Taxi Driver Online

I was going to suggest that the last sentence conflicted with the first sentence but I can only see one long sentence. So perhaps I'll put it another way?


First you say numerical controls are not in place to benefit the Taxi trade, then you imply they are in place to benefit the Taxi trade by allowing them to earn enough money to maintain the required standards? Isn't that a contradiction in terms?



Disprove which court ruling? Are you referring to the solicitor turned Sheriff in the recent Edinburgh case? It wasn't very difficult to find fault in the way she arrived at her judgement, I'm sure anyone with an open mind could have done the same.

It is ironic that the high court in the Barclay case also found fault in the Sheriffs judgement but they were far more scathing than I. Apart from Sheriff Davidson I have witnessed a complete lack of understanding in how the 1982 act applies to Hackney carriages?



The appeal was allowed on the basis that the sheriff erred in law, not because the council didn't apply for an extension. The license was granted because the council didn't process the application within the six-month time frame. It is hypothetical what may or may not have happened if the council had appealed for an extension of time. Perhaps if they had appealed for an extension of time and got one then Mrs Barclay may have successfully appealed against that decision and 3Maxblack would not be in the position they are today?



It is not only the correct course of action when you find yourself in a corner, it is also the only course of action. It doesn't follow that just because it is the only course of action a council has left open to it that they will automatically get an extension. Lord Lochbroom clearly states that six months is more than adequate to reach a decision.

Let me take you through the turn of events.

Mrs Barclay applied to the local authority for a license, the local council tried to do an Edinburgh and prevaricate in making a decision on whether or not to allow her the license while at the same time waiting for a survey to be completed. The council for unknown reasons thought Mrs. Barclay's application was for a driver's license and not an operator's license. Obviously Mrs Barclays application for deferment never arose because the LO had made the mistake of putting her application down as a drivers license.

As I have already pointed out in previous debates Scotland has a law that stipulates a six month time frame for determining license applications. In the Barclay case the council let the six months period lapse and by default she obtained her license. The council wrote to her stating that although she got her license it was by default and it might not be renewed when it comes up for renewal.

True to form the council revoked the license stating that it had a policy of restricting licenses to a set number and that seeing as her license was not issued on merit it is being revoked in line with their policy of restriction.

Mrs Barclay naturally appealed to the Sheriff court but the sheriff must have been cut from the same cloth as that of Mrs Mackie because like her, he failed to grasp the law and disallowed the appeal. An appeal was then lodged with the higher court and it is here that Mrs Barclay got justice. No doubt those who agreed with Mrs Mackie would have also been singing the praises of the blundering Sheriff in the Barclay case.

I put the case up on TDO so you could all read it and perhaps see that Sheriffs are sometimes very inadequate when it comes to interpreting the law. This is a classic case in point.

Barclay v. Renfrewshire Council

An applicant for renewal of a taxi licence appealed against refusal of the application by the licensing authority. The applicant had become unconditionally entitled to the grant of a licence for one year in terms of s 3 (4) of the 1982 Act after the respondents had failed competently to apply for an extension of time to consider the application until they had reformulated their policy on issuing new licences.

When the application for renewal was considered, the respondents refused it for "good reason" under Sched 1, para 5 (3) (d) in that this was the first time it had been properly considered and but for a technicality it would not have been granted under the new policy. The sheriff refused the appeal and the applicant appealed to the Court of Session. The respondents argued that overprovision was a proper ground for refusing to renew as well as grant a taxi licence.

Held, (1) that the absence of significant unmet demand constituted a circumstance in which a licensing authority had a discretion to refuse to grant a new taxi licence under s 10 (3), but was not a reason for refusing to grant or renew a licence under para 5 (3) (pp 651H-K and 652C); (2) that the assessment under s 10 (3) had to be made in relation to the situation at the time an application fell to be considered, and the respondents were not entitled to have regard to a policy which they had not determined on at the time either when the application was received by them or at any time during the period when it ought to have been considered and a final decision reached (p 652D and F-G); (3) that the respondents' failure to obtain an extension for consideration of the application could not be used as the basis for a good reason under para 5 (3) (d) (p 652H); and appeal allowed.

