Darlington Borough Council v Bishop Auckland Magistrates Court [2006] EWHC 306 (Admin)

Case No CO/10507/2005[2006] EWHC 306 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 th February 2006
Before
Andrew Nicol QC, sitting as a Deputy Judge of the High Court
Between
Darlington Borough CouncilClaimantBishop Auckland Magistrates CourtDefendant
E. Joan Smith (instructed by Andrea Cattlerick, Corporate Services Department, Darlington Borough Council) for the ClaimantHearing Hearing date : 23rd February 2006
JUDGMENT

Andrew Nicol QC :

[1]This is an application for judicial review of a decision by Bishop Auckland Magistrates Court (‘the Magistrates’) on 28th November 2005 to adjourn the hearing of an appeal by George Jenkinson against the refusal of Darlington Borough Council (‘the Council’) to renew his taxi licence. The Council was granted permission to bring these proceedings by Fulford J. It seeks an order quashing the decision of the Magistrates to adjourn the appeal and a mandatory order compelling them to dismiss the appeal. Although notice of this application has been given to both the Magistrates and to Mr Jenkinson, neither have appeared at the hearing of this application for judicial review. However, attached to their Acknowledgement of Service, the Magistrates have provided a written account which supplements the brief reasons in writing which appear to have been given at the time. I am very grateful to them for this submission.[2]Mr Jenkinson had for some years been a taxi driver in the borough of Darlington. As such he required a licence from the Council to act as a driver of a hackney carriage (Town Police Clauses Act 1847 s.46) and/or as the driver of a private hire vehicle (Local Government (Miscellaneous Provisions) Act 1976 s.51).[3]In the summer of 2005 Mr Jenkinson applied for these licences to be renewed. Section 51 of the 1976 Act (in relation to the private hire vehicle licence) provides that a Council shall grant a licence on application, but the apparently mandatory character of that provision is deceptive since the subsection continues; ‘Provided that a district council shall not grant a licence (a) unless they are satisfied that the applicant is a fit and proper person to hold a driver’s licence’[4]Section 59 of the 1976 Act imposes an identical qualification in relation to licences to drive a hackney carriage.[5]By s.57(1) of the 1976 Act:
‘A district council may require any applicant for a licence under the Act of 1847 or under this Part of this Act to submit to them such information as they may reasonably consider necessary to enable them to determine whether the licence should be granted and whether any conditions should be attached to any such licence.’
[6]Since October 2002 it has been the policy of the Council to require all applicants for renewal to take the Driving Standards Agency (DSA) taxi test. Furthermore, taxi drivers are expected to submit every 3 years an ‘enhanced’ Criminal Record Bureau check. ‘Enhanced’ means that the report from the CRB will refer to all convictions, cautions and police intelligence. A report from a Council officer to the Committee which considered Mr Jenkinson’s application said that the ‘The level of check for taxi drivers had been set at ‘enhanced’ … by Central Government, following lobbying from organisations such as the Lamplugh Trust, given the unique position of trust taxi drivers have, particularly with children and other vulnerable passengers.’ The last substantive CRB check for Mr Jenkinson had been in 2002. Under this policy, therefore, he was due to provide a further CRB check in 2005.[7]In two letters to the Council of 20th July 2005, Mr Jenkinson indicated that he was unwilling to provide either of these pieces of information. So far as the CRB check was concerned, he said ‘I feel that as the last CRB check that the Trade had to go through was sufficient for the Council’s needs. I would not object to a lesser form of investigation with no cost to the Trade.’ He also said that he did not intend to undergo the DSA test.[8]Submissions drafted by counsel in support of both objections were put before the Licensing Committee of the Council on Mr Jenkinson’s behalf. However, on 3rd August 2005 the Committee refused his applications on the grounds that he had refused to undertake the DSA test and had refused to undertake the CRB check. Accordingly, Mr Jenkinson had failed to satisfy the Committee that he was a fit and proper person. The Committee also took into account two recent convictions for speeding.[9]Mr Jenkinson had the right to appeal against this decision to the Magistrates’ Court (see 1976 Act s.52 in respect of the refusal of a private hire vehicle driver’s licence and s.59(2) in respect of the refusal of a hackney carriage driver’s licence on the grounds that he was not a fit and proper person). He exercised this right by issuing a complaint on 22nd August 2005.[10]On 13th September 2005 a meeting took place between Mr Jenkinson, representatives of the Council and their lawyers. The agreement which was reached at that meeting and which was recorded in writing and signed by all concerned included the following:
‘Mr Jenkinson agrees to provide CRB enhanced disclosure. The department will disclose this information only in accordance with CRB policy and guidance, bearing in mind the purpose of disclosure and the sensitivity of this information.’
