Irvine v Dundee City Council [2004] ScotSC 52 (09 August 2004)

JUDGMENT by SHERIFF F. R. CROWE, Sheriff of Tayside Central and Fife at Dundee i.c. MATTHEW JAMES MORAN IRVINE PURSUER against DUNDEE CITY COUNCIL DEFENDER Act: A Fraser, Solicitor, Messrs Muir Myles Laverty, Solicitors, Dundee Alt: M. Moran, Solicitor, Dundee City Council DUNDEE, 9th August 2004 The Sheriff having resumed consideration of the cause Repels the plea-in-law for the Appellant, upholds the plea-in-law for the Respondents and dismisses the appeal; Finds no expenses due to or by either party. Introduction [1] This is an appeal by way of summary application under Schedule 1 paragraph 18 to the Civic Government (Scotland) Act 1982 ("the Act") following the refusal to grant a taxi driver's licence at the Respondents' Licensing Committee ("the Committee") when it met on 6 th November 2003. [2] A statement of reasons was sent to the Appellant's solicitors by the Respondents by letter dated 21 November 2003. Proceedings by way of a summary application were raised on 17 December 2003. After sundry procedure a hearing took place 27 April and 17 June 2004. The Appellant was the only witness to give evidence. FACTS [3] I found the following facts admitted or proved:- The Appellant is 32 years of age and currently in employment as a tiler's labourer. In June 2003 the Appellant made application under the Act for a taxi driver's licence. His application was considered by the Committee at their meeting on 6 November 2003 but refused. By letter dated 27 October 2003 Tayside Police objected to the grant of a taxi driver's licence to the Appellant on the grounds that he might not be "a fit and proper person" to be the holder of such a licence on the basis of his previous convictions. The Appellant's previous convictions were as follows:- Date Court Crime/Offence Disposal (i) 1/9/92 Perth Sheriff Summary 1. Reset 1. PG Fined £100 2. Fraud 2. PG Fined £100 & £400 Compensation Order (ii) 24/9/92 Dundee Sheriff Summary Misuse of Drugs PG Fine £25 Act 1972 s 5(2) (iii) 10/2/94 Dundee District Breach of the Peace PG Fine £80 (iv) 24/7/03 Dundee Sheriff Fraud 80 hrs Community Service Order £1439 Compensation Order (5) Previous conviction (i) occurred when the appellant was 22. He was given a stolen credit card and used it to buy goods valued at £400. (6) Previous conviction (ii) related to the Appellant's possession of a quarter ounce of cannabis resin which had cost £25 to buy on a black market. Previous conviction (iii) involved an altercation outside a nightclub between the Appellant and another man who was also arrested by police. So far as conviction (iv) is concerned the Appellant had held a public house licence for 3 public houses from 1999 until April 2003. Latterly the Appellant had leased part of a public house where he was the licence holder. He had an agreement with the owner of the premises to promote live music. He was paid by an advertising company for advertising space. The advertising company sent the Appellant a cheque for £1439 in his name. The Appellant believed he was entitled to the money and cashed the cheque. The Appellant subsequently ended his business relationship with the owner of the premises. It then transpired the Appellant was not entitled to the cheque money. The Appellant tried to resolve matters with the owner but by then the circumstances had been reported to the police. The Appellant was prosecuted for fraud and pled guilty to the charge through his solicitor. Background reports were obtained and the Appellant was convicted and punished as shown in finding 4(iv) above. The Appellant had passed the topographical test for taxi drivers and had received an offer of employment as a taxi driver conditional on his holding a valid taxi driver's licence. He had also passed the required medical examination for a taxi driver. On 5 November 2003 the Committee refused the Appellant's application. By letter dated 21 November 2003 the Respondents provided a statement of reasons to the Appellant's solicitors in the following terms:- "The Licensing Committee refused your client's application for a taxi driver's licence because they were of the opinion that your client is not a fit and proper person to be the holder of a taxi driver's licence. The Chief Constable of Tayside Police objected on this basis because of his (sic) previous convictions which are listed in the copy objection appended hereto. The Committee took into account all that the applicant's agent had to say about the background to these convictions but took the view that your client's record, and particularly those convictions relation (sic) to dishonesty, indicated that he was not a fit and proper person to hold a licence which enabled him to drive or otherwise have charge of a taxi." The hours of community service were completed by the Appellant by early 2004 and the compensation order referred to at finding 4 (iv) was paid in cash promptly after conviction in July 2003. On 6 November 2003 the Appellant was not a fit and proper person to hold a taxi driver's licence. FINDINGS IN FACT AND LAW [4] (1) That on 6 November 2003 the Committee considered in particular the Appellant's convictions for fraud listed at findings [3](4)(i) and (ii) above. At that time the Appellant was still undertaking hours of community service