To consider an application by Mr A
(separate copy for sub-committee members only)
Minutes:
a)
The Chair welcomed everyone to the meeting. She
explained that the decision would be made in accordance with Gwynedd Council's
licensing policy. It was noted that the purpose of the policy was to set
guidelines for the criteria when considering the applicant's application with
the aim of protecting the public by ensuring that:
• The person is a fit and proper person
• The person does not pose a threat to the public
• The public are safeguarded from dishonest persons
• Children and young people are protected
• Vulnerable persons are protected
• The public have confidence in using licensed vehicles.
The Licensing
Officer presented a written report on an application received from Mr A for a
hackney carriage/private hire driver's licence. The Sub-committee was requested
to consider the application in accordance with the DBS record, and the
guidelines on relevant criminal offences and convictions. The Licensing
Authority had recommended that the Sub-committee should refuse the application.
The applicant's
representative was invited to ask questions of the Council’s representative.
The applicant was given an opportunity to expand on his application and provide
background information about the incidents in question and also his personal
circumstances. It was noted that he was experiencing personal difficulties
involving his son's health and the death of both his father and his
friend. It was added that he had a
quality taxi company, that he employed local drivers and that his priority was
to retain the business. A witness was
invited to support the applicant's application.
With the evidence having been presented, the applicant, his solicitor, and
his friend withdrew from the room along with the Licensing Manager, while the
members of the Sub-committee discussed the application.
b)
It was RESOLVED that the applicant was not a fit and proper person to be
issued with a hackney carriage/private hire driver's licence from Gwynedd
Council.
c)
In reaching its decision,
the Sub-committee had considered the following:
·
the requirements of the
'Gwynedd Council's Licensing Policy for Hackney Carriages and Private Hire
Vehicles'
·
the applicant's application
form
·
verbal observations by the
applicant, his solicitor, and his friend
·
documents and images
submitted by the applicant during the hearing
·
character references in the
form of letters received in support of the applicant's application
·
an excerpt of closed
circuit television footage (2018 incident)
·
recordings of 999 calls
(2019 incident)
·
the Licensing Department's
report along with the DBS statement disclosing a conviction.
·
Evidence and observations
of the Magistrates’ Court.
d) Specific consideration was given
to the following matters:
The applicant had received a formal caution from
North Wales Police (May 2018) on a charge of assaulting a person contrary to
section 39 of the Criminal Justice Act 1988.
In February 2019 the Licensing Department received a telephone call from
the Police to advise that a member of the public had made an accusation that he
had suffered a physical assault by the applicant following a fare dispute. No
criminal charges were brought against the applicant for this incident.
Following the incident, the Licensing Manager had received information which
outlined the facts of the matter, and a decision was made to revoke the
applicant's licence in order to safeguard the public, in accordance with the
provisions contained in section 61(1) (b) of the Local Government
(Miscellaneous Provisions) Act 1976.
The applicant appealed against the decision, and in a hearing at
Caernarfon Magistrates' Court (July 2019) his appeal against the Council's
decision on 14 March 2019 to revoke his hackney carriage/private hire driving
licence under section 60 of the Local Government (Miscellaneous Provisions) Act
1976 was turned down.
e) Paragraph 2.2 of
the Council's Policy was considered, which stated that a person with a
conviction for a serious offence need not be automatically barred from
obtaining a licence, but would normally be expected to remain free of any conviction
for an appropriate period as stated in the Policy, and to show evidence that
the individual is a fit and proper person to hold a licence. The onus was on
the applicant to prove that he was a fit and proper person.
Paragraph 2.3 of
the Policy was considered, in which reference was made to formal cautions.
Paragraph 5.1 of
the policy was considered, which set out the requirements of the Licensing
Authority in terms of matters to be considered in deciding whether an applicant
was a 'fit and proper person' to be issued with a licence.
Paragraph 6 of the
Policy addressed violent offences. Paragraph 6.1 stated that, since licensed
drivers came into close contact regularly with the public, the sub-committee shall
adopt a firm stance towards those who have offences involving violence.
Paragraph 6.2 states that any applicant found guilty of violence-related
offences was unlikely to receive a licence until they had been free from such
convictions for at least three years .
Paragraph 6.5 of the
Policy stated that an application for a licence shall generally be rejected if
the applicant had a matter to be considered (including cautions) for common
assault and/or an offence under section 4 of the Public Order Act 1986 which
took place less than three years prior to the date of application.
f) The Sub-committee concluded that the
caution dating from 2018, along with the February 2019 incident, involved
violent offending. As the May 2018 caution had been given 21 months prior, and
that a little over a year had passed since the February 2019 incident, both
fell within the three-year period. In accordance with paragraph 6.5 of the
Policy, and the recommendation of the Licensing Manager, the initial
considerations were clearly in favour of refusing the application. The
Sub-committee was also aware, however, that the Policy was only a guidance, and
that it was possible to deviate from it if there was justification for doing
so.
In
deciding whether or not to deviate from the provisions contained within the
Policy, the Sub-committee considered the reasons upon which the following
decisions were based:
·
revocation of licence (May
2018)
·
decision of the
Sub-committee to grant a licence (October 2018)
·
revocation of licence (February
2019)
·
Magistrates' Court verdict
(July 2019) on appeal against February 2019 revocation.
