licence.
The Council has been made aware that you have been charged with the following offences:
Driving without Due Care and Attention whereby you struck a cyclist and failing to stop after an accident."
They then set out briefly the circumstances of the accident:
"… As you must appreciate the above information is extremely concerning to the Council, which has public safety as one of its highest priorities. We note that you have denied these matters and a trial is set on the magistrates' court for 29/10/2014.
However given the serious nature of the incident and in particular that you chose to leave the scene of the accident where a cyclist was struck and injured and then failed to notify this office we have no choice but to revoke your Private Hire Drivers licence and Hackney Carriage Drivers licence in the interests of public safety, with immediate effect.
We have considered whether suspension or revocation is appropriate in this case. However, following the case of Singh v Cardiff City Council we can only do one or the other and given the seriousness of the alleged incident it is felt that revocation is appropriate in these particular circumstances."
He was then in the letter informed of his right to appeal against the decision under section 61(3) of the Local Government (Miscellaneous Provisions) Act 1976 to the magistrates' court, notice of which has to be given within 21 days of the receipt of the notice.
Mr Kaivanpor duly exercised his right of appeal. On 25 September 2014 there was a case management hearing in respect of Mr Kaivanpor's appeal, conducted by a district judge magistrates' court, who gave a direction that his licensing appeal should be heard by the same bench as was to hear the criminal trial, that appeal hearing to take place immediately after the criminal trial scheduled for 29 October 2014.
On the occasion when those directions were made, opposition to those directions that the appeal should be heard by the same bench as would conduct the criminal trial was made on behalf of Mr Kaivanpor by his then counsel. Those submissions were not successful and a direction was made, as I have indicated. That decision was not then the subject of any challenge.
On 29 October 2014 the criminal trial took place. On that occasion Mr Kaivanpor pleaded guilty to the offence of failing to stop after the accident, but contested the offence of driving without due care and attention. The criminal trial therefore proceeded. The prosecution called evidence from the cyclist, Ms Gargan, and from an eyewitness, Ms Carter-Owen, and a section 9 statement from a police officer was read. Mr Kaivanpor gave evidence in his own defence. He was represented for that trial, but not by the same advocate as was subsequently to represent him in relation to the regulatory appeal hearing.
The magistrates found him guilty of the offence of driving without due care and attention. They imposed punishments including endorsing his licence with nine points.
The magistrates then were about to proceed to decide his appeal against the revocation of his licence. However, further submissions were made on his behalf by counsel who was representing him in respect of that appeal hearing that the magistrates should recuse themselves and that they should not hear the regulatory appeal. It became apparent that another court in the same building was offering to assist the magistrates by hearing the regulatory appeal if the magistrates were minded to transfer the case, and in any event it became apparent that the length of the regulatory appeal hearing was such that it would not be completed on that date, but that if it were started on that date the appeal would have to go part-heard to another date, a circumstance which, by way of general guidance and practice, magistrates are not encouraged to adopt. However, the magistrates decided that they would not recuse themselves and that they would immediately proceed to start hearing the regulatory appeal. They adjourned it part-heard to 25 November when the remainder of the evidence and argument was heard, and on 29 November they gave their decision together with their reasons.
On 29 October, in the course of the regulatory appeal hearing, they heard further evidence from Ms Carter-Owen because Mr Kaivanpor's then advocate wanted the opportunity to ask her some further questions. They also heard from a character witness called by Mr Kaivanpor. It is correct to say that there was a factual dispute in relation to the way the accident occurred which had to be resolved in respect of the offence of driving without due care and attention. Mr Kaivanpor's account of the accident was that there was a white van driving south along London Road who had flashed him, permitting him, Mr Kaivanpor, to turn right into Harrington Road in front of the white van, and either expressly or by implication that he could not therefore see the cyclist approaching, as her approach was masked by the white van, and that accordingly, for that reason, he did not drive without due care and attention in attempting that manoeuvre. By way of contrast, Ms Carter-Owen, who had been standing very close to the accident, said that there was no such white van, there was no white van flashing his lights beckoning Mr Kaivanpor to cross in front of him, and that Mr Kaivanpor had simply driven across in front Ms Gargan whom he could see and who could not avoid a collision.
The magistrates appear to have taken that evidence that they had heard in the course of the criminal trial into account when they were determining the regulatory appeal, albeit they had given Mr Kaivanpor's counsel the opportunity further to question Ms Carter-Owen in those proceedings. The fact that they convicted Mr Kaivanpor of the offence of driving without due care and attention by implication involves that they accepted as truthful and accurate the evidence of Ms Carter-Owen about the circumstances of the accident and did not accept the account of the white van given by Mr Kaivanpor.
The magistrates have posed three questions for us to answer. They are as follows:
"1...
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