Appeal from the sheriff court

Janet Barclay appealed against the sheriff's refusal of her appeal against a decision of Renfrewshire Council, refusing her application for renewal of her taxi licence.

The appeal was heard before an Extra Division on 9 March 2001.

On 3 April 2001 the court allowed the appeal and remitted the case to the sheriff to direct the respondents to consider the application further.

The following opinion of the court was delivered by Lord Cameron of Lochbroom:

OPINION OF THE COURT.

[1] This appeal concerns a decision of the respondents, as the licensing authority in terms of the Civic Government (Scotland) Act 1982 ("the 1982 Act"), taken on 19 August 1999 refusing an application by the appellant for renewal of a taxi licence. The appellant required the respondents to give reasons in writing for their decision in terms of para 17 of Sched 1 to the 1982 Act. Following the issue of reasons in writing by the respondents in a letter dated 27 August 1999, the appellant raised the present action in the sheriff court seeking to reverse the respondents' decision.

The appellant claimed that the respondents had erred in law in reaching their decision. The sheriff, having heard the parties, on 22 March 2000 pronounced an interlocutor in which he repelled the pleas in law for the appellant, sustained the respondents' first plea in law to the effect that the respondents had not erred in law and otherwise repelled the remaining pleas in law for the respondents and refused the appeal.

He held that neither the decision to refuse the appellant's application for renewal of a taxi licence nor the reasons set out in the letter of 27 August 1999 disclosed any error in law on the part of the respondents in refusing the appellant's application.

[2] Before we consider the submissions made to us, it is convenient to set out the admitted facts. In December 1997 the appellant applied for a taxi licence, conform to the provisions of the 1982 Act. In terms of s 3 (1) of the 1982 Act the respondents were, for the purpose of the discharge of their function as a licensing authority, required, within three months of the application having been made to them, to consider the application and, subject to certain other provisions of the section, to reach a final decision on the application within six months.

In terms of subs (4) it is provided that where the licensing authority have failed to reach a final decision on the application before the expiry of the six month period, the licence applied for "shall be deemed to have been granted unconditionally on the date of such expiry and shall remain in force for one year".

It is further provided that such grant is without prejudice to certain other powers given to a licensing authority to revoke, vary or suspend a licence.

Provision is made by s 3 (2) for the local authority to seek an extension of the six month period by way of summary application and for the sheriff, if it appears to him that there is good reason to do so, to extend the period as he thinks fit.

In the present case the sheriff in his note sets out that in 1998 the respondents were awaiting a report from the Fraser of Allander Institute in order to assist them in formulating policy in connection with the issue of taxi licences.

It appears that in the course of 1998 that report was received and considered by the respondents. On 3 December 1998 the respondents formulated a policy restricting the number of new taxi licences that they intended to issue. It further appears that the respondents had intended to continue consideration of the appellant's application, and certain other licence applications, until they had received the report and had formulated policy. However, their summary application to the court was incompetent in that it referred to an application by the appellant for a taxi driver's licence.

Accordingly, no application for continuation of consideration of the appellant's application was sought or obtained from the court. In the circumstances it was, and is, accepted that the appellant became entitled in terms of s 3 (4) of the 1982 Act to the grant of a taxi licence unconditionally on 18 June 1998 for a period of a year, that date being the date of the expiry of the six month period from the date of the submission of the appellant's application. In terms of s 3 (5) of the 1982 Act the respondents were thereupon bound to make out and deliver to the appellant a licence so granted.

It remains only to note that in terms of s 3 (4) such a grant is granted without prejudice to the respondents' powers of revocation, variation or suspension under the 1982 Act and that none of these powers was exercised at any time by the respondents in relation to the appellant's grant of a licence following the date when it was deemed to have been granted.