in connection with the latter conviction. (2) The Committee were entitled to look at both convictions in light of the Rehabilitation of Offenders Act 1974 as amended by the Rehabilitation of Offenders Act 1974(Exclusions and Exceptions)(Scotland) Order 2003 S. I. 231 and in terms of Morton -v- City of Dundee District Council 1992 SLT (Sh Ct) 2. In light of these convictions and their gravity the Committee were obliged to hold that the Appellant was not a fit and proper person to hold a taxi driver's licence. FINDINGS IN LAW [5](i) That the Committee did not act in an unreasonable manner in deciding that the Appellant was not a fit and proper person to hold a taxi driver's licence and refusing to grant him such a licence. That no expenses be due to or by either party. NOTE [6] In general I found the Appellant's evidence fairly credible although I did find some of his answers in relation to his last conviction at odds with the averments in the application. [7] The Appellant explained how he was asked and gave an explanation to the Committee about his first and last previous convictions. The Committee did not ask for details of his other convictions. [8] As regards the conviction specified at [3](4)(i) above, the Appellant said that he had been playing football at Ardler, Dundee and had been given a credit card from a friend which had been stolen from changing rooms there. The Appellant had used it to buy goods valued at £400. [9] So far as the convictions referred to at paragraph [3](4)(ii) above is concerned this had involved the Appellant being found in possession of a quarter ounce of cannabis resin which he had purchased for £25. The Committee had asked for no details of this conviction. [10] In relation to the conviction referred to at paragraph [3](4)(iii) the Appellant explained that he had been out for the night at Fat Sam's Nightclub and had been assaulted. He had assaulted his assailant and both he and the other man had been arrested. The Committee had not asked for details of this matter. [11] As regards the Appellant's last conviction detailed at [3](4)(iv) above, he had been employed as a manager and promoter at a public house which featured live music. The premises which the Appellant had leased and was the licence holder of, were used for advertising purposes but the money paid by the advertising agency was supposed to revert to the owner of the premises in terms of the lease. [12] The advertising agency telephoned the Appellant and told him it was due to pay for advertising and would he arrange for an invoice to be forwarded. The Appellant forwarded an invoice with his own VAT number on it and in due course received a cheque which he cashed himself. The Appellant felt he had been morally entitled to the money if not legally entitled. [13] A few months later the Appellant left to go and work elsewhere and a complaint was made to police about the money by the owner of the public house. The Appellant said he could not get the money together in time to pay the owner so the police reported a case. The Appellant said that at the time he had received a call from the advertising agency he had been working in cramped conditions in a small office and had put the wrong VAT number on the invoice by mistake. [14] When the case came to court the Appellant was represented by his former solicitors and through them pled guilty to a charge of obtaining £1439 by fraud. Background reports were called for and at the adjourned hearing an attempt was made to withdraw the plea of guilty on the basis that it had been tendered on a mistaken belief. The Sheriff refused to allow the plea to be withdrawn and sentenced the Appellant to 80 hours' Community Service and ordered the £1439 of money to be repaid by way of a compensation order. [15] The Appellant did not appeal the Sheriff's decision to refuse to allow the guilty plea to be withdrawn or the sentence imposed. The Appellant paid the compensation promptly in full and completed the hours of community service by the end of March 2004. He had worked each Saturday to avoid conflict with his present hours of employment. The Appellant claimed that he had had "problems in his life" during the early part of 2003 his "head was mixed up" and he did "not fully understand" the implications of the proceedings. He had in fact offered to pay at an earlier stage but had been told it was "too late". [16] The Appellant said that he felt he did not get much of a hearing from the Committee. He said that Committee members were laughing and joking and did not appear to take his case seriously at all. The Committee had sat on three sides of the Appellants in a very large room. Three members of the Committee had faced him and done all the talking but the others had seemed not to pay much attention. [17] The Appellant could not understand how having had 3 previous convictions he had been considered a fit and proper person to hold public house licences and felt it was only the unfortunate circumstances of his last conviction which had unfairly been counted against him. [18] I was concerned about the allegations made by the Appellant that the Committee had not been seen to be acting fairly. I adjourned the case on 27 April 2004 in order that parties could consider whether to lead any further evidence. In the event no further evidence was