Taxi Driver Online

MIDLOTHIAN DISTRICT COUNCIL v ROBERT WILLIAM KINNEAR

COURT OF SESSION: INNER HOUSE (EXTRA DIVISION)

(1992) Inner House Cases

9 December 1992

COUNSEL: Act: Hajducki, John G Gray & Co; Alt: Clancy, Anderson Strathern

PANEL:
Lord Cowie, Lord McCluskey, Lord Sutherland

JUDGMENTS: LORD SUTHERLAND, (reading the opinion of the court): In this appeal the respondent is the holder of a taxi driver's licence. On 10 June 1991 he was suspended by the appellants from holding his licence on the ground that he was no longer a fit and proper person to do so. Notification of the appellants' decision was given to the respondent by letter of even date. The respondent appealed to the sheriff against the decision of the appellants, and the sheriff upheld his appeal. The present appeal is taken against the decision of the sheriff.

Four grounds of appeal were set forth but counsel indicated that he was no longer insisting upon the first ground, which was that the sheriff had not issued a written decision. The sheriff has now issued a written decision and accordingly this ground is no longer applicable. The second and third grounds relate to alleged errors on the part of the sheriff in holding that the appellants were not entitled to take account of certain matters in arriving at their conclusion. The fourth ground is of a formal nature. Before considering these grounds of appeal it is, in our opinion, important to look at the procedure. On 7 May 1991 the appellants, by letter (which was not a production), intimated to the respondent that there would be a hearing on 6 June 1991 at which it would be sought to suspend the respondent's licence.

It appears that that letter contained an allegation that the respondent had been convicted of offences under the Protection of Animals Act and the Betting Gaming and Lotteries Act. This letter would be sent in accordance with the provisions of paragraph 11 of Schedule 1 to the Civic Government (Scotland) Act 1982. Paragraph 11(1) provides that a Licensing Authority may suspend a licence in accordance with the provisions of that paragraph. Paragraph 11(2) provides that the Licensing Authority may order the suspension of a licence if, in their opinion, the holder of the licence is no longer a fit and proper person to hold the licence.

Paragraph 11(4) provides that in considering whether to suspend a licence the Licensing Authority may have regard to any misconduct on the part of the holder of the licence whether or not constituting a breach of any provision of Part I or II of the Act or the Schedule, which, in the opinion of the authority, has a bearing on his fitness to hold a licence and that they may make such reasonable enquiries as they think fit and include the results of their enquiries in the matters to which they have regard in such consideration. Paragraph 11(5) provides that where a Licensing Authority intend to include any of the results of their enquiries under sub-paragraph (4) in the matters to which they have regard for the purposes of sub-paragraph (4), they shall notify the holder of the licence of that intention.

Paragraph 11(7) provides that a Licensing Authority shall give the holder of the licence an opportunity to be heard by the authority and sub-paragraph 8, provides that the Licensing Authority shall have complied with their duty under sub-paragraph (7) if they have caused to be sent to the persons entitled under that sub-paragraph to an opportunity to be heard, not later than 21 days before the hearing, notice in writing that the authority propose to hold a hearing, together with a copy of any complaints relevant to the matters to be considered at the hearing and a note of the grounds upon which the suspension of the licence is to be considered.

Finally, paragraph 11(12) provides that a Licensing Authority shall, within seven days of their decision, send written notice of their decision to inter alios, the holder of the licence. The procedure to be followed thereafter is set out in paragraphs 17 and 18 of Schedule 1. Under paragraph 17(1) a Licensing Authority shall, within ten days of being required to do so, give reasons in writing for arriving at any decision of theirs to suspend a licence. It should be noted that no such request was made by the respondent in this case. Under paragraph 18(6) it is provided that the sheriff, before whom an appeal is being heard, may, in the case of a decision of a Licensing Authority for which reasons have not been given under paragraph 17, require the authority to give reasons for that decision.

What happened in the present case was that the letter of 7 May 1991, to which we have already referred, was sent to the respondent. The respondent's solicitors, by letter dated 4 June 1991, wrote to the appellants intimating that the respondent would appear at the meeting on 6 June, and setting out certain relevant facts upon which they said the respondent could answer questions at the hearing. The solicitors pointed out that the suggestion being made was that

"the fact that he has been convicted of the two offences is sufficient reason to interfere with the decision that the Council took to the effect that he is a fit, able and proper person to hold a licence".

The solicitors then went on to deal with certain details relating to the two offences of which the respondent had been convicted.