[3] As stated above the respondents formulated their policy on 3 December 1998. On 14 January 1999, apparently in ignorance of the fact that their application for an extension of time to the sheriff had been incompetent, the respondents purported to consider the appellant's application for grant of a taxi licence and to refuse it.

They purported to do so by reference to the restriction policy adopted by them on 3 December 1998 and under reference to s 10 (3) of the 1982 Act as amended by the Transport Act 1985. This section concerns taxi and private hire car licences. In terms of subs (2) it provides that a licensing authority shall not "grant or renew" a taxi licence unless satisfied that the vehicle to which the licence is to relate is suitable in type, size and design for use as a taxi and is safe for that use and that there is in force in relation to the vehicle a policy of insurance or such security as complies with Pt VI of the Road Traffic Act 1972.

Subsection (3) provides as follows: [his Lordship quoted its terms and continued:] It is also convenient at this juncture to note that this subsection, as originally enacted, was in the following terms: [his Lordship quoted its terms and continued:]

[4] In the event the respondents recognised that their decision was inept. We note that the sheriff states that the matter had been raised by the appellant's agents shortly before the date set down for the hearing of the appellant's application on 14 January 1999. However, recognising that their purported refusal was inept and that in fact the application must already be deemed to have been granted, the respondents wrote to the appellant's agent on 28 January 1999 enclosing the licence dated, as required by statute, to 18 June 1998.

[5] It appears that in the letter of 28 January 1999, and in a further letter written by the respondents to the appellant on 10 August 1999 upon receipt of her application for renewal of a licence, the respondents sought to make clear to the appellant that the appellant was not entitled to expect that the licensing authority would necessarily renew the licence in view of the adoption by them of a restriction on licence policy on 3 December 1998.

The sheriff records that the letter of 28 January 1999 sought to point out that the issue of the licence to the appellant took the number of taxi licences issued at that time beyond the limit of 212 set in terms of the policy and that the letter of 10 August 1999 also set out in more detail how the respondents intended to operate the s 10 (3) policy adopted.

We observe at this point that the appellant's licence was deemed to have been granted immediately upon expiry of the six month period from the date of submission of the application and that in June 1998 no policy existed which set down a limit of 212 licences for the respondents' area.

[6] The appellant required to apply for renewal of the licence as at 19 June 1999. As noted above, on 19 August 1999 at the hearing of that application the renewal was refused and the appellant applied to the respondents for a note of written reasons for the decision. These reasons were set out in the letter of 27 August 1999.

[7] It is convenient at this stage to take note of a further provision of the 1982 Act which is relevant to the debate before us. Schedule 1 to the Act makes further provisions as to the general system of licensing and in particular the procedural provisions to be followed, including the provisions to be followed in respect of applications for the grant and renewal of licences. Paragraph 5 reads as follows: [his Lordship quoted the terms of para 5 set out supra and continued:]

[8. It is accepted for the respondents in the present appeal that none of the matters referred to in para 5 (3) (a), (b) or (c) are relevant to their decision.

It is reasonable to assume that the licensing authority would have satisfied itself on such matters within the initial period of three months for consideration of the application in terms of s 3 (1). If so satisfied, and the grant is made, it could not constitute good reason for refusal to renew that licence that since the grant of the licence the licensing authority had become satisfied that there was no significant demand for the services of taxis in their area which was unmet and for that reason they would refuse to renew the licence.

The policy of the Act so far as relating to safety of the public is clearly met by s 10 (2) and (4) of the Act. Once a licence has been granted, in our opinion, the scheme of the Act so far as it concerns the licensing and regulation of taxis and private hire cars, is to allow the licence holder to operate so long as the vehicle licensed is suitable for the purpose and that there is in force the appropriate policy of insurance or other security as complies with Pt VI of the Road Traffic Act 1972, subject always to such other reasonable conditions as may be imposed in terms of para 5 (2). Such reasonable conditions can be imposed even if the original grant, being a grant made in terms of s 3 (4), was unconditional.