led by the Appellant and none was led by the Respondents. I was invited to consider the matter solely on the Appellant's pleadings that the Committee had acted wholly unreasonably in refusing the application for a taxi driver's licence. APPELLANT'S SUBMISSIONS [19] Mr Fraser said that the Appellant had given a full explanation of the circumstances surrounding his most recent conviction. He considered that it had been unreasonable for the Committee to refuse the application for a taxi driver's licence. Clearly the earlier convictions had not caused the Appellant difficulties when obtaining public house licences in the past and it could only be the most recent conviction which had frustrated the Appellant's application. RESPONDENT'S SUBMISSIONS [20] Miss Moran began by explaining that the Committee's approach was to consider whether the Appellant was a fit and proper person to hold a taxi driver's licence. In terms of Paragraph 5(3)(a)(ii) of Schedule 1 to the Act the Committee are obliged to refuse an application for a licence where in their opinion they determine the applicant is not a fit and proper person. [21] I was referred to Din -v- City of Glasgow District Licensing Board 1996 SLT 363 in respect of that proposition. In the present case Miss Moran submitted there had been sufficient material before the Committee in terms of the Appellant's first and last previous convictions for them to hold that he was not a fit and proper person and therefore oblige them to refuse the licence application. Indeed they had been entitled to consider all of the Appellant's convictions but the evidence given by the Appellant supported the Respondent's statement of reasons that particular attention was paid to the conviction for dishonesty. [22] In terms of Ward -v- City of Dundee Council 1999 SLT (Sh. Ct.) 56 there had to be an element of culpability on the part of the Appellant before he could be declared not to be a fit and proper person to hold a licence. In the present case the Appellant had pled guilty to a serious charge of fraud a few months before his application was heard by the Committee. Notwithstanding the Appellant's explanations, the fact remained that he had been committed of fraud. This conviction coupled with an earlier one for a cognate offence gave the Committee ample material upon which to reach the conclusion which he did and refuse the application. [23] I was referred to Middleton v Dundee City Council 2001 SLT 287 where the Court upheld the decision of the Licensing Committee to suspend an operator's taxi licence following various road traffic convictions for driving and contravention and use contraventions. [24] In delivering the opinion of the court in Middleton Lord Philip stated at paragraph [6] "The Committee went on to make it clear in their decision letter that they did not have regard to the convictions from the point of view of the respondent's fitness to drive a vehicle providing a public service, but looked at the totality of matters brought to their attention with a view to determining whether he was a fit and proper person to be the holder of a licence. They concluded that the information before them disclosed a pattern of irresponsible behaviour which created a picture of "an individual with scant regard for authority". In our view the approach of the Committee cannot be faulted. Having considered the material before them they asked themselves the right question and duly came to a view which cannot be characterised as unreasonable." Miss Moran said these words were clearly in point in the present case. [25] It was Miss Moran's contention that some of the Appellant's convictions were not such as to render him unsuitable to hold a public house licence. MacDonald -v- Cunninghame District Council 1987 SLT 662 was authority for the proposition that different considerations might apply when the Committee was considering different types of licensing application. A driving-type conviction might have no relevance to an application for a taxi operator's licence and vice versa, Some operator-type convictions might have little relevance to an application for a licence to drive a taxi. [26] Miss Moran further referred me to Piper v Kyle & Carrick District Council 1988 SLT 267. In that case objection was taken to the attitude of one of the members of the licensing committee who indicated that he would refuse to renew the licence of any driver who had incurred a road traffic conviction since the licence was granted. In that case the Inner House had stated when refusing the appeal at p. 209: - "The fact that the committee did hear the appellant's representative and considered his personal circumstances shows quite plainly that they were not applying a rigid rule and were not disabling themselves from exercising their discretion in this particular case. We should add that in general the court will not attempt to look into the minds of individual members of a committee which is exercising a discretion. What is in issue is the collective exercise of discretion by the committee. However, in the present case, even if one does have regard to what this particular member is alleged to have stated, we are not satisfied that anything which he said was sufficient to vitiate the committee's collective exercise of their discretion in dealing with the