Sheffield City Council v Ali [2005] EWHC 1613 (Admin)

Case No CO/2589/2005

[2005] EWHC 1613 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Thursday, 7th July 2005

Strand

London WC2

B E F O R E:

LORD JUSTICE KENNEDY

MR JUSTICE WALKER

Between

SHEFFIELD CITY COUNCILClaimant

-v-

Between

SAADAT ALIDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

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Tel No: 020 7404 1400 Fax No: 020 7831 8838

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MR J PALMER (instructed by LEGAL AND GOVERNANCE SHEFFIELD CITY COUNCIL) appeared for CLAIMANT

MR S CRAGG (instructed by HOWELLS & CO, SOLICITORS) appeared for DEFENDANT

J U D G M E N T

Thursday, 7th July 2005

[1]MR JUSTICE WALKER: Part II of the Local Government (Miscellaneous Provisions) Act 1976 is concerned with Hackney carriages and private hire vehicles. Sections 45 to 56 are concerned with the powers of district councils to license vehicles for private hire, to license the drivers of private hire vehicles, and to license those who operate private hire vehicles among other things. By section 57(1) a district council may require any applicant for a relevant licence to submit 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. Section 57(3) is in these terms:

"If any person knowingly or recklessly makes a false statement or omits any material particular in giving information under this section, he shall be guilty of an offence."

[2]On 20th January 2005 the South Yorkshire Justices sitting at Sheffield Magistrates' Court heard an information preferred by the appellant, Sheffield City Council, against Mr Saadat Ali alleging that he had committed an offence under section 57(3). At the close of the prosecution case it was submitted on behalf of Mr Ali that there was no case to answer. The principal submission on behalf of Mr Ali was that he was charged with omitting to provide information on a form, that it was therefore necessary to prove that the council, through a resolution, duly minuted, of the appropriate committee or sub-committee, had authorised the use of the form which had required the information alleged in the present case.

[3]The justices record at paragraph 6 of the case stated that they were not referred to any cases on this point. At paragraph 7 they set out their conclusion. Their view was that the decision to require information could only be made by the council acting generally or through an appropriate committee, or a council officer acting within the scope of duties delegated to him or her. They did not accept that a minuted resolution of a council committee or sub-committee was necessarily required for this purpose. However, in their view there had to be evidence from which they could infer that the requirement to provide information on the form was one made within the scope of the authority delegated to the principal licensing officer, Mr Stephenson. The evidence they had heard, they said, left the precise scope of Mr Stephenson's delegated authority so unclear that they did not believe that any properly directed bench could ever be sure that the requirement made of Mr Ali to complete the form was a requirement of the council. Accordingly, a key element of the offence was not made out and they dismissed the information.

[4]The question stated for the opinion of this court is whether the justices were justified in law in concluding that:(a) the form, as presented, could not properly be said to be a request for information within the scope of powers delegated to the Principal Licensing Officer; and

(b) that the request for information was an essential element in the prosecution case.

[5]Mr James Palmer, who appears on behalf of the appellant, submitted that enquiries, by which I understand him to mean requirements for information, will necessarily have been made by employed council officers and their extent and form, as a matter of practical application, must be within the discretion of the officer responsible for the grant of the licence. He said that there could be no doubt that Mr Ali was a person who was required to provide information. The question was simply whether the particular information in this case, which concerned previous convictions, was information which had been properly required of him.

[6]Mr Palmer accepted that it was necessary for the district council to have reasonably concluded, under section 57(1)(a), that it was necessary to enable them to determine the application for the licence for the information as to previous convictions to be sought. He also accepted that in order to show that the district council had taken this decision in a legally sound matter, it was necessary for the appellant to have pointed to evidence from which it could be inferred that the requirement to provide information as to previous convictions was one made within the scope of the principal licensing officer's delegated authority. That is to say, within the scope of Mr Stephenson's authority.

[7]Mr Palmer referred us to the well-known power to delegate under section 101 of the Local Government Act 1972 which plainly entitles the appellant to delegate this matter to officers of the council and it is not in dispute that Mr Stephenson was such an officer.

[8]When one turns to paragraph 3 of the case stated there are findings of fact, said Mr Palmer, which are sufficient for his purposes. The justices state at paragraph 3(iii) that Mr Stephenson considered the application in the exercise of powers delegated to him by the council. Mr Stephenson had the power to grant licences in certain circumstances. If there were a certain number of penalty points or a disqualification he would have had to refer the application to a licensing board. He had no power to refuse the grant of a licence.

