England and Wales High Court (Administrative Court) Decisions

1. THE LORD CHIEF JUSTICE: On 27 March 1997 the Rushcliffe Borough Council refused to grant Mr John McCool a licence to drive a private hire vehicle. He made a complaint to the Nottingham Magistrates' Court appealing against the Borough Council's decision on 14 April 1997 and on 19 June the magistrates dismissed his complaint and upheld the Borough Council's decision. He now appeals to this court against the decision of the magistrates' court by way of case stated.

2. Before coming to the facts of the case and the respective contentions of the parties, it is helpful to refer to the legislative regime which governs such grants and appeals. Section 51(1) of the Local Government (Miscellaneous Provisions) Act 1976 provides so far as relevant:

3. Subsection (1A) inserted by amendment reads:

4. Section 52 provides that:

5. Section 57(1) provides:

6. Lastly I make reference to section 61(1) of the Act which provides:

7. One must, as it seems to me, approach this case bearing in mind the objectives of this licensing regime which is plainly intended, among other things, to ensure so far as possible that those licensed to drive private hire vehicles are suitable persons to do so, namely that they are safe drivers with good driving records and adequate experience, sober, mentally and physically fit, honest, and not persons who would take advantage of their employment to abuse or assault passengers.

8. The Borough Council's refusal of a licence to Mr McCool was under section 51(1)(a) because the local authority was not satisfied that Mr McCool was a fit and proper person to hold a driver's licence. His appeal was to the magistrates' court under section 52 and was by complaint under rule 34 of the Magistrates' Courts Rules 1981. It is accepted that the role of the justices on the hearing of the complaint was to form their own independent judgment of the question at issue and not simply to review the decision of the Borough Council.

9. On the hearing of the complaint on 19 June the magistrates made the following findings set out in paragraph 3 of the case stated:

10. The justices add:

11. The justices set out in the case the competing submissions made to them on behalf of Mr McCool and the Borough Council. They made reference to the authorities to which they were referred, in particular Westminster City Council v Zestfair Ltd (1989) 88 LGR 288, and R v Maidstone Crown Court, ex parte Olson (18.5.92, briefly reported in The Times on 21.5.92). They then set out in paragraph 7 advice which they received from their clerk in open court, which was to the following effect:

12. That is a citation from Pill J's judgment in Zestfair at page 294, where he recites part of the judgment of Cusack J in Kavanagh v Chief Constable of Devon and Cornwall [1974] QB 624.

13. In paragraph 8 of the case stated the justices summarised their opinion as follows:

14. The justices then indicated that they dismissed the complaint and they raised four questions for the opinion of the High Court. It is not in my judgment necessary to read those questions since, as I shall indicate, I think that they can helpfully be reformulated.

15. It is common ground that in reaching their decision the justices were entitled to rely on hearsay evidence. That is in my judgment clear from section 51(1)(a) of the Act and also from Kavanagh v Chief Constable of Devon and Cornwall , in particular the passages at 627G, 628G, 629H, 630A, 633D and 634C. It is also in my judgment plain from the judgment of Pill J in Westminster City Council v Zestfair . I conclude that, in reaching their respective decisions, the Borough Council and the justices were entitled to rely on any evidential material which might reasonably and properly influence the making of a responsible judgment in good faith on the question in issue. Some evidence such as gossip, speculation and unsubstantiated innuendo would be rightly disregarded. Other evidence, even if hearsay, might by its source, nature and inherent probability carry a greater degree of credibility. All would depend on the particular facts and circumstances.

16. Mr Wise, who represents Mr McCool in this appeal, accepts that hearsay evidence is properly to be considered in this class of case. He however submits that the Borough Council and the justices could not properly rely on hearsay evidence to conclude that Mr McCool had probably committed an indecent assault in the absence of direct or first-hand evidence to that effect. That submission is founded on the judgment of this court in R v Board of Visitors of Hull Prison, ex parte St Germain (No. 2 ) [1979] 1 WLR 1401, and in particular the passage in the judgment of the court at 1409H, where Geoffrey Lane LJ said:

17. Mr Wise relies on that passage to submit that there must always be more than hearsay evidence of the commission of a criminal offence. I have no doubt that the passage relied on sounded a wise note of caution, particularly in the context of a case such as that, involving proof of what were in effect criminal offences carrying terms of imprisonment on a finding of guilt. I very much doubt if the court was intending to lay down any general rule. The standard of proof required must in my judgment always depend on the nature of the proceeding and the potential consequences of an adverse finding. In any event, however, it is plain that in the present case the justices were not basing themselves on hearsay evidence alone. It is apparent when one looks at the findings of fact in paragraph (3) that (a), (b), (c), (e), (f) and (g) were not based on hearsay, but were based on the evidence and admissions of Mr McCool when he testified before the justices. When one looks at paragraph 8 it is again clear that sub- paragraph (d) (i), (ii) and (iii) are not based on hearsay; nor is (e); and (f) represented the justices' own conclusion. It is plain that the justices considered the complainant's evidence, accepted as accurate as reported in the newspaper, as if it were, in effect, a transcript of her evidence. The appellant evidently accepted the evidence of his own testimony in cross-examination in the Crown Court as accurate. The justices had evidence of lies told by him and of his admission to having perjured himself in the Crown Court. They also were entitled to pay attention to his inconsistent explanation of events given to them, as compared with his explanation in the Crown Court. They were plainly entitled to reach the conclusion that he was an untruthful witness. In all those circumstances I do not accept that it was not open to the justices in this case to conclude on the evidence before them that it was more probable than not that Mr McCool had committed an act of indecent assault.

18. Secondly, Mr Wise submits that, since the justices were considering whether Mr McCool had committed the criminal offence of indecent assault, it was incumbent upon them to apply the criminal standard of proof or the civil standard appropriate to an allegation of such gravity (not in the result very different from the criminal standard). In support of that submission he referred us to Hornal v Neuberger Products Ltd [1957] 1 QB 247, R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74, Dean v Dean [1987] 1 FLR 517, and In re a Solicitor [1993] QB 69. Those cases are undoubtedly good authority for the proposition that where in civil proceedings it is sought to prove conduct amounting to or analogous to a criminal offence, the standard of proof must be analogous, at least, to that appropriate in criminal proceedings.

19. In my judgment, however, it is important to bear in mind what is to be proved and by whom. We have been referred to the transcript of R v Maidstone Crown Court, ex parte Olson . It is, I think, important to appreciate the issues in that case. The applicant had been a licensed taxi driver for some years before he was convicted of indecently assaulting the complainant. She had been about 15 years old at the time and described an assault of an indecent nature in a country lane in Kent. The applicant denied the offence. He was tried and convicted by a majority of the jury. He appealed against his conviction on the ground of a number of misdirections and non- directions, and the conviction was quashed as unsafe and unsatisfactory. It appears that there was no retrial. Upon his conviction the local authority (who had the same role and function as the Rushcliffe Borough Council) had revoked his licence. When the conviction was quashed he applied for the licence to be renewed and reliance was placed on section 51 of the 1976 Act. The local authority in the first instance considered the application and refused to renew the licence on the ground that they were not satisfied that the applicant was a fit and proper person to hold a licence. The applicant appealed to the justices and they refused to permit the local authority to call the complainant to give evidence of the alleged assault. The justices thereupon determined that the applicant was a fit and proper person to hold a taxi driver's licence and the appeal accordingly succeeded. The local authority then appealed to the Crown Court against the justices' decision. At the outset of that appeal the trial judge was asked to rule as a preliminary point whether the complainant's evidence of the indecent assault could be admitted. He ruled that the local authority were entitled to call the complainant to give evidence and it was that issue which was the subject of an application for judicial review. As appears from the transcript at page 3F the application for judicial review proceeded on the undisputed assumption that if the complainant's evidence was not to be heard, the local authority's appeal would fail and the applicant would establish that he was a fit and proper person to hold a taxi driver's licence. In the course of the judgment of the court delivered by Watkins LJ, reference was made to the burden of proof on which the following statement was made at page 10A of the transcript:

20. The relevant proviso to section 51 of the 1976 Act, which we have already referred to, is expressed to show that it is for the applicant to establish that he is a fit and proper person to hold a driver's licence. It is, as has been said, accepted that he would in this case discharge that burden, if the local authority is not permitted to call the complainant to give evidence. It follows that the evidential burden shifts to the local authority. It should not, however, be overlooked that what they are seeking to do is to rebut his case that he is a fit and proper person. They are not seeking to prosecute him a second time."

21. The court went on to deal with the standard of proof and, after reference to a number of cases, said at page 14F:

22. It is in my judgment very important to bear in mind the basis upon which that case was proceeding before this court, namely that the applicant was entitled to be regarded as a fit and proper person unless evidence of indecent assault could be adduced against him. It is also in my judgment very important to bear in mind the regulatory framework to which I have already made reference.

