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A policy can be appropriate if each case treated on merits and the policy does not unreasonably fetter the discretion
NOTTINGHAM CITY COUNCIL EX PARTE HAMILTON HOWITT, R v. [1999]
EWHC Admin 498 (25th May, 1999)
IN THE HIGH COURT OF JUSTICE CO 4028/98
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST )
Royal Courts of Justice
Strand
London WC2
Tuesday, 25th May 1999
B e f o r e:
MR JUSTICE DYSON
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REGINA
-v-
NOTTINGHAM CITY COUNCIL
EX PARTE HAMILTON HOWITT
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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
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MISS H MOUNTFIELD (instructed by Nelsons Solicitors, Nottingham NG1 7BQ) appeared on behalf of the Applicant.
MR C LEWIS (instructed by Legal Services, City of Nottingham, Nottingham NG1 4BT) appeared on behalf of the Respondent.
J U D G M E N T
(As Approved)
Crown Copyright
Tuesday, 25th May 1999
1. MR JUSTICE DYSON: This is an application by Mr Howitt for judicial review of a decision to revoke his hackney licence and private hire vehicle's licence on 20 July 1998. This decision was reached after he had been convicted on 11 May 1998 of plying for hire without a licence contrary to section 45 of the Town Police Clauses Act 1847. For this offence he was given a 12 months conditional discharge, and ordered to pay £60 costs. His existing licence was due to expire on 19 November 1998. The Council decided to revoke the unexpired portion of his licence, and advised that, if he wished to apply for another licence, he should not do so until six months after the date of its decision. In effect, therefore, he would be without a licence for at least six months. This decision bore harshly on Mr Howitt, who is in his early 50's, and was a man of previous good character.
2. It was unlikely that he would be able to find an alternative source of income, and his wife could not work, since she suffered from ill-health.
3. Section 51 of the Local Government (Miscellaneous Provisions) Act 1976 provides that local authorities shall grant licences to drivers of private hire vehicles unless they are satisfied that the applicant is not a fit and proper person to hold a licence. Section 61 provides, so far as material:
"(1) Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district council may suspend or revoke or... refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds-
(a) that he has since the grant of the licence- (i) been convicted of an offence involving dishonesty, indecency or violence; or
(ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act; or
(b) any other reasonable cause.
(2)......
(3) Any driver aggrieved by a decision of a district council under this section may apply to a magistrates' court."
4. In 1994, the Environment (Licensing) Sub-Committee of the Council delegated to the team leader, taxi licensing, the power to grant, suspend, revoke or refuse to renew a combined hackney carriage and private hire licence. The team leader has at all times been Mr Gary Stevens, and he has exercised those powers since 18 May 1994.
The issues
5. Mr Howitt challenges the decision to revoke his licence on the grounds that (i) it was made pursuant to a blanket policy, (whereby the Council unlawfully fettered its discretion), in relation to persons who have been convicted of plying for hire without a licence, of revoking their licence and refusing to grant a new one, so that such persons spend six months without a licence in all circumstances; (ii) in determining the penalty in question, the Council unlawfully took into account an irrelevant consideration, namely the "likelihood" that the separate further offence of driving without insurance might also have been committed by Mr Howitt. The Council contests these arguments, and claims that judicial review should in any event be refused on the grounds that there is an adequate alternative remedy by appeal to the magistrates under section 61(3) of the 1976 Act.
The first ground: fettering of discretion
6. There is no issue between the parties as to the principles to be applied. These have been stated many times in decisions of the highest authority. A public authority may not impose a fetter on the exercise of its discretion. It may, however, have a general policy, but only if it is subject to exceptions for exceptional cases: see, for example, R -v- Secretary of State for the Home Department ex parte Venables [1997] 3 WLR 23, 47C to 48C and Eastleigh Borough Council -v- Betts [1983] 2 AC 613, 627H to 628B. The question for the court is not whether the authority has an absolute policy on paper, but whether it operates a fettered policy in fact : See per Judge J in R -v- London Borough of Harrow ex parte Collymore [1995] ELR 217, 227 when approving some comments in the then current edition of De Smith's Judicial Review of Administrative Action:
"A course of conduct involving the consistent rejection of applications belonging to a particular class may justify an inference that a competent authority has adopted an unavowed rule to refuse all."
