Taxi Driver Online

Having been somewhat surprised at the "explanation" of the ruling in the recent keybabs appeal case, I thought I would delve into the portfolio of judge Mitting to see how many other taxi licensing cases he has presided over? I can only find one other which involved the subject of being "fit and proper to hold a private hire license", this is it.
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R (WREXHAM BOROUGH COUNCIL) V CHESTER CROWN COURT

[2004] EWHC 1591 (Admin)
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

]MITTING J

25 JUNE 2004

Taxi – Private hire driver's licence – Hearsay evidence – Revocation – appeal – Local Government Act 1976

A Mr Jones held a private hire driver's vehicle licence. Prior to grant in 2001, he had disclosed spent convictions as a young man. In September 2003, a complaint was made to North Wales Police about an incident involving a gang of youths outside a house occupied by two men and assaults upon those men which turned into an affray. Mr Jones had been part of the gang.

A police note about the incident came to be considered by Wrexham County Borough Council (the council). According to the note, Mr Jones had been arrested and interviewed when he admitted being present outside a house and being involved in the assault on one of those men. He was charged with burglary and affray but the charges were discontinued by the Crown Prosecution Service. The council's licensing committee decided to revoke the licence for three reasons - first the previous (spent) convictions, secondly his refusal to answer questions which the officers of the council wished to put to him and thirdly, the matters referred to in the police note. Mr Jones appealed to the magistrates' court. There he denied making admissions to the police. He admitted being present at the scene but denied that he was guilty of affray.

The magistrates' court dismissed his appeal. He appealed again, as of right, to the Crown Court. That court allowed the appeal. In a reasoned judgment, the court came to the conclusion that the convictions previously disclosed could not, by themselves amount to good reason to revoke the licence in 2003. The court also held that the fact that Mr Jones had made 'no comment' in itself could not be sufficient to give rise to a reasonable cause to revoke the licence. With regard to the alleged incident the Crown Court held that without embarking on a considered view of the evidence, effectively trying the matter, the court was left with knowing that an allegation had been made, knowing that it was denied and knowing that the prosecuting authorities had decided to take no step. In those circumstances, as far as the Crown Court was concerned, no reasonable cause existed for the licence to be suspended or revoked.

The council asked the Crown Court to state a case for the opinion of the High Court. The Crown Court refused and so the council applied for judicial review seeking an order that the court state a case. In the High Court, Mitting J refused to make that order but having received the reasoned judgment of the Crown Court proceeded to treat the application as one for judicial review of that court's decision.

The council contended that hearsay evidence was admissible, that the information given by the police called for an answer and that in the absence of an answer the court could and should have concluded that Mr Jones was not a fit and proper person to hold a licence so there was a reasonable cause to revoke it.

Held - dismissing the claim for judicial review -

(1) Unlike in the case of McCool v Rushcliffe Borough Council, in this case the licence-holder disputed not only that he was guilty of the offence for which he had been arrested and charged but also that he had made the admissions recorded in the police note. The Crown Court, like the committee and the magistrates' court did not have any transcript of the interview so as to judge whether or not Mr Jones' denial of the alleged admissions was well founded.

(2) The proposition that the court should have taken into account the police report and, in consequence, required Mr Jones to give evidence or to have offered him the opportunity of doing so was not a proposition which could be founded on the reasoning in McCool v Rushcliffe Borough Council. Whether or not a court gives weight to material before it is a matter for the court, in particular if the material is partially disputed hearsay. Whether or not a court takes into account in a way adverse to a driver an accusation made but not proceeded with is pre-eminently a matter for the court.

(3) It was impossible to say that the Crown Court's decision that the withdrawn charge did not call for any further answer from Mr Jones was wrong. It was impossible to say that the Crown Court's decision that the withdrawn charge did not give rise to the conclusion that there was a reasonable cause for revoking the licence was irrational or wrong in law.

Statutory provisions considered
Local Government (Miscellaneous Provisions) Act 1976, ss 51, 61

Cases Referred To
McCool v Rushcliffe Borough Council [1998] 3 All ER 889, QBD

David Abberton for the claimant; the defendant and interested party did not appear and were not represented
Local authority solicitor
25 June 2004

MITTING J

[1] David Nicholas Jones was granted a private hire driver's licence under s 51 of the Local Government (Miscellaneous Provisions) Act 1976 in 2001. At that stage he disclosed that he had, as a young man, previous convictions, all of which were by then spent.

[2] On 23 September 2001 a complaint was made to North Wales Police that a gang of youths, including Mr Jones, had gathered around a house occupied by two men and that there had then ensued an affray in which the two men were assaulted and in which damage was caused to the house.

