Interim suspensions: still lawful despite Singh v. Cardiff and now Reigate & Banstead BC v Pawlowski
Here is the scenario: a local authority licences a hackney carriage or private hire driver. The authority becomes aware of that a serious allegation has been made against the driver: say a sexual assault upon a passenger. A criminal investigation is underway; the driver has been arrested, has exercised his right to silence (on legal advice), and has been released on police bail and is yet to be charged; the passenger’s identity is being kept secret. Can the local authority immediately suspend the driver’s licence pending investigations, with a full hearing to take place at a later date, when it can consider whether to revoke the licence?
Until the case of R. (on the application of Singh and others) v. Cardiff City Council [2012] EHWC 1852 (Admin) it was thought that the answer was yes, it could.
Obiter dicta in Singh by Singh J., said the answer was no. As a result of Singh, many local authorities do not consider they have the power to suspend on an interim basis. Others, Leeds being a notable example, continue with the practice.
The dicta in Singh has been given fresh legs by what was in effect a test case brought by the local authority in Reigate and Banstead Borough Council v. Pawlowski [2017] EWHC 1764 (Admin). In this case the dicta in Singh was treated as being correct, with HHJ Keyser Q.C. (sitting as a High Court Judge) providing, obiter, some “limited observations of a general nature” in the “hope of providing a small measure of assistance for the future”.
I will argue in this article (which first appeared in the Journal of Licensing) that Singh J.’s comments in Singh were obiter dicta that should be easily distinguishable in the vast majority of cases, and furthermore that this part of the decision was per incuriam and is wrong. The correctness of Singh does not appear to have been argued in Pawlowski, and - if anything - the necessity for the “observations” in that case demonstrated the incorrectness of the supposed ruling being followed.
Both cases demonstrate the dangers of judicial intervention on obiter matters. Hopefully at some point soon, a case will come where the Singh fallacy can be put to bed.
The statutory power to grant and then to suspend, revoke and refuse to renew
A local authority cannot grant a hackney carriage driver’s licence or a private hire vehicle driver’s unless it is “satisfied that the applicant is a fit and proper person to hold a driver’s licence”: ss.59(1)(a) and 51(1)(a) of the Local Government (Miscellaneous Provisions) Act 1976 respectively.
Once the licence is granted, s.61 (as amended by s.52 of the Road Safety Act 2006 [1]) gives the local authority a power to suspend, revoke or refuse to renew:
(1) ... a district council may suspend or revoke or (on application therefor under section 46 of the Act of 1847 or section 51 of this Act, as the case may be) refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle 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.
(2) ...
[(2A) Subject to subsection (2B) of this section, a suspension or revocation of the licence of a driver under this section takes effect at the end of the period of 21 days beginning with the day on which notice is given to the driver under subsection (2)(a) of this section.
(2B) If it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect, and the notice given to the driver under subsection (2)(a) of this section includes a statement that that is so and an explanation why, the suspension or revocation takes effect when the notice is given to the driver.]
(3) Any driver aggrieved by a decision of a district council under subsection (1) of this section may appeal to a magistrates’ court.
The express statutory basis for revocation, etc. (“any other reasonable cause”) is wider than the express statutory qualification for a grant (“fit and proper person to hold a licence”).
Suspensions and revocations having immediate effect
S.77(2)(b) of the 1976 Act provides that if any decision of a district council against which a right of appeal is conferred by the Act (so including a s.61 decision) makes it unlawful for any person to carry on a business which he was lawfully carrying on up to the time of the decision, then, until the time for appealing has expired, or, when an appeal is lodged, until the appeal is disposed of or withdrawn or fails for want of prosecution, that person may carry on that business.
This generally (although not inevitably [2]) meant that notwithstanding a suspension or a revocation, the driver could carry on driving pending the appeal process.
Sub-subsections 2A and 2B to s.61, and a new subsection (3) to s.77 were introduced by the Road Safety Act 2006 with effect from 16 March 2007. These provisions remove the driver’s ability to drive pending appeal where the decision notice includes a statement that (and an explanation way) the interests of public safety require the suspension or revocation of the licence to have immediate effect.
