The burden of Kaivanpor
In Kaivanpor v. DPP [2015] EWHC 4127, the Divisional Court sought to resolve what was seen as a tension between the decision of the Court of Appeal in Re Muck It Ltd v. Merritt [2005] EWCA Civ 1124 and Canterbury City Council v. Ali [2013] EHWC 2360 (Admin) as to who bore the burden of proof in establishing whether an already licensed individual (in Kaivanpor a taxi driver) is a fit and proper person when considering an appeal against a revocation.
In a supreme irony, one of the reasons given by the Divisional Court for preferring the approach in Muck It over that in Ali was that Ali was “ a decision reached with only one party present and represented which was based on an absence of relevant Court of Appeal authority”. This was an irony because in Kaivanpor only one party (Mr Kaivanpor) appeared and was represented, and the leading Court of Appeal authority on licensing appeals does not get a mention in the judgment, and presumably was not cited to the Court.
Decisions where only one party participates are traditionally treated with caution (see Practice Note (CA) [2001] 2 All ER 510). However punctilious Counsel for a sole party is to discharge his or her duty to the court (i.e. to take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions), the fact is that where there is an adversarial process, arguments arise in the course of that battle that would otherwise not appear.
Had the Divisional Court had the benefit of full argument, I will suggest, then it might have realised that it was being asked to answer the wrong question.
The question the Divisional Court answered
Mr Kaivanpor was licensed as a hackney carriage and PHV driver. His licence was revoked by the licensing authority, Brighton and Hove Council, for reasons that need not concern us. He appealed to the magistrates’ court. His appeal was dismissed. He appealed by way of case stated.
One of the two questions the Divisional Court was asked by the magistrates in the case stated was:
Were we right in all the circumstances to place the burden of proof on [Mr Kaivanpor] to show that he was a fit and proper person when considering his appeal under section 61(3) [of the Local Government (Miscellaneous Provisions) Act 1976?]
The Divisional Court’s answer was “No”.
In a nutshell: why the question was wrong
As I will amplify in the rest of this post, the framing of this question betrays a total misunderstanding of the role of an appellate court in a licensing appeal.
As the Court of Appeal ruled in R. (on the application of Hope and Glory Public House Limited) v. City of Westminster Magistrates’ Court [2011] EWCA Civ 31, the test on an appeal against an administrative decision is whether the decision appealed is “wrong”.
And the burden on showing that the decision below on the appellant, whoever that might be (with interesting - but here irrelevant questions being raised where there is a second appeal to the Crown Court).
But Hope and Glory was not referred to in the Divisional Court’s judgment, and - one assumes - was not cited to the Court.
Furthermore, whilst driver licences must not be granted to people who are not fit and proper to hold them, the statutory test for revocation is far wider - I suggest deliberately so.
Whether or not to revoke is not a question of fact - it is a question of judgment. To the extent that is not a statement of the obvious, it further emerges from the ratio of Singh v. Cardiff City Council - another authority that is not referred to in the judgment of the Divisional Court.
The confusion this causes
The net result of all of this has been that appellants are popping up in magistrates’ courts, waiving Kaivanpor about, and asserting that there is a burden on the local authority respondent to show that they are not fit and proper.
A moment’s considered thought should reveal that this is complete nonsense - the burden has to be on the appellant to show that the decision was wrong.
Hopefully an opportunity will arise to have a fully contested hearing on the point, but in the meantime, I set out below in a little more detail how I suggest Kaivanpor went off the rails.
The statutory provisions
The 1976 Act provides that a local authority shall not grant a driver’s licence “unless they are satisfied that the applicant is a fit and proper person to hold a driver’s licence”: s.51(1) (for PHVs) and s.59(1) (for hackney carriages).
S.61 provides that an authority may suspend, revoke or refuse to renew a driver’s licence:
... on any of the following grounds
(a) that he has since the grant of the licence -
(i) been convicted of an offence involving dishonesty, indecency or violence; or
(ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act; or
(b) any other reasonable cause.
It should be immediately noted that the grounds for revocation etc. are different and (I suggest) wider than the ground for refusal of a grant. In particular, “any reasonable cause” is wider than not fit and proper.
Previous case law on the "burden"
In R. v. Maidstone Crown Court ex p Olson [1992] COD 496, O had his licence revoked because of an assault conviction. The conviction was quashed and he then reapplied for a licence under s.51 of the 1976 Act, which application was refused. His appeal to the magistrates succeeded; the local authority appealed to the Crown Court. O sought judicial review of the Crown Court’s preliminary ruling to let in the evidence of the complainant in the assault case. The Divisional Court was asked, inter alia, where the burden of proof lay, and found that it lay on the driver:
The relevant proviso to s.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.