Any matter of overprovision which may arise subsequent to the original grant, can be effectively dealt with by the licensing authority in two ways, first of all, by refusal of new applications for grant of a licence or, alternatively, by refusal of applications for new grants unless they are accompanied by surrender of an existing licence in favour of the new applicant in terms of para 5 (2) (b).

Moreover, the assessment to be made in terms of s 10 (3) must be made in relation to the situation at the time when an application falls to be considered and not at some subsequent date. What the respondents have attempted to do in the present case is to do exactly that which they are prevented from doing, namely to exercise their power in terms of s 10 (3) at a time when it was no longer available to them, namely upon an application for renewal of an existing licence.

[15] In these circumstances, we are satisfied that the sheriff erred in his determination. It appears that he proceeded upon the view that there was no prohibition in substance or in form arising from the 1982 Act which prevented the respondents at the meeting on 19 August 1999 from considering matters in the way set out in their letter of 28 August 1999.

He did so on the basis that he distinguished a grant by operation of law from a considered grant by licensing authority, as being a form of compensation to the applicant for failure of the respondents to meet the statutory timetable. In our opinion, there is nothing in the Act which gives any countenance to such a proposition. The Act contemplates that the period of the licence granted in terms of s 3 (4) will be limited, in order that the licensing authority can thereafter give consideration in early course upon renewal to imposing such conditions which they might otherwise impose as conditions upon grant or renewal.

What they are not entitled to do, however, upon consideration of an application for renewal of that licence, is to have regard to a policy which they had not determined upon at the time either when the application for grant was received by them or indeed at any time during the period when it ought to have been considered, and a final decision reached, by them. In our opinion, what the respondents were truly doing was attempting to invoke s 10 (3) on an occasion when it was no longer open to them to do so.

This is quite apparent from the terms of the letter of 27 August 1999 and its referral throughout to the restriction policy which was put in place following upon the respondents' decision on 3 December 1998. The sheriff seems to have placed some emphasis on the fact that the initial grant had been "backdated to June 1998".

In fact, the provisions of s 3 of the Act required that in June 1998 the licence should be immediately issued upon the failure of the respondents to reach a final decision upon the application. The fact that their failure to do so arose from their own actings cannot, in our opinion, affect the matter or entitle them to use that failure as the basis for a good reason in terms of para 5 (3) (d).

More particularly is this so since counsel for the respondents before us did not seek to argue the matter upon the basis that the appellant was advised, prior to application for renewal, that the respondents intended to take account of their policy decision in December 1998 when considering the application for renewal.

[16] In the whole circumstances we are satisfied that the sheriff's decision is flawed. In his decision the sheriff erred in attempting to distinguish, for the purposes of what constituted the grant of a licence, between a grant which was secured after a final decision within a period of six months and a grant which arose by reason that the licensing authority had made no decision with six months.

Each is a grant for the purposes of the 1982 Act. Accordingly, when considering an application for renewal of that grant at the conclusion of the period for which the original grant was in force, the respondents were not entitled to take into account a policy which was determined upon during the period after the licence came into force.

For all these reasons we shall allow the appeal and in so doing, we shall recall the sheriff's interlocutor, sustain the first plea in law for the pursuer and appellant to the extent of holding that the defenders and respondents in arriving at their decision of 19 August 1999 erred in law, repel the remaining pleas in law for the pursuer and appellant, repel the first, second and fourth pleas in law for the defenders and respondents, and sustain the third plea in law for the defenders and respondents to the extent of remitting the case back to the sheriff to direct the defenders and respondents to consider further the application of the appellant for renewal of a taxi licence.

Rather long I know but I did cut out quite lot and tried to leave in the relevant parts.