Similar provisions had been in place in London since the passage of the Private Hire Vehicles (London) Act 1998, s.17 of which provides (as amended) :
(1) Where the [licensing authority] has decided to suspend or revoke a licence under section 16—
(a) [the authority] shall give notice of the decision and the grounds for the decision to the licence holder or, in the case of a London PHV licence, the owner of the vehicle to which the licence relates; and
(b) the suspension or revocation takes effect at the end of the period of 21 days beginning with the day on which that notice is served on the licence holder or the owner.
(2) If the [licensing authority] is of the opinion that the interests of public safety require the suspension or revocation of a licence to have immediate effect, and [the authority] includes a statement of that opinion and the reasons for it in the notice of suspension or revocation, the suspension or revocation takes effect when the notice is served on the licence holder or vehicle owner (as the case may be).
(3) A licence suspended under this section shall remain suspended until such time as the [licensing authority] by notice directs that the licence is again in force.
(4) The holder of a London PHV operator’s or driver’s licence, or the owner of a vehicle to which a PHV licence relates, may appeal to a magistrates’ court against a decision under section 16 to suspend or revoke that licence.
S.17(2) of the 1998 Act is the source of s.61(2B) of the 1976 Act. S.17(3) of the 1998 Act contemplates open-ended suspensions.
When the relevant amendments to the Road Safety Bill were introduced in the House of Commons, the Minister said [3]:
New clauses 6 and 7 deal with taxis and private hire vehicles, sometimes known as minicabs. Both clauses have the same objective: to make travel safer for people who use those modes of transport. Against the background of the Bichard report and the legislation that we have brought forward in that regard, we have considered carefully whether we should use the opportunity presented by the Road Safety Bill to deal with any urgent safety concerns relating to taxi and PHV legislation. The result is these new clauses to deal with two worrying aspects of the legislation that we identified.
New clause 6 addresses our concern about a taxi or PHV driver’s right to continue working while appealing against a decision to suspend or revoke his licence, even if he is considered to represent an immediate threat to public safety. The new clause gives local licensing authorities in England and Wales, outside London, a new power which will enable them to suspend or revoke a taxi or PHV driver’s licence with immediate effect on safety grounds. That power has been available to the licensing authority in London—Transport for London—for a number of years.
Drivers’ automatic right to continue working pending appeal has been a source of justified concern to many taxi and PHV licensing authorities. They want to use their licensing powers to ensure that passengers are safe using local taxi and PHV services. They play a tremendously important role in protecting residents and visitors who use taxis and PHVs in their areas. The new clause will enable them to do so even more thoroughly in some circumstances—for example, when a driver has committed a serious offence or is suffering from a medical condition that makes it unsafe for him to continue working.
And later [4]:
There will be no new powers to suspend or revoke a licence. One would still have to satisfy the grounds for a suspension or revocation of a driver’s licence as under the present legislation. The difference is that at the moment if the individual whose licence is suspended appeals against that suspension, they can continue to drive people around while they await the hearing of the appeal. If someone is accused of a serious offence—as serious as rape or some other sexual offence—it would be horrendous if they were allowed to continue to drive a private hire vehicle while waiting for the appeal against suspension to be heard. Under the new clause, when the licensing authority takes the view that the offence is serious, it will be able to suspend the licence.
The argument that was put to us by some taxi drivers was that it might leave them open to false allegations and they might lose their livelihood over a trivial allegation while awaiting the hearing of appeal against suspension. However, in the experience of the use of the power in London, where it has been in place for some time, it has not been abused. Drivers have had their licences suspended pending appeal only in cases in which a serious allegation has been made against them. Given the seriousness of the offences that might be involved, I think that the new clause is a proportionate response to the situation. No driver should lose their livelihood lightly even for a short time, but when someone is accused of an offence of sufficient seriousness to justify the revocation or suspension of their licence, it is appropriate that they should not continue to drive pending an appeal.
Interim suspensions before Singh v. Cardiff
Before 2012, it was commonly thought that it was lawful to suspend a licence on an interim basis pending investigation. So, Button on Taxis, 3rd edition (2009) provides:
6.39 The question of suspension of any licence raises an interesting point. A legitimate use of the suspension powers would be when the council has serious concerns about the fitness of a driver as a result of evidence which has come into their possession but which the council needs to take time to investigate before a final decision can be made.
