Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

 

B629/13

2014SCABE47

 

		APPEAL UNDER SECTION 18 OF SCHEDULE 1 OF THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982   JUDGMENT BY SHERIFF GARDEN   in causa   VARINDER KUMAR SOOD, residing at 271 North Anderson Drive, Aberdeen, AB16 7GT
		PURSUER and APPELLANT
		against
		THE LICENSING COMMITTEE OF ABERDEEN CITY COUNCIL, Marischal College, Broad Street, Aberdeen, AB10 1AB
		DEFENDER and RESPONDENT
		_________________________

                                                                       

 

Act: Douglas

Alt: Carlyle

 

                                                                                     

                                                                       

ABERDEEN, 20 August 2014.

 

The Sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved.

 

1. The pursuer is Varinder Kumar Sood who resides at 271 North Anderson Drive, Aberdeen, AB16 7GT.

    

2. The defender is the licensing committee of the local authority for Aberdeen.The local authority is incorporated under the Local Government Etc. (Scotland) Act 1994 and has their principal office at Town House, Broad Street, Aberdeen, AB10 1AQ.

    

3. The defender is the licensing authority for the City of Aberdeen in relation to the licensing and regulation of taxis and private hire car driving licences in terms of the Civic Government (Scotland) Act 1982, section 13.The procedure and rules governing applications and appeals in connection with applications for licences are set out in schedule 1 of the said Act.

    

4. The Sheriff Court of Grampian Highland and Islands at Aberdeen has jurisdiction in this appeal.

    

5. The pursuer was formerly the holder of a taxi driver’s licence issued by the defender in terms of the Civic Government (Scotland) Act 1982.

    

6. On or about 22 February 2012, the pursuer submitted an application for the renewal of his taxi driver’s licence. On or about 6 June 2012 that application was refused at a hearing of the defender.

    

7. The pursuer appealed the defender’s decision to the Sheriff of Grampian Highland and Islands at Aberdeen.On 14 February 2013 the court refused that appeal.

    

8. In 2013, the pursuer submitted a new application for a taxi driver’s licence to the defender.Said application was considered by the defender at it’s meeting on 19 November 2013.

    

9. The pursuer’s application attracted a letter of objection, dated 24 September 2013, submitted on behalf of the Chief Constable of Police Scotland.Said letter made reference to, and reproduced the police authorities previous letters of objection to the pursuer’s earlier application, which letters were dated 16 March 2012 and 11 May 2012.The letter of objection from Police Scotland and two previous letters to which it refers are attached to the Statement of Reasons which is document production No. 4/1.

    

10. At the hearing on 9 November 2013, the pursuer submitted a letter in support of his application from Frank Doran, M.P. for Aberdeen North.A copy of this letter is also annexed to document production 4/1.At the hearing on 19 November the pursuer was given the opportunity of a deferment to enable him to seek legal advice and representation.The pursuer declined this offer and elected to represent himself.

     

11. The Licensing Committee first heard the representative of Police Scotland speak in support of it’s letter of objection.

     

12. The pursuer then addressed the committee.He initially took exception to the competence of Police Scotland’s letter of objection on the ground that it was not timeously submitted.That representation was correctly repelled by the committee.

     

13. The applicant referred to the said letter written by Frank Doran, M.P.

     

14. The applicant produced a letter written by a Chief Inspector of Police Scotland to Frank Doran, MP.After due consideration the committee declined to consider the terms of that letter.

     

15. The pursuer was given a full and appropriate opportunity to speak to his application and make such appropriate submissions to the committee as he wished.The pursuer was permitted, and indeed did, deny the allegations which formed the basis of the objection from Police Scotland and which were in similar terms to those raised against his earlier application.

     

16. The applicant was prevented from addressing the committee on the conduct of his earlier application, which had been refused, and earlier appeal which had upheld that refusal.

     

17. The application by the pursuer was refused by the Licensing Committee as, in their opinion, Mr Sood was not a fit and proper person to hold such a licence.

     

18. Production 4/1 is a copy of the Statement of Reasons issued by the defenders in respect of that refusal.

 

 

 

 

FINDS IN FACT AND IN LAW

 

1. In considering the application by the pursuer, in the procedures adopted and in reaching their decision, the defender licensing committee did not act contrary to natural justice.

