Taxi Driver Online

Lee v. West Dunbartonshire Council


Sheriff Court of North Strathclyde at Dumbarton


Sh Ct (North Strathclyde)


Sheriff H K Small


9 September 2003

Licensing -- Taxi cabs -- Taxi licence -- Suspension of licence on ground that holder not fit and proper person to hold licence -- Driver misrepresenting to licence holder that he had been issued with a taxi driver's licence -- Whether absolute duty on licence holder to ensure driver held the appropriate licence -- Civic Government (Scotland) Act 1982 (c 45), s 21(4).

Section 21(4) of the Civic Government (Scotland) Act 1982 provides that: "If an person, being the holder of a taxi licence or private hire car licence in respect of a vehicle, permits another person who does not have a current taxi driver's licence or private hire car driver's licence, as the case may be, to operate the vehicle as a taxi or, as the case may be, a private hire car he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale."

The holder of three taxi licences appealed against a licensing authority's decision to suspend them for three months. The licence holder was in the practice of entering into agreements with individual holders of taxi driver's licences who operated some or all of the taxis on his behalf. Early in 2001, an individual (C) approached the licence holder seeking to operate one of his taxis. The licence holder attended personally at the authority's offices with C on 1 March 2001 and observed him submit an application for a taxi driver's licence. Such applications were normally processed within 21 days. On or about 22 March C misrepresented to the licence holder that the authority had granted his application and that his licence had been issued to him by post. The licence holder then entered into an agreement with C, permitting C to lease one of his taxis. The licence holder did not ask C for sight of the licence or make independent inquiry to verify C's application had been granted. On or about 6 June 2001 C's application was granted by the authority. On 8 June the authority learned that C had been involved in a road traffic accident while operating a taxi prior to the grant of his licence.

The licence holder advised the authority of the accident and that C had been the driver at the time of the accident. The licence holder was invited to attend a meeting of the authority's regulatory committee in order for a hearing to take place to consider possible suspension of his licence. Intimation of the hearing was made to the Chief Constable of Strathclyde Police who submitted a letter stating that although he was making no formal objections, he was fully supportive of the decision to hold a hearing into whether or not the licence holder remained a fit and proper person to hold a taxi licence.

At the hearing, the licence holder confirmed he had been misinformed by C, that he had not asked to see C's licence nor carried out independent checks and accepted that his failure to make any checks was a mistake. The authority held he was no longer a fit and proper person to hold a taxi licence and it was decided that his licences should be suspended. It was only at that stage that he was advised that the suspension would operate against all three of his licences. The authority argued (1) the committee had not erred in law: in terms of its written reasons it was clear the licence holder accepted he was at fault, he had made no mention of C's operation of the taxi being subject to a suspensive condition that C held the appropriate licences and he was, on the facts accepted by him, guilty of contravening s 21(4) of the 1982 Act; although s 21(4) proceeded on the basis of "permitting" rather than "failing to ensure", a proper approach would lead to the same result; and the licence holder's failure to check whether C had the required licence was the determinative issue; (2) there had been no breach of natural justice in relation to the suspension of all three licences: the committee were required to look for misconduct in order to find out whether he was a fit and proper person to hold a licence, rather than any particular licence, and that finding having been properly made it was logical to conclude that if the licence holder was not a fit and *28 proper person to hold a licence, then he should not have held all three. The licence holder argued the committee had attached undue weight to the letter from Strathclyde Police which, although it had been framed in terms indicating no formal objection had been forthcoming, they had clearly treated it as akin to an objection, and further that their decision was lacking in specification.

Held, that the committee had erred in law: reading the written reasons, the committee had not proceeded on the basis that the appellant was acting in contravention of the 1982 Act, was guilty of misconduct and was criminally guilty in the sense of MacPhail v Allan and Dey Ltd, 1980 SLT (Sh Ct) 136, but that at a very early stage a view was formed that there was an absolute duty on him to ensure C held the appropriate licence and it was for failing in that supposed duty that the committee found the appellant was no longer a fit and proper person to hold a taxi licence; no such duty existed, either in law, or within the respondent's conditions relating to taxi licences and the commitee's whole analysis of any misconduct was fundamentally flawed by their identification of that absolute duty as being the determinative issue (pp 35G and 35L-36A); and appeal allowed.
(1) that had the court been unable to identify such an error it would not have been prepared to allow the appeal on the basis that improper weight had been attached to any factors nor would the court have considered that the reasons given were lacking in specification (p 36C-D); (2) that the approach taken by the committee in the circumstances of the present case offended all sense of fairness, in that there was no indication given in any way to the appellant that the suspension of all three of his licences was likely, until a very late stage in the proceedings (p 36D-F).

Summary application

West Dunbartonshire Council, as licensing authority, suspended three taxi licences of Yik on Lee. The licence holder appealed to the sheriff. The appeal came before the sheriff (H K Small). On 9 September 2003 the sheriff allowed the appeal.

THE SHERIFF (H K SMALL)

The applicant is Yik on Lee, who resides at 10 Wrightlands Crescent, Erskine. He is the holder of three separate taxi licences issued by the respondents as licensing authority for the District of West Dunbartonshire in terms of the Civic Government (Scotland) Act 1982, s 2. The three licences held by the appellant are numbered 42, 102 and 125.
The appellant does not operate all of these taxis personally. It is his custom to enter into agreements, from time to time, with various individual holders of taxi driver's licences, who operate some or all of the taxis, on his behalf.