7. In the present case, Mr Stevens has sworn no fewer than three affidavits saying that there is no such blanket policy as that for which the applicant contends. As against that, reliance is placed on material that appears in the affidavits and statements, but above all the statistical evidence as to what Mr Stevens has actually done between about June 1997 and January 1999.
8. Mr Moss is the applicant's solicitor. He specialises in litigation affecting private hire hackney carriage drivers, and has considerable experience of dealing with all aspects of taxi licensing. He has dealt with more than 100 cases before the Respondent Council Licensing Sub-committee, and more recently, Mr Stevens. In his first affidavit, Mr Moss deposes at paragraph 14 that he was told by Mr Stevens that he (Mr Stevens) was acting under instructions from the Sub-committee to impose a standard "punishment", namely that every driver convicted of an offence of plying for hire without a licence had to be suspended for at least six months. At paragraph 18, Mr Moss asserts that on many occasions when he appeared at the Magistrates Court for drivers who were appealing against suspensions for six month, Mr Stevens said on oath that he was acting in accordance with the wishes of the Sub-committee, who wanted to see convicted drivers prevented from working as taxi drivers for at least six months. Mr Moss says that when the appeal of a Mr Sucha Singh came before the Magistrates, Mr Stevens gave evidence on oath and confirmed that the six month ban was his policy. In dismissing the appeal, the Magistrates said inter alia :
"In reaching our decision, we have taken into account that, in making their policy decision, the council were mindful of their responsibilities to safeguard the general public. The Council are consistent with their policy of suspending the licences of drivers convicted of illegally plying for hire. We recognise that this is a major problem in Nottingham and the monitoring and control of Taxi licensing is a necessary responsibility of the Council."
9. In his second statement, Mr Moss adds that Mr Stevens has told him that he follows the instructions of the councillors to apply the six month rule, and that
"he would have to report to the local authority to explain himself if he departed from it in any individual case." The evidence of Mr Moss as to what Mr Stevens said about the policy is supported by the statement of Ms Sore, a paralegal who assists Mr Moss in these cases.
10. For his part, Mr Stevens says that Mr Moss has misunderstood and not accurately recalled what he has said about the policy. He says that he has always made it clear in evidence that he has given, that he treats each case on its merits, although if there are no mitigating factors present, he would generally look to keep a driver from working for six months either by suspension or revocation. At paragraph 4 of his first affidavit, he specifically denies having told Mr Moss that he was under instructions to impose a standard punishment, and suspend drivers for at least six months.
11. He says that he told Mr Moss that he would exercise his powers in a way consistent with the way that the Sub-committee had acted, "which generally would mean a period of six months off the road unless there were circumstances indicating that a different decision was appropriate."
12. Miss Mountfield does not seek to impugn Mr Stevens' good faith. She submits, however, that the statistics show that, since about mid 1997, he has shown an attitude of mind whereby, consciously or subconsciously, he has allowed a rigid policy of imposing a six month ban to determine the outcome of all the cases that he has decided. It is necessary, therefore, to turn to the statistics which are conveniently set out in schedule form in Exhibit GS4 to Mr Stevens' second affidavit. It contains information about all of the decisions that he made between November 1994 and January 1999. In the period between November 1994 and May 1997, there were 40 cases, in 11 of which penalties of six months and longer were imposed; in 22, a ban for a period of less than six months was imposed; and the remaining 7 cases are not susceptible to analysis for various reasons. In the period between June 1997 and January 1999, there were about 56 cases. In about 36 of those, penalties of six months were imposed. 18 are cases which it is not possible to analyse. In only two cases were penalties of less than six months were imposed. These were both in February 1998, and in each case, there was a ban of 5 months.
