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PostPosted: Mon Mar 21, 2011 10:42 pm 
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HELD: An unwarranted assumption made in relation to a material matter means that the decision made in such circumstances cannot stand


SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN.

B239/03

JUDGMENT

in

Summary Application

by

George Stephen Malcolm

(Appellant)

against

Aberdeen City Council

(Respondents)

Under the Civic Government (Scotland) Act 1982

Schedule 1 paragraph 18.


_____________________

ABERDEEN, 21 May 2004.

The Sheriff, having resumed consideration of the cause, sustains the Appellant's 1st plea-in-law; Allows the appeal; Remits the matter to the Respondents to reconsider the decision dated 12 August 2003 by their Licensing Committee; Finds no expenses due to or by either party.

Note.

This is an appeal under the Civic Government (Scotland) Act 1982 Schedule 1 paragraph 18 ("the 1982 Act"). The Appellant seeks to reverse the decision taken by the Respondents' Licensing Committee on 12 August 2003 to refuse the application by the Appellant for the renewal of his taxi driver's licence.


Background.

On 28 May, 2003, the Appellant applied to the Respondents for renewal of his taxi driver's licence. The application was intimated to the Chief Constable of Grampian Police who, by letter dated 11 June 2003, intimated his objection to the granting of the application. A copy of this letter, which is agreed to be a correct copy, is No. 4/1 of Process and attached to it is a copy of a Schedule of Previous Convictions relating to the Appellant. These are admitted by the Appellant.


The Appellant's application came before the Respondents' Licensing Committee on 2 July 2003 who acceded to his motion for an adjournment, as a consequence of which a hearing was fixed for 12 August 2003. At that hearing, the Appellant was represented by Mr Alistair Drummond, solicitor, Aberdeen. The Committee heard evidence from six witnesses on behalf of the Chief Constable. The Appellant also gave evidence on his own behalf, and in support of his application, he lodged 8 letters and a petition. These have been lodged in Process (Nos. 6/1 to 6/9) and it is agreed that the copy letters were written by those who appear to have written them, and that the copy petition (No. 6/9 of Process) is a true copy of the petition. Following on the hearing on 12 August 2003, the Respondents' Licensing Committee refused the application and thereafter issued a Statement of Reasons which form Nos. 3/1 and 4/2 of Process. It is agreed that these are true copies and accurately reflect the facts of the proceedings before the Respondents' Licensing Committee.


There is a Joint Minute, No. 8 of Process. It was agreed that the matter could be dealt with by submissions alone. I was greatly assisted by both agents who presented written submissions which were supplemented by oral comment.




Submissions for the Appellant.

1. That the Respondents' Licensing Committee drew an erroneous or unwarranted inference from correct facts. This submission related to two incidents, (a) an assault; and (b) remarks made to a female passenger.


(a) The Assault.


The Appellant admitted assaulting a fellow taxi driver on 17 April 2000, but no criminal proceedings were taken. The circumstances are dealt with in the Statement of Reasons para. 6 (d). The Appellant's position was that there had been a history of bad feeling between him and the other taxi driver, that the Appellant had lost his temper when he had been accused by the other driver of pulling out in front of that other driver. The Appellant had punched the other driver, but had subsequently apologised, which apology was accepted. At para. 10 of the Statement of Reasons, the Committee expressed concern that the incident had not been drawn to its attention when applications had been made by the Appellant for renewal of his taxi driver's licence in the years subsequent to that event. The Statement of Reasons states:-

" The Committee were of the view that an assault on a taxi driver should be regarded in the same serious manner as an assault on a passenger or member of the public. Mr Malcolm had admitted punching a fellow taxi driver after a long running dispute between them and his behaviour was regarded as being unacceptable. It was of little relevance that the victim had accepted a subsequent apology from Mr Malcolm. The Committee took into account Mr Malcolm's previous convictions for assault and breach of the peace between 1992 and 1994 and regarded the assault in 2000 as providing evidence of his continuing to have aggressive tendencies. The Committee were mindful that there was no evidence of these aggressive tendencies having been directed towards passengers, but had concerns that they could possibly be included in future incidents."


The Appellant accepted that the Committee were entitled to view an assault on a taxi driver as being as serious as an assault on a passenger or a member of the public. He also accepted that the Committee were entitled to take into account his two previous convictions for assault and one for a breach of the peace in 1992, 1993 and 1994 respectively, and that these convictions were not "spent" for the purposes of the Rehabilitation of Offenders Act 1974, by virtue of the Rehabilitation of Offenders Act 1974 (Exclusion and Exemptions)(Scotland) Order 2003.


