[1998] EWHC Admin 695 (1st July, 1998)
IN THE HIGH COURT OF JUSTICE CO/1169/98
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
Wednesday 1 July 1998
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND
(Lord Bingham of Cornhill )
and
MR JUSTICE THOMAS
B E T W E E N:
JOHN McCOOL Appellant
- v RUSHCLIFFE
BOROUGH COUNCIL Respondent
Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
Telephone No: 071-421 4040
(Official Shorthand Writers to the Court)
MR IAN WISE (instructed by Messrs Bhatia Best, Nottingham NG1 7FF)
appeared on behalf of THE APPELLANT
MR R BURNS (instructed by the Borough Solicitor, Rushcliffe Borough
Council) appeared on behalf of THE RESPONDENT
J U D G M E N T
(As Approved by the Court )
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Wednesday 1 July 1998
1. THE LORD CHIEF JUSTICE: On 27 March 1997 the Rushcliffe Borough Council
refused to grant Mr John McCool a licence to drive a private hire vehicle. He
made a complaint to the Nottingham Magistrates' Court appealing against the
Borough Council's decision on 14 April 1997 and on 19 June the magistrates
dismissed his complaint and upheld the Borough Council's decision. He now
appeals to this court against the decision of the magistrates' court by way of case
stated.
2. Before coming to the facts of the case and the respective contentions of the parties,
it is helpful to refer to the legislative regime which governs such grants and
appeals. Section 51(1) of the Local Government (Miscellaneous Provisions) Act
1976 provides so far as relevant:
"(1) Subject to the provisions of this Part of this Act, a district council shall, on the
receipt of an application from any person for the grant to that person of a licence to
drive private hire vehicles, grant to that person a driver's licence:
Provided that a district council shall not grant a licence -
(a) unless they are satisfied that the applicant is a fit and proper person to hold a
driver's licence;...."
3. Subsection (1A) inserted by amendment reads:
"For the purpose of satisfying themselves as to whether an applicant is a fit and proper
person to hold a driver's licence, a council may send to the chief officer of police for
the police area in which the council is situated -
(a) a copy of that person's application; and
(b) a request for the chief officer's observations;
and the chief officer shall respond to the request."
4. Section 52 provides that:
"Any person aggrieved by -
(1) the refusal of the district council to grant a driver's licence under section 51 of this
Act; ....
may appeal to a magistrates' court."
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5. Section 57(1) provides:
"A district council may require any applicant for a licence under the Act of 1847 or
under this Part of this Act to submit to them such information as they may reasonably
consider necessary to enable them to determine whether the licence should be granted
and whether conditions should be attached to any such licence."
6. Lastly I make reference to section 61(1) of the Act which provides:
"Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district
council may suspend or revoke or (on application therefore under section 46 of the
Act of 1847 or section 51 of this Act, as the case may be) 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."
7. One must, as it seems to me, approach this case bearing in mind the objectives of
this licensing regime which is plainly intended, among other things, to ensure so far as
possible that those licensed to drive private hire vehicles are suitable persons to do so,
namely that they are safe drivers with good driving records and adequate experience,
sober, mentally and physically fit, honest, and not persons who would take advantage
of their employment to abuse or assault passengers.
8. The Borough Council's refusal of a licence to Mr McCool was under section
51(1)(a) because the local authority was not satisfied that Mr McCool was a fit and
proper person to hold a driver's licence. His appeal was to the magistrates' court under
section 52 and was by complaint under rule 34 of the Magistrates' Courts Rules 1981.
It is accepted that the role of the justices on the hearing of the complaint was to form
their own independent judgment of the question at issue and not simply to review the
decision of the Borough Council.
9. On the hearing of the complaint on 19 June the magistrates made the following
findings set out in paragraph 3 of the case stated:
"(a) Mr John McCool, the appellant, had been a taxi driver for a number of years. He
had been charged and tried for an allegation of indecent assault on a 42 year old lone
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female passenger. This was initially a charge of abduction but this was withdrawn by
the Crown Prosecution Service.