At the hearing on 6 June the respondent duly appeared and the Licensing Authority heard from a police officer about the details of the convictions and also heard from the respondent what his attitude was towards these convictions. It is not clear whether the Licensing Authority at the end of the hearing intimated their decision, but in any event on 10 June 1991 the Committee Secretary wrote to the respondent in the following terms:

"I refer to your appearance before the Council's General Purposes Committee on 6 June 1991. I am to confirm that the Committee agreed that your taxi driver's licence has been suspended for the unexpired portion thereof ie until 11 January 1993, as you are no longer a fit and proper person to hold such a licence on account of your previous convictions".

In accordance with paragraph 18 of the Schedule the respondent then appealed to the sheriff by way of summary application. In their Answers the appellants referred to the letter of 4 June 1991 from the respondent's solicitors which contained the statement that the respondent did not own or have any interest in dogs that could be used for fighting. They then referred to a statement by the Chief Constable's representative that the respondent had a pit bull terrier in a shed in his garden and a wire run. Copies of dog magazines had been found in his house and this evidence clearly contradicted the statements contained in the letter. The respondent had been questioned closely by members of the Committee concerning the statements which he had made and they formed the view that the respondent had been involved in dog fighting and that he had endeavoured, both by what he said at the hearing and by the tenor of the letter from his agents, to hide that involvement. It was then averred that in the circumstances the appellants were entitled to conclude that the respondent was not a fit and proper person to hold a taxi driver's licence.

At the hearing before the Sheriff it was not suggested that any further reasons should be sought from the Licensing Authority for their decision as could have been done under paragraph 18(6) of the Schedule. In the course of the hearing the concession was made on behalf of the appellants that the fact that the respondent had been convicted of two offences would not alone justify a decision that the respondent was not a fit and proper person to hold a taxi driver's licence. It was submitted on behalf of the appellants that the other facts relating to the respondent's possession of a dog and the fact that this was contrary to what was stated in the letter from his solicitors, and, further, his conduct at the hearing, all indicated an attempt to deceive the appellants as to the extent of his involvement in dog fighting. The sheriff held that the factors on which the appellants founded were of no value whatever and that accordingly, in the light of the concession made, the convictions alone would not suffice. There was insufficient evidence to warrant the appellants' decision and accordingly the appeal was allowed.

Before this court the concession was repeated that the convictions alone would not be enough to warrant the appellants' decision. Various submissions were then made on behalf of the appellants relating to the value to be attached to the other matters narrated in the appellants' pleadings and dealt with by the sheriff. In our opinion, however, it is not necessary to go into these matters at all, as the concession which was made is fatal to the appellants' case. By their letter of 10 June 1991 the appellants chose not merely to notify their decision to suspend the respondent's licence, but went on to give a reason for that decision, namely, "as you are no longer a fit and proper person to hold such a licence on account of your previous convictions".

Having regard to the fact that the original letter of 7 May 1991, intimating the hearing, had given as the reason for the hearing the suggestion that the respondent had been convicted of two offences and was therefore no longer a fit and proper person to hold a licence, and having regard to the terms of the letter of 10 June 1991, we are of opinion that the respondent was entitled to assume that this letter contained the whole of the reasons for the appellants' decision. It was accordingly unnecessary for him to require the appellants to give reasons in writing under paragraph 17 of Schedule 1, when they had already intimated their reasons in writing. The reasons for suspending the licence, as put before the sheriff, did not relate to the mere fact that the respondent had been convicted but related to other matters relating to his ownership of a dog and his conduct before the hearing. If these were indeed the reasons why the appellants came to their decision then these reasons should have been included in the letter of 10 June 1991 if they were to be founded upon.

Indeed it is arguable that if the appellants were proposing to found upon the suggestion that the respondent was still involved in dog fighting this was a matter which, under the terms of paragraph 11(4) and (5) of Schedule 1, should have been intimated to the respondent prior to the hearing. As it is, the letter of 7 May intimating the hearing and the letter of 10 June intimating the decision, both gave as the only reason the fact that the respondent had been convicted. It is now conceded that the mere fact that he had been convicted would not be a ground for suspending his licence. That, in our opinion, is an end of the matter as no other grounds for the appellants' decision should properly have been put before the sheriff and no other grounds can properly be considered by this court. It may well be that the matters founded upon by the appellants could have formed valid grounds for their decision, but for present purposes we have no way of knowing whether that is so because of the nature of the reason given in the letter of 10 June 1991.

In these circumstances, as the only reason given by the appellants for their decision was one which they have now conceded was not a valid reason at all, it inevitably follows that their decision cannot stand. We shall accordingly refuse this appeal.

DISPOSITION: Appeal refused