    

2. In arriving at their decision, the defender licensing committee did not take account of any incorrect material facts.

    

3. In arriving at their decision, the defender licensing committee did not act in an unreasonable manner.

    

4. The decision of the defender licensing committee was not legally incorrect nor unfair nor unreasonable.

 

ACCORDINGLY,

 

repels pursuer’s plea-in-law number 1;  Sustains the defender’s plea-in-law number 1;  Refuses the pursuer’s appeal and dismisses the application;  Continues the cause

to 10 September 2014 at 10 am for a hearing on expenses; 

 

 

                                                                                    Sheriff

 

NOTE:

• [1]This is a summary application raised in terms of the Civic Government (Scotland) Act 1982, section 18 and schedule 1 wherein the pursuer craves the court to overturn the defender’s decision in respect of his application for the grant of a taxi driver’s licence in terms of section 13 of that Act.Schedule 1 sets out the procedural rules in respect of the licensing system.Article 18 of that schedule firstly permits an applicant to appeal to a sheriff against a decision to refuse his application and thereafter sets out the basis on which the sheriff may grant an appeal. This can be done only if the sheriff considers that the licensing authority in arriving at their decision (a) erred in law;(b) based their decision on any incorrect material fact;(c) acted contrary to natural justice or (d) exercised their discretion in an unreasonable manner.On granting any such appeal the sheriff may remit the cause back to the licensing authority for further consideration or may reverse or modify the decision.In this appeal the appellant seeks none of these things but craves that the decision be “overturned”.I interpret that crave as seeking to cover each of the options which are available to the court.It is not clear from the application on which grounds the appeal is raised, however, during the course of the hearing it appeared that the principal ground was that the defender had acted contrary to natural justice, in the manner of conducting the hearing (7(c)). There were also references to incorrect material facts (7(b)) and exercising discretion unreasonably (7(d)).

   

• [2]Article 18(8) of the schedule to the Act permits evidence to be led before the sheriff.Evidence was led.The pursuer gave evidence himself, but after leading evidence from Eric Anderson, a solicitor with Aberdeen City Council and Councillor Marie Boulton, a member of the defender licensing committee.The defender led evidence from Paul Connelly, a solicitor with Aberdeen City Council, Sergeant Barry Skinner, the police officer responsible for taxi licencing, Councillor Fraser Forsyth, the convenor of the defender licensing committee and Councillor Gordon Townson, a member of that committee.

   

• [3]Eric Anderson in evidence spoke to what occurred at the committee meeting.He is a solicitor who attends such meetings and gives legal advice to the committee.He has occupied this roll for 17 years.It was his position that the hearing had been conducted fairly, that the convenor had sought to assist the pursuer to answer the objections and to make positive submissions.He did not accept that the committee convenor had prevented the pursuer from commenting on the allegations made against him.He did agree that the committee convenor had sought to direct the pursuer away from attempts to criticise the previous decision of the committee and the appeal upholding that decision.He described the conduct of the committee as fair and the decision as fair.The pursuer had been the last to speak. Councillor Boulton’s evidence was that the pursuer had been distressed at the hearing.She claimed that prior to the hearing the committee had been told by the convenor to consider the new application relative to what had been done after the last decision and not before.She did accept that the pursuer had referred to the previous application and appeal.She accepted that the committee had come to a unanimous decision. In her view there had been no new evidence of what had taken place since the last application.She stated very clearly that at the hearing the police officer was allowed to speak to the allegations contained in the Police Scotland letter of objection but that Mr Sood was not allowed to refute those allegations.She stated that the convenor had advised the committee that they had to consider the application on its facts and that the police letter was part of the process.Given the content of the evidence from Councillor Boulton and following some discussion I then adjourned the appeal hearing so that the defender could consider it’s position, leaving it open to the pursuer to lead any further evidence that he chose at the point of the commencement.

   

• [4]The hearing recommenced on 2 July 2014 when I was advised that the defender still sought to contest the appeal.The pursuer then elected to give evidence on his own behalf.It was his position that he had been given an opportunity to respond to the police letter of objection but had it been interrupted on seven or eight occasions when he had sought to do so.He was told that he should not speak about the previous judgment or decision.He had not actually been allowed to speak about his position.Councillor Townson had commented that there was no need for further discussion on the basis for the previous revocation.He had made reference to comments in both the sheriff’s judgment and letter from Frank Doran, MP concerning the police report being unbalanced.He had not suggested that the court decision was unfair but had sought to deal with certain of the contents of the judgment.He had brought character references which had not been considered.In presenting his objection, the police officer had not sought to exclude those parts of the letter previously criticised in the sheriff’s judgment.