In or about February 2001, the appellant was approached by Austin Connelly of 252 O'Hare, Bonhill, Alexandria, who wished to set up in business as a taxi driver. He wished to operate one of the appellant's taxis. At the time of approaching the appellant, Mr Connolly did not hold a taxi driver's licence. Such a licence was necessary before Mr Connolly could drive any of the appellant's taxis.

The appellant attended personally at the respondents' offices with Mr Connolly on 1 March 2001 and observed Mr Connolly submit an application to the respondents for such a taxi driver's licence. Such an application would normally be processed in approximately 21 days.

On or about 22 March 2001, Mr Connolly misrepresented to the appellant that his taxi driver's licence had been granted by the respondents and had been issued to him by post. The appellant then entered into an agreement with Mr Connolly, whereby he permitted Mr Connolly to lease one of his taxis, licence no 102. The appellant did not ask Mr Connolly for sight of his new licence, nor did he carry out any independent enquiry, to verify that Mr Connolly's application had been granted.

On or about 6 June 2001, Mr Connolly's application was granted by the respondents.

On 8 June 2001, the respondents learned that, on or about 1 June 2001, while operating the appellant's taxi no 102, Mr Connolly was involved in a road traffic accident, resulting in criminal charges against him under s 3 of the Road Traffic Act 1988 and s 7(1) of the Civic Government (Scotland) Act 1982.

The appellant advised the respondents of the accident and that Mr Connolly had been the driver at the time of the accident. When questioned about the matter by staff in the licensing office, the appellant advised that he had asked Mr Connolly about his application for a licence around 22 March 2001 and Mr Connolly had told him that he had telephoned the licensing office and had been advised that the licence was "in the post".

As a result of the foregoing, the appellant was invited to attend a meeting of the respondent's Regulatory Committee (Licensing) on 1 August 2001, in order that a hearing might take place to consider possible suspension of the appellant's licence, in terms of para 11 of Sch 1 to the Civic Government (Scotland) Act 1982. That hearing was intimated to the appellant by recorded delivery letter dated 28 June 2001 (item 5/8 of process). Said letter is headed "Hearing regarding possible suspension of Taxi Licence". There is specific reference within the letter to plate no 102.

The letter further advises, on p 2, that: "Should it be decided that you are no longer a fit and proper person to hold a licence, the Committee will require to decide whether or not to suspend your licence. If it is decided to suspend your licence, consideration will then require to be given to the proposed period of suspension. Please note that it is open to the Committee to suspend the licence for the *29 unexpired portion of the duration thereof, or such shorter period as may be agreed."

The letter of 28 June 2001 also stated, on p 1, that "As the holder of a taxi licence, the Licensing Authority expects you to properly verify that anyone driving your vehicle as a taxi is in possession of a valid taxi/private hire car driver's licence issued by this Authority."

Intimation of the hearing was also made to the Chief Constable of Strathclyde Police. No formal objection was intimated, but the chief constable submitted a letter dated 29 June 2001 (item 6/2 of process) in which it is stated inter alia: "I would agree that the onus should be on Mr Lee to verify that anyone driving his vehicle as a taxi is in possession of a valid taxi/private hire car driving licence ... Although I am making no formal objections I am fully supportive of the Licensing Committee's decision to hold a hearing into whether or not Mr Lee remains a fit and proper person to hold a taxi licence."

The appellant attended the meeting of the Regulatory Committee (Licensing) on 1 August 2001. Prior to, and in the course of attending at that meeting, he had access to the terms of said letter from the chief constable, the agenda of the regulatory committee meeting of 1 August 2001 (item 5/2 of process) and the enclosure document circulated to those attending the meeting (item 5/3 of process).

The appellant was given the opportunity to address the committee. He confirmed that he had been misinformed by Mr Connolly, to the effect that on or about 22 March 2001, Mr Connolly had told him his licence was in the post.

The appellant had assumed from this that Mr Connolly would have his licence within one or two days. He accepted that he had not asked to see Mr Connolly's licence, nor carried out any independent checks. He accepted that this failure to make any checks "was a mistake". He advised that over the seven year period in which he had held taxi licences, he had sometimes checked that drivers held the appropriate licence and sometimes had not.

The committee unanimously decided that the appellant was no longer a fit and proper person to hold a taxi licence. The committee unanimously decided that the appellant's taxi licences should be suspended. Only then was the appellant advised that the suspension would operate against all three of his taxi licences. He was given an opportunity of addressing the committee with regard to the length of suspension and the date from which suspension should commence. He declined to address the committee on these matters.

By letter dated 15 October 2001 (item 5/1 of process) the respondents issued written reasons for their decision to suspend all three taxi licences, for a period of three months. The appellant appealed by way of summary application against the suspensions, in terms of para 18 of Sch 1 to the 1982 Act. The application was opposed by the respondents. After various sundry procedure the matter came before me for hearing on 6 January 2003, when the appellant was represented by Mr MacDonald, solicitor advocate, Dumbarton, and the respondents were represented by their principal solicitor, Mr Ettles.