6.40 In many cases, a decision is made by officers under delegated powers to suspend a licence following allegations of serious misconduct or criminal activity. The investigation may continue thereafter, resulting in the licensee being brought before a committee to answer the allegations.
In these circumstances, to avoid any suggestion that there are two punishments [5] arising from one set of circumstances, it must be made clear that the initial suspension is without prejudice to any further action that may be taken on the conclusion of the investigation. Even then, there is an argument to say that the decision of the council has been to suspend the licence, and that therefore no further action can be taken. However, the process of suspension to allow an investigation, and possible further sanctions by means of additional periods of suspension or revocation is a method widely used by local authorities....
It is not difficult to see the very useful purpose that this process serves: my scenario at the beginning of this article. A serious allegation is made, but because of the criminal process, much has to stay under wraps. At that stage, it is very hard for a licensing authority to know the truth of the matter. The allegation could be true; it could be malicious. The driver’s legal representatives in the criminal proceedings may well have advised him not to answer questions on the matter. Much may come out in the criminal trial. If a s.61 decision has to be once and for all, then there is a risk that it will be the wrong decision. And delaying a decision until the conclusion of criminal process risks endangering the public in the meantime.
Indeed, an interim suspension was the process adopted in Leeds City Council v. Hussain [2002] EWHC 1145 (Admin). There was an incident of violent disorder, involving a number of private hire drivers. H was charged. The Council suspended his licence as “a temporary measure pending the resolution of [the] criminal proceedings” [6]. The magistrates’ court dismissed an appeal. However the Crown Court allowed an appeal, finding, inter alia, that “it would have been preferable to have awaited the outcome of the criminal proceedings against [H] before taking any action in relation to his private hire licences” and that “there was not sufficient information before us to say that there was a reasonable chance of [H] being convicted of the offence of violent disorder”. The local authority appealed by way of case stated to the Administrative Court [7].
Silber J. held that the phrase “any other reasonable” cause within s.61(1)(b) meant that the Council had a wide discretion (¶12) and it was not necessary for there to be a conviction (¶11) nor indeed for there to be a reasonable chance of conviction (¶¶14, 27). Indeed in other reports, authorities had gone behind acquittals (¶¶15-16).
He referred to McCool v. Rushcliff Borough Council [1983] 3 All E.R. 889 where Lord Bingham C.J.’s stated the objectives of the licensing regime as including:
... to ensure as 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 take advantage of their employment to abuse or assault passengers.
Silber J. relied on this passage to find that (at ¶25) “the council, when considering whether to suspend a licence or to revoke it, is focusing on the impact of the licence-holder’s vehicle and character on members of the public and in particular, but not exclusively, on the potential users of those vehicles”. No criticism was levelled at the local authority for suspending on a temporary basis, and, although the judge made no express finding that interim suspensions were permissible, the entire basis of his judgment is consistent with such an approach.
Singh v. Cardiff
However, then there came R. (on the application of Singh and others) v. Cardiff City Council [2012] EHWC 1852 (Admin).
Cardiff had a penalty points scheme. It had formed the view that, in practice, the decision under s.61 was whether a driver was fit and proper to hold a licence. If the driver was not fit and proper, then the only real avenue was to revoke. This meant that action was not taken against licensed drivers who were guilty of misconduct, the magnitude of which did not warrant revocation. It was suggested that a penalty points scheme, where the accumulation of a certain number of points over a given period of time would result in an automatic revocation of the licence. The authority’s policy stated “The accumulation of 10 or more points in any period of 3 years will normally result in the automatic revocation of the licence”.
Two drivers, S and M, challenged revocations flowing from the penalty points policy in judicial review proceedings. Singh J. found that the points scheme, providing as it did for automatic revocation upon the accumulation of a certain number of points without any discretionary consideration of the particular circumstances of the case, was unlawful. He quashed both decisions.
M had been involved in 2 separate incidents on 25 and 27 May 2011. The matters were brought before committee on 5 July 2011. M did not attend. As a result of this failure, the committee suspended his licence until he attended a committee meeting to answer the report against him. M was informed in standard form of his right to appeal. He appealed. At a committee hearing on 9 August 2011, 16 points were imposed on his licence and, applying its penalty points policy, the local authority revoked it.