[9]Further, at sub-paragraph (v), the justices found, as a fact, that if Mr Stephenson had been aware of a disqualification which Mr Ali had had imposed on him, he could not have granted Mr Ali's application for the licence but would instead have had to have referred it to the licensing board.

[10]Mr Palmer's submission was that the power delegated to Mr Stephenson, as described in these findings of fact, was a power to issue a licence in the absence of a barring feature. It followed from that that Mr Stephenson must be entitled to make enquiries to establish if there was a bar. Mr Palmer concluded by saying that the justices had recognised that it was proper to delegate to Mr Stephenson. They had sought evidence that Mr Stephenson could seek information by the use of the form which he had in fact used. That form was headed "Statutory Declaration" and it contains features which are open to criticism as I shall come to in a moment. Mr Palmer said that the justices had not focused on the right question which was simply: what was the delegated authority that Mr Stephenson was given?

[11]Mr Cragg, who appears on behalf of Mr Ali, submitted that it was necessary for the district council to have reasonably concluded, under section 57(1)(a), that it was necessary, to enable them to determine the application for the licence, to have the information on this form. As I have mentioned, it was a form which was concerned with previous convictions.

[12]That proposition is not in fact in dispute. It was added that it was necessary for the appellant to point not just to evidence but to clear evidence from which it could be inferred that the requirement to provide information as to previous convictions was one made within the scope of Mr Stephenson's delegated authority. If one omits the word "clear", that proposition was accepted by Mr Palmer. The question is whether the evidence before the justices was sufficient in law to determine that Mr Stephenson, by insisting that applicants for licences complete the form, was making a requirement of the council under section 57(1).

[13]In support of the submission that the evidence had to be clear, Mr Cragg relied upon the undoubted proposition that in general a penal statute should receive a strict or restrictive interpretation and the undoubted principle that the European Convention on Human Rights requires legal certainty as to criminal offences.

[14]While those principles are undoubtedly important, for my part I cannot see that they assist Mr Ali in this case. He had applied to the council for a licence. Those who were handling his application on behalf of the council told him that he was required to fill in a form. On the face of it Mr Ali can be expected to assume that the information required by the form is information required by the council. If, on the face of things, there had been some reason to doubt whether the council really required the information in question, then I for my part would have no hesitation in applying the two principles that Mr Cragg relies upon. That seems to me, however, to be entirely different from a case where, on the face of things, the requirement has been made by those who are handling the matter on behalf of the council.

[15]Four reasons were noted by Mr Cragg as having been given by the justices in the case stated for their conclusion that supply of the information in the form had not been shown to be a requirement of the council. The first of these was the finding set out in paragraph 3(viii) of the case stated, that the form had been adopted as an administrative procedure in order to ensure that the licensing office retained a note of declarations made by applicants. Before this court today Mr Cragg has not pursued this point. I should say that, for my part, the fact that the form was used for the purpose of record keeping seems to me entirely consistent with the form being issued by the council for the statutory purpose of obtaining information under section 57(1).

[16]The second reason is that the form used was incorrectly described as a "statutory declaration". The third reason is that the form contains what were described as "misleading" references to both the Statutory Declarations Act 1985 and section 5 of the Perjury Act 1911. Both these matters appear in paragraph 11(iv) of the case stated. It is convenient to take them together.

[17]The form was headed "Sheffield City Council" and underneath that "Statutory Declaration". Immediately above the space for signature at the foot of the form, the following appeared:

"I am aware that the grant of a licence is subject to a Police check. This has been explained to me and I understand that spent convictions are not normally considered by the City Council. I hereby declare that the information given is true and by virtue of the provisions of the Statutory Declarations Act 1985 and section 5 of the Perjury Act 1911."

[18]Under section 5 of the Perjury Act 1911 it is an offence knowingly and wilfully to make, otherwise than on oath, a statement false in a material particular, if the statement is made(a) in a statutory declaration; or

(b) in, amongst other things, a declaration which the person in question is required to make by any public general Act of Parliament for the time being in force.

[19]As to (a), the Statutory Declarations Act 1835 provides for certain types of declaration to be made and contains stipulations about the persons before whom such declarations should be made and the form of such declarations. It cannot be said that the form used by the appellant in this case met those requirements.