[11]The appeal first came on for hearing on 8th November 2005. Mr Jenkinson applied for an adjournment because his legal representative was not present. The Council opposed his application, but it was granted and the appeal was re-listed for hearing on 28th November 2005. Until his appeal was disposed of or withdrawn or fails for want of prosecution, Mr Jenkinson is entitled to carry on his business (1976 Act s.77(2)).[12]At this hearing, Mr Jenkinson did not produce an up-to-date CRB check. Mr Jenkinson’s counsel asked the Magistrates to accept the previous CRB check which, he said, was only 2 years old. The Magistrates say ‘we were of the opinion that the two year old CRB check was inadequate and therefore we were not prepared to accept it.’ In those circumstances, Mr Jenkinson had asked for the Magistrates to adjourn the hearing to allow him to obtain an up-to-date CRB check. They agreed and adjourned the hearing until 10th February 2006.[13]The Magistrates explain their reasoning as follows. They say that they were advised that the appellant had submitted an application to the CRB, but neither the Council nor the appellant could say how long the process would take. They added ‘In deciding whether to grant an adjournment we did take into account the fact that the Council had prepared their statements on the basis of ‘not having passed the DSA test’, and it was only on the day of the appeal hearing that the council filed an amended statement regarding the CRB check. The appellant’s legal representative had also prepared the case on the basis of the statements which had previously been served. As a result of the late filing of the statements by the council, we were of the opinion that the appellant was likely to be put at a disadvantage, and the legal representative was not fully prepared to deal with the additional evidence.’[14]The reference to the Council’s statements appears to be a reference to the statement of Pamela Ross, Licensing and Parking Manager of the Public Protection Service of the Council dated 20th October 2005. At paragraph 38, Ms Ross recorded that the Licensing Committee had refused the applications on two bases: refusal to undertake the DSA test and refusal to undertake a CRB check. In paragraph 40 she then said:
‘At a meeting with the Appellant on 13 September 2005 the Appellant [presumably the word ‘said’ has been omitted in error] that he agreed to submit a CRB check to the Council. At the time of preparing this statement this had not been received, however the Appellant’s appeal, may, upon receipt, be limited to the DSA taxi test requirement.’
[15]Decisions to grant or refuse adjournments are discretionary. A heavy onus lies on a party who seeks to argue that such decisions are wrong in law. The Magistrates submissions show that they were concerned to deal with the case in a fair and balanced way and to do justice to the parties. However, in this case it does seem to me that the decision of the Magistrates was flawed by two fundamental mistakes as to the events leading up to the hearing.[16]The first is that the Magistrates appear to have reached their decision under the impression that the Council had in some way abandoned the objection that Mr Jenkinson had refused to submit a CRB check and had only sought to revive this part of their objection by a Supplementary Statement submitted by Ms Ross on the day of the hearing. Had this been the situation, the case for granting Mr Jenkinson an adjournment would have been compelling. However, as paragraph 40 of Ms Ross’ first statement showed, the appeal was only going to be limited to the DSA Test issue upon receipt of the CRB check. Further, Mr Jenkinson had, as she said in the same paragraph, agreed to provide that check. What revived the importance of the CRB check was not any change of stance on the part of the Council, but Mr Jenkinson’s failure to produce the CRB check that he had agreed to submit.[17]Mr Jenkinson’s legal representatives may indeed have prepared for the hearing on the basis that the issue in the appeal was to be the DSA Test, but that no doubt was because he expected his client to abide by the agreement to submit the CRB check in accordance with the agreement which Mr Jenkinson had made some 2 ½ months earlier.[18]The second mistake of the Magistrates was their belief that Mr Jenkinson had by 28th November submitted an application to the CRB for a check. The procedure for obtaining a CRB check is, apparently, first to obtain a form from the CRB. The form is completed by the applicant. It has then to be checked and signed by a body (such as the Council) which is authorised to request or endorse the request for such checks. The completed and endorsed form is then sent to the CRB by the applicant. Mr. Jenkinson would have been familiar with this procedure since he would have gone through it to obtain the previous check in 2002.[19]In the passage from the Magistrates’ submissions which I have quoted in paragraph 13 above, they referred to an ‘amended statement regarding the CRB’ which the Council had filed. The Magistrates had said that they were not prepared to deal with this additional evidence because it had been filed late and was likely to put the appellant at a disadvantage and his legal representative was not fully prepared to deal with it. This is a reference to the Supplementary Statement of Ms Ross dated 28th November 2005. Ms Ross records that she had contacted the CRB on several occasions. They had confirmed that an application form had been sent to Mr Jenkinson on 22nd August 2005 but that this had not been returned to the CRB. Ms Ross says in her Supplemental Statement that she had checked the position with the CRB on 8th November and on 25th November. On each occasion the CRB confirmed that no application had been received.