Reigate and Banstead Borough Council v Jacek Pawlowski
| Jurisdiction | England & Wales |
| Judge | H.H. Judge Keyser |
| Judgment Date | 13 July 2017 |
| Neutral Citation | [2017] EWHC 1764 (Admin) |
| Docket Number | Case No: CO/2758/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 July 2017 |
[2017] EWHC 1764 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
H.H. Judge Keyser Q.C.
sitting as a Judge of the High Court
Case No: CO/2758/2016
Peter Savill (instructed by Legal Services Department) for the Appellant
Benjamin Douglas-Jones (instructed by Blackfords LLP) for the Respondent
Hearing date: 6 July 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
H.H. Judge Keyser Q.C.
H.H. Judge Keyser Q.C.:
Introduction
This is an appeal by case stated, brought by Reigate and Banstead Borough Council ("the Council"), against a decision of the South East Surrey Justices, sitting at Redhill Magistrates Court, on 2 February 2016. By that decision the Justices allowed an appeal by Mr Jacek Pawlowski against the revocation by the Council of his private hire vehicle driver's licence ("PHV driver's licence") and ordered the Council to pay Mr Pawlowski's costs of the appeal in the sum of £1800.
At the outset of the hearing before me, Mr Savill for the Council made it clear that the Council does not seek a further revocation of Mr Pawlowski's PHV driver's licence. It brings this appeal primarily because of concern as to some remarks made by the Justices concerning the use of the statutory power to suspend PHV drivers' licences and in the hope of obtaining some guidance for the future consequent upon the judgment of Singh J in R (Singh) v Cardiff County Council [2012] EWHC 1852 (Admin), [2013] L.L.R. 108. Mr Pawlowski has no personal interest in any determination of that matter. The Council does, however, challenge the award of costs in Mr Pawlowski's favour on the ground that the Justices neither had nor stated sufficient grounds for making such an award. It is reasonable to assume that the Council would not have appealed against the award of costs if it had not anyway been bringing this case for the purpose of trying to clarify the use of the power to suspend.
The relevant facts can be shortly stated. On 2 August 2015 Mr Pawlowski was arrested on suspicion of being drunk in charge of a motor vehicle. Police officers had called at the home of his former partner upon a report of a domestic disturbance. They found Mr Pawlowski in an intoxicated state. They asked him to leave the vicinity and he assured officers that he had called for a taxi to take him home. Officers subsequently saw him get into his own car and turn on the ignition, whereupon they arrested him. He provided a specimen of breath containing 121 microgrammes of alcohol in 100 millilitres of breath. He was charged with an offence of being in charge of a motor vehicle having consumed excess alcohol, contrary to section 5(1)(b) of the Road Traffic Act 1988. On 4 August 2015 the Council was notified of the charge against Mr Pawlowski. On 5 August 2015 the Council decided to revoke his PHV driver's licence with immediate effect. It issued notification of that decision on the same day. At trial on 28 October 2015 Mr Pawlowski was found not guilty of the charge.
Mr Pawlowski appealed to the Justices against the revocation of his PHV driver's licence, under section 61(3) of the Local Government (Miscellaneous Provisions) Act 1976. The appeal was heard by the Justices on 2 February 2016. It was common ground that the appeal was not a review of the Council's decision but a hearing de novo. The question for the Justices was whether Mr Pawlowski was a fit and proper person to hold a PHV driver's licence. They concluded that he was and allowed his appeal.
The reasons of the Justices, as recorded by their clerk, were as follows (I supply paragraph numbers for convenience):
"[1] The Court has to decide whether the licence of the appellant, Jacek Pawlowski, was properly revoked after his arrest and charge on a count of drunk-in-charge.
[2] Furthermore, the Court is asked to decide whether the revocation is right now, in the light of events subsequent to the issue of the initial revocation.
[3] We believe that action was appropriate after the arrest and charge, but that revocation was not the appropriate action. Suspension, whatever its limitations, would have been the appropriate action.
[4] In the light of the guidelines, which indicate that even a relatively serious conviction would be no bar to a Private Hire driver retaining his licence, we note that the appellant has no convictions, and neither has he come to the attention of the licensing department in the past. We conclude that the revocation is not now appropriate and, on the balance of probabilities, allow the appeal."
There is no separate note of reasons in respect of the award of costs, and the Justices acknowledge that they did not give detailed reasons.
The Justices have formulated three so-called questions for this Court; "so-called", because in fact they are not as drawn questions at all but rather propositions for consideration. Reformulated, they result in the following 4 questions:
1) In the light of R (Singh) v Cardiff City Council [2012] EWHC 1852 (Admin), [2013] L.L.R. 108, did the Justices err in law in deciding that the Council's decision to revoke was wrong and that the Council ought to have suspended Mr Pawlowski's private hire driver's licence?
2) Did the justices err in law in failing to provide adequate reasoning for their decision that the said licence ought to have been suspended rather than revoked?
3) Absent any finding that Mr Pawlowski would suffer substantial financial hardship if an order for costs were not made in his favour, did the Justices err in law in making an order for costs against the Council?
4) In the light of the relevant authorities, was the Justices' reasoning for making an order for costs against the Council inadequate?
The fourth question stays close to the wording of the second part of the third proposition stated by the Justices for consideration. I shall take it to mean "Did the Justices err in law in failing to give adequate reasons for making an order for costs against the Council?" Thus the questions address both the legal merit of the award of costs and the legal adequacy of the Justices' stated reasons.
Questions 1 & 2: the power to suspend
The power to revoke or suspend a PVH driver's licence is contained in section 61 of the Local Government (Miscellaneous Provisions) Act 1976, which at the material time, and so far as material, provided as follows:
"(1) Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district council may suspend or revoke … the licence of a driver of … 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.
(2) (a) Where a district council suspend, revoke or refuse to renew any licence under this section they shall give to the driver notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew such licence within fourteen days of such suspension, revocation or refusal and the driver shall on demand return to the district council the driver's badge issued to him in accordance with section 54 of this Act.
…
(2A) Subject to subsection (2B) of this section, a suspension or revocation of the licence of a driver under this section takes effect at the end of the period of 21 days beginning with the day on which notice is given to the driver under subsection (2)(a) of this section.
(2B) If it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect, and the notice given to the driver under subsection (2)(a) of this section includes a statement that that is so and an explanation why, the suspension or revocation takes effect when the notice is given to the driver.
(3) Any driver aggrieved by a decision of a district council under subsection (1) of this section may appeal to a magistrates' court.
The exercise of the power to suspend PHV drivers' licences was considered by Silber J in Leeds City Council v Hussain [2002] EWHC 1145 Admin, [2003] R.T.R. 13; much of the judgment is also relevant to the power to revoke. Silber J held that the words "any other reasonable cause" in section 61(1)(b) indicated that something other than a criminal conviction would justify a suspension of a PHV driver's licence. He continued:
"12. To my mind, the phrase 'any other reasonable cause' has been specifically selected to show the width of the discretion which is given to a council. Their task of making a decision is very much a jury question for them in which they are entitled to take account of all relevant circumstances.
13. The fact that these circumstances are very wide was emphasised by Lord Bingham LCJ in McCool v Rushcliffe Borough Council [1998] 3 All ER 889, when dealing with a refusal to grant an application for a licence to drive a private hire vehicle, at page 891F:
'One must, as it seems to me, approach this question 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.'
14. This...
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