County of Herefordshire District Council v Prosser

THE DEPUTY JUDGE: This is an appeal by way of case stated from the decision of the Hereford Magistrates' Court on 18th July 2006, allowing Mr Prosser's appeal against the refusal by Herefordshire District Council, on 23rd May 2006, to grant him a dual Hackney carriage/private hire vehicle driver's licence.

Mr Savill has appeared on behalf of the appellant. Neither Mr Prosser nor any person on his behalf has appeared at this hearing.

The relevant chronology is as follows. On 17th March 2006 the respondent applied to the appellant council for a dual driver's licence. On 23rd May 2006 the appellant council's regulatory committee met to consider the respondent's application. The application was refused. On 16th June 2006 the respondent lodged an information at Hereford Magistrates' Court appealing against the decision to refuse his application. On 18th July 2006 there was a hearing of an appeal before the Hereford Justices and the appeal was allowed. On 27th July 2006 the appellant applied for the Hereford Justices to state a case. On 18th September 2006 the case stated was received by the appellant council. On 29th September 2006 the notice of appeal was filed and served.

The Justices found the following facts. First, Mr Prosser applied to the Regulatory Committee for a dual driver's licence Hackney Carriage and Private Hire on 23rd May 2005. Second, the Regulatory Panel considered Mr Prosser's antecedents which consisted of 14 appearances in court for offences including assaults, Public Order Act offences, criminal damage, driving offences and dishonesty offences. Third, based on this record, his application for a Hackney Carriage licence was refused as they were not satisfied that Mr Prosser was a fit and proper person to hold a licence. Fourth, the solicitor for the appellant referred the court to the case of Bernard Charles Adamson v Waveney District Council. The appellant's solicitor summarised the quantity and type of spent convictions the respondent had recorded against him and argued that these were relevant to the question of fact and suitability of the licence holder. The respondent solicitor did not object to their admission to the proceedings and the magistrates accepted they were relevant and decided to admit them.

The Justices heard evidence from Mr Prosser. They read a character reference from Mr Prosser's current employer and they were also referred to a job offer made to Mr Prosser by a radio taxi company. In addition the Justices heard submissions from solicitors appearing for Mr Prosser and for the council.

The statement of case records that the Justices considered Mr Prosser's spent convictions most seriously and they considered the nature of the offences. They took into account that there were matters of assault, threatening behaviour and driving related offences. However by the date of the hearing all the convictions were spent. The defendant had remained out of trouble for the previous 5 years. The Rehabilitation of Offenders Act 1974 sets out the position that sentences of imprisonment for less than 6 months become spent after 7 years and the final sentence becomes spent after 5 years.

The Justices were of the opinion that to refuse the granting of the licence purely on the grounds that his offences involved assault etcetera did not seem reasonable; although numerous and relating to assault and matters affecting public safety, his actions tended towards being at the less serious end of the spectrum and indeed several dated back to the early '90s. Given the nature and limited seriousness of the offences he had committed and his attempts to improve his behaviour since his last offence, it would be unreasonable to regard his spent convictions as still relevant. They were of the opinion that "whilst it is accepted that the more time between offences might indicate less risk of the committing of further offences, [they] believed that Mr Prosser had demonstrated by the improvement in his behaviour since his last conviction, that he had earned the right to expect [the court] to rely on the accepted position that convictions normally become spent after 5 or 7 years. His driving skills in themselves were not taken into account but what was noted was that he had made efforts voluntarily to improve himself and the Justices took this to be a demonstration of his intent to reform his character and to strive to observe the law. His efforts to put himself into a position to be a proper father to his child were also noted. The Justices did accept that the council had acted reasonably, based on the information they had when making their decision, and that one of the convictions was not at the time of their consideration spent. It was within the Justices' discretion to determine whether or not he was a fit and proper person to drive a Hackney Carriage. The Justices concluded that Mr Prosser was a fit and proper person to hold a dual driver's licence (Hackney Carriage and Private Hire) and therefore the council's refusal to grant him a licence was overturned.

The questions for the opinion of this Court were slightly unhappily worded and to make the questions more intelligible, with counsel's assistance, I have reworded them as follows:

Mr Savill submits that there were four errors of law on the part of the Hereford Justices: first, in a case concerning an applicant who had been sentenced variously to imprisonment, a community service order of 150 hours and a probation order of the then maximum duration, the Justices' conclusion that the respondent's "actions tended towards being at the less serious end of the spectrum" was wrong in law. This was so on two grounds; first, as being a conclusion which no reasonable bench of justices, properly directing themselves, could reach; and second, as appearing to offend the principle laid down in Nottingham City Council v Farooq (Mohammed) (Times, 28 October 1998) that a civil appeal court is not entitled to review the merit of a criminal conviction. The second error was in concluding that it would be "unreasonable to regard [the respondent's] spent convictions as still relevant." The Justices were wrong in law in that, first, by operation of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, hackney carriage drivers and private hire drivers are regulated occupations for the purposes of the Rehabilitation of Offender's Act 1974 Schedule 1 Part III and as such are exempt from the provisions of the Act. There is therefore no such thing as a "spent" conviction in relation to these occupations. As such, to dismiss them as irrelevant was an error of law. In any event the Justices were wrong in law to disregard previous convictions as irrelevant, given the overriding principle of protection of public safety, previous convictions of the types found in this case must always be relevant. The proper question is whether other factors have outweighed the relevant convictions. The Justices therefore applied the wrong test. Further the conclusion was one which no reasonable Bench of Justices, properly directing themselves, could reach. Third, having regard to the exemption from the provisions of the 1974 Act for hackney carriage/private hire drivers, the Justices erred in law in concluding that the respondent "had earned the right to expect [the Justices] to rely upon the accepted position that convictions normally become spent after five or seven years", when there was at law no such "accepted position", and accordingly no entitlement to such an expectation. Fourth, in view of the totality of the respondent's previous convictions and the overriding consideration of public safety, the conclusion that the respondent was a fit person to be granted a hackney carriage/private hire driver's licence was wrong in law as being a conclusion which no reasonable bench of justices, properly directing themselves, could reach.