Regards

JD

one of many

Garry Thomson says taxi drivers on here are selfish has he looked in mirror his piece in the evening news made me think he must be of his trolly so i had to reply and put my view alot of my partner mate's where well chuffed and agreed with everything i said. my partner has met with margo Mcdonald a couple of time about taxi problems including dress code and not been able to take passengers to police station for not paying fare. so my parnter has tried to do things for the trade.

I don't get your drift re not able to take passengers to police station, surely thats up to you, got to get permission first from whoever, or is this a clansman thing
fraid our police station is secure, you just can't walk in, why do you get a lot of non payers, ask for cash up front if you think they are fishy, can't remember when I last had one

remember a fare a couple of years ago, a young lad jumped in and said go to a certain pub, took him, £3.30 on the clock, he fumbled about in his pockets looking for the fare, this time 4 or 5 minutes had gone by, he said sorry aint got enough, I said how much u got there, he said 2 quid, I said give me the 2 quid, [my blood was starting to boil by then] then I set of in the cab, he asked what was happening, I told him I am taking you back £1.30's worth, he was not a happy bunny, how was he going to buy ale in the pub, the mind boggles.

can't you do what we do for none payment if they are still in the cab, bring them back and take them to the nearest beat bobby pounding the street. this association below its only just sprung up, look at the first para.
http://www.yta.org.uk/

Reminds me of those dozy buggers who say they've only got so much when in fact they've got plenty of dosh.

Usually they say will you take me for x because that's all I've go, then they open their wallet and give you a £20 note and wait for the change.

I had a slightly cleverer one at the weekend - he said will you take me to whereever for £15. I said £17, he said £15 was all he had.

So I said I'll do it for £15 if he gave me the money up front - he was still outside standing at the car door, and lifted his wallet up to beside his face and took the money out, presumably so I didn't see the wodge he really had.

Dopey git

_________________
Taxi Driver Online
www.taxi-driver.co.uk

Oh remember the git who kept saying to me all the way of the journey, right into me face "got loadsa money me" "got loadsa money me", got to the end of the short journey, opened his wallet to pull out a tenner, as he pulled it out out came the rest of the big wad, he was right he had loadsa money, it went all over the cab floor down the sides of the seat, gave him his change, he picked up his notes and got out saying "got loadsa money me" then off I drove, further up the road I found 2 tenners in the door pocket and one down the side of the seat, thought boll*ocks he did have loadsa money, pead up git

No it's not a clansman thing, it was suggested that to take a passenger to a police station for non payment could end up with YOU being charged with abduction and unlawful confinement of the person involved.

We do not have the bilking law that you enjoy in England and Wales.

I reckon it amounts to obtaining goods and services by deception, I dont mind if someone tells me at the start of the hire that they do not have the money to pay, something can usually be worked out to everyones satisfaction, or if someones in distress, or a youngster out on their own, I would not turn my back on them, but for gods sake learn to be honest, nobody likes being conned.

What happened was that Edinburgh Council issued guidlines saying that drivers taking non-payers to a police station could be charged with abduction.

Some drivers wrote to the Lord Advocate and he said that it was OK - it was a citizens arrest.

The story below says that the council still stuck to their guns, so I dont know what happened, maybe someone from Edinburgh does.



A COUNCIL guideline telling Edinburgh taxi drivers they could face abduction charges if they detained fare dodgers in the back of their cab has been rubbished by Scotland's top legal authority.

The Lord Advocate, Colin Boyd, has told concerned cabbies that they have every right to make a citizen's arrest if somebody refuses to pay a fare.

The move has completely over-ruled earlier advice issued by the city council.

Taxi drivers were astounded when the council informed them last month that anyone who declined to hand over money at the end of a journey was acting within the law. They dubbed the ruling a "fare dodgers' charter".

