SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] CSIH 45 XA104/10 OPINION OF THE LORD JUSTICE CLERK In the appeal by FIFE AREA REGULATION AND LICENSING COMMITTEE Appellant; against ROBERT JAMES EWING Respondent: _______

For appellant: Artis; Balfour and Manson, LLP

For respondent: No appearance

26 April 2011

Introduction

[1] This is an appeal against an interlocutor of Sheriff McCulloch at Kirkcaldy Sheriff Court dated 8 July 2010 by which he allowed the respondent's appeal against a decision of the appellant to refuse to renew his taxi driver's licence.

The facts

[2] The respondent applied for the licence in late 2006. He had by then committed a speeding offence for which he had incurred a fixed penalty of £60 and three penalty points. In January 2007 the appellant granted the licence, but warned the respondent in relation to the offence. The appellant was unaware that in October 2006, again before applying for the licence, the respondent had committed a further speeding offence, for which he had again incurred a fixed penalty of £60 and three penalty points.

[3] In February 2008 the respondent applied for the renewal of his licence. The second speeding offence then came to the appellant's notice. The appellant renewed the licence, but with a severe warning as to the respondent's future conduct.

[4] In March 2008 police officers saw the appellant driving his taxi in Kirkcaldy with four passengers in the back. The back seat could accommodate three adults at most. One passenger was unrestrained and was sitting on another's lap. For having driven with an overcrowded taxi, he incurred a further fixed penalty of £60 and three penalty points.

The decision of the committee

[5] In February 2009 the respondent applied for a further renewal of the licence. The police objected on the basis of his three driving offences. On 24 November 2009 the appellant considered the application. It refused it on the ground that the respondent was no longer a fit and proper person to hold the licence (Civic Government (Scotland) Act 1982, Sch 1, para 5(3)(a)(ii)). In a letter to the respondent's solicitors dated 4 February 2010 the appellant set out the reasons for the decision. It referred to the speeding convictions, noting that on both occasions the respondent had driven at 10mph over the speed limit, and to the two warnings. It then referred to the incident in March 2008 and set out its overall conclusions as follows:

"The Committee noted the incident at 11.40 pm on 20th March 2008 in Kirkcaldy where the Police observed four fare paying passengers within the rear of your client's vehicle, with one of them seated upon another's lap.

The Committee were advised that your client was not aware that there were five people in his taxi. The Committee, notwithstanding that, was of the opinion that your client must have been aware of the number of people in his car and that it was overcrowded. The Committee had concerns not only for the safety of your client as driver and his passengers but also for pedestrians and other road users. The Committee was also concerned about the risks posed by an unrestrained passenger in the rear of the vehicle and that your client had allowed that situation to arise.

The Committee, overall, was concerned about your client's driving behaviour evidenced by his failures to adhere to road traffic legislation. He had been formally warned about this on two occasions, once in 2007 and again in 2008. The Committee was of the opinion that your client's conduct regarding safety fell short of what it expected of a licensed taxi driver and it no longer considered him to be a fit and proper person to hold a taxi driver's licence being the grounds (sic) of refusal set out in paragraph 5(3)(a)(ii) of schedule 1 to the Civic Government (Scotland) Act 1982. Your client's application was, accordingly, refused. The decision was unanimous."

[6] The respondent appealed to the sheriff.

The sheriff's decision

[7] Before the sheriff the respondent founded on a précis of previous decisions taken by the appellant on similar licence applications. He had not produced this material at the hearing before the appellant. The précis was said to show that the appellant had granted licences to applicants who had more penalty points than the respondent, and that it regularly gave licence-holders at least one further warning when an initial warning had been followed by the commission of an offence.

[8] We have looked at this document. It is a list of all the decisions taken on taxi licence applications since June 2007. In each case it records inter alia the previous convictions and penalties incurred by the applicant and the appellant's decision; but gives no information as to the circumstances of the case or of the applicant.

[9] The sheriff rejected the pleas for the respondent that the appellant had been in breach of natural justice and had based its decision on an incorrect material fact. These were hopeless points.

[10] The sheriff then considered whether the decision was unreasonable. In his view, there had been "a huge disparity" in the range of disposals made by the appellant in applications of this kind. He considered that the appellant should act in a uniform and consistent way, subject always to variations of approach depending on the personnel sitting on the committee from time to time. Nevertheless the overall approach must be transparent, consistent and fair. He said that the very existence of the précis gave an objective onlooker cause for concern. He accepted that the précis was not before the appellant on the occasion of the hearing and that it contained partial information only. However he concluded that it lent weight to an overall approach that was broadly lenient with repeated opportunities given to those who might have acquired penalty points and warnings. The respondent had not been given such an opportunity. His one misdemeanour after the grant of his first licence had been deemed sufficient to have him fail the test of fitness. This, in the sheriff's view, was an unreasonable exercise of the appellant's discretion. Since the two speeding offences had occurred before the licence was granted, it was to be assumed that the appellant had accepted that the respondent was a fit and proper person when it granted the licence and the first renewal of it. The offence in March 2008 had merited only a fixed penalty. It had occurred over a short period. It was the only matter that had occurred since the licence was granted.