The adjusted pleadings were contained in a record (item 11 of process).
There was some preliminary discussion before me regarding the form of the hearing. The appellant was considering leading evidence, as he is allowed to do in terms of para 18, regarding the application process, and the extent of the appellant's knowledge of the status of Mr Connolly's application. After some discussion, parties agreed not to proceed by way of evidence, but by way of oral submissions, which began later on 6 January and were subsequently adjourned, eventually to 7 February 2003, when I made avizandum.

Both parties made extensive reference to authority. For the applicant, I was referred to the following authorities:

1. Barrs v British Wool Marketing Board, 1957 SC 72; 1957 SLT 153.
2. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
3. Wordie Property Co Ltd v Secretary of State for Scotland, 1984 SLT 345.
4. Ward v Dundee City Council, 1999 SLT (Sh Ct) 56.
5. MacDonald v Howdle, 1995 SLT 779.
6. McLean v HM Advocate, 2001 SLT 1096; 2001 SCCR 526.
7. Middleton v Dundee City Council, 2001 SLT 287.
8. Albert and Le Compte v Belgium (1983) 5 EHRR 533.
9. Fischer v Austria (1995) 20 EHRR 349.
10. Bryan v United Kingdom (1995) 21 EHRR 342.
11. R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] HRLR 45.
12. Gordon, Criminal Law (3rd ed), Vol 1.
The respondents in turn referred to the undernoted authorities:
1. Civic Government (Scotland) Act 1982, s 21, Sch 1, para 11.
2. Gordon's Criminal Law (3rd ed).
3. MacPhail v Allan and Dey Ltd, 1980 SLT (Sh Ct) 136.
4. Hughes v Hamilton District Council, 1991 SLT 628.
5. Ranachan v Renfrew District Council, 1991 SLT 625.
6. Civic Government (Scotland) Act 1982, Sch 1, para 11.

The solicitor advocate for the appellant began his submissions by summarising the relevant facts. He *30 further advised me that the appeal would brought under three of the statutory grounds contained in para 18(7) of Sch 1 to the 1982 Act, being grounds (a), (c) and (d) which are the following terms: "The sheriff may uphold an appeal under this paragraph only if he considers that the licensing authority, in arriving at their decision-- (a) erred in law; ... (c) acted contrary to natural justice; or (d) exercised their discretion in an unreasonable manner."

In addition, it was the appellant's position that the respondents, in reaching their decision in the way that they did, contravened the appellant's rights under art 6 of the European Convention of Human Rights.
In support of his submission that the respondents erred in law, the solicitor advocate focused on the documents which indicated the respondents' approach to the matter. In terms of the written reasons (item 5/1 of process), it was stated at para 6, that "Holders of taxi licences are expected to ensure that any individual whom they allow to drive their taxi holds the relevant taxi/private car driver's licence." That formed the basis of the decision appealed against, as para 10 of the statement of reasons went on to state: "The Committee took account of all that had been said by your client but unanimously decided that your client's failure to ensure that Mr Connolly held the appropriate licence was a serious matter which demonstrated that your client was no longer a fit and proper person to hold a taxi licence. The Committee unanimously decided that your client's taxi licences should be suspended."

In the solicitor advocate's submission, an examination of paras 6 and 10 of the written reasons disclosed that the respondents had applied the wrong test, and accordingly, had erred in law. The language used, viz "expected to ensure" and "failure to ensure", demonstrated that the respondents treated the matter as one of "strict liability". There was, he submitted, no requirement in law that the appellant meet such a high standard. In his submission, being told by Mr Connolly that the licence had been granted, coupled with the fact that the appellant was aware that the application was lodged and likely to be granted about that time was all that, the law required. He conceded that it might have been reasonable of the appellant to require to see the licence, if Mr Connolly had presented as a total stranger, claiming to already hold a licence; but that was not the position here.

While a duty to ensure that the vehicle was not driven by a party without a relevant licence might be a suitable way to describe the duties incumbent on the taxi driver, there was no such duty incumbent upon the appellant as the holder of the taxi licence. No such express duty was set out in the conditions drawn up by the respondents and attached to taxi licences (item 5/7 of process). The licence was clearly subject to the provisions of the 1982 Act, and the appropriate conditions approved by the respondents, but none of these laid down a requirement to ensure anything of the sort set out in the written reasons. It was clear, from conditions 2, 3, 15, 25 and 40, that the respondents had specifically required taxi licence holders to "ensure" certain other things. Accordingly, if it had been the respondents' intention that holders of taxi licences should "ensure" that any individuals driving the taxi held the relevant licences, it would have been relatively straightforward to word a clause in these terms.

In the solicitor advocate's submission, the proper test which the respondents should have applied was to consider whether or not the appellant had "permitted" the use of the taxi, in the appropriate sense.
The 1982 Act, at Sch 1, para 11, which allowed the respondents to suspend a licence if the holder of that licence was no longer a fit and proper person, permitted the respondents, at para 11(4)(a)(i) to 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 this Act or this Schedule, which in the opinion of the authority has a bearing on his fitness to hold a licence".

Misconduct need not consist of a breach of any provisions of the Act. However, a relevant breach of the Act which the respondents could have relied upon to satisfy themselves that the appellant was not a fit and proper person would have been the provisions of s 21(4) of the 1982 Act which is in the following terms: "If any person, being the holder of a taxi licence or private hire car licence in respect of a vehicle, permits another person who does not have a current taxi driver's licence or private hire car driver's licence, as the case may be, to operate the vehicle as a taxi or, as the case may be, a private hire car he shall be guilty of an offence".