Singh J. dealt, obiter, with M’s suspension and found as follows:
100. The claimant submitted that in any event, quite apart from his other arguments what happened in this case was that on 5th July 2011 the defendant decided to suspend his licence rather than to revoke it. It was submitted, as it were, that the defendant authority was therefore “functus officio”. It was submitted there is no power of interim suspension in section 61 of the 1976 Act.
101. I would accept those argument on behalf of the claimant Mr Morrissey, in this case.
102. Returning to the language of section 61, I remind myself that this was not a case in which any attempt was made to activate the suspension of the licence to have immediate effect pursuant to the interest of public safety basis in subsection (2B). The notice sent to Mr Morrissey did not purport to invoke that provision or to make the suspension immediately effective.
103. In my judgment, the way in which the concept of suspension is used by Parliament is section 61 of the 1976 Act is not, as it were, to create a power of interim suspension, it is rather after a considered determination in other words a final decision on whether ground for either revocation, or suspension of a licence is made out, for there to be either revocation or, as a lesser sanction, a sanction of suspension.
104. By way of analogy, one can envisage for example in a professional context a solicitor or a barrister can be disciplined on grounds of his conduct. The relevant disciplinary body may conclude that even if the misconduct has been established, that the appropriate sanction should be something less than complete revocation of the practising certificate for the relevant lawyer. It may be, for example, a suspension for a period of 1 year, will constitute sufficient sanction in the interests of the public.
105. It is in that sense, in my judgment, that Parliament uses the concept of suspension in section 61 of the 1976 Act. It does not use, as it were, to create an interim power, before a reasoned determination has been made, that the grounds in subsection (1A) or (1B) have been made out. It is not, as it were, a protective or holding power. It is a power of final suspension, as an alternative to a power of final revocation. For those reasons I accept that aspect of Mr Morrissey's claim for judicial review also.
Is Singh v. Cardiff binding?
This decision has been interpreted by some as preventing interim suspension. Mr Button’s Bulletin of 18 October 2012 [8] (“this... judgment will prevent local authorities suspending a drivers’ licence pending further investigation”) and Professor Roy Light’s Local Government Lawyer article of 18 December 2013 [9] (“This decision now seems to make such an approach unlawful as Singh J. decided that s.61 does not confer a power of interim suspension”).
Mr Button proposed a workaround solution involving a rapid final decision with immediate effect followed by a re-licensing if allegations turn out to be false. Leaving aside its unwieldy nature, this solution has with it the issue that the “rapid” final decision needs to be Article 6 compliant.
In Singh, Singh J. (at ¶102) distinguished M’s suspension to one where the suspension has immediate effect because the notice complies with the requirements of s.61(2B).
Aside from Cardiff’s eccentric treatment of M, it is hard to think (since the amendments brought about by the Road Safety Act 2006) of an interim suspension that would not include a s.61(2B) notice. The very purpose of an interim suspension is to protect the public by preventing the driver from driving a hackney carriage or PHV pending a full investigation. It would be pointless if the driver could carry on driving pending the resolution of an appeal.
The facts relating to M in Singh were unusual and extreme. It seems extraordinary (if not just plain wrong) to suspend a driver for not attending a committee meeting: the more normal actions would be to adjourn to a further date, or to proceed in the driver’s absence.
I suggest that the obiter statement of the judge, if it has any persuasive weight at all, should be confined to the very unusual facts of the case.
Singh J. did not say what his view would have been had an interim suspension decision contained a s.61(2B) notice. It has to be accepted that he goes on to express a view in ¶103 that can be interpreted as a reading that any interim suspension is unlawful. But why did he observe there was no s.61(2B) notice unless he thought that this made a difference?
If a local authority decides to impose an interim suspension under s.61 with a s.61(2B) notice on it, then it is entirely open to that authority to say (as the Council does) that such a decision does not conflict with Singh because Singh is not even persuasive authority in relation to such a decision.
Was Singh v. Cardiff rightly decided on the issue?
Furthermore, it can be forcefully argued that Singh J.’s obiter dicta is, in any event, per incuriam and wrong.
