Taxi Driver Online

PETER LARKIN Appellant
against
PATRICK DOCHERTY Respondent(Procurator Fiscal, Greenock)

1991 S.C.C.R. 377

Stated Case

Appeal Court, High Court of Justiciary

8th January 1991

Summary procedure—Special capacity—Licence-holder—Whether condition of licence included in special capacity—Criminal Procedure (Scotland) Act 1975 (c.21), s.312(x)

Section 312 of the Criminal Procedure (Scotland) Act 1975 provides for the form of charges in complaints, and by subsection (x) that:
‘where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted’.

The appellant was charged that being the holder of a taxi-driver’s licence and a condition of said licence being that he should not loiter near an occupied taxi stance, he did so loiter. Only one witness gave evidence as to the conditions of the licence, but the justice held that they were part of a special capacity and did not require to be proved. He convicted the appellant, who appealed to the High Court.

Held (the Crown consenting), that as the conditions were not statutory but conditions which had been attached to the licence and the special capacity in which the appellant was charged did not extend to the content of the conditions of the licence, s.312(x) did not apply to them; and appeal allowed and conviction quashed.

Peter Larkin was charged on summary complaint in the district court at Greenock that:
‘[Y]ou, being the holder of a taxi-driver’s licence granted by Inverclyde District Council in terms of Parts I and II of the aftermentioned Act, and a condition of said licence being that the driver of a taxi shall not stand or loiter with the vehicle in any street in the near vicinity to a stance while such stance is fully occupied by the authorised number of taxis nor shall he cause the taxi to stand in such vicinity, on 24th November 1989 in West Stewart Street, Greenock, said condition was not complied with in that you stood and loitered with motor taxi registered number KGA 345Y, it being a taxi, in the near vicinity to a taxi stance there while such stance was fully occupied by the authorised number of taxis: contrary to the Civic Government (Scotland) Act 1982, section 7(2).’

He was convicted after trial on 30th July 1990 and appealed to the High Court by stated case.

The questions for the opinion of the High Court were:
‘1. On the facts and submissions stated, was I entitled to hold that the conditions pertaining to the licence held by the appellant did not require to be proved, and so to reject the appellant’s submission of no case to answer in terms of section 345A of the Criminal Procedure (Scotland) Act 1975?

2. On the facts and submissions stated, was I entitled to convict the appellant?’

The appeal was heard on 8th January 1991 by the Lord Justice-General (Hope), Lord Cowie and Lord Caplan.
1991 S.C.C.R. 377 at 378

For the appellant: Party.

For the respondent: The Solicitor-General (Rodger, Q.C.).
On 8th January 1991 the Lord Justice-General delivered the following opinion of the court.

Lord Justice-General.

The appellant is Peter Larkin, who appeared for trial in the district court at Greenock on 30th July 1990 charged with an offence under section 7(2) of the Civic Government (Scotland) Act 1982. The charge narrated that he acted in breach of a condition attached to his taxi-driver’s licence, which had been granted to him by Inverclyde District Council under Part II of that Act, in that he stood and loitered with his motor taxi in the near vicinity to a taxi stance while the stance was fully occupied by the authorised number of taxis. He pled not guilty to the charge and the case proceeded to trial. At the conclusion of the Crown case a motion of no case to answer was made in regard to the sufficiency of the evidence about the conditions attached to the taxi licence.

That submission was repelled by the justice. The appellant then gave evidence on his own behalf. Having heard him and heard his evidence and submissions, the justice found the appellant guilty as charged and fined him the sum of £100.

There are two questions for our opinion in this case. The first is whether the justice was entitled to hold that the conditions pertaining to the licence held by the appellant did not require to be proved and so to reject the appellant’s submission of no case to answer. The second is whether, on the facts and submissions stated, he was entitled to convict the appellant. At the outset of the hearing in this case the learned Solicitor-General informed us that he was not in a position to support the conviction.

In particular, he accepted that the conditions pertaining to the licence which was the subject of the charge in this case did require to be proved. This was because these were not statutory conditions but conditions which had been attached to the licence, and because, although the appellant was charged in the special capacity of a licence holder, the special capacity in which he was charged did not extend to the content of the conditions attached to that licence.

In effect what the learned Solicitor-General was saying is that the justice was in error in taking the view that the matter was covered by section 312(x) of the Criminal Procedure (Scotland) Act 1975 and that there was no need for evidence about the conditions. We might also add that the learned Solicitor-General indicated that on the information available to him there was insufficient evidence to establish the nature and terms of the licence condition which was alleged to have been breached.

The justice gave as one of his reasons for being satisfied that there was a case to answer that there had not been any plea to the relevancy of the charge. But the absence of such a plea does not bear on this point, because that simply meant that evidence required to be led on the charge as libelled when the case came before him for trial.

For these reasons we shall dispose of this case by answering the two questions in the case in the negative, as we were invited to do by the learned Solicitor-General. We do so of consent since we have been moved to take this course by the appellant himself also. We shall therefore quash the conviction.
1991 S.C.C.R. 377

COMMENTARY
The difference between this case and breach of bail cases must rest on the view that the standard conditions of a bail order are laid down by statute—as to which, see MacNeill v Milne, 1984 S.C.C.R. 427. Non-standard conditions would, however, have to be proved—cf., H.M. Advocate v Crawford, 1985 S.L.T. 242