It was clear from the statement of reasons, however, that the respondents had not proceeded on that basis. The statement of reasons makes no reference whatsoever to a contravention of s 21(4), nor does it disclose that the respondents considered whether or not the appellant had "permitted" Mr Connolly to do anything. Rather, it discloses that they incorrectly approached the matter on the basis of an "absolute duty to ensure".

In the solicitor advocate's submission, if the respondents had intended to properly address the question of whether or not the appellant permitted Mr Connolly to drive, they would have had to approach that question in the way which the criminal law required. It was clear that, in order to permit something, a degree of knowledge was required. The respondents would have had to be in a position to say that the appellant knew that Mr Connolly had no licence -- and either acquiesced in that improper use, or expressly permitted it.

I invited the solicitor advocate's submissions on the question on whether or not total indifference on the part of the appellant would be enough. He submitted that it might be so, provided that the indifference *31 occurred in circumstances where appropriate knowledge could be imputed to the appellant.

He referred to Gordon, Criminal Law (3rd ed), at para 8.77, where Professor Gordon considers what is meant by "permitting". The view there expressed by Professor Gordon is that: "A person permits something when he allows it to happen although he is in a position to prevent or forbid it: one cannot permit something unless one could have meaningfully refused permission."

At para 8.78, Professor Gordon goes on to say that: "Before A can be convicted of permitting a statutory contravention it must be shown either that he knew, or at least that he ought to have known, of the circumstances constituting the Contravention."
Reference is made by Professor Gordon to the case of MacPhail v Allan and Dey Ltd, which is on the respondent's list of authorities and in which the court accepted that liability was not strict, but that "constructive" or "imputed" knowledge is required. After considering the authorities submitted to him, the sheriff in that case stated, at p 138 the following:

"These cases indicate that something more than mere negligence is required before 'constructive', ' notional' or 'imputed' knowledge can be inferred. It can be inferred where some one allows another to do something when a contravention is likely or where he gives no thought to the statutory obligations at all or where he has good reason to suppose that a prohibited thing is happening and does nothing to prevent it."
In the facts of the present case, the solicitor advocate submitted that the appellant knew of the existence of Mr Connolly's application and, on the incorrect information from Mr Connolly, thought that it had been granted, before he was prepared to permit the use. Accordingly, where the appellant has erred, in the respondents' eyes, was simply in not checking the veracity of what Mr Connolly was telling him, when they considered, incorrectly, that he was under a duty to do so.

The solicitor advocate also referred to the case of MacDonald v Howdle. In that case, a third party told the accused that he would be covered by his insurance, for driving the accused's vehicle. That information was incorrect. The conviction was quashed by the High Court, on the basis that the permission given by the accused to drive was conditional on the existence of the insurance and that, as a result of its non-existence, no real permission had been given at all. That, the solicitor advocate submitted, was essentially what had happened in the present case. While the appellant had not stated in terms to Mr Connolly that he was being permitted to drive, on condition that he had a licence, an examination of the surrounding circumstances demonstrated that that was truly the situation. When Mr Connolly had first approached the appellant, the appellant assisted him in applying for a licence -- and did not proceed to permit Mr Connolly to drive until he believed -- albeit wrongly -- that the licence had been granted. The whole circumstances pointed to a grant of the licence at the material time being likely, so there was nothing in the surrounding circumstances to alert the appellant to the fact that anything was amiss.

Accordingly, and the solicitor advocate's submission, the appellant did not permit the use of the vehicle, in the MacDonald v Howdle sense. The duties incumbent upon the appellant under criminal law, were not to permit unlicensed use; and the respondents' conditions added nothing to the duties incumbent upon the appellant.

The solicitor advocate submitted that the respondents further erred in law, by proceeding on the basis that there was an onus on the licence holder to ensure that the driver was properly licensed. A reading of the written reasons, and the letter from the chief constable (item 6/2 of process), and the respondents' letter to the appellant inviting him to address the committee (item 5/8 of process) suggest that they may have proceeded on the basis that such an onus existed. Again, that would be an incorrect approach, in law. Given that the entire basis of the respondents' decision to suspend the licences proceeded on their conclusion that the appellant had failed to ensure certain things, the solicitor advocate invited me to find that the respondents had erred in law. This was a valid ground of appeal in terms of para 18 of Sch 1 to the 1982 Act. The court should accordingly allow the appeal, and reverse the respondents' decision. He further submitted that the error was so fundamental, that there was no reason to remit the matter back to the respondents for reconsideration. The suspensions should simply be quashed.

The solicitor advocate then moved on to submit that, in reaching their decision, the respondents unreasonably exercised their discretion. This would also be a valid ground of appeal under para 18 of Sch 1 of the 1985 Act.

In exercising its' discretion, the respondents' committee were bound by the so called Wednesbury principles set out in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation and adopted into the Law of Scotland by the case of Wordie Property Co Ltd v Secretary of State for Scotland. In Wordie, at pp 347 to 348, Lord President Emslie stated that:
"There is, and now can be, little dispute as to the scope of such appeals as these for the law is well settled.