[11] The sheriff also considered that the decision was so out of line with the appellant's previous practice that it must be considered to be arbitrary and, as such, to be one that no reasonable committee could have made.

[12] The sheriff quashed the decision and granted the licence. Per incuriam, in his interlocutor he sustained the respondent's second plea in law, which was to the effect that the appellant had acted in breach of natural justice. He had reached the opposite conclusion in his note. On any view, that part of his interlocutor cannot stand.

Conclusions

[13] The starting point in our consideration of the appeal is the decision of the appellant. Whether an applicant is a fit and proper person to hold a licence is a matter for the appellant to judge on the information put before it.

[14] After the respondent's first fixed penalty for speeding the licence was granted with a warning in relation to that offence. Thereafter it came to the notice of the appellant that the respondent had incurred a second fixed penalty for speeding just over two months after the first and before the date on which the licence was granted. The licence was renewed, but with a severe warning. The incident that resulted in the third fixed penalty occurred only about six weeks after that renewal. That incident had put the respondent's passengers at considerable risk. The respondent had admitted his guilt of the offence by accepting the fixed penalty. The appellant was entitled to regard his conduct as having been irresponsible. With these three offences the respondent incurred nine penalty points within a period of 20 months.

[15] Taking all of that into account, the appellant was entitled, in my opinion, to hold that the respondent was not a fit and proper person to hold the licence.

[16] In my opinion, the sheriff has seriously erred in his reasoning. He concluded that the appellant found against the respondent on the basis of his one misdemeanour after the grant of the first licence. That is a misunderstanding of the decision. The sheriff seems to have thought that because the appellant granted and renewed the licence despite the speeding offences, it was not entitled to take them into account after the third offence had occurred. I disagree. The first licence had been issued with a warning. The first renewal had been granted with a severe warning in light of the second conviction. In these circumstances, in my opinion, the occurrence of a further offence only six weeks after the first renewal, and the nature of that offence, entitled the appellant to conclude that the respondent was no longer a fit and proper person to hold the licence. In my opinion, that approach cannot be faulted.

[17] In my opinion, the sheriff should have declined to receive the précis as a production since it contained evidence that was not before the appellant. But I think that having received it, he should have given no weight to it. I can see nothing in the précis that could justify his concluding that the disparities in the range of disposals, however "huge" they may have seemed to him, gave the objective onlooker any cause for concern. Every decision of this kind depends on the facts and circumstances of the case. The précis is, in the sheriff's own words, "partial information only." On its own, it tells us nothing about the facts and circumstances of each case, or of the convictions listed; and it tells us nothing about the personal circumstances of the applicant or of any considerations that he urged upon the appellant at the hearing. I therefore fail to see how the sheriff could draw from this précis the sweeping conclusion that the appellant took an overall approach that was broadly lenient, with repeated opportunities given to those who might have acquired penalty points and warnings.

[18] For the same reasons, I consider that the sheriff erred in concluding that the decision appealed against was so out of line with all of those in the précis that, despite the shortcomings inherent in the précis, the decision must be considered to be arbitrary, and as such unreasonable. There might be a case in which, on cogent evidence, a sheriff would be entitled to judge that the decision appealed against displayed such inconsistency with the committee's settled policy and practice as to be unreasonable. But that is not the case here. With nothing by way of supporting evidence, the précis gave the sheriff no proper basis for an informed comparison of the decision appealed against with any of those listed; and therefore no proper basis for his conclusion. In my view, there was nothing arbitrary about the decision at all. It was amply warranted on the evidence.

[19] I am further of the view that a document that gives such scant information as the précis in this case is, on its own, of little help to a licensing committee and may positively mislead it. There is a danger that the committee may be persuaded to make whatever decision seems to it to be most in line with a previous decision that is superficially similar. The committee may therefore lose sight of its duty to have regard to the facts and circumstances of the case before it and to the submissions made at the hearing.

Disposal

[20] I propose to your Lordships that we should sustain the appeal, recall the sheriff's interlocutor and restore the appellant's decision.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] CSIH 45 XA104/10 OPINION OF LORD EMSLIE In the appeal by FIFE AREA REGULATION AND LICENSING COMMITTEE Appellant; against ROBERT JAMES EWING Respondent: _______

For appellant: Artis; Balfour and Manson, LLP

For respondent: No appearance

26 April 2011

[21] For the reasons set out in your Lordship's opinion, I am in full agreement with the suggested disposal of this appeal. Since there was no contradictor, however, I would wish to reserve judgement as to the potential significance, in other cases, of properly supported comparative data tending to indicate that a licensing authority may have exercised its powers in an arbitrary or unreasonable manner.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] CSIH 45 XA104/10 OPINION OF LORD BRODIE In the appeal by FIFE AREA REGULATION AND LICENSING COMMITTEE Appellant; against ROBERT JAMES EWING Respondent: _______

For appellant: Artis; Balfour and Manson, LLP

For respondent: No appearance

26 April 2011

[22] I agree with the reasons given by your Lordship in the chair and have nothing further to add.