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JAVED AKHTAR KHAN v. ABERDEEN CITY COUNCIL

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B223/04

JUDGEMENT

of

Sheriff Alexander S. Jessop

in the cause

JAVED AKHTAR KHAN, residing at 37 Urquhart Road, Aberdeen.

Appellant

against

ABERDEEN CITY COUNCIL, Town House, Broad Street, Aberdeen.

Respondents

Act: Lindsay

Alt: Smith

ABERDEEN: January 2005.

The Sheriff having resumed consideration of the cause:- SUSTAINS the Respondents first plea-in-law; DISMISSES the application; FINDS the Appellant liable to the Respondents in the expenses of the action as taxed and ALLOWS an account thereof to be given in and REMITS the same to the Auditor of Court to tax and to report.

  • This is an appeal by summary application by Javed Akhtar Khan against the refusal of an application for renewal by Mr Khan as the holder of a taxi licence. In terms of the Civic Government (Scotland) Act 1982, Schedule 1, Paragraph 18(7) "The sheriff may uphold an appeal under this paragraph only if he considers that the licensing authority in arriving at their decision (a) erred in law; (b) based their decision on any incorrect material facts; (c) acted contrary to natural justice; or (d) exercised their discretion in an unreasonable manner." Paragraph 18(8) states "The sheriff may hear evidence by or on behalf of any party to the appeal".

  • The summary application had originally called before me for debate on 3rd December 2004 in respect of the Respondents' first preliminary plea that the averments of the Appellant were irrelevant et separatim lacking in specification. After discussion of the procedure to be adopted Mr Smith, Solicitor, Aberdeen who appeared for the Respondents intimated that he had prepared a Note similar to a Rule 22 Note in ordinary procedure. Mr Lindsay, Solicitor, Aberdeen who appeared for the Appellant suggested that he be allowed time to consider this Note and that the diet of debate should be discharged and a new diet fixed. I therefore agreed that Mr Smith submit a Note on the basis of the preliminary plea and that Mr Lindsay be allowed to adjust his pleadings to focus the issues in the light of the points raised by the Appellant. Accordingly, the application was continued to 10th January 2005. In the interim period, Mr Lindsay on behalf of the Appellant, had made adjustments and a second Record had been prepared. I therefore proceeded to hear submissions in support of the Respondents' preliminary plea and although I offered Mr Lindsay further time to prepare if he wished he acknowledged that he was in a position to oppose the submissions by the Respondents.

  • It was agreed that the Appellant had applied to renew his taxi driver's licence by an application form received by the licensing department on 16th March 2004. The Chief Constable of Grampian Police lodged a letter of objection dated 30th March 2004 to the Appellant's renewal request. The said letter is lodged as a production. The Appellant disputed the grounds of objection and the matter went to an evidential hearing before the licensing committee on 23rd June 2004. The Appellant was legally represented. Evidence was led from a Mr James Splaine, Miss Gail Lawrence and Mr Lesley Clark on behalf of the Respondents and a Mr Rafique and a Mr McKenna for the Appellant as well as the Appellant himself. Each of the witnesses was examined and cross-examined and in addition members of the committee asked questions directly. Productions were lodged on behalf of the Appellant and were referred to and considered by the committee. At the conclusion of the hearing the Respondents decided by a five to two majority that the Appellant was not a fit and proper person to hold a taxi driver's licence in terms of Schedule 1, Paragraph 5(3)(ii). Accordingly, his application to renew the licence was refused. A statement of reasons dated 24th June 2004 was issued by the Respondents and is lodged as a production.

  • The said letter from the Chief Constable of Grampian Police contained two complaints regarding the Appellant. The first alleged that the Appellant would habitually park his taxi with its engine running within the car park of the Bank of Scotland, 45 John Street, Aberdeen on occasion in a disabled space. It was alleged that this was an offence under Regulation 107 of the Motor Vehicles (Construction and Use) Regulations 1986. The second incident involved a student Gail Lawrence who had alleged that on or about the 8th March 2004 she had requested the Appellant to convey her in his taxi to her boyfriend's home in Earnsheugh Circle, Cove. The Appellant had asked her two or three times for directions which she found surprising from a taxi driver. She had further alleged that the Appellant stopped the vehicle in an unlit area and asked her if she wanted to get into the front of the car with him and if she wanted to get out and have a cigarette. It was alleged that Miss Lawrence was very alarmed and scared at this and said she was going to telephone her boyfriend. At this the Appellant then drove on towards the address in Cove. It was alleged that Miss Lawrence was very shaken by this incident. These two incidents are more fully described in the letter dated 30th March 2004 from Grampian Police which is produced.