"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to *32 have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it."

The solicitor advocate reminded me that, in para 10 of the written reasons, the respondents stated that the appellant's failure to ensure that Mr Connolly held the appropriate licence "was a serious matter which demonstrated that (he) was no longer a fit and proper person to hold a taxi licence".

The letter was entirely silent on why the respondents' committee came to that view. No explanation was given of why they thought it was sufficiently serious, or why they considered that the failure to ensure that he had a licence was pertinent to the question of whether or not he remained a fit and proper person.

Reference was also made by the solicitor advocate to the case of Middleton v Dundee City Council, a decision of an Extra Division. In that case it was stated, at p 290 that: "Parliament has left the decision on propriety and fitness to hold a taxi licence to local committees because they are considered to be best placed to assess the needs of, and the standards of service appropriate to their area and, to that end, to determine the calibre of individual who is to be entrusted with the provision of this important public service. In our view the court should be slow to lay down hard and fast rules of general application as to the matters which are relevant or irrelevant to the consideration of these questions by committees."
Accordingly, while this court should be slow to interfere with the exercise of discretion, it was clear, under reference to the case of Ward v City of Dundee Council, that the discretion has been wrongly exercised here. In that case, which also related to taxi operator's licences, the sheriff held that there had to be "an element of culpability" on the part of the licence bolder before he could be declared to be no longer a fit and proper person. Accordingly, it was necessary to look for an act or omission on his part to justify any such finding.

In summary, the solicitor advocate submitted, that while the respondents' committee had a wide discretion, they ought to have remained focused on all the facts, including the appellant's previous good record, and ought to have been looking for -- and finding -- evidence of an act or omission demonstrating an, element of culpability before coming to the conclusion which they did.

The solicitor advocate also submitted, that on any fair reading of the papers, the respondents had attached undue weight to the letter from Strathclyde Police. While it had been framed in terms which indicated that no formal objection was forthcoming from the police, the respondents had clearly treated it as akin to an objection.

In summary, in the solicitor advocate's submission, no proper consideration of the relevant issues by a committee, acting reasonably in the exercise of their discretion, would have resulted in a finding that the appellant was not a fit and proper person. He invited the court to allow the appeal on this ground also and, again to simply set aside the decision.
Further, the solicitor advocate adopted a "fall-back" position in relation to the appellant's two other taxi licences, numbers 32 and 125. If the appellant was unsuccessful in persuading the court that his appeal should succeed on the basis of error in law and/or unreasonable exercise of discretion, then it was his submission on behalf of the appellant that, in deciding to suspend all three of the appellant's taxi licenses, including two which were not in any way related to the taxi driven by Mr Connolly, then there was a breach of natural justice.

In short, it was the solicitor advocate's submission that on an examination of the paperwork before the respondents at the time of their decision, and now before the court, it was clear that no fair notice was given to the appellant that all three of his licences were in jeopardy at the hearing on 1 August 2001.

This aspect of the respondents' decision also contravened the appellant's human rights, in the solicitor advocate's submission. It was not disputed that the respondents were a public authority. Accordingly, art 6(1) of the Convention required that, in the determination of his civil rights and his obligations or of any criminal charge against him, the appellant was entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
The solicitor advocate took issue with the fairness of the hearing. He referred to the case of Albert and Le Compte v Belgium, which involved disciplinary proceedings against a doctor, and in which issues of both civil right and possible criminal conduct arose.
The appellant was also entitled, in terms of art 6(3) to fair notice of the charges against him.

The solicitor advocate submitted that the appellant had not received fair notice that all three licences were in jeopardy, as the first mention of the possibility of suspension of all three licences came after the decision that he was not a fit and proper person and that suspension would follow, had been made.

Quite apart from the European dimension, The solicitor advocate submitted that what happened in relation to the decision to suspend all three licences was contrary to natural justice in the domestic law sense. The fact that the respondents acted contrary to natural justice was also a ground of appeal under para 18 of Sch 1 to the 1982 Act.

The appellant was entitled to consistency, and to fair notice of the nature of the proceedings. Each licence *33 operated by the appellant was a separate commercial entity, which required to be separately applied for, separately justified in terms of the appropriate grounds for grant of a licence, and properly operated thereafter. Accordingly, the intimation given to the appellant in advance of the hearing, and the procedure at the hearing prior to the decision to suspend ought to have specified what was being considered, in terms of licence late numbers. Otherwise, on the paperwork available the appellant -- and any other person seeing the proceedings -- would have reasonably concluded that only licence plate no 402 was likely to be suspended. The substance of the hearing before the respondents' committee concerned only the facts in relation to the use by Mr Connolly of licence no 102. There was no justification, thereafter, for the respondents taking a quantum leap to decide that the appellant was no longer fit to hold any licences and suspending all three, without properly advising that it was their intention so to do. This was a clear breach of natural justice.

Reference was made to the case of Barrs v British Wool Marketing Board. The solicitor advocate submitted that the way in which the respondents proceeded was patently unfair. The appellant, due to lack of notice, was not prepared to address the committee on whether or not it was appropriate to deal with all three licences, until after a finding that he was not a fit and proper person had been made, and an indication was given that all three licences were likely to be suspended. This contravened the basic principals of natural justice, well recognised in Scots law.

