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I don't fecking think so.
FROM: Garry R Thomson
TO: Alastair Maclean
Head of Legal and Administrative Services
City of Edinburgh Council
Licensing Section
249 High Street
Edinburgh
EH1 1YJ
Your ref: 08/13097/TDR3
14th march 2011
Dear Mr Maclean
RE: Taxi Driver’s Licence / Police comment / Licensing Sub Committee meeting Wed, 16th March, 2011
European Convention of Human Rights
Human Rights Act 1998
Civic Government (Scotland) Act 1982
As a public authority, City of Edinburgh Council (CEC) is charged by the Human Rights Act 1998 (HRA) to act in a way which is compatible with a Convention right.
I refer to your letter of 24th February to which I have now given some considerable consideration and which leads me to believe that the process you have operated in this instance has comprehensively breached my Human Rights and will not afford me the fair hearing I am entitled to according to the Human Rights Act 1998 and the Convention of Human Rights.
Under these circumstances I am not prepared to attend this hearing or any other; unless and until I am satisfied that City of Edinburgh Council (CEC) will observe my Human Rights as they are charged to do so as a public body.
In view of this I now advise you where I view my rights are being breached and require that you provide me with a detailed response for each question raised and demonstrate how CEC has considered the matter properly and in accordance with human rights.
Be aware that your response will form part of my appeal and/or legal suit in respect of this matter.
Rules of Process
There are no published rules of process advised to licence holders as to how CEC processes complaints against licence holders.
Question 1: In the absence of clear rules of process, and where CEC can and does change the rules at any time to suit its own purpose – as has been demonstrated in the departure from previous process highlighted by your letter to me - how can any licence holder brought before the committee following a complaint made against them, ensure their fundamental right to be treated equally before the Law?
Rights and protections of licence holders
Question 1A: In the absence of any notification by CEC of the rights and protections enjoyed by licence holders in Law, how can any licence holder get the fair hearing they are entitled to under the process operated by CEC in their handling of complaints made?
Right to an impartial and fair hearing
I am a known political opponent of the Committee, both in its policies and the conduct of the members of it, as well as the legal department advising it.
Question 2: Given my criticism of this committee and the despicable conduct of its members, how can this committee be considered impartial and possibly deliver the fair hearing I am entitled to?
The committee convener, Colin Keir, is a bus driver, loyal to his employer - CEC's essentially own Lothian Buses company - and he is administering a taxi service that competes with the interests of his employers, his own interests. Cllr Keir has ruled to have me forcibly removed from a previous meeting because of my vocal condemnation of his, and his committee’s, scurrilous actions.
Question 3: Given Cllr Keir’s own vested interest, and my comprehensive and vociferous condemnation of him, how can this councillor’s involvement at any level deliver to me the fair hearing I am entitled to?
The Committee predetermines decisions. For example, Councillor Lang, prior to consideration of licence applications which were supposed to be considered on their "own merit", announced at the hearing that she had "27 licences to “give out". At that meeting committee members were observed laughing when some of the applicant’s licences were being. denied.
Question 4: How, in the face of the conduct of these committee members, when decisions of the committee are clearly predetermined, can I possibly get the fair hearing I have a fundamental right to?
The Committee uses unsubstantiated allegations when reaching its determination.
For example, a licence holder was brought before the committee following his being charged by the Police with an alleged offence. The charge was never prosecuted, nor even a formal caution issued. Legally, no incident occurred. Yet, based on this flimsy circumstance, this committee took away this man's licence, and his livelihood.
Question 5: Given this conduct of the committee, which observes no rational consideration of only substantiated, corroborated and proven evidence, how can I possibly get the fair hearing I am entitled to?
Investigation of complaints
In its letter of 24 February, 2011, CEC cited an allegation against me alleging a breach of licence conditions in respect of an incident which is alleged to have taken place on Wednesday 22 December 2010, by a complainant, Mr Gary Reid, who made complaint to the council.
This complaint was forwarded to the Lothian and Borders Police Cab Office (Taxi Examination Centre), Police Inspector Frank Smith, for investigation. Inspector Smith made contact with me and advised me that he required me to attend his office to discuss the matter.
I responded by refusing to enter into any dialogue about what was an unsubstantiated, uncorroborated, frivolous and malicious complaint. Inspector Smith offered no substantiation or corroboration and advised me that if I failed to attend he would refer the matter to the council which I construed as being an attempt to coerce and threaten me.
CEC has received an unsubstantiated uncorroborated complaint, from a complainant who has indicated he has a reason to have scant regard for a taxi driver, under a civil process.