appellant's application." It was Miss Moran's submission that both the Appellant's evidence and the statement of reasons bore out that the Appellant's personal circumstances had been properly considered. [27] In terms of the Rehabilitation of Offenders Act 1974 (Exclusion and Exceptions) (Scotland) Order 2003 the Committee had been entitled to consider all of the Appellant's convictions even those which otherwise were spent. The Appellant's solicitors had presented the application in November 2003 without appreciating the recent change in the law that had come into force at the end of March 2003. They had drafted the summary application in line with the previous legislative position but now seemed to accept that the Committee had been entitled to consider in particular not only the last of the Appellant's convictions but also his first one which had been of a similar type. When the Appellant had obtained public house licences in previous years the law had been different and the committee dealing with these applications had not been able to consider spent convictions. [28] As regards the Appellant's last conviction the committee had been entitled to rely on its terms since it preceded upon a plea of guilty tendered with the benefit of legal advice. [29] Furthermore Miss Moran stated that while the Appellant had alleged the Committee had not listened to his representations no other evidence had been led in support of this contention nor had the aspect of the Appellant's evidence been pled in the summary application to suggest that the Committee's decision amounted to a breach of natural justice. [30] In conclusion Miss Moran contended that at the application hearing on 6 November 2003 the Committee had given the Appellant the opportunity to present his case fully. The Committee had considered the personal and other circumstances relating to the Appellant. There was no evidence to suggest that the Committee had acted in an unreasonable manner; Cashley -v- City of Dundee District Council 1994 SLT 1111. There was ample information to show that the Committee had acted reasonably. Wardie Property Co Ltd -v- Secretary of State for Scotland 1983 SLT 345. DECISION [31] During the hearing two matters of concern arose. When I first began to hear the evidence of the Appellant I was concerned least it had been myself who had dealt with his last criminal conviction. In the event the relevant case papers were produced and it was clear that I had not previously seen the case or heard any of the circumstances. [32] My colleague Sheriff Dunbar recorded the plea of guilty when the case first called and the Appellant was represented by a solicitor. Thereafter my colleague Sheriff Pyle heard representations about whether the plea of guilty should be allowed to be withdrawn. He refused this motion and proceeded to sentence the Appellant in light of background reports which had been previously called for. [33] Standing the serious view taken of the Appellant's last conviction in the Sheriff Summary Court it is significant that no appeal was taken either against the Sheriff's decision to refuse to allow the motion to withdraw the plea of guilty and the sentence itself; MacNeill -v- MacGregor 1975 JC55; MacGregor -v- MacNeill 1975 JC57; McClung -v- Cruickshank 1964 JL 64; Tudhope -v- Campbell 1979 JL 24; Smith -v- Carmichael 1987 SCCR 735; Crombie -v- Clark 2001 SLT 63. [34] I can well see how Sheriff Pyle refused to allow the plea of guilty to be withdrawn given that the Appellant was an adult accused who already had a number of previous convictions and therefore could not be said to be unfamiliar with court proceedings and outcomes and the fact that the Appellant was represented by an experienced solicitor when the plea of guilty had been tendered. [35] It is clear that the evidence given by the Appellant at the hearing was substantially the same as that given to the Committee when the application for licence was being considered. [36] On the one hand the Committee would be entitled to rely on the fact of the conviction unless the contrary was proved; Law Reform (Scotland) Act 1968 Section 10(2) but on the other hand the evidence given by the Appellant was not entirely inconsistent with a plea of guilty and different in some respects from the position advanced in Condescendence 7. [37] In evidence the Appellant had made clear that the advertising company had asked him to submit an invoice to enable advertising dues to be paid. The Appellant had mistakenly or otherwise given the advertising company his own VAT number rather than that of the owner of the premises who was apparently entitled to advertising dues in terms of the lease. The Appellant then received a cheque in his own name which he cashed himself and applied the money to his own use. [38] It is clear from the information supplied by Tayside Police to the Committee that the alleged fraud had occurred sometime during 2002. The case of fraud did not call in Dundee Sheriff Court until June 2003 and the Appellant was not sentenced until 24 July 2003. At no time prior to that had the Appellant reimbursed the owner of the public house premises for the money he had obtained. The Appellant did say that he had offered to pay but he "couldn't get the money together in time to get the charges dropped". This evidence seemed to me to