In support of this position, the solicitor advocate briefly examined the relevant paperwork. The letter inviting the appellant to the hearing (item 5/8 of process) referred throughout only to the incident involving Mr Connolly, and to possible suspension of a taxi licence, in the singular.
Further, the agenda (item 5/2 of process), and the copy enclosure (item 5/3 of process), both of which were available to the appellant prior to the hearing referred to suspension of a taxi licence, in the singular. While, in item 5/3, it is stated, by way of background that the appellant is the holder of three taxi licenses, it is clear from a reading of the whole information, that consideration of suspension of one licence was anticipated. In other words, the appellant could legitimately expect, if the hearing went against him, a possible suspension of licence no 102.

I invited the solicitor advocate's submissions on the terms of the statement of reasons. It was not clear, from a reading of paras 10, 11 and 12 at what point the respondents began to consider three licences, rather than one. The solicitor advocate clarified -- and I did not understand it to be disputed by the solicitor for the respondents -- that, after the general discussion about the circumstances of Mr Connolly operating licence no 102, and the respondents' committee reaching a view that the appellant was not a fit and proper person to hold a licence, he was then effectively told that if he was not a fit and proper person to hold one licence, then he could not be a fit and proper person to hold all three. He was thereafter given a brief opportunity to address the respondents on the length of suspension -- but not on the question of whether or not all three should be suspended -- before a final decision was made.

Accordingly, the solicitor advocate submitted that, as a fall back position, the court should find that the respondents had acted contrary to natural justice and that the suspensions should be quashed, in so far as they relate to licences 42 and 125. This was on the basis not only of the respondents acting contrary to natural justice, but also on the grounds of unfairness in terms of art 6(1) of the Convention.

In replying on behalf of the respondents, the solicitor dealt with the issues in the same order as the solicitor advocate viz error in law, then unreasonable exercise of discretion, and lastly acting contrary to natural justice. He also replied by reference to the numbered articles of condescendence framed on the appellant's behalf.

Dealing, first, with the question of whether or not the respondents had erred in law, the solicitor reminded me of the terms of the written reasons (item 5/1 of process). It was clear from para 9 thereof that the appellant accepted that he had been at fault. He made no mention of Mr Connolly's operation of taxi no 102 being subject to a suspensive condition that Mr Connolly held the appropriate licenses. He was, on the facts accepted by him before the respondents' committee, guilty of a contravention of s 21(4) of the 1982 Act.

The solicitor accepted that this statutory provision proceeded on the basis of "permitting" rather than "failing to ensure". However, he submitted that a proper approach would lead to the same result. He also referred to Gordon's Criminal Law at para 8.77. It was significant, he submitted, that Professor Gordon made no reference in the paragraphs on "causing" and "permitting" to the case of MacDonald v Howdle. That was because it was an unusual case which turned on its own facts, namely, the existence of the suspensive condition. That condition was not applicable in the present case. The case which was in point was MacPhail v Allan and Dey Ltd to which the solicitor advocate had already referred. An examination of that case disclosed that the company, through one of its managers, was guilty of knowingly permitting an employee to drive without an appropriate licence, because it failed to make the appropriate checks.

The appropriate knowledge was thereby imputed to it. That was similar to the present case. The appellant ought to have had a system of checking. The concessions made by him to the respondents' committee indicated that his attitude was "variable". Sometimes he did check, but on this occasion he did not. His failure to check, on this occasion, should be the determinative issue, rather than a consideration *34 of whether or not this was truly, rather than specifically, a MacDonald v Howdle type of situation.
Under reference to the case of Ward v City of Dundee Council, the solicitor accepted that there required to be a degree of culpability.

However, while in the Ward case, the sheriff was able to say that it was difficult to see what more the appellant could have done, the present case was quite different on the facts, where the appellant could clearly have put in place an appropriate system of checks. Accordingly, he submitted, the respondents were right to conclude that the appellant had permitted the use of the taxi by Mr Connolly and that this was culpable conduct on his part.

Moving to the appellant's averments in art 10 of condescendence directed to unreasonable exercise of discretion, the solicitor submitted that there was no such unreasonable exercise in the present case. The respondents took all relevant matters into account. Paragraph 9 of the written reasons recorded, all that the appellant had put before them. Paragraph 10 confirmed that everything so put before them had been taken into account.

There was no suggestion of an irrelevant factor being taken into account, or a relevant factor being omitted from consideration.
The question of how they dealt with Mr Connolly's case, or the exact nature of the business relationship between the appellant and Mr Connolly, was of no moment, as the respondents' decision was based on the appellant's failure to check.

The solicitor submitted that, as the respondents appeared to have properly considered the relevant matters before them, it was not for this court to substitute its own views on the weight to be accorded to any of that information. He referred to the case of Hughes v Hamilton District Council, in which it was stated, at p 632C. "Once there is relevant material before a licensing authority the question as to the weight to be attached to that material and the significance of any other balancing factors must be for the authority to assess."

This court could only intervene, he submitted, if the decision reached was so unreasonable that no reasonable committee could have arrived at that view, all as their Lordships made clear at p 632D-E. This was not the situation in the present case.