[20]As to (b), there might be a question whether the declaration constituted by that part of the sentence which states "I hereby declare that the information given is true", might arguably be said to be a declaration falling within section 5 of the 1911 Act on the footing that information required by section 57 of the 1976 Act could take the form of a requirement for such a declaration. However, even if that was so, the wording used on the form was not apt to draw this to the attention of the person making the declaration. Mr Palmer did not seek, on behalf of the council, to argue that this form, in truth, fell within section 5 of the 1911 Act.

[21]As to the reference to the "Statutory Declarations Act 1985", it does not appear that there was any statute of that name in that year.

[22]Accordingly, on this aspect of Mr Cragg's argument, it appears to me that it can fairly be said, on behalf of Mr Ali, that the form contained passages which were misleading. I do not accept, however, that it would follow from this that the requirement to disclose convictions contained in the form was not a requirement of the council. To the extent that the form might mislead those who were asked to fill it in, it is difficult to see that it would cause those persons any prejudice. The misleading passages might have prompted those completing the form to take particular care to ensure that their answers were full and complete. I do not think that this can possibly be said to deprive Mr Stephenson of such authority as he would otherwise have had to issue the form. I will return in a moment to the question of such authority as he would otherwise have had.

[23]The final reason relied upon by Mr Cragg is that the justices concluded, in paragraph 7(v) of the case stated, that the use of the form was idiosyncratic. It seems to me that this is simply a reference back to the misleading nature of the form and such points as arise in that regard I have covered already in this judgment.

[24]Mr Cragg referred us to paragraph 7(iii) of the case stated, where the justices recorded their view that there had to be evidence from which they could infer that the requirement to provide information in the form of a statutory declaration was one made within the scope of Mr Stephenson's authority. He rightly observed that in paragraph 7(iv) the justices went on to refer to the misleading references contained in the form, and to hold that that heightened the need for them to be sure that there was evidence that would justify a finding that the requirement was indeed one which had been made on behalf of the council. Mr Cragg accepted, however, that on the face of the forms they appeared to come from the council. The position was simply that the magistrates had doubts because of the features of the form that was used.

[25]Mr Cragg referred us to the case of R (on the applicationof Chief Constable of the West Midlands) v BirminghamMagistrates' Court

[2002] EWHC 1087

. That case concerns section 1 of the Crime and Disorder Act 1998 under which an application for an Anti-Social Behaviour Order could be made by a relevant authority if it appeared to the authority that certain conditions were fulfilled. The section made no provision for delegation. This court held that the Chief Constable could discharge the functions of the relevant kind through an officer for whom he or she was answerable. It was not necessary to fall back on implied delegation and sub-delegation.

[26]The principle in question was that which underlay the well-known case of Carltona Limited v Commissioners of Works

[1943] 2 All ER 560

. Sedley LJ, with whom Poole J agreed, observed that there were two qualifications on the principle. The first was that the power had been conferred in terms which implicitly permitted delegation and the second was the existence of persons to whom power could be delegated without parting with ultimate responsibility.

[27]I need not go into the main question which arose in that case as the passage which Mr Cragg relies upon arose on a subsidiary question.

[28]At paragraphs 20 and 21 of the judgment in that case, Sedley LJ recorded that, so far as counsel had been able to ascertain in that case, the witness who gave evidence to the district judge had not been able to vouch that the sergeant who had carried out the appropriate statutory procedure had authorisation on behalf of the Chief Constable.

[29]The argument, therefore, remained open that if consultation had been conducted by somebody who lacked due authority on behalf of the Chief Constable, the resultant process would be either void or challengeable on grounds of unfairness. Sedley LJ recognised that it was therefore conceivable that further fact findings might bring back to life the issue which, at that stage, in the light of the Divisional Court's conclusions on the main point, that court had not had to address.

[30]Relying on that by way of analogy, as I understand it, Mr Cragg's point was that similarly in this case there had not been any sufficient identification of authority on the part of Mr Stephenson and the magistrates were justified in concluding that there was insufficient evidence for this purpose.

[31]As I indicated earlier, it seems to me that, insofar as there were misleading features in the form, they could not have detracted from such authority as Mr Stephenson otherwise possessed to require the information that was sought in this case.

[32]The findings of fact, which have been set out with admirable care and clarity by the justices, seem to me to describe an arrangement made by the council under which Mr Stephenson must, if he is to fulfil his functions, require information in order to ascertain whether there has been such a disqualification as would mean that the application had to be referred to the licensing board.