13. Miss Mountfield submits that these figures show that from about June 1997 there was a hardening of attitude on the part of Mr Stevens, and an adherence to the six month policy which was so rigid as to amount to a fetter on his discretion. Despite the protestations by Mr Stevens that he has at all times considered the merits of each individual case, the statistics show this not to be the case. Moreover, the statistics tend to support the accuracy of the evidence of Mr Moss about what Mr Stevens has said about the policy from time to time.
14. Attractively though Miss Mountfield developed her argument, I cannot accept it. It is a question of fact whether a policy is applied so rigidly as to preclude the person on whom the power is conferred from departing from the policy or taking into account circumstances which are relevant to the particular case for which discretion is being exercised. Ex parte Collymore was an extreme example. In that case not a single review of 300 review applications had been successful. It was this feature of the case that led Judge J to say at page 223E that it appeared that whatever the individual circumstances, every application for a discretionary award was automatically rejected.
15. In the present case, Mr Stevens always invites applicants or licence holders against whom he is considering taking action for a personal interview. Those who attend are given the opportunity to put their case to him. Mr Howitt took advantage of this opportunity. It is clear from the contemporaneous notes of his interview that there was discussion about both the circumstances of the offence of plying for hire, and about Mr Howitt's personal circumstances.
16. As Mr Lewis points out, unless such interviews are to be regarded as a cynical ploy on the part of Mr Stevens, they are strongly supportive of his assertion that he has never operated a blanket policy, but has considered the merits of each individual case. So far as the statistics are concerned, they certainly show that between June 1997 and January 1999, the penalty that was overwhelmingly likely to be imposed was a six month ban. But there were two cases out of about 38 in which lesser penalties were imposed, and a sizeable number of cases (18) of which it was not impossible to say. The reason why it is not possible to analyse these 18 cases is because they were cases where a ban was imposed for a period equivalent to the unexpired residue of the licence period which was less than six months, and the applicant did not apply for a renewal. It may be that, as Miss Mountfield submits, these applicants made no such application because they were aware of the six months policy and realised that applications would be doomed to fail. But that must be a matter of speculation.
17. In assessing the significance of the statistics between June 1997 and January 1999, I consider that I am also entitled to take into account that there is no evidence (save for what may be inferred from the figures themselves) that there was a change in policy in about June 1997 or that there has been a change since January 1999. I have already referred to the figures for the period between November 1994 and June 1997. These figures certainly do not point to a blanket policy during that period, nor is that suggested by Miss Mountfield. In his third affidavit, Mr Stevens has referred to the case of Tahir Akhtar . On 13 April 1999, Mr Stevens decided to suspend Mr Akhtar's licence for two months.
18. It is not in issue that, in the absence of what Mr Stevens refers to as "appropriate mitigating factors" his policy is generally to impose a six month ban. It is clear that Mr Stevens and the Sub-committee take a strict view of the offence of plying for hire without a licence. He gives their reasons at paragraph 7 of his first affidavit. As a result, what many might regard to be a tough policy has been adopted in relation to bans. It may even be that the policy has become tougher since June 1997, although
19. Mr Stevens does not admit this. But the only question for me in relation to the first issue is whether the decision that was made on 20th July 1998 in the case of Mr Howitt was not a true decision because it was fettered by a blanket policy of imposing bans for six months. If that was so, then the interview, which covered a number of points applicable to the particular circumstances of Mr Howitt's case, was a charade. I am not persuaded that it was. Nor am I convinced that the statistics point to the existence of a blanket policy at the material time.
20. In my view, this case is a considerable way from Ex parte Callymore on the facts. I would therefore reject Miss Mountfield's arguments on the first issue.
The second ground, the insurance point .
21. In his first affidavit at paragraph 7(c), Mr Stevens deposes that in determining the penalty for plying for hire, he takes into account that "there is a likelihood that a driver who plies for hire will be acting outside the terms of his insurance which for private hire vehicles usually excludes public hire". It is submitted on behalf of the applicant that in so doing, Mr Stevens takes into account an irrelevant consideration, namely the wish to punish an offence which has not been made out. It is also submitted that whether such a charge might be made out is irrelevant in order to determine the consequences of the offence of plying for hire.