First, Singh J. approached s.61 as if it was a disciplinary provision. He was not helped by Cardiff’s policy referring to “a deficiency in the legislation relating to the discipline of drivers” and the word “penalty” both in the policy and in the name of the scheme itself. S.61 is in fact not a punitive provision, but part of a regulatory scheme the objectives of which include public protection: McCool. The reports do not reveal whether McCool was cited to the Court.
A common trap for barristers (and barristers who become High Court judges) to fall in to is to think that everything in the world is analogous to being a barrister. Singh J.’s analogy of s.61 with the powers deployed by regulators for barristers and solicitors is a bad one because - in the context to which the judge was referring to them - they are each (to use his phrase) a “disciplinary body”.
This is a bad analogy, because driving a hackney carriage or PHV is not a profession, and, unlike a profession there is no concept of “disciplining” drivers. They are subject to the criminal law of the land, and their licences can be subject to revocation, suspension or refusal to renew under s.61 as part of a regulatory (not disciplinary) regime
Not only it is a bad analogy, it is also not an accurately applied analogy, because as well as being disciplinary bodies, the Bar Standards Board and the Solicitors’ Regulation Authority have regulatory functions, and, by virtue of such, both can in fact impose interim suspensions (or actions that have that effect). So:
the Bar Standards Board can impose an interim suspension in the public interest [10];
the Solicitors Regulation Authority can impose conditions on a solicitors’ practising certificate as a protective measure where it considers it in the public interest to do so [11].
And there are numerous other professions where the relevant regulatory body can impose interim suspensions. So for example, doctors [12], nurses and midwives [13], dentists [14] and health care professionals [15].
And, even for the non-profession of selling alcohol or providing regulated entertainment or late night refreshment, suspension (and, in relation to summary reviews, interim steps) are actions open to the regulatory authorities under the Licensing Act 2003 regime.
A “reasonable cause” within s.61(1)(b) could be a medical cause. Needless to say, any action taken under s.61 on a medical cause is not a disciplinary action - you cannot be “disciplined” for being sick. And there is no reason why an interim suspension should not be the appropriate step to take. Say a driver has a contagious disease, and this comes to the attention of the licensing authority. Is not the appropriate step to suspend for the interim with immediate effect, pending further investigation including investigation as to when and whether the driver will get better?
Hackney carriage and PHV licensing aims to protect the public. How the public is protected is not a once and for all question, but one that changes over time. Vehicles become old and broken down, drivers become old and broken down, drivers sometimes get into trouble, and are sometimes subsequently exonerated. It is entirely appropriate and sensible to give the licensing authority a flexible power to react in a timely and proportionate manner to new circumstances arising in relation to a particular driver.
Second, there is no indication that Leeds City Council v. Hussain was cited to the Court in Singh. As detailed above, that case involved a suspension made on an explicitly interim basis which received no judicial criticism in the Administrative Court (in contrast to the Crown Court) and indeed was implicitly approved by it. That case further emphasised one of the objectives of the licensing scheme as being to protect the public. Singh J.’s reasoning appears to omit this fundamental point.
In Singh, it was “common ground” (¶69) that “any other reasonable cause” “in substance, for present purposes ... means whether a person continues to be a fit and proper person”. As was pointed out in Hussain, in fact “any other reasonable cause” is very wide (¶¶12 and 13). Why cannot “any other reasonable cause” mean “to protect the public in the interim whilst an investigation into whether the driver is indeed fit and proper is conducted”?
Third, there is nothing in the language of s.61 to suggest that it needs to be a final decision. Indeed, the provisions of s.61(2B) indicate the opposite. One might ask why would Parliament have allowed suspensions to have immediate effect “in the interests of public safety” unless they were contemplating suspensions being used as interim remedies? On what possible basis would the interests of public safety require there to be, as a final determination, a suspension with immediate effect? Surely if the interests of public safety required, on a final determination, the driver not to drive, then the sanction would be revocation?
The Ministerial statements (see above) are helpful up to a point, in that they show the provisions contemplated immediate suspensions on the basis of a “serious allegation”. The statements do however refer to suspensions “pending appeal”, whereas the mechanics of an interim suspension is that although there is a right of appeal, an appeal would not be necessary for the suspension to do its work, because the suspension could be lifted at a later point and either replaced with a revocation (if the allegations are made out) or a return of licence (if they are not). This is perhaps fine detail which escaped the Minister; his statements should not be read as suggesting there has to be final decision at the point of the immediate suspension, not least for the reasons set out in the previous paragraph.