[20]This was evidence which went directly to the issue of whether an adjournment should have been granted. It directly contradicted the position of which the Magistrates say in their submissions that they had been advised, namely that Mr Jenkinson had submitted an application to the CRB. In my judgment the Magistrates could not properly have refused to entertain at least this part of Ms Ross’ Supplementary Statement.[21]In any event, I am told by Ms Smith, who represented the Council at the application for judicial review and who also represented them at both hearings before the Magistrates, that it was common ground between the Council and Mr Jenkinson that he had received a form from the CRB but that he had taken no further steps to obtain a CRB check. She tells me that while it had initially been Mr Jenkinson’s case that he had returned the forms to the CRB, he later resiled from this position when the CRB was asked and said that nothing had been received. Thus later in the hearing, Ms Smith tells me, Mr Jenkinson accepted that he had not returned the forms to the CRB.[22]In my view the Magistrates misunderstanding of the Council’s position and their misunderstanding as to whether Mr Jenkinson had submitted an application for a CRB check were mistakes of fact which themselves amounted to errors of law (see E v Secretary of State for the Home Department [2004] EWCA Civ49, [2004] INLR 264). Alternatively, the Magistrates failed to have regard to material circumstances. A third way of viewing the situation is that the Magistrates’ decision to adjourn was one which was not reasonably open to them.[23]I have decided that the Magistrates’ decision to adjourn in this case was wrong in law. The Council was concerned that their decision might set a precedent for others who were appealing licence refusals and who sought adjournments in order to obtain information or evidence which they should have arranged at an earlier stage. Any application for an adjournment has to be considered on its own facts, but magistrates will need to be aware that the legislation permits a driver to continue in his occupation while the appeal is pending. They will have to be astute to assess whether the claim for an adjournment is well founded or whether the lack of evidence is due to insufficient preparation on the part of the appellant.[24]But even though the decision to adjourn was legally flawed I have to consider what (if any) relief the Court should order. The adjournment under challenge was until 10th February 2006. On 9th February, I am told, the 10th February hearing date was vacated pending the decision of this Court and pending the return of the CRB check.[25]The Council seeks, as I have said, a mandatory order requiring the Magistrates to dismiss the appeal. I could only make that order if I decided that a reasonable bench of Magistrates could only come to one conclusion on Mr Jenkinson’s appeal, namely that it should be dismissed.[26]In hearing an appeal, the Magistrates have to make up their own mind as to whether Mr Jenkinson was a fit and proper person. Their function is not limited (as is this Court’s) to reviewing the legality of the decision under challenge (see McCool v Rushcliffe BC [1998] 3 All ER 889 at 891. The sections of the 1976 Act to which I have referred required the Council in the first place, and the Magistrates on appeal, to grant a licence only if they were satisfied that Mr Jenkinson was a fit and proper person. The burden of proof to establish that he was a fit and proper person lay on Mr Jenkinson (McCool at p. 895-896). As Lord Bingham CJ said in that case at p.896 ‘They [the Council or justices] may fail to be satisfied because adequate information of character and record is not forthcoming, as would be the case if an applicant failed to respond adequately to a request under s.57(1).’[27]There was no argument before the Magistrates that the Council’s policy of requiring a records check was unlawful. Councils are entitled to have such policies (though they must not be inflexibly applied). Where magistrates consider an appeal by way of rehearing against a decision of a local authority which has a policy, they ought to have regard to the fact that the local authority has such a policy and should not lightly reverse the local authority’s decision – see Darlington Borough Council v Kaye [2004] EWHC 2836 (Admin) para 28. However, as Lord Bingham said in McCool, the failure to provide information in response to a request from the Council may cause the Council or justices to fail to be satisfied. In the present case we know that the Magistrates were not satisfied with the 2002 CRB check. But I do not think that it necessarily follows that, if there were no 2005 CRB record check the Magistrates would inevitably have had to dismiss the appeal. They may have done so. Mr Jenkinson’s failure to obtain the 2005 record check would have been a formidable hurdle in his way of persuading the Magistrates that he was a fit and proper person, but it is not a statutory condition for the grant of a licence that an applicant has a recent CRB check. I cannot say that dismissal would have been the inevitable outcome of an appeal hearing which had not been adjourned. If the appeal had not been adjourned, Mr Jenkinson would have been entitled to give evidence (as would any other witnesses whom he wished to call). His counsel would have been entitled to cross examine such witnesses as the Council called. His counsel would also have been entitled to make submissions to the Magistrates. I am simply not in a position to say that any reasonable bench of Magistrates would have been bound to dismiss the appeal.[28]Accordingly, I do not accede to the application for a mandatory order. Now that the adjournment has happened in any event, there is no value in making a quashing order in respect of the decision to adjourn, but I will hear argument from counsel if she wishes on whether a declaration would serve any purpose over and above the explanation of my reasons in this judgment.