(b) At the appellant's first trial at the Nottingham Crown Court on 5th March 1996 the
jury failed to reach a verdict and at the retrial the passenger did not attend court and
the appellant was therefore acquitted. Her reason for not attending court was that she
was not prepared to go through the trauma of giving evidence again. This was also the
reason as to why she did not attend court in relation to the hearing on 19th June 1997.
(c) That the incident happened on 22nd September 1995 when the appellant took a
fare from the Black Orchid Nightclub at Nottingham. The lone female passenger
asked to be taken home.
(d) He turned down an unlit country road and stopped the taxi. The appellant then put
his arm through the gap between the seats and began clawing at her legs. The female
passenger was absolutely terrified and jumped out and ran around the back of the cab.
The appellant got out of the cab and caught her and then wedged her up against the
car, put his hand up her skirt and pulled at her underwear. The appellant then said he
would take her home and started apologising and then he dropped her off near a pub."
10. The justices add:
"We found that the appellant had thereby committed an indecent assault.
(e) The appellant lied in his police interview since he denied ever being at the scene of
the incident. He admitted that this was a lie.
(f) At the second police interview he denied being at the scene again but it was only
after he was shown video evidence that he admitted being involved in the incident.
(g) The appellant admitted lying to the Crown Court as to why he touched the female
passenger's leg.
(h) We rejected the appellant's explanation for these lies as untruthful and found him
to be an unreliable witness.
(i) The appellant was not a fit and proper person to hold a private hire licence."
11. The justices set out in the case the competing submissions made to them on behalf
of Mr McCool and the Borough Council. They made reference to the authorities to
which they were referred, in particular Westminster City Council v Zestfair Ltd
(1989) 88 LGR 288, and R v Maidstone Crown Court, ex parte Olson (18.5.92, briefly
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reported in The Times on 21.5.92). They then set out in paragraph 7 advice which
they received from their clerk in open court, which was to the following effect:
"(1) The central issue was whether or not the appellant is a fit and proper person to
hold a private hire licence.
(2) The case of R v Maidstone Crown Court held that a local authority was entitled to
go behind the appellant's acquittal on appeal of a charge of indecently assaulting a
passenger for the purpose of seeking to rebut his contention that he was a fit and
proper person to held a licence.
(3) In that case the court approved a decision by the Crown Court judge to allow the
complainant to attend court and give evidence.
(4) In the case of Westminster City Council v Zestfair it was held that the court was
not bound by the rules of hearsay evidence normally applicable in civil proceedings.
(5) Our clerk quoted Pill J giving judgment in the same case ".... if some of the
matters before the court are hearsay and are not supported by the evidence of
witnesses in .... court .... it will be for [the] court to consider carefully what weight is
to be attached to the evidence which is put before it in that fashion."
12. That is a citation from Pill J's judgment in Zestfair at page 294, where he recites
part of the judgment of Cusack J in Kavanagh v Chief Constable of Devon and
Cornwall [1974] QB 624.
13. In paragraph 8 of the case stated the justices summarised their opinion as follows:
"(a) Following the case of R v Maidstone Crown Court Ex parte Olson we were
entitled to go behind the appellant's acquittal at the Crown Court in order to form a
view as to whether the appellant was a fit and proper person to hold a licence.
(b) Following the case of Westminster City Council v Zestfair hearsay evidence was
admissible to help us determine the question of whether the appellant was a fit and
proper person and the evidence relied upon was legally admissible evidence.
(c) The civil standard of proof applied to these proceedings following the case of R v
Maidstone Crown Court Ex parte Olson .
(d) Based upon that standard of proof we felt it was more likely than not that the
appellant had indecently assaulted the alleged victim because:
(i) The appellant admitted that he had lied in his first police interview as he denied
that there had ever been any incident giving a very detailed and untruthful account of
what had happened that night.