[33]Mr Stephenson, or others employed by the council, chose to use the form that I have described for this purpose. That form may not have been the best way of going about that task, but it is, in my judgment, quite impossible to say that Mr Stephenson did not have the authority of the council to seek the information which was in fact sought by the use of the form. That was plainly implicit in his being given the tasks which the justices had described in paragraph 3 of the case stated.

[34]It follows, in my judgment, that although the form was by no means perfect, it was a form which fell within his authority to act on behalf of the council and thus fell within section 57(1) of the 1976 Act.

[35]That means that I for my part would answer question (a) in the case stated, "no". As to question (b), it was, as I understand it, not disputed on behalf of the council that it was an essential element in their case to show that there was a requirement for information made by the council falling within section 57(1). Accordingly, subject to any further argument on the precise answer to be given, I believe that the simple answer, "yes", would probably suffice.

LORD JUSTICE KENNEDY: I agree. The actual information sought by Mr Stephenson as to previous convictions was, in my judgment, plainly within the scope of his authority for the reasons outlined by my Lord. The only effective point therefore becomes whether Mr Stephenson went beyond the scope of his authority by requesting information on a form which described itself as a statutory declaration and ended in the way that my Lord has indicated. Those features of the form were undoubtedly open to criticism, but on the facts neither feature was apparently critical. If Mr Ali had refused to provide information because, for example, he did not want to sign a document headed "Statutory Declaration", then the case might be different. But there was no evidence of that at all. Furthermore, such evidence cannot be inferred because Mr Ali did provide information which, on enquiry, proved to be misleading. Inappropriate verbiage on the form in this case was therefore irrelevant. If it had been so treated then, plainly, as it seems to me, the justices must have come to the conclusion that Mr Stephenson was entitled to require the information which he obtained from Mr Ali as he did.

[37]I would therefore answer the questions as my Lord has indicated and remit the matter to the justices directing them to continue the hearing.

[38]MR PALMER: My Lords, I am very grateful for your judgment. In those circumstances the only other matter is the question of the appellant's costs. I have a schedule of costs of this hearing -- or concerned with this hearing. I do not know whether your Lordships would be willing to assess costs. I regret that this has not been filed earlier, it was travelling down with my instructing solicitor and only became available to me part-way through the hearing today.

[39]I have copies here for your Lordships. The sum in total is £2,542, but that would appear to include an element of VAT.

LORD JUSTICE KENNEDY: Mr Cragg, are you in any position to deal with this at all? I suspect not.

[41]MR CRAGG: I only received it 20 seconds ago. All I can say is that Mr Ali is in receipt of a representation order granted by Collins J on 13th May.

LORD JUSTICE KENNEDY: You have no information as to his means at all?

[43]MR CRAGG: So, as I understand it, as I am instructed, Mr Ali has not actually had to submit a means form to obtain that, so I have no information which I can assist your Lordship with, although --

LORD JUSTICE KENNEDY: Have you had a chance to cast your eye over this document? It may be, and I do not want to put you in a difficult position, it may be that you would feel that the actual document itself is not particularly objectionable.

[45]MR CRAGG: No. I think the hourly rate and the final amount are fairly modest. I would have to accept that.

LORD JUSTICE KENNEDY: My tentative inclination would be possibly to assess costs at the figure sought but not to make any order for enforcement at this stage, you not having had the opportunity to take instructions. That just would mean there would be less procedure to go through later if any problem arose.

[47]MR CRAGG: My Lord, I think that would be agreeable.

LORD JUSTICE KENNEDY:

[48]Subject to VAT adjustments we assess costs at the amount sought £2,542.50. The document handed to us will be annexed to the papers in this case. We make no order so far as enforcement is concerned, save to say that the council is entitled to their costs of this hearing. Any action to enforce the costs must be preceded by a further order either of this court or of the costs judge.

[49]MR CRAGG: My Lord, I am grateful. My Lord, I am afraid, coming to this case late, but I am not sure whether your Lordship needs to make any alteration to the representations order.

LORD JUSTICE KENNEDY: The representation order?

[51]MR CRAGG: Yes.

LORD JUSTICE KENNEDY: Do we have to make any further order in relation to that?

[53]MR CRAGG: My Lord, I do not think so.

LORD JUSTICE KENNEDY: If we do you may have it.

[55]MR CRAGG: Indeed, I am obliged.