The principal grounds of appeal as put forward by Mr Savill are the first and fourth. The CRB check details the following convictions against Mr Prosser: on 10th May 1993, for obstructing police he was fined £248. This, as Mr Savill submitted, showed a failure by Mr Prosser to comply with the authorities. On 14th December 1994, there is evidence of intemperate character by Mr Prosser when he was convicted of criminal damage, fined £150, with a compensation order of £360. Again, on 2nd October 1995, failure to comply with a lawful requirement; he was convicted of failing to surrender to bail. On 16th November 1995 he was convicted of assault occasioning actual bodily harm and sentenced to a young offender institution for 3 months. On 13th March 1996 there were two offences of dishonesty, theft from a vehicle and another offence of theft from a vehicle. He was sentenced to 1 months' imprisonment in relation to each offence which shows the seriousness of the offences of dishonesty. On 13th March 1996, another instance of intemperate character; he was convicted of criminal damage and also of an offence of violence. He was convicted of affray for which he was sentenced to 3 months' imprisonment; there was no separate penalty for criminal damage. For the offence of assault occasioning actual bodily harm he was sentenced to imprisonment for 3 months. On 4th September 1996, he was convicted of common assault on an adult and he was given a probation order which was the maximum at the time of 24 months; and on 2nd July 1997 he was convicted of common assault and received a community service order of 150 hours consecutive with a compensation order of £250. Other convictions on the same date were for common assault on another adult and criminal damage. The community service orders in those two cases were to run consecutive to the first. On 2nd July 1997, another conviction that goes very much to the issue as to whether he is a fit person to be a taxi-driver. He was convicted of driving whilst disqualified and with no insurance. His driving licence was endorsed with six penalty points. On 5th January 1988, for not complying with a court order and breach of a community service order, he was fined £40. On 13th October 1988, he was convicted of dangerous driving. On 10th March 1999, for assault occasioning actual bodily harm, he was sentenced to imprisonment for 2 months. Finally, on 11th July 2001 he was convicted of using threatening, abusive and insulting words and given a substantial fine of £200.

On any sensible analysis of these convictions, in my judgment, they could not be described as "sentences at the lesser end of the spectrum" when they had been met, in a number of instances, with sentences of imprisonment. In my judgment, when one looks at the offences as a whole and considers how the Justices viewed the offences, it appears that the view taken by the Justices of the offences is not compatible with the significant element of trust that is imposed with the holder of licences and with the overriding considerations of public safety. Not one of those convictions recorded against the respondent could be said to be irrelevant. All go to the heart of the fitness and propriety of this applicant to hold a licence.

Further, the Justices erred in finding that the offences were spent. I am satisfied that by operation of the 2002 Order, the convictions against the respondent were not spent. Such convictions, in the present circumstances, do not become spent. The Adamson case that was referred to is not relevant in the light of the 2002 Order.

Question A2 in the statement of case is of lesser significance. The fact that the respondent had passed the motorcycle test is not strictly relevant. It does not bear on the carriage of passengers in a motor car. However, having considered all the evidence in relation to this matter, I do not find that the criticism that has been made of the Justices has been made out on the evidence.

The questions as reworded set out in the Case Stated should be answered as follows:

In my judgment the Justices erred in law in relation to the most important matters that were before them that lead to the conclusion that question A1 must be answered in the affirmative, as must question B. This appeal will therefore be allowed.

MR SAVILL: My invitation is that your Lordship reverses the decision of the Justices rather than remits the matter for further consideration, on the basis that this case really does turn on an antecedent history which is crystallised. In those circumstances, if that has had an effect on this man's fitness and propriety to holding a licence, then that remains in my respectful submission.

THE DEPUTY JUDGE: In the light of my findings and my judgment, having reviewed in particular the respondent's convictions, I consider that it would be appropriate to accede to that application.

MR SAVILL: Thank you, my Lord.

The final matter is the question of costs. Formally I am instructed to apply for costs, my Lord, but I recognise that the respondent has not appeared; he has not been represented. I could not conceive of a way that he has in any way added to the workload of this appeal. Indeed, it may be that the reason why he has not collected his licence is that he knows that there is an appeal pending or has been an appeal pending and the fact he has not called on the licence, which he is entitled to do, is perhaps a matter to his credit. So, my Lord, whilst I formally apply, I recognise the limitations of the application.

THE DEPUTY JUDGE: Mr Savill, I am very grateful for your assistance and for the very fair way in which you put that application for costs. I order there be no order as to costs.