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(ii) At his second police interview he only admitted being involved in any incident
once he was shown video evidence of the presence of his car at the night club.
(iii) He admitted lying at the Crown Court under cross examination as to the reason as
to why he touched her leg and gave a second version of events at the hearing before
ourselves.
(iv) The appellant confirmed in his own evidence that the female passenger's account
was accurately reflected in the newspaper account of her evidence at the Crown Court
and he also confirmed that the Crown Court transcript of his own evidence given
under cross examination was accurate.
(e) The complainant would not attend court a further time to give evidence because of
the nature of the allegation and the attendant distress that she would suffer and, as a
consequence, we felt able to accept hearsay evidence.
(f) The appellant's explanation as to why he touched the passenger's leg because he
was given 'a big come on' was highly improbable.
(g) The respondent was entitled to seek to rebut the appellant's case that he was a fit
and proper person to hold a licence by going behind the acquittal and satisfying us
that an indecent assault had taken place on the civil standard of proof."
14. The justices then indicated that they dismissed the complaint and they raised four
questions for the opinion of the High Court. It is not in my judgment necessary to read
those questions since, as I shall indicate, I think that they can helpfully be
reformulated.
15. It is common ground that in reaching their decision the justices were entitled to
rely on hearsay evidence. That is in my judgment clear from section 51(1)(a) of the
Act and also from Kavanagh v Chief Constable of Devon and Cornwall , in particular
the passages at 627G, 628G, 629H, 630A, 633D and 634C. It is also in my judgment
plain from the judgment of Pill J in Westminster City Council v Zestfair . I conclude
that, in reaching their respective decisions, the Borough Council and the justices were
entitled to rely on any evidential material which might reasonably and properly
influence the making of a responsible judgment in good faith on the question in issue.
Some evidence such as gossip, speculation and unsubstantiated innuendo would be
rightly disregarded. Other evidence, even if hearsay, might by its source, nature and
inherent probability carry a greater degree of credibility. All would depend on the
particular facts and circumstances.
16. Mr Wise, who represents Mr McCool in this appeal, accepts that hearsay evidence
is properly to be considered in this class of case. He however submits that the
Borough Council and the justices could not properly rely on hearsay evidence to
conclude that Mr McCool had probably committed an indecent assault in the absence
of direct or first-hand evidence to that effect. That submission is founded on the
judgment of this court in R v Board of Visitors of Hull Prison, ex parte St Germain
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(No. 2 ) [1979] 1 WLR 1401, and in particular the passage in the judgment of the
court at 1409H, where Geoffrey Lane LJ said:
"We appreciate that there may well be occasions when the burden of calling the
witness whose hearsay evidence is readily available may impose a near impossible
burden upon the board. However, it has not been suggested that hearsay evidence
should be resorted to in the total absence of any first-hand evidence. In the instant
cases hearsay evidence was only resorted to to supplement the first-hand evidence and
this is the usual practice."
17. Mr Wise relies on that passage to submit that there must always be more than
hearsay evidence of the commission of a criminal offence. I have no doubt that the
passage relied on sounded a wise note of caution, particularly in the context of a
case such as that, involving proof of what were in effect criminal offences
carrying terms of imprisonment on a finding of guilt. I very much doubt if the
court was intending to lay down any general rule. The standard of proof required
must in my judgment always depend on the nature of the proceeding and the
potential consequences of an adverse finding. In any event, however, it is plain
that in the present case the justices were not basing themselves on hearsay
evidence alone. It is apparent when one looks at the findings of fact in paragraph
(3) that (a), (b), (c), (e), (f) and (g) were not based on hearsay, but were based on
the evidence and admissions of Mr McCool when he testified before the justices.