The following matters were considered:
·
the evidence provided by
the applicant to the Sub-committee prior to the meeting pertaining to the
incidents, along with character references
·
the context of previous
decisions, the substance and quality of the evidence presented to the relevant
forums, and the manner in which this evidence had been challenged in those
forums
·
the situation when the
applicant would seek to reopen / challenge matters of fact subject to previous
Court rulings, in which the Sub-committee would be entitled to consider the
Court's findings to be final; especially were the applicant to seek to
challenge those same matters without any new, additional evidence being
submitted, and/or would seek to submit new evidence pertaining to those matters
that could have been presented in the Court in which the appeal was heard.
Following the
revocation of his licence in May 2018, the applicant then submitted a new
application for a licence in October 2018. Despite the Licensing Department’s
recommendation to refuse the application, the Sub-committee decided to approve
it as the circumstances had justified a deviation from the policy, for the
following reasons:
·
That the applicant had
shown remorse for the assault
·
The incident was out of
character and this was highlighted in the many character references received in
support of the applicant's application
·
That there was no record of
any conviction or other caution against the applicant as noted on the DBS
record
·
That the applicant was
already under caution by the Police and was therefore mindful not to breach the
law again
·
That the attack was not a
violent one against the public, but rather against another competitor in the
taxi trade
·
The victim of the attack
was not without blame
·
That the attack had been
provoked, in a location that had CCTV coverage
·
That the attack had arisen
in the context of a lengthy campaign of harassment and provocation by the
victim of the attack
·
An honest explanation was given as to why the
applicant had not appealed against the decision to revoke his licence - he had
experienced personal difficulties involving his son's health.
In the view of the
Sub-committee, the Sub-committee in 2018 had clearly given the applicant
another chance, believing that he would take the Police caution seriously and
take proactive steps to keep out of any trouble which could cast further doubt
upon his ability to be a fit and proper person. It was on that basis that the
Sub-committee in 2018 came to the conclusion that he was a fit and proper
person. Nevertheless, following the February 2019 incident, the Sub-committee
was required to reconsider the decision made in 2018 that the applicant was a
fit and proper person to be issued with a licence, along with the reasons given
for that decision.
The applicant's hackney carriage/private hire licence was revoked for the
second time by the Licensing Department following the February 2019 incident.
This decision was made on the grounds of the applicant's conduct in the
incidents that occurred in May 2018 and February 2019.
The applicant appealed to the Magistrates' Court against that decision, and
live evidence of the 2018 and 2019 incidents was presented in the hearing,
along with written witness statements and recordings of telephone calls made to
the police.
·
It was noted that the Court
had favoured the description of the defendant in the 2018 incident, rather than
the appellant's description. It was highlighted that in reaching their
decision, the Magistrates had disregarded some of the reasons provided by the
Sub-committee in 2018, and had given no weight to the fact that the offence was
one of assault against a competitor; the Policy did not discriminate according
to the identity of the victim of violence.
·
In the same manner, the
Court also gave precedence to the descriptions given by the victims of assault
in the 2019 incident, highlighting that this had been a serious incident.
Despite apparent inconsistencies in the evidence in terms of the absence of
injuries resulting from the alleged assault, the incident had clearly been an
unpleasant one for the passengers. Consequently, the Court found that the
Council had not been mistaken in its decision that 'the applicant is not a fit
and proper person to be issued with a licence' on the grounds of the 2018 and
2019 incidents. The appeal had been dismissed.
Consideration was
given to the applicant’s personal statement, in which he had noted:
·
That he was being treated unfairly compared to
other drivers
·
That he had not been invited / given the
opportunity by the Licensing Department to discuss / present evidence
pertaining to the 2019 incident prior to his licence being revoked in May 2019
·
That the Licensing
Committee's investigations into the 2018 and 2019 incidents, which led to his
licence being revoked, was flawed
·
That the campaign of
harassment and provocation by the victim of the 2018 attack persisted - CCTV
images were shown of incidents outside his home
·
That there were no grounds
for the Magistrates' Court ruling based on the evidence submitted
·
That the police had not
identified any physical injuries to the passenger when they attended the 2019
incident
·
That the 2018 and 2019
incidents had not taken place in the manner in which the Court found that they
had
·
That he had obtained
several character references in support of his application.
In reaching its
decision, the Sub-committee deemed the Court's findings to be clear and
unambiguous. The Court had considered a great deal of written evidence, oral
evidence by living witnesses under thorough questioning, and both the Council
and the applicant had presented their respective legal arguments. Under the
circumstances, these findings were considered to be of great significance.
It was considered that the applicant's presentation to the Sub-committee
amounted to a retelling of the factual matters presented before the
Magistrates' Court in regard to the 2018 and 2019 incidents. The Sub-committee
found no evidence to show that anything had changed substantially since the
appeal, and the Sub-committee was under the impression that the applicant was
inviting it to disregard the Court's findings.
g) Having carefully
considered all the evidence and information, the Sub-committee was not of the
view that the application merited deviation from the policy guidance, and thus
came to the conclusion that the applicant was not a fit and proper person to
hold a hackney carriage and private hire vehicle driver's licence.
The Solicitor reported that the applicant had the right to submit an
appeal to Caernarfon Magistrates' Court against the Sub-committee's decision
and that any such appeal should be submitted to the Chief Executive of
Llandudno Magistrates' Court within 21 days of receiving the letter to confirm
the Sub-committee's decision. It was also noted that should the applicant wish
to appeal against the decision of the Magistrates' Court, such an appeal should
be directed to the Crown Court.