The Divisional Court went on to find that the standard of proof was the civil standard.
These findings were cited with apparent approval by the Divisional Court in McCool v. Rushcliffe Borough Council [1998] EWHC (Admin) 695, another s.51 refusal to grant case.
Then there came the 2013 case of Canterbury v. Ali, an appeal by way of case stated where (as already pointed out, only one party appeared and represented). This was a s.61 case: so Ali’s was appealing a revocation, rather than a refusal to grant. The judge, Carr J., held there:
24. There are three fundamental submissions of law which lie at the heart of this appeal. The first is that the proceedings before the Magistrate should have been by way of a rehearing. I am satisfied by reference to the case of Sagnata Investments Limited v. Norwich Corporation [1971] 2 QB 614 at 636 G and 637 A and B per Lord Justice Edmund Davies’ judgment, that the correct approach of the Magistrates would be, and should have been, proceedings by way of a rehearing. Of direct additional relevance is the authority of John McCool v. Rushcliffe Borough Council [1998] EWHC (Admin) 695 at paragraph 8, per the Lord Chief Justice Bingham, where he said this:
“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 review the decision of the borough Council.”
25. The second proposition is that the onus of proof, the burden of proof, was at all material times on Mr Ali not the Council and the standard of proof was the civil standard. Again, in McCool it is clear from in particular paragraphs 21 and 23 of the Lord Chief Justice's judgment that the onus of establishing on the balance of probabilities that he was a fit and proper person lay on Mr Ali here. The onus on the Council was to do no more than by reference to the civil standard of proof rebut that proposition, even if the substance of what the Council was seeking to allege amounted to a criminal offence.
26. Thirdly, the proper role of the justices was to make the decision anew and not to base their decision on an adverse review of the approach of the local authority. For that proposition reliance is placed, and I accept the proposition, reliance is placed on R (on application of South Northamptonshire Council) v Towcester Magistrates' Court [2008] EWHC 381 (Admin) at paragraphs 27, 30, 31 and 35.
27. I have asked Mr Bishop and he would in any event no doubt have drawn to my attention whether there are any authorities which contradict these three basic fundamental propositions and he has informed me that he is not aware of any. Moreover, no other authorities were produced on behalf of Mr Ali to the contrary at the Magistrates’ hearing below. I am told that it was essentially common ground before the Magistrates that the function of the Magistrates was to carry out a hearing de novo.
So, Carr J. followed the reasoning in McCool, which essentially quoted that in Olson, that the driver bore the burden of establishing that he was fit and proper without appreciating that those cases were s.51 (grant) cases and not s.61 (revocation) cases. She does not also appear to have been referred to Hope and Glory and thus misstated the proper role of the justices in paragraph 26 of her judgment.
The burden issue in Kaivanpor
In Kaivanpor, the Council relied on Canterbury v. Ali to assert that the burden was on the driver to show he was fit and proper.
K asserted that Canterbury v. Ali was wrong, and instead relied on the Court of Appeal decision’s in Re Muck It Ltd v. Merritt & Ors v. The Secretary of State for Transport [2005] EWCA Civ 1124. This concerned the Goods Vehicles (Licensing of Operators) Act 1995. Provisions of that Act dealt with the granting of licenses to applicants (s.13) and their revocation (s.26). The Act expressly provided that a licence could be revoked if it appeared to the traffic commissioner “that the licence-holder is no longer (a) of good repute (b) of the appropriate financial standing or (c) professionally competent” (these 3 requirements being the same requirements which the commissioner had to be satisfied of to grant the licence in the first place). The Court of Appeal held that the burden was on the applicant upon grant to show that the 3 requirements were met, but then the burden shifted to the traffic commissioner to be satisfied that the requirements were no longer met before a revocation could take place.
The Divisional Court’s ruling on the question it was asked
The Divisional Court preferred K’s submissions. Canterbury v. Ali was distinguished on the basis that only one party was represented and the burden issue was obiter.