[3] Mr Jones' licence came to be considered by Wrexham County Borough Council as licensing authority on 28 April 2003. At a meeting of the relevant committee a decision was taken to revoke his licence under s 61 of the 1976 Act, which provides relevantly:

'... a district council may ... revoke the licence of a driver of a private hire vehicle on any of the following grounds ...'

There then follow a number of provisions relating to convictions, and finally: '(b) any other reasonable cause'.

[4] Mr Jones, according to a short police note of the incident on 23 September 2001, was arrested and interviewed. The note records that he admitted being present outside the premises and becoming involved in an assault upon one of the men, although he denied using or possessing any weapon. The note recorded, as was the fact, that he was charged with burglary and affray but that the case was discontinued on advice from the Crown Prosecution Service. No evidence was offered against Mr Jones and accordingly he was discharged. That note was put before the committee.

[5] Officers of the council sought to interview Mr Jones. A series of typed questions was prepared and he was invited to attend an interview to answer them. The first four questions were entirely routine and would have caused no difficulties to answer. There then followed a series of statements, of which the relevant ones were as follows:

'The council's copy of the disclosure was received in February 2003 [that is a reference to the document to which I have referred about the incident on 23 September 2001] and it contained information, which did not result in a prosecution, that related to an incident on the 23 September 2002. Read out.

The information contained in the “relevant information” of the crb form is such that had it been known at the time you renewed your private hire driver's licence would have been sufficient for the facts to have been submitted to the council's Environmental Licensing Committee for their consideration.

Section 61 of the Local Government (Miscellaneous Provisions) Act provides that the council may suspend, revoke or refuse to renew the driver of a private hire drivers licence on certain grounds under subs (b) it states any other reasonable cause.'

[6] Self-evidently those statements are not questions, but are indications of the topics upon which the questioner wished to question Mr Jones. In the event, on the advice of his representative, he said that he did not want to say anything.

[7] The committee based its decision to revoke his licence on three factors: first, the previous convictions originally disclosed by Mr Jones, which had been spent and had not led to any difficulties in the grant of his licence in the first place; secondly, the refusal to answer the questions or to respond to the statements I have indicated; and, thirdly, the information contained in the police document about the incident on 23 September 2001. They decided that, taken together, those factors meant that there was reasonable cause to revoke Mr Jones' licence, essentially on the basis that he was not a fit and proper person to have a licence.

[8] Mr Jones appealed, as was his right, to the magistrates' court. A note of the proceedings before the magistrates indicates that they were minded to allow his appeal, but after retirement rejected it. They did so on 9 July 2003. The note indicates that Mr Jones disputed that he had made the admissions in interview which the police alleged that he had, and that, although he admitted presence at the scene of the disturbances, he denied that he was guilty of affray. He appealed, as again was his right, to the Crown Court.

[9] His appeal was heard by His Honour Judge Clarke, sitting at Chester Crown Court, with two magistrates on 15 September 2003. The court allowed his appeal. It gave a detailed reasoned judgment. That prompted an application on the part of the council to the court to state a case. The court declined to do so. The council accordingly began proceedings for judicial review in which, as alternative remedies, they sought the quashing of the Crown Court's decision, alternatively a mandatory order requiring the Crown Court to state a case.

[10] Given that the Crown Court set out its reasons in detail in the judgment recorded and transcribed, no good purpose would be served by requiring the Crown Court to state a case, and I have indicated, as is the case, that I am content to deal with the matter as a judicial review of the decision. I do so on the same principles that would have applied had I been dealing with the matter by way of case stated. There is in fact in this sort of proceeding no difference in the tests which are to be applied, namely was the decision erroneous in law or irrational or, as it is sometimes put, perverse.

[11] In para [22] of the reasoned decision, the court came to the conclusion that the convictions previously disclosed could not, by themselves, amount to good reason to revoke the licence in 2003. That ruling is not disputed by Mr Abberton, who appears for the council today. The court also held, in para [23] of its decision, that 'the fact that he made a no comment interview in itself, which is what it amounts to, is not sufficient to give rise to any reasonable cause'. That too is not disputed by Mr Abberton. He also concedes that those two factors taken together could not amount to reasonable cause to revoke the licence.

[12] The issue before the Crown Court and before me turns upon the third proposition. Mr Abberton puts it in this way, as he put it before the Crown Court: the information given by the police was admissible hearsay, it called for an answer and, in the absence of an answer, the court could and should have concluded that Mr Jones was not a fit and proper person to have a private hire driver's licence so there was reasonable cause to revoke it. The previous convictions and the failure to answer questions were prayed in aid in support of that basic proposition, but unless the basic proposition stands then, as I understand his submissions, Mr Abberton accepts that the decision of the Crown Court is not open to successful challenge.