However, the Appellant submitted that the statement by the Committee that the incident involving the taxi driver, made against the background of the previous convictions, provided " evidence of his continuing to have aggressive tendencies" was an unwarranted assumption. There was, in his submission, significance in the use of the word "have," i.e. the present tense. If, however, what the Committee meant that was that the incident in 2000 was evidence of the Appellant's tendencies at that time, that was irrelevant in determining whether he was a fit and proper person now. It was submitted further that it was odd that no objection to the renewal of the licence had been made in 2000, 2001 or 2002.


The Appellant submitted (a) that the Committee had moved away from established facts and had assumed that there may possibly be future incidents of an aggressive nature; and (b) that the Committee were unwarranted in their assumption that future assaults and might involve passengers. In making these assumptions, the Committee had acted in a way which was both unfair and unreasonable, and accordingly, their decision could not stand.


(b) Remarks made to a female passenger.


The facts are set out in Statement of Reasons para. 6 (g) and the Committee's approach can be seen in the Statement of Reasons para. 10. The Appellant had denied making the remarks to the passenger, but the Committee preferred the passenger's account which was that when she got into the Appellant's taxi at 2.30am, the Appellant had said, "That's a short skirt," to which the passenger had replied, "You should have seen the one I was going to wear." The Appellant then said, "Is that a real beaver skirt?" at which point, she placed her jacket over her legs. However, the Appellant had continued to make remarks. "I wouldn't mind seeing your beaver. Don't pull down your skirt, I want to see your arse. Does your boyfriend know how lucky he is? I bet you're a real goer in bed, real sexy." On asking her where she wanted to be taken, he said, " I know where I'd like to take you." She felt uneasy and she decided that she would ask the Appellant to take her to another taxi rank rather than home. When she got out of the taxi, she said that the Appellant had made lecherous noises. The passenger said that she felt uncomfortable because the Appellant's behaviour was inappropriate.


The Committee's position was that the comments and noises made by the Appellant to the passenger were "totally inappropriate." They were of the view that taxi drivers are often required to drive unaccompanied females home from the centre of the city in the early hours of the morning and some of them may very well be under the influence of alcohol. They stated that such passengers should not be subjected to inappropriate comments of a sexual nature by taxi drivers. The Committee accepted that no physical contact had been made and that no direct request for sex had been made. However, the Committee considered that the Appellant's comments and actions, "could have led a female passenger to think that such an approach or contact may have followed."


In the Appellant's submission, there was nothing in the Statement of Reasons to show that the passenger had actually thought that such an approach or contact might have followed and accordingly, the inference which the Committee drew from the facts was unwarranted, and so, once again, the Committee's decision that could not stand.


In support of the proposition that where a committee draws an unwarranted inference from the facts, the decision is unsound, Mr Drummond cited Hamid v. City of Glasgow Licensing Board 2001 SLT 193. That was a case in which someone under age had been served in a public house of which the Appellant was the manager. Based on that one incident, the Licensing Board had concluded that there had been a serious lack of managerial control over the premises and a lack of professional judgment on the part of the Appellant. That decision was overturned by the sheriff, against whose decision, there was an appeal to the Court of Session. The sheriff's decision and approach were approved by the Inner House. The Board had made an unwarranted assumption from established facts. In the present case, it was submitted, the Committee had done the same, the unwarranted assumptions were material, and so the Committee had exercised their discretion in an unreasonable manner. Mr Drummond also cited Art Wells (t/a Corals) v. Glasgow District Licensing Board`1988 SC 289, in which it was held that an erroneous inference drawn from correct facts can be equated to an incorrect material fact.


2. That the Committee has not acted in accordance with the rules of natural justice.


The submission was that although the Appellant had lodged letters and a petition, no account was taken of these, as it clear from paras. 10 and 11 of the Statement of Reasons. The Committee had therefore ignored a material factor in reaching its decision. In this connection, Mr Drummond cited Wordie Property Co. Ltd. v. Secretary of State for Scotland 1984 SLT 346 at 348.


Mr Drummond accepted that if I found in his favour, it was open to me either to remit the matter to the Committee to reconsider their decision, or reverse the decision in terms of Schedule 1 para. 18(9) of the 1982 Act. He advised me that the Committee had been formed following the local elections in 2003. On 12 August, 2003, at the Hearing, 12 out of 17 of the members were present. Were I to refer the matter to the Committee to reconsider their decision, it was likely that the same members would constitute the Committee on that occasion. He therefore invited me to reverse the decision and grant the Appellant his licence.