When one looks at paragraph 8 it is again clear that sub- paragraph (d) (i), (ii) and
(iii) are not based on hearsay; nor is (e); and (f) represented the justices' own
conclusion. It is plain that the justices considered the complainant's evidence,
accepted as accurate as reported in the newspaper, as if it were, in effect, a
transcript of her evidence. The appellant evidently accepted the evidence of his
own testimony in cross-examination in the Crown Court as accurate. The justices
had evidence of lies told by him and of his admission to having perjured himself
in the Crown Court. They also were entitled to pay attention to his inconsistent
explanation of events given to them, as compared with his explanation in the
Crown Court. They were plainly entitled to reach the conclusion that he was an
untruthful witness. In all those circumstances I do not accept that it was not open
to the justices in this case to conclude on the evidence before them that it was
more probable than not that Mr McCool had committed an act of indecent assault.
18. Secondly, Mr Wise submits that, since the justices were considering whether Mr
McCool had committed the criminal offence of indecent assault, it was incumbent
upon them to apply the criminal standard of proof or the civil standard appropriate
to an allegation of such gravity (not in the result very different from the criminal
standard). In support of that submission he referred us to Hornal v Neuberger
Products Ltd [1957] 1 QB 247, R v Secretary of State for the Home Department,
ex parte Khawaja [1984] AC 74, Dean v Dean [1987] 1 FLR 517, and In re a
Solicitor [1993] QB 69. Those cases are undoubtedly good authority for the
proposition that where in civil proceedings it is sought to prove conduct
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amounting to or analogous to a criminal offence, the standard of proof must be
analogous, at least, to that appropriate in criminal proceedings.
19. In my judgment, however, it is important to bear in mind what is to be proved and
by whom. We have been referred to the transcript of R v Maidstone Crown Court,
ex parte Olson . It is, I think, important to appreciate the issues in that case. The
applicant had been a licensed taxi driver for some years before he was convicted
of indecently assaulting the complainant. She had been about 15 years old at the
time and described an assault of an indecent nature in a country lane in Kent. The
applicant denied the offence. He was tried and convicted by a majority of the jury.
He appealed against his conviction on the ground of a number of misdirections
and non- directions, and the conviction was quashed as unsafe and unsatisfactory.
It appears that there was no retrial. Upon his conviction the local authority (who
had the same role and function as the Rushcliffe Borough Council) had revoked
his licence. When the conviction was quashed he applied for the licence to be
renewed and reliance was placed on section 51 of the 1976 Act. The local
authority in the first instance considered the application and refused to renew the
licence on the ground that they were not satisfied that the applicant was a fit and
proper person to hold a licence. The applicant appealed to the justices and they
refused to permit the local authority to call the complainant to give evidence of the
alleged assault. The justices thereupon determined that the applicant was a fit and
proper person to hold a taxi driver's licence and the appeal accordingly succeeded.
The local authority then appealed to the Crown Court against the justices'
decision. At the outset of that appeal the trial judge was asked to rule as a
preliminary point whether the complainant's evidence of the indecent assault
could be admitted. He ruled that the local authority were entitled to call the
complainant to give evidence and it was that issue which was the subject of an
application for judicial review. As appears from the transcript at page 3F the
application for judicial review proceeded on the undisputed assumption that if the
complainant's evidence was not to be heard, the local authority's appeal would fail
and the applicant would establish that he was a fit and proper person to hold a taxi
driver's licence. In the course of the judgment of the court delivered by Watkins
LJ, reference was made to the burden of proof on which the following statement
was made at page 10A of the transcript:
"Burden of Proof
20. The relevant proviso to
section 51 of the 1976 Act, which we have already
referred to, is expressed to show that it is for the applicant to establish that he is a
fit and proper person to hold a driver's licence. It is, as has been said, accepted that
he would in this case discharge that burden, if the local authority is not permitted
to call the complainant to give evidence. It follows that the evidential burden
shifts to the local authority. It should not, however, be overlooked that what they
are seeking to do is to rebut his case that he is a fit and proper person. They are
not seeking to prosecute him a second time."