   

• [5]The defender then led evidence, firstly from Paul Conley, a solicitor with Aberdeen City Council with five years’ experience in licensing matters.He spoke to the role of solicitors in giving legal advice to the committee.He broadly confirmed the evidence given by his colleague, Mr Anderson.He agreed with his colleague about the difference between anonymous and anonymised complaints.He had been asked and had given the committee advice about how to consider the police objection and in particular had advised them not to take account of the comments relating to the outcome of an investigation by Rainbow Taxis as that might be regarded as a prejudiced investigation.He was satisfied that the pursuer had been given a full opportunity to comment on the content of the police letter.The pursuer had been urged by members of the committee to address the current application.He had been given four or five opportunities to speak to these issues.The committee had sought to direct him away from criticism of the previous decision and appeal.He had no recollection nor note of character references being tendered and refused.He did not believe that had happened.He considered that the committee had dealt fairly with the application and had given the pursuer the appropriate opportunities to present his application.There was no pre-meeting of the committee.There was no instruction from the convenor as to how the committee should approach the application. The pursuer had been given the last word before the decision. He disagreed with the evidence given by Councillor Boulton suggesting that she may have been confused or distracted in coming to that view.

   

• [6]The next witness was Councillor Gordon Townson, a retired police officer with three years’ experience as a councillor during which time he had served on the licensing committee.He described the hearing given to the pursuer as exceptionally fair.He confirmed that the convenor had given no directions to the other members of the committee as to how they should approach the application.He did not accept that he had interrupted the pursuer to suggest that further discussion on the allegations was unnecessary.He had noted that the pursuer had indicated that he had been in no trouble since the earlier decision had been made but had presented no other evidence nor submission on any change in his position in the period since the last refusal.When Councillor Boulton’s evidence was put to him he indicated that he considered that his recall was more accurate and that she was not recollecting the situation accurately.

   

• [7]Councillor Fraser Forysth then gave evidence.He is the chairman of the committee and has been so since April 2013.He did have a pre-agenda discussion with the legal advisor but did not discuss any of the applications.He spoke of the procedures involved indicating that it was no part of his function to advise or instruct the committee members how to come to a decision.As far as he was concerned the pursuer was clearly allowed to refute the allegations made against him and to talk about those.He did not know why a committee member had suggested otherwise.He did not believe that the legal team would have allowed him to act in the way that Councillor Boulton suggested.He considered that the conduct of the hearing had been fair and that the committee and its members had made every effort to allow the pursuer to speak in support of his application.There was absolutely no question of the committee curtailing it’s deliberations to enable a lunch break.Other than what he had said about the past incidents and the fact that he had not been in trouble since the last application there was little said by the pursuer in support of his application.He did recall him seeking to raise issues about the previous process and appeal and accepted that when that happened he had sought to get him to address the relevant matters.He specifically recalled giving him the opportunity of an adjournment so he could be legally represented.He was insistent that he did not, and could not, seek to guide or advise councillors and that if Councillor Boulton had suggested that she was confused.When it was put to him he referred to her evidence as entirely incorrect.

   

• [8]The final witness was Sergeant Barry Skinner, a police officer with 22 years’ experience, the last five of which had been involved in licensing.He had attended the hearing and spoken to the letter.He accepted that the court’s criticisms of the previous letters of objection were well founded but did not adequately explain why, that being the case, Police Scotland had chosen to reproduce the same letters for the committee.It was his clear recollection that the pursuer had been given appropriate and satisfactory opportunities to speak to and refute the points raised in Police Scotland’s letter.He also disagreed with the version of events presented to the court by Councillor Boulton.