Further, in the solicitor's submission, the submission by the solicitor advocate for the appellant that the decision was lacking in specification was not well founded. He made reference to the case of Ranachan v Renfrew District Council. In that case, the statement of reasons set out the view of the licensing committee quite succinctly, by saying: "The Members considered that the previous convictions ... were sufficiently serious to warrant them finding that the Applicant was not a fit and proper person to be the holder of the licence applied for."

That short but succinct method of stating reasons was approved by the court who stated in their opinion at p 628F: "In our view, it is not necessary for a 'statement of reasons' to condescend in detail upon the precise thinking which lies behind the reasons actually given; indeed, there being several members of the subcommittee, it is clear that different members might have attached different weight and significance to the various considerations before the subcommittee. In our opinion, the statement of reasons in this instance is both intelligible and sufficient."
The solicitor compared para 10 of the written reasons in the instant case with the form which had been approved in Ranachan and submitted that the statement of reasons provided was sufficient.

Turning to the "fall-back" position of whether or not there had been a breach of natural justice, the solicitor submitted that what was under investigation by the respondents' committee was the conduct of the appellant, not any particular licence. They had to look for misconduct, in order to find that he was no longer a fit and proper person to hold a licence. The Act required a finding that he was not a fit and proper person to hold a licence rather than any particular licence.

That finding having been properly made by the respondents, who properly considered any misconduct bearing on his fitness, in terms of para 11(4)(a)(i) of Sch 1 to the 1982 Act, it was logical to conclude that if he was not a fit and proper person to hold a licence, then he should not hold all three.

He referred again to the case of Ward v City of Dundee Council. It was clear from the position in that case that the licensing authority suspended the taxi operator's two licences, following the failure of only one of his two taxis to pass an annual inspection. However, he conceded that the question of whether or not that constituted a breach of natural justice was not argued in the Ward case and it was not possible to decern from the report whether or not Mr Ward was aware, before he appeared before the licensing committee, that both of his licences were likely to be suspended.
On an indication from the solicitor advocate for the appellant that the human rights issues were no longer actively being pursued as a separate ground of appeal, the solicitor for the respondents restricted his reply to these matters to a brief submission that the human rights dimension added nothing to the existing requirement of natural justice that the appellant be given a fair hearing.

The solicitor for the respondents submitted that there was no suggestion that the respondents had failed to comply with all the hearing requirements set out in paras 11(7) and 11(8) of Sch 1 to the 1982 Act. The appellant was afforded the opportunity to be heard. He was given appropriate notice of the hearing and of the information which would be before the respondents. That was all he was entitled to. The solicitor submitted that there was no requirement on the respondents to give notice of the possible consequences, in the event that the appellant was found to be no longer a fit and proper person to hold a licence. It was *35 for him to anticipate the possible consequences of such a finding on his ability to hold all three licences.

While it was accepted, from the respondents' point of view, that the discussion before the committee was confined to the circumstances of Mr Connolly operating taxi licence plate no 102, that was all that was necessary for the respondents' committee to reach the conclusion that the appellant was not a fit and proper person. No information about how taxi licences 42 and 125 were operated was relevant to that part of the decision making process -- but having made the appropriate finding, the respondents were well entitled to suspend all three licences.
Accordingly, in the respondents' submission, the appeal should be refused.
The solicitor advocate for the appellant replied briefly to the respondents' submissions.

First, in relation to fair notice, he submitted that the correct approach was not whether the appellant ought to have anticipated the likely consequences of a finding that he was no longer a fit and proper person to hold a licence, but was that of the "objective by-stander". What would any person, on a reasonable reading of the notification and information given to the appellant; have anticipated might happen? Each licence was a single economic entity and the interest of fairness demanded that the licence holder be given prior intimation of the consideration of the suspension of each licence. Had the appellant realised in advance that this was likely to happen, then his whole approach to preparation and presentation of his defence might have been different.

Turning to error in law, it was the solicitor advocate's submission that the solicitor for the respondents had wrongly approached the question of error in law. The appellant's complaint in this case was not whether, on a true consideration of the facts, the appellant had permitted Mr Connolly to drive in the correct legal sense. That is what the respondents ought to have considered. His complaint is that they erred, by imposing the absolute duty to ensure that he did not drive.

The case of MacPhail v Allan and Dey Ltd was, in the solicitor advocate's submission, distinguishable, as it dealt primarily with how a court should seek to identify the mens rea of a company or other non-legal person facing a criminal charge. The MacDonald v Howdle approach was the more appropriate one in the instant case.

Lastly, in relation to unreasonable exercise of discretion, while the solicitor advocate accepted that, in terms of Hughes v Hamilton District Council, the question of weight was one for the respondents, he maintained that the reasons given lacked specification. While conceding that the written reasons in the instant case were framed in terms very similar to those approved in the case of Ranachan, it was clear if one looked in detail at the decision in Ranachan at p 628C, that these brief and succinct grounds were approved only on the basis that it was conceded that the respondents had not taken into account irrelevant material or left out of account relevant material and made no error in law. Given that error in law is still a live issue in the instant case, much more by way of explanation was required.

