Mohammed Latif v Middlesbrough Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEWMAN,LORD JUSTICE BROOKE |
| Judgment Date | 24 March 1997 |
| Judgment citation (vLex) | [1997] EWHC J0324-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4452/96 |
| Date | 24 March 1997 |
[1997] EWHC J0324-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Brooke
Mr Justice Newman
CO/4452/96
MR R DENNY (Instructed by Messrs Tilly, Bailey & Irvine, Hartlepool) appeared on behalf of the Appellant.
MR J GILLETTE (Instructed by Legal and Administrative Services, Middlesbrough Borough Council, Middlesbrough) appeared on behalf of the Respondent.
( )
Monday, 24 March 1997
This is an appeal by way of Case Stated from the Crown Court at Teesside. The defendant was accused of two offences alleged to have been committed on 16 April 1995 contrary to section 46 of the Local Government (Miscellaneous Provisions) Act 1976 ("the Act"). Section 46 provides in subsection (1), where material, the following:
"Except as authorised by this Part of this Act…
(c) no person being the proprietor of a private hire vehicle licensed under this Part of this Act shall employ as the driver thereof for the purpose of any hiring any person who does not have a current licence under the said section 51…"
Subsection 2 provides:
"If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence."
The two offences with which the defendant was charged were as follows: (1) that on 16 April 1995, being a private hire vehicle, he did knowingly employ an unlicensed driver, contrary to section 46 of the Act, and (2) on 16 April 1995, being a joint private hire vehicle operator, he did knowingly jointly operate a private hire vehicle, the driver of which was unlicensed contrary to section 46 of the Act.
On 23 January 1996 the defendant was convicted at the magistrates' court. He appealed to the Crown Court and on 11 September 1996 the appeal was dismissed.
The facts appearing from the Case Stated are as follows. The defendant, being the owner of a vehicle licensed under the Act, employed a Mr Din as a driver of the vehicle on 16 April 1995 to operate it as a hire car. Mr Din did not have a current licence under section 51 of the Act. On at least three or four occasions prior to 16 April 1995 he had similarly employed Mr Din, but no charges were made in relation to these occasions.
The Crown Court also found that prior to 16 April 1995 the defendant gave cash to Mr Din to enable Mr Din to renew his private hire licence. Although given the money for this purpose, Mr Din failed to use it to renew his licence. The court concluded that, the defendant having been put on notice before 16 April 1995 that Mr Din had a licence which was due to expire, he knowingly contravened the provisions of section 46(1) of the Act when he employed Mr Din on 16 April.
The opinion of the court expressed in the Case Stated was that the appellant had "knowledge for the purposes of the Act"; but it should be noted that the court came to this conclusion having expressly made two other findings of fact which are most material to this appeal. The first was that the defendant was unaware that Mr Din had not used the money to renew his licence and was therefore unaware that he had no licence when he employed him, and the second was that the defendant had not deliberately shut his eyes to whether Mr Din had a licence but what he had done was to fail to ascertain the actual position.
The question posed by the Crown Court for the opinion of the High Court is whether the appellant could be found to have knowledge for the purposes of section 46 of the Local Government (Miscellaneous Provisions) Act 1976 if (1) it had been found as a fact that he had no actual knowledge of the driver being unlicensed, (2) it had been found as a fact that he had not deliberately shut his eyes as to whether the driver was unlicensed and (3) it had been found as a fact that he had been put on notice that the driver was to become unlicensed but had thereafter done nothing to ascertain if the driver was actually licensed or not. The issue on the appeal is whether it was open to the court to convict the defendant of the offences of knowingly employing an unlicensed driver and knowingly jointly operating a private hire vehicle, the driver of which was unlicensed, when the court had found as a fact that the defendant did not know that Mr Din was unlicensed on 16 April and had not deliberately shut his eyes to the question. The findings that the defendant did not know that Mr Din was an unlicensed driver when he employed him on 16 April 1995 but nevertheless knowingly employed an unlicensed driver on that same date are plainly inconsistent unless the word "knowingly" should not be given its literal and obvious meaning and should be construed, in this penal statute, so as to encompass constructive knowledge.
On the facts found the court concluded that being put on notice that Mr Din's license was to expire on some date prior to 16 April and failing to make enquiries to ascertain the true position meant that the defendant had acted knowingly. In my judgment, there is no warrant for the word "knowingly" being construed so broadly as to encompass the facts as found. The facts went no further than establishing that the defendant was on notice that a situation might prevail on a particular day when it is alleged the offence was committed. Further, having given money to Mr. Din to obtain a licence the defendant had good reason to believe he would have obtained one. Upon the facts as found and giving the word "knowlingly" its normal meaning, which, in my judgment, in this statute it should have, the charges had not been made out.
The explanation for the court's inconsistency in the finding may lie (though counsel have not been able to assist specifically as to whether or not this view is supported by anything that occurred in the Crown Court) within
The case of Westminster City Counsel v Croyalgrange Ltd. and Another [1986] 1 WLR 674, to which the Crown Court was referred. The case itself concerned the Local Government (Miscellaneous Provisions) Act 1982 and the code thereby introduced for controlling sex establishments. A company and the director of the company were charged with knowingly permitting the use of premises as a sex establishment when no licence had been granted and where no application for a licence had been made. The defence had contended that the company and its director had honestly believed that an application had been made. The magistrate concluded that although considerable suspicion existed it had not been proved beyond reasonable doubt that either defendant had the requisite knowledge, namely that they had not acted knowingly.
The local authority pursued the matter on appeal and (as is apparent) to the House of Lords because, in particular, it was concerned as a licensing authority about its powers of effectively controlling sex establishments if it had to prove knowledge. The speeches of both Lord Bridge and Lord Brightman...
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