   

• [9]In submission, Mrs Douglas for the pursuer stated that it had been established that the pursuer had not been afforded the appropriate opportunities as required by natural justice during the conduct of the hearing.In particular, she submitted that Councillor Boulton’s evidence should be accepted, that he had not been permitted to respond to the allegations in the letter from Police Scotland.He himself had given evidence that he had been continually interrupted and not allowed to respond.She submitted that the evidence of the convenor and Councillor Townson whilst claiming that the pursuer had adequate opportunities to respond to the allegations stated in part of their evidence that they had wished him to speak to new evidence.They said that their concerns had not been addressed but that was unlikely to be achieved if he was not allowed to deny the allegations.The convenor had appeared to regard the pursuer defending himself against the allegations as being him going off on a tangent.Both these witnesses, she submitted, had links to Police Scotland which raised issues of potential bias.The court should prefer the evidence of the pursuer and witness Boulton.The issue in this case was one of natural justice.It was necessary to afford applicants a full opportunity to respond at every hearing as required by natural justice.That had not happened.She referred to the authority Catscratch Limited v City of Glasgow Licensing Board (No. 2) 2002 SLT 503.Natural justice had been breached in this case as the issue was whether the defender had denied the pursuer the equality of treatment which is involved in the right to a fair hearing.They had so denied the pursuer.

   

• [10]Miss Carlyle for the defender submitted that the procedure had been fair and fully compliant with the requirement of natural justice.The pursuer confused the concepts of anonymous complaint with anonymised complaint and that had been explained by the solicitor witnesses.As could be seen from the written reasons the committee had not given weight to any of the objections which they considered had not been properly investigated.It was factually incorrect to suggest that the pursuer had been repeatedly stopped.Indeed, the committee had gone out of its way to let him present his application properly.He had sought to insist on dealing with the previous decision and appeal and had been asked by the chairman to direct his comments to his application.This was not the same as seeking new evidence.They wished to be addressed on the current application.It was not correct to suggest that he had not been allowed to refute the allegations made against him.He had been given numerous opportunities to address these but had chosen not to do so.The evidence of Councillor Boulton was entirely different from that of all the other witnesses, excluding the pursuer.It seemed that those witnesses had been paying more attention.She submitted that Councillor Boulton was simply confused and her evidence was not credible.

   

• [11]She referred to the case of Piper v Kyle & Carrick District Council 1988 SLT 267. The court could not look into the minds of each of the councillors on the committee.Even if one committee member was prejudiced, or taking the decision on a wrong basis, that did not necessarily invalidate the decision of the committee taken as a whole.The evidence as a whole did not support the pursuer’s position that he was not allowed to lodge character witness statements.It did not support his position that the committee had curtailed their deliberations to enable an early lunch.He had been offered the opportunity to have the case adjourned so he could have legal advice and representation.He had been given the chance to address the committee at the end of submissions.He had the last word.The committee had taken the unanimous view that there was nothing in the submissions to suggest that he was now a fit and proper person to hold a licence and they accordingly had no option but to refuse the application.

   

   

• [12]None of the reasons for upholding an appeal had been met by the evidence.The committee had weighed up the evidence and having nothing to confirm that the pursuer was a fit and proper person had acted reasonably.She referred to the case of Ranachan v Renfrew District Council 1991 SLT 625 confirming that the test, at appeal, was whether the decision of the licensing authority was so unreasonable that no reasonable authority could have reached it.She referred to Ferguson v Dundee City Council [2006] CSIH 51 as authority for the proposition that the licensing committee had a wide discretion and were entitled to proceed on the basis of any type of material which has a bearing on the question before them.It was for the committee to decide on issues of sufficiency and quantity and what weight to be given to the evidence.In this case they had taken the correct approach in dealing with the information provided in the Chief Constable’s letter of objection.She referred also to Middleton v Dundee City Council [2001] SLT 287, confirming the proposition that the decision on propriety and fitness to hold a taxi licence had been delegated to local committees and that the court should be slow to seek to regulate issues as relevant or irrelevant.She accepted that the police letter contained items which had previously been criticised by the court.Sergeant Skinner had explained his reasoning.It was not ideal but the committee had approached that issue responsibly and in an appropriate manner.The committee had not erred in law.They had not exercised their discretion in an unreasonable manner.There was no basis for upholding the appeal and it should be dismissed.In the event that the court did uphold the appeal, she requested that the case be remitted back to the committee rather than the decision reversed.