22. Mr Stevens' has answered this ground of challenge at paragraph 5 of his second affidavit, where he says:
"I have always sought to determine the sanction that I consider appropriate, in the light of my general approach, for the offence of plying for hire. I have never sought or intended to "punish" any one for driving without insurance nor did I do so in the case of the Applicant. It is correct to say that in my description of the reasons why in general I view the offence of plying for hire so seriously include the likelihood that a driver who plies for hire will be acting outside the terms of his insurance. My concern is the safety of the public not punishment for some separate offence. Further, I would adopt the same approach to the offence of plying for hire for the other reasons set out in paragraph 7 of my first Affidavit irrespective of the matter that I refer to in paragraph 7(c)."
23. In my judgment, this is a complete answer. At paragraph 7 of his first affidavit, Mr Stevens gives five reasons why he and the Sub-committee regard the offence of plying for hire so seriously. The insurance reason is one of those. In my judgment, they are entitled to regard the likely insurance consequences of the offence as a reason for treating the offence as serious. In any event, even if it was an irrelevant consideration, it is not material to the general approach to the offence, and cannot therefore have been material to the decision of 20 July 1998.
Alternative remedy .
24. Mr Lewis submits that, having expressed my view on the two issues, I should refuse relief on the ground that the applicant should have challenged the decision by appealing to the magistrates pursuant to section 61(3) of the 1976 Act. He refers to R -v- Birmingham City Council ex parte Ferrero [1993] 1 AER 530 in which it was held that where there is an alternative remedy, especially where Parliament has provided a statutory appeal procedure, it is only exceptionally that judicial review will be granted. But as was also stated by the Court of Appeal in that decision, the court must ask itself what is the real issue to be determined and whether the statutory appeal procedure is suitable to determine that issue. I accept the submission of Miss Mountfield that the real issue in this case is whether the Respondent's policy is so rigid as to amount to a fetter on the exercise of its discretion, rather than the strength or weakness of the mitigating factors in the particular case of Mr Howitt.
25. I accept the submission that the fettering of discretion issue is more apt for resolution by the High Court than by magistrates. I would respectfully agree with the approach adopted by McCullough J, admittedly in a somewhat different context, in R -v- Peterborough City Council ex parte Hanif [1992] COD 491. The fettering of discretion point is of some general importance, since it affects a number of persons in Nottingham, including Mr Howitt. I understand that a number of appeals before the Nottingham Justices have been stayed pending the outcome of this application.
26. In reaching this conclusion, I have in mind and follow what was said by Lord Denning MR in R -v- Paddington Valuation Officer ex parte Peachley Property Limited (1966) 1 QB 380, 400 A - C. In R -v- Huntington District Council ex parte Cowan and another [1984] 1 All ER 58, 63 G - H. Glidewell J said:
"Where there is an alternative remedy available but judicial review is sought, then in my judgment the court should always ask itself whether the remedy that is sought in the court, or the alternative remedy which is available to the applicant by way of appeal, is the most effective and convenient. In other words, which of them will prove to be the most effective and convenient in all the circumstances, not merely for the applicant, but in the public interest. In exercising discretion whether or not to grant relief, that is a major factor to be taken into account."
27. Those observations are particularly apt in the present case. Accordingly, I would not exercise my discretion against granting relief because section 61(3) of the 1976 Act provides an alternative remedy.
Conclusion
28. But for the reasons given earlier, I would dismiss this application.
29. MR LEWIS: There is no application.
30. MISS MOUNTFIELD: My Lord, I ask for legal aid taxation. I have handed up the certificate. Thank you, my Lord.
31. MR JUSTICE DYSON: In case the point has not escaped your notice, I am obliged to invite the losing party to make an application for leave to appeal.
32. MISS MOUNTFIELD: My Lord, may I taken instructions? (pause)
33. My Lord, I do not have such an application at present.
34. MR JUSTICE DYSON: Thank you both for your assistance in this interesting case.
_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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