Having considered the competing submissions, I have come to the view that the appeal should be granted on the basis that the respondents erred in law in coming to their decision. In my opinion the question of whether this case ought to have been approached on a MacDonald v Howdle, or MacPhail v Allan and Dey Ltd sense is not the determinative issue. It would have been a relevant question, had the respondents chosen to approach the matter correctly. If they had done so, they might have been driven to the conclusion that the circumstances were similar to MacDonald v Howdle. While the appellant did not, in terms, say to Mr Connolly that he was being allowed to operate the taxi on a suspensive condition that he had a licence, it is clear, looking at the circumstances as a whole, that it was the receipt of information from Mr Connolly that he had a licence (which information was not entirely unexpected in the surrounding circumstances) which led the appellant to permit the vehicle's use.

I am not convinced that a proper application of MacPhail v Allan and Dey Ltd would confirm the appellant's guilt. That decision, as I read it, confirms that there is no strict liability and that the company must be held to have constructive or imputed knowledge; that one of the circumstances in which such knowledge can be imputed is where the employer has good reason to suppose that a prohibited thing is happening and does nothing to prevent it; and that on the particular facts of the case, the court held that the accused ought to have known that their employee's licence had expired and that there was a possibility of unlicenced driving, which could have been prevented by a simple system of checking.

It seems to me that this contrasts with the circumstances in the present case, where, far from failing to properly be on the lookout for a prohibited thing taking place, the appellant only chose to grant permission, when he thought that the prohibited thing had been resolved. A proper application of the factors set out at p 138 in MacPhail v Allan and Dey Ltd and to which I have referred above, might well have resulted in the present appellant being acquitted, had he faced a criminal charge.

While it is all very well for the solicitor for the respondents to submit before me that the appellant was acting in contravention of para 21(4), and was guilty of misconduct, and was criminally guilty in the Allan and Dey Ltd sense, the fact is that a reading of the written reasons discloses that this was not the basis upon which the respondents proceeded. Rather, a reading of the relevant paperwork and the written reasons suggests that at a very early stage -- and, to my concern, apparently at a stage before the matter reached the respondents' licensing committee -- a view was formed that there was an absolute duty on the appellant to ensure that Mr Connolly held *36 the appropriate licence. It was for failing in that supposed duty that the respondents chose to find that the appellant was no longer a fit and proper person to hold a taxi licence.

I am satisfied that no such duty exists, either in law, or within the respondents' conditions relating to taxi licences. I have come to the view that the respondents' whole analysis of any misconduct on the part of the appellant was fundamentally flawed by their identification of that absolute duty as being the determinative issue.

I agree with the solicitor advocate for the appellant that this was such a fundamental error that the decision should simply be reversed, rather than remitted back for reconsideration. I did not understand the solicitor for the respondents to disagree with that view.

This deals with the substance of the appeals, but it is proper that I record my views on the other submissions made before me.

On the question of whether or not the respondents unreasonably exercised their discretion, it is difficult to separately assess this issue, when I have already reached the view that they erred in law. However, it will suffice to say that, if I had not been able to identify such an error, then I would not have been prepared to allow the appeal on the basis that improper weight had been attached to any factors, such as the chief constable's letter, nor would I have considered that the reasons given were lacking in specification. I take the view that the cases of Hughes v Hamilton District Council and Ranachan v Renfrew District Council are binding upon me and that I could have only granted an appeal on this ground if the decision reached was one which no reasonable committee, applying the proper factors, could have reached. Leaving aside all considerations of the error in law, I could not have come to such a decision.

Turning now to the natural justice, and related issues, I do not propose to express a view on the human rights question, as I did not hear full argument, given the concession made by the solicitor advocate for the appellant in the course of the solicitor for the respondents' submissions. However, on the question of breach of natural justice, at a domestic law level, I am quite satisfied that the approach taken by the respondents in the circumstances of this case offends all sense of fairness, in that there was no indication given in any way to the appellant that the suspension of all three of his licences was likely, until a very late stage in the proceedings.

An examination of all the paperwork produced in advance of the hearing suggests that suspension of only one licence was in contemplation. A reading of the statement of written reasons continues to give that impression, up to the point where the respondents came to the view that the appellant was not a fit and proper person to hold a licence. While I can appreciate the commonsense of the solicitor for the respondents' submission to the effect that it is only logical that a finding that he is not a fit and proper person to hold a licence means that he is not fit to hold any licences at all, that is simply an unfortunate consequence of the wording of the suspension provisions. While, in para 11(4) of Sch 1 to the 1982 Act, the wording begins by referring to suspension of "a licence", the authority are then directed to have regard to "any misconduct on the part of the holder of the licence".

That must be the licence which they are considering suspending. The whole paperwork in the present case indicates that all that was being considered in the instant case was suspension of licence no 102. In any event, where is the logic, thereafter, in a fixed period of suspension of, say, three months? Is it logical that a licence holder, perhaps quite properly considered unfit to hold a licence, miraculously becomes fit to hold it again three months later?

In order to give effect to my decision, I require to repel both parties' preliminary pleas, which were not insisted in. Thereafter, I will repel the respondents' pleas and sustain the plea in law for the appellant, to the extent only that the respondents have erred in law.

Parties were agreed that, given the possible range of options at my disposal, a hearing on expenses would be required.

Representation

Solicitor Advocate for Appellant, MacDonald; Solicitors, McArthur Stanton, Dumbarton -- Solicitor for Respondents, Legal Service Department, West Dunbartonshire Council. (c) W. Green & Son Limited

That well known Scottish Taxi owner.