   

  My decision

• [13]In my opinion this case turns on the relatively discreet point as to whether the pursuer was given adequate and appropriate opportunities to challenge the substantive allegations against him or whether he was prevented from so doing.It is important to draw the distinction between challenging the allegations and challenging the previous decisions.It is, of course, wholly inappropriate for an applicant to reapply following upon an earlier refusal and then proceed to endeavour to challenge that earlier decision and the outcome of a failed appeal against that decision.Had he wished to do so he should have sought to take the matter of his first appeal further.The committee were therefore fully entitled to disregard and indeed consider as irrelevant any claim made by the applicant as to the validity of the earlier decision or appeal.Where an element of confusion arises in this case is that the substance of the objection is the same as that presented in the earlier proceedings.The pursuer was accordingly entitled to submit on his position with regard to these allegations themselves, particularly as they have not been judicially determined, but not to challenge the process by which his previous application had been refused.

   

• [14]I found the evidence of the two solicitors, the two councillors and the police officer to be credible and compelling.I accept their version of events.I accept that the pursuer was given ample opportunity to address the substantive allegations against him.I think it may be fair to suggest that the process was a confusing one for him and he may have found it difficult to distinguish between the earlier procedure and the substantive allegations but it does appear that on a number of occasions the committee chairman did what he could to explain to, and assist the pursuer in focussing on the relevant issues.It is perhaps unfortunate that he was unrepresented, as a legal representative might well have been able to present his case in a more focussed and relevant fashion, but I am satisfied that he was given that opportunity and that it was he who decided to proceed without such assistance.

   

• [15]Given the consistent, credible and reliable evidence of five witnesses, I have to reject the evidence of Councillor Boulton.It is a matter of concern that a senior councillor should apparently have such a poor recollection of what is a quasi-judicial process or should have misunderstood the proceedings before her to such a marked extent.I will comment no further.

   

• [16]Had I accepted the evidence of Councillor Boulton I would have allowed the appeal as the circumstances which she described would indicate that the hearing was not properly conducted and the applicant was not given a fair hearing in accordance with the principles of natural justice.

   

• [17]I also consider that the approach of Police Scotland to the submission of their letter of objection is a matter of considerable concern.They were fully aware of the criticisms made of their letters of objection in the earlier proceedings.Sergeant Skinner gave evidence to the effect that he accepted those criticisms to be valid.Nevertheless, they took a decision simply to recopy the same poorly prepared letter of objection as the main thrust of their new objection.No satisfactory explanation was provided by the Sergeant.The impression is that they simply could not be bothered to formulate an appropriately worded document.Given that they are fully aware that this is a submission to a lay committee, I find this to be irresponsible and highly disrespectful to all concerned, in particular to the pursuer to whom the success of failure of his application is of high importance.Notwithstanding this unsatisfactory situation I am satisfied that the defender committee dealt well with the content of that letter of objection.

   

• [18]The reality of this situation is that the committee previously held the pursuer not to be a fit and proper person to hold a taxi licence.That decision was upheld.I do not think that the committee and it’s members were unreasonable therefore in seeking information which could lead them to the view that in the interim period the pursuer’s category of fitness had improved to the extent that he could now be trusted with a taxi licence.Other than the lack of adverse incident in the interim period there was no material before the committee which might justify a positive outcome in the present application.Indeed, the pursuer’s attitude and approach to these proceedings might well have been a factor in justifying their coming to the opposite conclusion.

   

• [19]The current appeal is based primarily on the issue of fair conduct of the hearing.I am satisfied that the pursuer was given a fair hearing and one fully compliant with the principles of natural justice. There is no claim that there was an error in law. There is nothing to justify any claim that the defender’s decision was based on any factual error. I am further satisfied that in all the circumstances the committee was entitled to come to the decision which it reached.I do not consider that it exercised it’s discretion in an unreasonable manner. It’s decision was one which was well within the range of reasonable decisions which were open to it.Accordingly, this appeal will be refused.

   

• [20]It is not appropriate for an appeal court to seek to substitute it’s own view for that of the committee. In this case I can find no error in the defender’s conduct of the hearing

   

• [21]I was not addressed on the issue of expenses of the appeal and I have accordingly set this case out for a hearing on expenses on 10 September 2014.

 

 

 

 

 

Sheriff M. Garden

Sheriff of Grampian Highland and Islands at Aberdeen

 

ABERDEEN, 20 August 2014.

 

 

Cases cited to the court

 

Catscratch Limited v City of Glasgow Licensing Board 2002 SLT 503

Piper v Kyle & Carrick District Council 1988 SLT 267

Ranachan v Renfrew District Council  1991 SLT 625

Ferguson v Dundee City Council 2006 CSIH 51

Middleton v Dundee City Council  2001 SLT 287