  • The statement of reasons which is produced sets out on seven pages a very full summary of the evidence led before the licensing committee. The statement records the evidence led by the Respondents and by the Appellant. The Appellant's position in relation to the first incident was that he accepted he had left his engine running whilst his taxi was parked but claimed that he was not aware that it was an offence and that his elderly mother was in the back seat of the car at the time. In regard to the second incident the Appellant admitted that he had conveyed Miss Lawrence to Cove but denied all her allegations. In the statement of reasons at page 5 it is stated "Having considered all the evidence and taken legal advice to the effect that the standard of proof was on the balance of probabilities and as to what constituted sufficient corroboration the committee resolved to refuse to renew the Applicant's taxi driver's licence on the ground that he was not a fit and proper person to be the holder of a taxi driver's licence in terms of Schedule 1, Paragraph 5 (3)(ii) of the 1982 Act." The committee deal with the first incident by stating in the statement of reasons "The Applicant admitted that he had committed an offence in leaving his engine running when the vehicle was either empty or had his mother in it she not being the holder of a driving licence. The committee did not take a view on whether or not Mrs Khan was in the vehicle as it did not consider this to be relevant in the circumstances. The committee took the view that as a professional driver Mr Khan should have been aware of the legislation and that a responsible person in those circumstances would have been aware of the safety and environmental issues associated with leaving a car with the engine running. The car may have been stolen or run away with resulting public safety and environmental implications."

  • In relation to the second incident after narrating the evidence led by both parties the statement of reasons at page 6 states "The committee therefore decided that in this respect also they preferred Miss Lawrence's evidence. There was corroborating evidence from Mr Clark that she had been very distressed when she got home. She had no motive to accuse Mr Khan falsely and the committee was also impressed by her courage in appearing before it which she did entirely on a voluntary basis, the committee having no power to compel witnesses to appear. In the opinion of the committee the fact that she was so distressed by the Applicant's behaviour was sufficient in itself to render him not a fit and proper person to be the holder of a taxi driver's licence even without the first incident."

  • In the summary application the pleas-in-law for the Appellant were (1) that the Respondents had erred in law in refusing the Appellant's application for renewal of his taxi driver's licence and their decision should be reversed; (2) that the Respondents having based their decision on an incorrect material fact in refusing the Appellant's application for renewal of his taxi driver's licence their decision should be reversed; (3) the Respondents having exercised their discretion in an unreasonable manner in refusing the Appellant's application for renewal of his taxi driver's licence their decision should be reversed; and (4) the Respondents having based their decision on incorrect material facts the matter should be remitted to the licensing authority for re-hearing of the evidence and reconsideration of their decision.

  • On behalf of the Respondents it was submitted that the statement of reasons produced set out in detail the relevant procedure. Objection had been made by the Chief Constable on the basis of two separate incidents. The Appellant had disputed the version of the incidents and the committee had heard evidence from witnesses who had attended voluntarily, these witnesses were subject to cross-examination by the Appellant who was represented by a solicitor, the Appellant had been given the opportunity to give evidence and had done so, and the committee had also considered evidence from two witnesses led by the Appellant as to his character. Having heard all the evidence and having heard submissions the committee decided that the incidents had occurred and that the second incident had caused concern and distress to Miss Lawrence. There was no incorrect material fact taken into account and there was no error in law and therefore in the Respondent's submission there were no grounds for the application to succeed. I was referred to Wordie Property Company Limited v Secretary of State for Scotland 1984 SLT 345 which set out the test that a decision taken by the Secretary of State would only be quashed "if it is so unreasonable that no reasonable Secretary of State could have reached it". In this case it could not be said that it was unreasonable. I was also referred to the case of Christoforou v City of Glasgow District Council GWD 1989 10-447 in which it was indicated that the court was not bound to hear evidence, and to the case of Rannachan v Renfrew District Council 1991 SLT 625 which established that the weight to be given to a matter is for the committee to decide, Parliament having empowered them to do that. I was also referred to the case of Martin v Ellis & Others 1978 SLT 38 in which Sheriff Principal O'Brien had stated "I agree a sheriff should be slow to interfere with a decision of a licensing board unless he is sure it has erred".

  • In summary therefore the Respondents submitted that there were no averments in the summary application to justify reversing the committee's decision nor indeed to refer the matter back to the committee for further consideration.