This allegation was then passed to a Police Officer who sought to investigate the complaint with the weight of criminal investigation, but using civil procedure.
I refused to respond to this threat of criminal investigation without substantiation as is my right under criminal or civil procedure.
Inspector Smith, as his track record demonstrates, claims that I have breached his authority because I refused to submit to an interview under criminal procedure for an allegation made under civil procedure.
Under the Law I have a right to remain silent when confronted by Police investigation. There a re exceptions to this right, but no such exception is accorded under the CGSA.
Question 6: How can any licensing regulation be compatible with the HRA when it requires an individual to relinquish his rights?
Question 7: How is Inspector Smith’s practice of using this licensing regulation to coerce licence holders to give up information under civil procedure, which he can then use to bring criminal charges, compatible with the rights of an individual according to the HRA?
Alleged breach of regulations
Regulation 118 – The driver of a taxi, while in charge of the taxi, shall behave in a civil and orderly manner
Question 8: How can any breach be alleged, and any consideration be made by the Committee, as in this case, when there is no substantiation, corroboration or credible evidence of any complaint and still be compatible with a licence holder’s rights under the HRA?
Regulation 142 – The driver of a taxi shall not obstruct the Authorised Officer in the performance of any of the Authorised Officer’s duties under these conditions
CEC is using this regulation to trick and coerce licence holders to “give up” information which CEC, and Police Inspector Frank Smith, can and will use against the individual concerned. CEC has a long track record and case history which can be cited to substantiate this.
Question 9: How is this licensing condition compatible with the HRA when it is being interpreted and applied by a Police Inspector to coerce licence holders to speak to uncorroborated allegations and trick or coerce them to giving up information which can then be used against them, either in the civil procedure or CEC’s “kangaroo court”, or even in a criminal procedure, all deeply offensive to, and incompatible with a licence holders right to remain silent?
Regulation 143 – The driver of a taxi shall comply with all of the instructions or directions of the Authorised Officer in relation to these conditions and shall give all information reasonably required in the discharge of the duties of the Authorised Officer.
This licensing condition breaches every tenet of a licence holder’s rights under the HRA.
The Cab Inspector Frank Smith’s role is that of maintaining control of the taxi fleet and vehicle inspection. CEC is aware of this, as demonstrated when they required all complaints to be directed to them and not through the Cab Office, as evidenced by the placing of notices in all cabs advising precisely this.
To involve Inspector Smith in this matter has therefore been a departure from normal CEC procedure for the receipt of a civil complaint. This betrays a bias, founded on my being a vociferous opponent of this Committee, its policies and its conduct. Cllr Keir, aided and abetted by CEC’s legal services and Cab Inspector Frank Smith, has to be pursuing this unfounded allegation in a political witch-hunt.
Question 10: Is it the purpose of this committee to engage in political witch-hunts, how is this partiality compatible with the HRA and how is it compatible with Parliament’s intent in respect of the CGSA, and how complaints are meant to be dealt with?
Licensing Conditions
No attempt has been made by CEC to apply its taxi licensing conditions in compliance with the HRA. The booklet of conditions makes no provision for advising licence holders what their rights are in the event of complaints made against them.
The absence of notification of rules of process and protections entitled to an accused jeopardises an individual's right to equality before the Law, as CEC is in the position of being able to unfairly adjust its procedures, as it sees fit to serve its own purpose.
Question 11: What steps has CEC taken to establish that the Licensing Conditions it imposes are fit for purpose and, when applied, observe the Human Rights of Licence Holders?
Fit and Proper person
CEC claims to consider cases based on whether an individual is a “fit and proper person” to hold a licence.
Although specifically requested to, CEC offers no criteria, definition or threshold of what a “fit and proper” person is, adheres to no recognized standards or benchmarks to decide whether an individual is fit and proper and takes no account of precedent to ensure consistency in their decision making and protect an individual's right of equality before the Law. This is illogical.
Question 12: In the absence of any clear definitions, standards, or guidelines, how can any accused brought before CEC’s “kangaroo court” possibly be confident that he is being treated fairly and is being accorded his right of equality before the Law?
The Hearing Process
CEC claims that it decides each case “on its own merits”. This allows CEC to deliberately use a process which breaches an individual’s right to a fair hearing according to Article 6 of the HRA because of the following:-
The proposed hearing is not, and couldn’t possibly be, independent and impartial, as I am known to CEC’s committee for my political opposition to its policies and conduct.
Question 13: Under the circumstances, and the bias of this committee and its members, how can CEC’s proposed hearing possibly be fair and impartial, as it is required to be under the terms of the HRA, and deliver to me a fair hearing?
