Darlington Borough Council v Bishop Auckland Magistrates Court

A decision to adjourn a licensing appeal is discretionary, but may be unlawful where it rests on material mistakes of fact, failure to consider material circumstances, or a conclusion outside the range reasonably open to the tribunal. An appellate magistrates’ court must determine for itself whether an applicant is a fit and proper person. The applicant bears the burden of providing sufficient information to establish that status. A licensing authority may adopt a policy requiring current records checks, provided it is not applied inflexibly. Failure to provide a recent check may be a serious obstacle, but it is not necessarily an automatic statutory ground for dismissing the appeal. A mandatory order is justified only where dismissal is the sole conclusion reasonably available.

Darlington Borough Council refused to renew George Jenkinson’s hackney carriage and private hire driver licences because he declined to take the Council’s taxi test and failed to provide an enhanced Criminal Records Bureau check. He appealed to Bishop Auckland Magistrates Court under the Local Government (Miscellaneous Provisions) Act 1976. The Magistrates adjourned the appeal to allow him to obtain an updated check, relying on an apparent understanding that an application had already been made and that the Council had introduced the issue late.

The Council sought judicial review, asking the court to quash the adjournment and compel dismissal of the appeal. The central issues were whether the adjournment decision was legally flawed and whether dismissal was the only outcome reasonably open to the Magistrates.

1. The adjournment decision was unlawful. Although decisions on adjournments are discretionary and attract a heavy burden of challenge, the Magistrates proceeded on two fundamental factual misunderstandings. They treated the Council as having revived the Criminal Records Bureau issue late, whereas the Council’s earlier evidence showed that the appeal would be confined to the taxi test only if the agreed check was provided. They also believed that Mr Jenkinson had submitted an application for a check, whereas the evidence indicated that he had received a form but had not returned it.
2. Those mistakes were errors of law, alternatively a failure to take material circumstances into account, and alternatively rendered the decision one which was not reasonably open to the Magistrates. The court relied on E v Secretary of State for the Home Department [2004] EWCA Civ 49.
3. The Council’s mandatory-order claim failed. On an appeal under the 1976 Act, the Magistrates had to form their own view of whether the applicant was a fit and proper person. Their function was not limited to reviewing the legality of the Council’s decision. The burden of establishing that status lay on the applicant, and inadequate information could prevent the Council or Magistrates from being satisfied: McCool v Rushcliffe BC [1998] 3 All ER 889.
4. A Council may require a records check through a policy, although the policy must not be applied inflexibly. Magistrates conducting a rehearing should have regard to the existence of the policy and should not lightly reverse the Council’s decision: Darlington Borough Council v Kaye [2004] EWHC 2836 (Admin). Nevertheless, the absence of a recent check was not itself a statutory condition requiring dismissal. The court could not say that every reasonable bench would have dismissed the appeal without hearing evidence and submissions.
5. The court therefore refused a mandatory order. A quashing order would serve no practical purpose because the adjournment had already occurred. The court left open whether a declaration would add anything beyond the judgment’s reasons.

The judgment records no prior appellate decision in the same proceedings. Permission to bring judicial review proceedings had been granted by Fulford J.