Fourth, Singh J. did not touch upon the human rights consequences of his approach. Although it is perhaps doubtful that licences are “possessions” for the purposes of Article 1 of the First Protocol of the ECHR (“A1P1”), goodwill associated with licences is: see Crompton (t/a David Crompton Holdings) v. Department of Transport for North Western Area [2003] RT 34 and R (Malik) v. Waltham Forest NHS Primary Care Trust [2007] EWCA Civ 265, per Auld L.J. at ¶46.
Under A1P1, persons cannot be deprived of their possessions except “in the public interest and subject to the conditions provided for by law”.
A revocation (which, as per Mr Button’s workaround, is the route local authorities are forced down if they have no power to impose interim suspensions) is more draconian than an interim suspension. Once a licence is revoked, it can only be got back by a new application, with the burden of proof back on the applicant (Kaivanpor) and the potential for pre-grant checks to be re-done. There is the issue that the status quo shifts from the driver being licensed to him not being licensed. The effect of a strict reading of ¶¶103 et seq of Singh is that drivers who have a serious allegation made against them are worse off: rather than a suspension that is expressed to be without prejudice to any finding on the underlying allegations, they face a rapid “final decision” on a matter that is still in its early investigatory stages.
If a measure (such as the revocation of a licence) is to be ECHR compliant, it needs to comply with the concept of proportionality. So, as per Lord Reed in Bank Mellat v. Her Majesty’s Treasury (No. 2) [2014] 1 A.C. 700 at ¶74 (whose formulation the rest of the Supreme Court adopted):
It is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
Singh J.’s construction of s.61 seems to have taken no regard of the principle of proportionality, and can be criticised on this further basis.
Reigate and Banstead Borough Council v. Pawlowski
I now come to the Pawlowski case. The facts are straightforward. P was licensed by R&B as a PHV driver. On 2 August 2015 he was arrested on suspicion of being drunk in charge of a vehicle, and subsequently charged with that offence. On 4 August, R&B were informed of the charge. On 5 August R&B revoked his licence with immediate effect. On 28 October 2015, P was found not guilty at trial. P’s appeal against the revocation came before the magistrates on 2 February 2016 where it was allowed with costs.
R&B appealed to the High Court by way of case stated. It did not seek to set aside the quashing of the revocation, but rather sought a ruling that it had been wrongly criticised by the magistrates in comments that it would have been more appropriate to suspend, rather than revoke P’s licence. R&B said, in effect, that its hands were tied by the ruling in Singh v. Cardiff.
The magistrates effectively made two findings. Firstly, they found that the decision to revoke was not appropriate. “Suspension, whatever its limitations, would have been the appropriate action”. Secondly, they found that as P had no convictions, nor any other complaints against him, “revocation is not now appropriate and, on the balance of probabilities, allow the appeal”.
It appears that the magistrates were directing their minds to the test in R (oao Hope and Glory Public House Limited) v. City of Westminster Magistrates Court [2011] EWCA Civ 31, and in essence were asking whether the revocation wrong at the time (yes) and whether it wrong now (yes) - albeit with some misguided application of a “balance of probabilities” test as the one they had to apply.
It is less clear whether the High Court had the Hope and Glory test in mind - it appears to have treated the appeal as a pure rehearing as at the date of the appeal (¶14). This, combined with the fact that R&B did not seek the quashing of the magistrates’ decision and the reinstatement of P’s revocation lead the Court to come to the conclusion that the criticism of R&B’s decision by the magistrates was obiter and of no relevance on appeal between R&B and P (¶17).
Certainly, it is plainly right that the issue was entirely academic for the purposes of the appeal and therefore obiter. The court, did however go on to cautiously make “limited observations of a general nature”.
P’s Counsel acted in the role of amicus curiae, the outcome having no effect on his client. It appears to have been common ground between him and R&B’s Counsel that Singh v. Cardiff was rightly decided and a correct statement of the law. That is entirely understandable so far as its non-effect on P was concerned, but it is unfortunate for the wider readership of this case, because a full-frontal attack on the applicability of the decision may have avoided some of the more tangled logic that the Court found itself forced to perform.