[13] What the Crown Court said about that was this, in para [24]:

'We are well aware of where the allegation emanates from, well aware that hearsay has its place in any hearing and it is proper to take into account, but what we can't ignore in this instance is that the allegation is there, there is an allegation made but this court knows that it led to proceedings being discontinued.'

[14] In that passage the court correctly accepted that hearsay evidence was admissible, and their reasoning in that respect is not challenged. Its conclusion is set out in para [25] and was:

'When the court knows that for a fact, it seems to this court to be entirely inappropriate on the facts of this case for the court then to really start to make any adverse inference against him as a result of that course of action being taken and it is not safe, this court concludes, to come to any decision as to the reliability or credibility of what is being said in that document when considered action has been taken and proceedings, whatever be the reason, proceedings have simply been discontinued. Unless one starts embarking on a considered view of the evidence, effectively trying this matter, that is about the only way in which it perhaps could ever be resolved, but that is not the position this court is put in. It knows an allegation is made, it knows an allegation was denied, because the defendant didn't plead guilty to these matters and it knows that the prosecuting authorities decided to take no steps.

[26] In these circumstances, no reasonable cause existed as far as this court is concerned under the provisions of the relevant Act for this licence in those circumstances to be suspended or revoked ...'

[15] That is a passage that Mr Abberton criticises. He says, as I have indicated, that having accepted that the police report was admissible hearsay, it was duty bound to require Mr Jones to give evidence or, at the very least, to afford him the opportunity of giving evidence, and I infer that if he declined to take it to draw an inference adverse to him, not under statutory provisions but at common law in relation to civil proceedings, which these were.

[16] The law is authoritatively stated by the Divisional Court in McCool v Rushcliffe Borough Council [1998] 3 All ER 889, a court presided over by the then Lord Chief Justice, Lord Bingham of Cornhill, on Wednesday, 1 July 1998, in upholding the decision of the justices to revoke a licence in the case of a man who had been accused of an indecent assault on a passenger, who had been prosecuted for it before the Crown Court, whose trial had resulted in the disagreement of the jury in the first instance and in the offering of no evidence in the second instance, when the complainant declined to give evidence for a second time. Thus, superficially, the facts bore some resemblance to those in this case: there was a charge, there was no conviction, the driver in each case fell therefore to have his case considered on the basis that there had been no conviction. But an examination of the facts in McCool reveals highly significant differences. First, the driver in that case admitted that he had lied to the police in pretending in interview that no incident of any kind had occurred, admitted that he had lied on oath in the Crown Court and had advanced a case that, although he had touched his passenger indecently, he had done so with her consent or encouragement. There was, in addition, available to the justices a newspaper report of the complainant's account given in the Crown Court which was accepted by the driver as an accurate record of what she said. The justices concluded, having heard him give evidence, that he was, on the balance of probabilities, guilty of the offence of indecent assault with which he had been charged. Having so concluded, then the justices, as the Divisional Court held, were plainly entitled to conclude that he was not a fit and proper person to hold a private hire licence.

[17] The Divisional Court held that the justices were entitled to take into account the hearsay that they had and noted that their decision was not based only on hearsay, but also on the additional factors, principally the driver's admitted lies to which I have referred. For those reasons, the decision of the magistrates was upheld.

[18] A moment's thought reveals that there are factual differences between that case and this, because in this case the driver disputed not only that he was guilty of the offence for which he had been arrested and charged, but also that he had made admissions recorded in the police note. The Crown Court, like the committee and the justices, did not have any transcript of the interview so as to judge whether or not his denial of those admissions was well-founded or not. But not only were there those differences of fact, but there is a fundamental difference in the legal position. In McCool v Rushcliffe Borough Council [1998] 3 All ER 889 the Divisional Court was asked to consider whether or not the justices were entitled to take into account the evidence that they did to reach the conclusion that they did. The court held that they were. In this case the Council submit that the Crown Court should have taken into account the police report and, in consequence, required Mr Jones to give evidence or offered him the opportunity of doing so.

[19] That is not a proposition which can be founded on the reasoning in McCool v Rushcliffe Borough Council [1998] 3 All ER 889. Whether or not a court gives weight to material before it is a matter for the court, in particular, if the material is, as here, partially disputed hearsay. Whether or not a court takes into account in a way adverse to a driver an accusation made but not proceeded with is pre-eminently a matter for the court. It is simply impossible to say that this court's decision that this withdrawn charge did not call for any further answer from Mr Jones was wrong. It is impossible to say that this court's decision that the withdrawn charge did not give rise to the conclusion that there was reasonable cause for revoking the licence was irrational or wrong in law. It was pre-eminently a matter for the court to weigh up and to decide. Its decision simply is not open to criticism on the principles that this court applies, and for that reason this application must be dismissed.
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