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21. The court went on to deal with the standard of proof and, after reference to a
number of cases, said at page 14F:
"We return to the proviso to section 51 of the 1976 Act which, in our view,
indicates that the local authority is not to grant a licence unless they are satisfied
that the applicant is a fit and proper person to hold a driver's licence. The onus of
establishing on the balance of probabilities that he is a fit and proper person is on
the applicant. These are not criminal proceedings but proceedings relating to the
grant of a taxi licence. We are of the view that in licensing proceedings generally
the civil standard of proof applies and it has not been suggested otherwise before
us. We do not see that, in seeking to rebut the applicant's contention that he is a fit
and proper person, the onus on the local authority is to do this to other than a civil
standard of proof, even if the substance of what they seek to prove amounts to a
criminal offence. We do not think that Parliament intended that local authorities
had to refuse licences under this head only if they were sure than an applicant
alleged to have committed a relevant criminal offence had indeed committed it.
The balance of public interest to see that those who drive taxis are fit and proper
persons to do so does not argue for a criminal standard of proof here. In our view,
the law as stated in Hornal v Neuberger Products applies, so that the local
authority have to establish what they seek to prove to a civil standard of proof
commensurate with the occasion and proportionate to the subject matter."
22. It is in my judgment very important to bear in mind the basis upon which that case
was proceeding before this court, namely that the applicant was entitled to be
regarded as a fit and proper person unless evidence of indecent assault could be
adduced against him. It is also in my judgment very important to bear in mind the
regulatory framework to which I have already made reference.
23. I return to section 51(1), from which it is plain that a district council has a
mandatory obligation to grant a licence to an applicant for a licence to drive
private hire vehicles, but that it is prohibited from granting a licence unless it is
satisfied that the applicant is a fit and proper person to hold a driver's licence. It is
no doubt right to regard an applicant as fit and proper if adequate evidence of
good character and record is adduced and there is no reason to question or doubt
it. But the local authority, or on complaint to them the justices, are not permitted
to grant the licence unless they are satisfied that the applicant is fit and proper.
They may fail to be satisfied because adequate information of character and record
is not forthcoming, as would be the case if an applicant failed to respond
adequately to a request under section 57(1); or they might fail to be satisfied for
any other good reason. It is in my view impossible to be prescriptive as to what
might amount to a good reason. What will be (or may be) a good reason will vary
from case to case and vary according to the context in which those words appear.
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The decision maker may take account of hearsay (as already indicated), provided
it is hearsay which is not unreasonably thought to be worthy of credence, and such
evidence need not be evidence which will withstand scrutiny according to the
formal rules of a court of law. It is not a good reason if a local authority or justices
rely on prejudice or assertions shown to be ill-founded or gossip or rumour or any
other matter which a reasonable and fair-minded decision maker acting in good
faith and with proper regard to the interests both of the public and the applicant
would not think it right to rely on. But it is appropriate for the local authority or
justices to regard as a good reason anything which a reasonable and fair-minded
decision maker, acting in good faith and with proper regard to the interests both of
the public and the applicant, could properly think it right to rely on. In my
judgment the justices in this case did not exceed the bounds of appropriate
evidence in reaching their decision.
24. I said earlier that the questions posed by the justices in my view called for
reformulation. I would propose to reformulate the questions as follows:
(1) Were we entitled to have regard to hearsay evidence of the indecent assault
alleged against Mr McCool without direct evidence of it?
25. To that question I would answer "Yes".
(2) Did we apply a correct standard proof to the question for our determination?
26. Again I would answer "Yes", save that the justices may well have applied a more
rigorous standard than was called for in the circumstances.
(3) Were we entitled on the findings made, if properly made, not to be satisfied
that Mr McCool was a fit and proper person to be granted a private vehicle
licence?
27. To that question I would answer "Yes".
MR JUSTICE THOMAS: I agree.
28. MR BURNS: My Lord, I understand that the appellant is legally aided.
MR WISE: My Lord, he is.