confirm the element of culpability on the part of the Appellant necessary before he could be declared not to be a fit and proper person to hold a licence in terms of Ward -v- City of Dundee Council (supra). [39] I was mindful, as I am sure the Committee would also appreciate, that persons who are in the position that the Appellant was, as a bar manager and lessee are required to sign agreements which place all of the risks and duties on themselves and put the lessors in the most advantageous position. [40] Be that as it may the Committee were left with the Appellant's application to consider against the context of a recent conviction for a fraud involving a breach of trust and the failure to account for a significant sum of money. At the time of the application hearing the Applicant was still in the throes of carrying out his community service. It would hardly be surprising in such circumstances for a Committee to refuse to grant a licence when an applicant is in such a position. A community service order is imposed as a direct alternative to a prison sentence and offenders in breach of such an order run the risk of being sent to prison. [41] In light of the Appellant's recent conviction for fraud the Committee were entitled to look at his first conviction albeit that it was in 1992 which disclosed a serious act of fraud involving the obtaining of property valued at £400; Morton -v- City of Dundee District Council 1992 SLT (Sh Ct) 2. [42] It is not surprising therefore and entirely reasonable in my view for any committee faced with an applicant with two convictions of this sort to be seriously concerned whether it would be appropriate to allow a person to operate in a position which requires public trust and proper accounting to both members of the public as paying passengers and licensed taxi operators looking to employ a taxi driver from the ranks of those awarded driver licences by the local authority. [43] Taken together these circumstances cannot be said to be trivial and the Committee would be entitled to consider and give weight to what they conceived to be the interests of the whole public; Hughes -v- Hamilton District Council 1991 SLT 628; Middleton -v- Dundee City Council (supra). [44] Put another way it was for the Committee to determine whether the Appellant's convictions bore upon his fitness to hold a taxi driver's licence. It could not be said that the Committee's decision was so unreasonable that no reasonable authority could have reached it; Ranachan -v- Renfrew District Council, 1991 SLT 625. [45] The other matter which had concerned me about these proceedings was the evidence given by the Appellant that members of the Committee had been laughing and joking during the hearing of the application and the majority would not have been paying attention to the proceedings. {46] I adjourned the hearing on 27 April 2004 when this evidence was given until 17 June 2004 to enable parties to consider whether they wished to lend any (further) evidence or amend their pleadings in any way. In the event no further evidence was offered I therefore only had before me the evidence of the Appellant and no motion was made by either party to amend their pleadings. In particular no motion for amendment was made on behalf of the appellant to aver that there had been a breach of natural justice by the Committee failing to hear or give due weight to the Appellant's intentions particularly in relation to his last conviction. [47] In these circumstances I could only limit myself to the reasons given in the Respondent's letter of 21 November 2003 that "the Committee took into account all that the applicant's agent had to say about the background to these convictions......." and consider whether the members of the Committee collectively exercised the discretion in an unreasonable manner; Piper v Kyle & Carrick District Council (supra). [48] As indicated it appears that the reasons given correctly homed in upon the Appellant's previous convictions for dishonesty, the two charges of fraud for which he was convicted in 1992 and 2003. The reason given was therefore succinct and entirely in point and not in any way bland or standard wording parroting the wording of the legislation c.f. Din -v- City of Glasgow District Licensing Board (supra) [49] For these reasons the application must fail. It may be that a subsequent application by the Appellant after a period of time has elapsed with no further relevant convictions may result in a committee taking a different view. That of course would be a matter for any such committee to consider the circumstances of the Appellant at that particular time and in particular in light of the fact that the compensation order specified in the last conviction had been paid promptly in full and the hours of community service had been completed in good time and without any further intervention form the Court. EXPENSES [50] I did in fact indicate my decision after submissions were made to me on 17 June 2004. In light of that I considered a motion from the Appellant's solicitor not to award expenses in line with success since the Appellant was an assisted person and of limited means. After hearing parties on the matter I agreed to make an order that no expenses be due to or by either party. 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