Submissions for the Respondents.

Mr Smith for the Respondents submitted that there was ample evidence before the committee to support the view that the Appellant had aggressive tendencies and accordingly was not a fit person to hold a taxi driver's licence. He referred to Ranachan v. Renfrew District Council 1991 SLT 625, a case in which the Appellant had two previous convictions, each three years old, one being for assault and the other breach of the peace. At p. 628, the Court said, "[I]t was for the committee to make their own assessment as to whether or not the fact that the applicant had, on the occasion which resulted in these convictions, behaved in the manner outlined to them was something that bore upon the fitness of that person to hold a taxi driver's licence." Mr Smith went on to submit that the Statement of Reasons narrating that the Appellant continued to have aggressive tendencies was a statement by the Committee following upon consideration of the relevant material. The Committee did not say that future conduct was likely; they merely indicated that there was a possibility that future aggressive conduct might be directed towards passengers. Mr Smith's submission was that the criticisms of the reasons given by the Committee were without substance. The Statement of Reasons had to be intelligible and sufficient, and in his submission, the Statement complied with these requirements. Reference was made Ranachan (p. 628F). It was for the Committee to determine whether the behaviour of the Appellant, admitted or established, was aggressive and if the Committee did so decide, the Committee could firstly, determine what weight to attribute to that, and secondly, determine how they would reach a decision on the application as a consequence.


So far as the inappropriate behaviour towards the female passenger was concerned, Mr Smith submitted that there was an obligation on the Committee to consider all members of the population and that no criticism could be levelled against the Committee for deciding that female passengers travelling on their own were vulnerable. He accepted that there was a degree of "forecasting" in the wording of the Statement of Reasons, but he submitted that was not an unreasonable stance for the Committee to take because they were being asked to renew a taxi driver's licence for the future. That being so, the future possible of conduct of the Appellant based on established or admitted conduct was a relevant consideration.


With reference to Article 9 of Condescendence, it was his submission that there was no clear averment of how the Committee had failed to give proper, fair and reasonable weight to the incident involving the female passenger in the Appellant's taxi because the Appellant, in his pleadings, does not say what would have been unreasonable in the circumstances. The Appellant's bald averment was that, "No taxi licensing authority acting reasonably and in good faith...could have refused the application." It is therefore clear that the Appellant implies that the Committee were acting in bad faith, but he does not state in what respect in they did so.


So far as the criticism of the Committee's consideration of the letters and the petition was concerned, Mr Smith's submission was that it was for the Committee to decide what weight to give to these in the circumstances. The Statement of Reasons mentions both the letters and the petition and it is accordingly clear that the Committee did take them into consideration. In any event, if the Appellant considered that the Committee failed to give any consideration or proper consideration to the petition and the letters, there ought to be clear averments to that effect.


In relation to Article 10 of Condescendence, Mr Smith's submission was that there was insufficient in the pleadings to support the averment of unreasonable behaviour by the Committee. He submitted that the test is whether the decision of the Committee is one that no reasonable committee could have reached. In that connection, he cited Wordie Property Co. Ltd v. Secretary of State for Scotland 1984 SLT 346, per L.P. Emslie at 347 and 348


Mr Smith submitted that the Statement of Reasons is clear, that the actings and the decision of the Committee were reasonable, that the Committee had applied its mind to the whole matter and it was for them to determine what weight to give to the admitted and established facts. If they came to the conclusion that the Appellant was not a fit and proper person to be the holder of a taxi driver's licence, the Committee had no discretion about what to do; it must refuse the licence.


His submission was that the Appellant's pleadings were insufficient in law to support the averments, that it was clear from the Statement of Reasons how the Committee acted and how it had decided upon the objection which had been submitted by the Chief Constable. It was clear from the Statement of Reasons how the Committee applied its mind to the weight to be given to the various pieces of information which it had. The Appellant had been given every opportunity to address them and had done so. It was clear from the Statement of Reasons how the opinion of the Committee had been formed and what their reasons were for disposing of the application. The summary application should therefore be dismissed advised me that the. In the event that I was of the opinion that the Committee had erred, I should not reverse their decision and grant the licence, but remit the matter and back to the Committee for further consideration.


Decision.

I have decided to uphold the appeal, but to remit the matter to the Respondents' Licensing Committee to review the matter in the light of this decision.