Wilkie J. said that the two statutory schemes (those in the Goods Vehicles (Licensing of Operators) Act 1995 and the 1976 Act) “reflected the same dichotomy between on the one hand those who apply for a licence, and on the other hand where once they have a licence, the circumstances in which that licence may be revoked or suspended or not renewed”. He went on:
There is a clear and principled dichotomy between the application stage where the onus of proof is sensibly, properly and clearly on the applicant to satisfy the statutory requirements. Once that person has a licence then the schemes, again sensibly and on the basis of proper principle, require the licensing authority which wishes to revoke or suspend a licence or not renew the licence to be satisfied of certain matters. The burden is therefore on the licensing body to establish to its satisfaction that those changes of circumstance or prohibited circumstances have arisen; it is not for the licence holder endlessly to prove that they continue to be a fit and proper person or a person of good repute.
Where the Divisional Court got it right
It must be correct that the onus is on the driver (who the licensing authority does not know from Adam) to satisfy the licensing authority that he is fit and proper to hold a licence when he first applies for the licence. And this is settled law under Olson and McCool.
It must also be correct that having licensed the driver, the licensing authority cannot thereafter demand that on a continuing basis he has to prove he is fit and proper to hold a licence. Something must change for the licensing authority to take the licence away.
Where the Divisional Court got it wrong
Because the Divisional Court were not referred to Hope and Glory, sight was lost of the fact that this was an appeal, not a first instance decision. As was pointed out in Hope and Glory at paragraph 48:
It is normal for an appellant to have the responsibility of persuading the court that it should reverse the order under appeal, and the Magistrates Courts Rules envisage that this is so in the case of statutory appeals to magistrates’ courts from decisions of local authorities.
The “burden” cannot be on the respondent to an appeal. The burden must always be on the appellant to show that the decision below is wrong in the light of the evidence at the appeal.
The burden of what?
Whether or not X is a fit and proper person is not a question of fact: it is a question of judgment for the regulator, to be arrived at on the basis of the underlying facts.
In my view, it might be more accurate to say that the burden is on X to establish those underlying facts when applying for a licence (so, for instance, that he has a driving licence, that he has an absence of convictions, or that if he has convictions that extenuating circumstances exist). It is then a question of judgment (which can only be for the regulator) to decide whether, on those facts, it is satisfied that he is fit and proper.
When it comes to a revocation, the burden may be on the regulator to establish the underlying facts that lead to it being no longer satisfied that X is fit and proper (so that a complaint was made about X’s conduct), but, in practice, X himself may well be the person who evidences those facts (on a renewal form where a conviction is declared) or may have work to do in rebutting a fact (an allegation of assault).
In my view to speak of a burden and standard of proof when the question of whether X is fit and proper is essentially one of judgment.
And, in any event, on a revocation, strictly speaking, the fact (if it is a fact) that a driver might not be fit and proper is a threshold question which gives the local authority a discretion to consider whether to exercise its powers. So in R (on the application of Singh) v. Cardiff City Council [2012] EWHC 1852 (Admin), Singh J. (rightly) held:
69. Before addressing that submission in more detail, I would note that in my view section 61 does not confer only a discretion. In my view, it includes an element what may be called the exercise of a judgment in particular in subsection (1)(b) which requires there to be any other reasonable cause. It was common ground before me, in substance, for present purposes, that means whether a person continues to be a fit and proper person to hold a driver's licence.
70. As I have said, that is not a pure exercise of discretion, it is rather an exercise which calls for judgment to be performed on whether the statutory question has been answered in favour of or against the relevant driver.
71. That is a threshold question before which the exercise of discretion does not exist. Even once the threshold question has been answered against a driver, there still exists in the local authority a discretion. Section 61 provides that in those circumstances a Council may, not that it must, suspend or revoke a licence. So at that stage of the process discretion does come into it. That discretion of course must be exercised lawfully according to well-known principles of public law.
Kaivanpor also misses the point that there may be a suspension, revocation or refusal to renew where a driver remains fit and proper - so if the driver is merely accused of an offence, or awaiting the results of medical tests or a DBS check, and a suspension is appropriate. It is not right to say there is a dichotomy between ss.51/59 and s.61.
Conclusion
Kaivanpor is an unfortunate decision in that the Divisional Court has beholden a mote in Catt J.’s eye, without considering the beam in its own.
The reported effect has been lawyers up and down the land presenting the case before magistrates at appeal hearings to support what I suggest is a perverse argument that the burden is on the respondent. It is not. As Hope and Glory establishes:
the burden is on the appellant;
the issue - on appeal - is whether, in the light of the evidence at the appeal, the decision appealed was wrong.
This is Court of Appeal authority.
It is well-settled that the principles in Hope and Glory apply to licensing cases (see Gateshead Council v. Crozier [2014] EWHC 2097).
In my view, magistrates courts should be invited to follow that case and not the one-sided and wrong decision of Kaivanpor.