There is no publication or notification of the rules of process to any accused required to appear before the licensing committee. At no time is any advice given as to an accused concerning his rights and protections under the process employed by CEC.
Question 14; Given this, how can any accused possibly have all the information before him that he requires to properly defend himself, in CEC’s “Kangaroo Court”?
In CEC’s process there is no presumption of innocence – the process makes it incumbent on the accused to prove his innocence.
Question 15: How is this compatible with even the most fundamental rights enshrined in the European Convention of Human Rights and the HRA to remain silent?
CEC’s committee considering allegations fails to observe the normal rules of evidence that require it to be corroborated or substantiated, or even credible and valid.
Question 16: How can CEC even bring a charge when it has failed to corroborate an allegation alone made against a licence holder, as in this case where no such corroboration or substantiation by CEC, or Police Inspector Frank Smith, has been offered? Doesn’t this betray evidence of a witch-hunt?
That normal CEC procedure does not provide the right of an individual to question directly his accuser to determine the veracity of his allegation is a fundamental breach of his right that only credible evidence should be used in the determination of any allegations against him.
Question 17: As a quasi-judicial body, how is the lack of right of an individual to question his accuser directly compatible with a licence holder’s rights to equality under the \Law and a fair hearing?
CEC’s committee fails to adhere to any demonstrable threshold for the accuracy, reliability and credibility of evidence and accords itself the right to form a view as to whether an uncorroborated and unsubstantiated allegation alone is true, and not whether material fact is established, which breaches the right of an accused to a fair hearing.
Question 18: By what authority does CEC accord itself the right to consider the fitness of licence holders right to a licence based on unsubstantiated hearsay and tittle-tattle?
CEC’s committee has used suspension as a punishment based on uncorroborated evidence and on charges made by the police but where no prosecution was pursued, nor allegation proven.
Question 19: Where in the CGSA does it say that fixed term suspensions can be used as punishments, where does the CGSA specify what punishments should be given and in what circumstances, and how is this compatible with the rights enshrined in the HRA which stipulates that there should be no punishment without Law?
CEC’s committee adheres to no precedent, determined standards or benchmarks in its decision making and thereby compromises the right of an accused to equality before the Law.
Question 20: Given the absence of precedent, how is the Committee according itself the right to “make it up as it goes along” compatible with Human Rights and the right of all licence holders dragged before its “Kangaroo Court” to equality before the Law?
CEC’s “Kangaroo Court” hearings are held in secret, which prevents any public scrutiny of the quality and consistency of the committee’s decisions, thereby removing any accountability for the committee’s failure to observe the rights of those accused to equality before the Law.
Question 21: In the absence of public scrutiny, and recording and publication of the specific circumstances of each case, along with CEC’s record of “making it up as it goes along”, how can these hearings possible be seen to be fair, a right enshrined in the HRA?
Right to Appeal
The CGSA allows a licence holder to appeal a decision of the committee through the Sheriff Court.
CEC’s claim that my non-attendance at its proposed hearing would result in a removal of my right to appeal against its decision, is a flagrant breach of my right of appeal, and is not supported by the protections accorded by the HRA.
This is a clear attempt by CEC to intimidate me to enter into an inherently biased and unfair process, and is an abrogation of my rights accorded by the HRA, equality before the Law and my right to a fair hearing.
Question 22: Is it right and Proper that a council should be seeking to intimidate and coerce licence holders to comply with draconian and illegally applied licensing conditions which fundamentally breach their rights?
Conclusion
What has transpired in this case is an abomination of every tenet of Human Rights, logic and common political decency.
City of Edinburgh Council has allowed its political and administrative officers to embark on a witch-hunt against a political opponent based on scurrilous unfounded allegations by a claimed member of the public who, on his own admission, was influenced “… after recent events in the newspapers regarding black taxis” - a clear case of prejudice.
In its pursuit of this matter, and its handling of it, CEC has breached my Human Rights.
It is clearly imperative that a root and branch review of CEC’s procedures in respect of complaints against licence holders in accordance with the HRA is long overdue.
For the moment, and before any further consideration of this matter on my part or those of my legal advisers, I require that you address the issues raised here and respond directly to each question asked.
This document is properly lodged by email with Nick Stormonth, as invited to do so in the letter of 24th February. Please forward to Alastair MacLean – Head of Legal and Administrative Service.
A signed copy will follow in the post.
I look forward to your earliest reply.
Yours sincerely,
Garry Thomson
CC Alastair Maclean – via Nick Stormonth
Donald Macleod – Council Solicitor – by email
Sue Bruce – Chief Executive – by post.
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