  • On behalf of the Appellant it was submitted that the appeal was based on the grounds of conflict of what was said to the committee. No authority could be found for such a procedure but the Appellant submitted that where there was such a dispute as to what was said before the committee the court must hear evidence or remit the matter back to the committee to hear further evidence. Reference was made to the case of Martin v Ellis supra. In this case the Appellant was putting in dispute the level of distress of the witness and clearly that was an issue of great significance to the committee. I was referred to the statement of reasons where at page 6 it is stated that the level of distress was sufficient to render the Appellant not a fit and proper person to hold a licence. I was referred to the case of Martin v Ellis & Co 1978 SLT 38 where it had been found competent to hear evidence. I was also referred to a recent case of Sheriff Cusine, Malcolm v Aberdeen City Council GWD June 2004 17-378 in which an appeal had been allowed because the committee had drawn an unwarranted inference from evidence led before it. In Article 6 of condescendence the Appellant set out clearly that the Respondents had not stated in the Statement of Reasons the weight they attached to the first incident. In condescendence 7 the Appellant set out the parts of the statement of reasons which the Appellant did not accept accurately recorded the evidence led before the committee. There was sufficient discrepancy for the court to hear the evidence and decide the facts or alternatively to refer the matter back to the committee for further consideration.

  • In a brief response the solicitor for the Respondents referred to the point about the weight given to the first incidents and referred me to the case of Redbrae Limited v City of Glasgow GWD 1998 28-1445 where it was held that a statement of reasons does not have to detail the weight given to particular parts of the evidence, merely to take account of them.

  • I gave careful consideration to the submissions which had been made by both parties. The statement of reasons which is produced is a very full record of the procedure adopted and the evidence led before the committee. There is no dispute that the procedure adopted by the committee was entirely appropriate. The committee heard evidence from witnesses regarding the complaint made by the Chief Constable in respect of two separate incidents. The Appellant was represented by a Solicitor who had the opportunity to cross-examine these witnesses. The Appellant then led evidence on his own behalf and from two character witnesses. The Appellant basically admitted the first incident but put forward factors in mitigation which are clearly recorded in the statement of reasons. The committee's decision in respect of that incident has recorded was "that as a professional driver Mr Khan should have been aware of the legislation and that the responsible person in those circumstances would have been aware of the safety and environmental issues associated with leaving a car with the engine running".

  • In relation to the second incident, again the evidence is recorded fully in the statement of reasons including the detail of the accused's denial of what was alleged by Miss Lawrence. The Appellant in his appeal disputes some of the evidence recorded. There was no dispute that Miss Lawrence was a passenger in the Appellant's taxi. The evidence led is set out fully in the statement of reasons and it seems to me that the accuracy of the recording of the evidence is a matter for the committee and it is their recollection of the evidence that counts. In any event in the statement of reasons the evidence on behalf of the Appellant and the Respondents is recorded and the reasons given by the committee as to why they prefer the evidence given by Miss Lawrence to that given by the Appellant. It seems to me that it is a matter entirely for the committee having properly heard the evidence to decide what evidence they prefer. They have given valid reasons for their preference.

  • The Appellant alleges that the evidence given did not support the committee's acceptance of the distress of Miss Lawrence when she got home. The committee have dealt with this and have also dealt with the delay in reporting the matter to the police. They heard evidence form Miss Lawrence and from her partner, Mr Clark and saw their demeanour when they gave evidence. I can see no basis on which the committee's finding that she was distressed can be challenged. The committee concluded according to the statement of reasons that "the fact that she was so distressed by the Applicant's behaviour was sufficient in itself to render him not a fit and proper person to be the holder of a taxi driver's licence even without the first incident". It cannot be said that such a conclusion was unreasonable.

  • From the statement of reasons it is clear that the committee considered the incident involving Miss Lawrence to be sufficient in itself to refuse to renew the taxi driver's licence. They made no similar comment about the first incident. At page 6 the committee state "with regard to the second incident the committee considered this to be the most serious complaint". It seems to me therefore that the Appellant did distinguish between the weight to be attached to each of the incidents and there is no valid appeal on that point.

  • In terms of schedule 1, para 5 (3) a licensing authority "shall refuse an application to grant or renew a licence if in their opinion the applicant is not a fit and proper person to be the holder of a licence." The Act therefore makes it quite clear that it is the opinion of the committee that counts.

  • Based on the two incidents I am satisfied that the licensing authority in arriving at their decision did not (a) err in law; (b) base their decision on any incorrect material fact; (c) act contrary to natural justice or (d) exercise their discretion in an unreasonable manner. Accordingly I can see no basis for the court to hear evidence nor for the matter to be remitted to the licensing authority for reconsideration of their decision. I therefore sustain the first plea-in-law for the Respondents and dismiss the summary application.

  • It was agreed that expenses should follow success and I have therefore awarded expenses in favour of the Respondents.