The criticism of the approach taken by the Licensing Committee to the assault by the Appellant on another taxi driver is not in my opinion, unwarranted. That assault in April 2000 has to be seen against the background of two previous convictions, which are admittedly of some vintage. The Committee considered that the assault in 2000 was indicative of the Appellant, "continuing to have aggressive tendencies." It was submitted that the Committee's inference would have been a proper one to draw immediately after the event, but not more than three years later. If the Appellant's submission were sound, the Committee would have been entitled to draw that inference only if there had been a recent assault at the time of the hearing. I do not put too much emphasis on the precise wording used by the Committee because, in my opinion, it was proper for them to consider that someone who had convictions for assault in 1992 and 1993 and had not desisted from that type of conduct as evidenced by the incident in 2000 still had aggressive tendencies which might be directed towards passengers, even although there was no evidence of such assaults in the past. In reaching that conclusion, I am fortified by the decision in Ranachan v. Renfrew District Council 1991 SLT 625 where the facts were not dissimilar to those in the present case.


I now turn my attention to the second criticism of the approach taken by the Committee which related to the comments made by the Appellant to a female passenger. The Committee considered that the Appellant's comments and actions, "could have led a female passenger to think that such an approach or contact might have followed," i.e. that he might try to make physical contact with, or ask for sex from a female passenger.


In my opinion, that is an unwarranted inference to draw that from what the Committee found had happened. Remarks were made by the Appellant in relation to something which he had overheard the passenger saying, and initially she responded to his comments in a not dissimilar fashion. That said, when he continued to make his comments, she decided not to go home in his taxi and when she alighted, he made certain noises of a lecherous nature. At the Committee, the passenger said that she regarded the Appellant's conduct as unacceptable and she felt uncomfortable by what he had said. In my opinion, it is significant that the female passenger was not asked by the Committee whether she thought that the Appellant would make an attempt at personal contact with her, or make a direct request for sex. Given that these matters were not explored with her, the Committee were not justified in concluding that either might happen with that passenger, and hence not justified in concluding that there was a risk that such approach or request might be made to other female passengers.


On the basis of the decisions cited by the Appellant, viz:- Hamid v. City of Glasgow Licensing Board 2001 SLT 193, Wordie Property Co Ltd v. Secretary of State for Scotland 1984 SLT 346 and Art Wells (t/a/ Corals) v. City of Glasgow District Licensing Board 1988 SC 549, a unwarranted assumption made in relation to a material matter means that the decision made in such circumstances cannot stand. The conduct towards that passenger and future passengers are materials matters when considering an application for the renewal of a taxi driver's licence, and given the unwarranted inference, the Committee's decision is flawed.


Although that is sufficient to dispose of the matter, I should also mention the submission for the Appellant that the Committee had failed to act in accordance with the rules of natural justice in that they ignored the letters and petition submitted on behalf of the Appellant. It is, however, clear from the Statement of Reasons that the Committee did have regard to these, but not what weight they gave to them, but whatever that was not sufficient to outweigh the significance of the assault and the remarks made to the passenger. There were other submissions from the Respondents relating to the pleadings. The averments in Article 9 were criticised for their lack of precision. The Appellant there avers that the incident involving the female passenger was the only one of that nature. In my opinion, it is sufficient to aver that the Committee failed to give adequate weight to that; the Appellant could not be any more specific. Article 10 contains a general averment that in the circumstances, the Committee failed to act properly. Read against the previous averments, that is also sufficient.


Having decided that the decision of the Committee cannot stand, in terms of Schedule 1 para. 18(9), the court has two options. One is to remit the matter to the Committee and the other is to reverse the decision, and hence to grant the licence. I have decided to remit the matter to the Committee because I do not know from the Statement of Reasons how much weight the Committee gave to the "female passenger episode," in concluding that the Appellant was not a fit and proper person to hold a taxi driver's licence and it is therefore appropriate that the Committee be given an opportunity to revisit the whole matter in the light of this decision. In taking that course, I can well understand the Appellant's fear that the re-constituted Committee may reach the same conclusion if, as Mr Drummond said, it is likely that 12 out of the 17 members of the original committee would hear the case second time around. It may be, however, that the Respondents will wish to consider whether it would be appropriate to have either a committee which does not comprise any of the members of the original committee or at least a committee of which the majority are persons who have not had any previous involvement with the Appellant's application.


In all the circumstances, I shall not make any award of expenses.

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin


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