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29. MR BURNS: My Lord,
could I make an application for costs on the terms
approved in Parr v Smith , which is that there be an order that the appellant pay
the recoverable costs of the respondent, but that that order be postponed until
further directions are given. That leaves it open so that if one day bounty falls on
him it might be appropriate to reopen the matter?
30. THE LORD CHIEF JUSTICE: I wonder if there is any real purpose in that, Mr
Burns?
31. MR BURNS: My Lord, I am instructed to make the application. I concede that it
is hardly ever fruitful, but there is at least the door open if the lottery is successful.
It used to be the football pools order.
32. THE LORD CHIEF JUSTICE: Yes. I think the usual form of order is: not to be
enforced without further order.
MR BURNS: I think in Parr v Smith it was left in this fashion so that there were no
problems of limitation.
33. THE LORD CHIEF JUSTICE: What do you say, Mr Wise? You want an order for
legal aid taxation of your costs, I have no doubt?
MR WISE: Yes, my Lord.
34. THE LORD CHIEF JUSTICE: We will certainly make that order.
35. MR WISE: I am much obliged. My Lord, my client is unemployed and is in
receipt of legal aid. In my submission it would be inappropriate or unnecessary to
make any further order.
36. THE LORD CHIEF JUSTICE: Supposing he won the lottery this week?
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37. MR WISE: The chances of that happening, my Lord, are very small indeed. As
your Lordship is aware, the court has a discretion to make no order or to make the
usual football pools type order.
38. THE LORD CHIEF JUSTICE: Yes. We are inclined to make no order, save an
order for legal aid taxation.
39. MR WISE: My Lord, may I raise one further matter? May I seek leave to appeal?
I seek leave to appeal on one point only and that is the issue of standard of proof
in this case.
40. THE LORD CHIEF JUSTICE: We have to certify a question of general public
importance.
41. MR WISE: No, my Lord. This is a civil matter. The appeal would go to the Court
of Appeal.
42. THE LORD CHIEF JUSTICE: That is quite right, yes.
43. MR WISE: But, of course, leave is required from the court below when one goes
from the Divisional Court to the Court of Appeal in a civil matter. I must make the
application to your Lordships today. Your Lordships have heard submissions on
the standard of proof. In my submission it is an important point. Your Lordships
have found that the justices were correct in the present case to have made their
findings on the civil standard. But the issue raises, in my submission, an important
point which rests uneasily with many of the authorities which have been put
before your Lordships during the course of argument today. The authorities are, of
course, diverse and are different depending on the circumstances both of the
tribunal, the class of case and the facts of the individual case. One recognises that,
and one recognises the difficulty in casting in stone the appropriate formulation
for the standard of proof in a particular class of case. But nevertheless your
Lordship has found that the standard of proof found here --the civil standard -was
appropriate. In my submission that is an issue that ought properly to be
ventilated more properly before the Court of Appeal so that they can consider
afresh all the relevant authorities. My Lord, I seek your Lordships' leave to appeal
on that point.
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44. THE LORD CHIEF JUSTICE: What do you say, Mr Burns?
45. MR BURNS: My Lord, I would respectfully submit that your Lordship has dealt
with it very fully in the course of judgment this afternoon. There is a clear
distinction between the cases cited by my learned friend and the licensing
framework created by section 51. I respectfully submit that no purpose could be
served by having the matter ventilated again in front of the Court of Appeal.
46. THE LORD CHIEF JUSTICE: Thank you. I think, Mr Wise, that we see our
decision as resting more on the language of the sections that are in issue in this
case rather than on the broader issue about the appropriate standard of proof or the
proof of different matters in different proceedings. On that basis we are
disinclined to grant you leave, but of course it is open to you to go to the Court of
Appeal and seek to persuade their Lordships that you should have leave. Clearly
we do not want to put an impediment in your way, but we do not really think that
this is a case that raises the issue you want to argue.
MR WISE: I am obliged.
47. THE LORD CHIEF JUSTICE: Thank you very much.
© 1998 Crown Copyright
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