A suggestion from P that a local authority could make decision to suspend on charge and then a further decision to revoke upon conviction, the conviction being a new circumstance amounting a reasonable cause under s.61 was - although perfectly sensible and obviously correct approach within the statutory scheme - rejected by the Judge as being contrary to Singh v. Cardiff, which prohibited the use of suspension “as a holding operation pending further investigation”. Instead, the Judge postulated a scenario whereby facts emerging during the criminal trial would re-engage the authority’s jurisdiction. It is very difficult to see how an underlying fact appearing at trial is a new matter, but the result of that trial is not. The distinction without a difference underlines how wrong the approach of Singh v. Cardiff is.
In the end, rather depressingly, the learned Judge effectively re-iterated the supposed principle of Singh v. Cardiff: “to suspend the licence merely because of the charge and revoke it merely because of the ensuing conviction” is not lawful.
Conclusions
The suggestion in Singh v. Cardiff that s.61 does not give local authorities an interim power of suspension is obiter and any persuasive weight that it has should be confined to the very peculiar facts of the case in question (where the driver was suspended for not attending a committee meeting, the suspension notice not taking immediate effect).
If, which is not accepted, Singh has wider application then I suggest it was decided per incuriam and is wrong. In particular:
the court does not appear to have had any regard to the purpose of the licensing scheme as explained in McCool, and wrongly treated s.61 as a disciplinary (rather than a regulatory) provision;
it does not appear that the court was taken to Leeds v. Hussain and thus was unaware of an interim suspension decision which had survived a judicial challenge;
the judge’s reasoning around s.61(2B) is contradictory and fails to appreciate that the only basis on which a suspension should have immediate effect is if it is an interim step;
the judge did not deal with the human rights consequences of his decision on drivers.
Some local authorities, Leeds City Council being one, have decided (in my view, rightly) not to follow the dicta in Singh v. Cardiff but instead to publish an interim suspension policy setting out, transparently, how they will use interim suspensions to protect the public in circumstances where allegations and other factual scenarios arise that need to be dealt with urgently, whilst reserving the position for a full hearing at a later date. It is to be hoped that other authorities follow their example until an appeal arises where the Courts can give a definitive answer.
Pawlowski is not that answer. Like Singh v. Cardiff, it is obiter in what it has to say about interim suspensions. The fact that the issue was academic in that appeal perhaps meant that it was not subject to the usual degree of adversarial scrutiny. The dicta in Singh v. Cardiff has been misapplied to rob a perfectly sensible and proportionate regulatory provision of its efficacy; it is unfortunate that Pawlowski did not stop the rot, but that is no reason not to abandon the fight. The safeguarding ramifications of the blunting of this important tool in the regulatory regime are too serious to ignore.
[1] Which inserted the words shown in square brackets.
[2] If the business is not being carried out lawfully at the time the decision (say there was no insurance in place) then s.77(2) does not apply.
[3] HC Deb, 9 October 2006, c51. http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo061009/debtext/61009-0008.htm#06100913001249
[4] Ibid, c.55-56. http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo061009/debtext/61009-0009.htm
[5] This is an unfortunate word. Neither a suspension nor a revocation is a “punishment”, a point Mr Button implicitly recognises elsewhere in his text (see e.g. ¶10.115).
[6] Case stated, ¶5.
[7] Where only one party was represented, meaning, again, in theory, that the decision should be treated with some caution. In fact is an oft-cited authority, applied in Cherwell DC v. Anwar [2011] EWHC 2943 (Admin) and Pinnington v. TfL [2013] EWHC 3656.
[10] See now the BSB Handbook, rE267, although at the time of Singh there were equivalent rules in the then prevailing Bar Code of Conduct.
[12] The General Medical Council under s.41A of the Medical Act 1983.
[13] The Nursing and Midwifery Council under Article 31(2) of the Nursing and Midwifery Order 2001.
[14] General Dental Council under s.36U(1) of the Dentists Act 1984.
[15] Health Care Professions Council under Article 31 of the Health and Social Work Professions Order 2001.