Taxi drivers usually deal with fare dodgers by locking them in the cab and driving them to the nearest police station in the hope police can resolve the issue. Some cabbies return the non-payer to the spot where the journey started rather than give them a free ride, or take them to a cash machine to get the money for the fare.

But the guidelines issued by the city council warned drivers they could be charged under human rights legislation with detaining a person against their will or abduction if they lock a fare dodger in the back of the cab.

A group of incensed drivers wrote to Scotland's top legal authority to question whether the guideline is correct.

In a written response Lord Advocate Colin Boyd QC said: "In the case of passengers who have taken a journey in a taxi and then don't pay the fare, it is competent for the driver of that vehicle to exercise his or her right to make a citizen's arrest."

Jim Taylor, a spokesman for new taxi drivers' group CABforce, welcomed the response today, saying: "The city council should never have issued this guideline or published it in the trade magazine. It is a fare-dodgers charter. If you are a shopkeeper and somebody steals from your shop you have every right to lock them in the shop. But we were being told that we should let people walk away without paying. It was a charter for every wideboy in the city to jump out without paying .

"The Lord Advocate has told us we have every right to make a citizen's arrest and that is what most drivers will do.

"If CABforce were able to find out this information, why couldn't the council have done the same, especially before printing a publicly available document stating the opposite, and thereby putting drivers in an unnecessarily precarious position."

The guideline was issued to drivers through the council's in-house magazine for the taxi trade, Fareview. A council spokesman said at the time that the guidance was based on police advice.

Today the city council said it had not received any communication from the Lord Advocate with instructions to change the guideline.

A city council spokesman said: "We are sticking by the advice we gave drivers before. The guidance was issued after consultation with the police and they are sticking with it too.

"We don't want to see drivers being arrested for locking non-payers in the back of their cabs.

"As before, we would simply advise drivers to use their common sense on these issues. If they suspect that someone is not going to pay then they should ask for the fare in advance or ask for a deposit. If someone refuses to pay they should not lock them in the cab."

Mr Taylor claims that some passengers have already heard about the council guideline and tried to exploit it. He added: "For years people have known that if they refuse to pay a fare they will be taken to the police station or back to where the journey started."

_________________
Dundee rocks. Almost.

And in reality what happened?, YOU won't know the answer because the best of your knowledge is the local rag online and a flawed individuals point of view also online, which brings me back to my earlier point about commenting on issues in areas other than your own, unfortunately dundee gives in when the going gets tough, but we in edinburgh dont. Our system here has been attacked many times but common sense and professionalism always prevails.

_________________
Who's been "Editing" my mailbox then ...lol

Ouch!

Given this and your other replies, I take it you didn't have a good night Mr RCFF?

Talking of common sense and professionalism, perhaps some posters could try to be a bit more discriminating about what part of the previous post they quote in their reply?

For example, I can't see the point in quoting any of the above post at all, since your's is the one after and merely quotes the whole post. Likewise, if a reply is further down the thread then quoting a huge screed of text to reply in a couple of words makes it difficult to see what specific point the response is referring to, and also eats up unnecessary bandwidth, which has to be paid for.

Of course, we all do it to a degree, but I'm sure we could all do a bit better.

Here endeth the lesson

_________________
Taxi Driver Online
www.taxi-driver.co.uk

realcabforceforum wrote

"And in reality what happened?, YOU won't know the answer because the best of your knowledge is the local rag online and a flawed individuals point of view also online, which brings me back to my earlier point about commenting on issues in areas other than your own, unfortunately dundee gives in when the going gets tough, but we in edinburgh dont. Our system here has been attacked many times but common sense and professionalism always prevails."

ive said it once ill say it again moron.

why cant you answer question or debate anything?

everytime you get pinned down on something you start talking sh i te

would'nt it have been better to tell everyone what you thought and actually tackled the question put forward

maybe you could have gained some credibility so far all you've done is dodge the issues

or is it the fact that you cant becouse you're position is undefendable?.