23. I return to section 51(1), from which it is plain that a district council has a mandatory obligation to grant a licence to an applicant for a licence to drive private hire vehicles, but that it is prohibited from granting a licence unless it is satisfied that the applicant is a fit and proper person to hold a driver's licence. It is no doubt right to regard an applicant as fit and proper if adequate evidence of good character and record is adduced and there is no reason to question or doubt it. But the local authority, or on complaint to them the justices, are not permitted to grant the licence unless they are satisfied that the applicant is fit and proper. They 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 section 57(1); or they might fail to be satisfied for any other good reason. It is in my view impossible to be prescriptive as to what might amount to a good reason. What will be (or may be) a good reason will vary from case to case and vary according to the context in which those words appear. The decision maker may take account of hearsay (as already indicated), provided it is hearsay which is not unreasonably thought to be worthy of credence, and such evidence need not be evidence which will withstand scrutiny according to the formal rules of a court of law. It is not a good reason if a local authority or justices rely on prejudice or assertions shown to be ill-founded or gossip or rumour or any other matter which a reasonable and fair-minded decision maker acting in good faith and with proper regard to the interests both of the public and the applicant would not think it right to rely on. But it is appropriate for the local authority or justices to regard as a good reason anything which a reasonable and fair-minded decision maker, acting in good faith and with proper regard to the interests both of the public and the applicant, could properly think it right to rely on. In my judgment the justices in this case did not exceed the bounds of appropriate evidence in reaching their decision.

24. I said earlier that the questions posed by the justices in my view called for reformulation. I would propose to reformulate the questions as follows:

25. To that question I would answer "Yes".

26. Again I would answer "Yes", save that the justices may well have applied a more rigorous standard than was called for in the circumstances.

27. To that question I would answer "Yes".

28. MR BURNS: My Lord, I understand that the appellant is legally aided.

29. MR BURNS: My Lord, could I make an application for costs on the terms approved in Parr v Smith , which is that there be an order that the appellant pay the recoverable costs of the respondent, but that that order be postponed until further directions are given. That leaves it open so that if one day bounty falls on him it might be appropriate to reopen the matter?

30. THE LORD CHIEF JUSTICE: I wonder if there is any real purpose in that, Mr Burns?

31. MR BURNS: My Lord, I am instructed to make the application. I concede that it is hardly ever fruitful, but there is at least the door open if the lottery is successful. It used to be the football pools order.

32. THE LORD CHIEF JUSTICE: Yes. I think the usual form of order is: not to be enforced without further order.

33. THE LORD CHIEF JUSTICE: What do you say, Mr Wise? You want an order for legal aid taxation of your costs, I have no doubt?

34. THE LORD CHIEF JUSTICE: We will certainly make that order.

35. MR WISE: I am much obliged. My Lord, my client is unemployed and is in receipt of legal aid. In my submission it would be inappropriate or unnecessary to make any further order.

36. THE LORD CHIEF JUSTICE: Supposing he won the lottery this week?

37. MR WISE: The chances of that happening, my Lord, are very small indeed. As your Lordship is aware, the court has a discretion to make no order or to make the usual football pools type order.

38. THE LORD CHIEF JUSTICE: Yes. We are inclined to make no order, save an order for legal aid taxation.

39. MR WISE: My Lord, may I raise one further matter? May I seek leave to appeal? I seek leave to appeal on one point only and that is the issue of standard of proof in this case.

40. THE LORD CHIEF JUSTICE: We have to certify a question of general public importance.

41. MR WISE: No, my Lord. This is a civil matter. The appeal would go to the Court of Appeal.

42. THE LORD CHIEF JUSTICE: That is quite right, yes.

43. MR WISE: But, of course, leave is required from the court below when one goes from the Divisional Court to the Court of Appeal in a civil matter. I must make the application to your Lordships today. Your Lordships have heard submissions on the standard of proof. In my submission it is an important point. Your Lordships have found that the justices were correct in the present case to have made their findings on the civil standard. But the issue raises, in my submission, an important point which rests uneasily with many of the authorities which have been put before your Lordships during the course of argument today. The authorities are, of course, diverse and are different depending on the circumstances both of the tribunal, the class of case and the facts of the individual case. One recognises that, and one recognises the difficulty in casting in stone the appropriate formulation for the standard of proof in a particular class of case. But nevertheless your Lordship has found that the standard of proof found here -- the civil standard -- was appropriate. In my submission that is an issue that ought properly to be ventilated more properly before the Court of Appeal so that they can consider afresh all the relevant authorities. My Lord, I seek your Lordships' leave to appeal on that point.

44. THE LORD CHIEF JUSTICE: What do you say, Mr Burns?

45. MR BURNS: My Lord, I would respectfully submit that your Lordship has dealt with it very fully in the course of judgment this afternoon. There is a clear distinction between the cases cited by my learned friend and the licensing framework created by section 51. I respectfully submit that no purpose could be served by having the matter ventilated again in front of the Court of Appeal.

46. THE LORD CHIEF JUSTICE: Thank you. I think, Mr Wise, that we see our decision as resting more on the language of the sections that are in issue in this case rather than on the broader issue about the appropriate standard of proof or the proof of different matters in different proceedings. On that basis we are disinclined to grant you leave, but of course it is open to you to go to the Court of Appeal and seek to persuade their Lordships that you should have leave. Clearly we do not want to put an impediment in your way, but we do not really think that this is a case that raises the issue you want to argue.

47. THE LORD CHIEF JUSTICE: Thank you very much.