Cherwell District Council v Anwar

On an appeal against refusal to renew a hackney carriage or private hire driver’s licence, the appellate magistrates must conduct a rehearing while giving proper regard to the licensing authority’s policy. The statutory purpose is public protection. Personal hardship to the driver’s family is ordinarily irrelevant unless it bears on fitness, propriety or the safety of the public, or exceptionally explains or excuses the conduct. A court errs in law by treating such hardship as an independent reason to overturn the authority’s decision. Where that irrelevant consideration materially affects the result, the decision may be quashed and the appeal remitted.

Cherwell District Council refused to renew Naveed Anwar’s hackney carriage and private hire driver’s licences after he pleaded guilty to assaulting his wife. The licensing subcommittee relied on the conviction, the Council’s guidelines and public safety. On appeal, the magistrates accepted that the Council had acted in good faith and was entitled to reach its decision, but allowed the appeal, taking account of the needs of Mr Anwar’s wife and children.

The Council appealed by way of case stated. The central issues were whether the magistrates could treat the family’s personal circumstances as relevant and whether their decision was one which no reasonable court could have reached.

1. The appeal was allowed. The magistrates’ decision was quashed and the matter was remitted to be reconsidered by a fresh bench.

2. An appeal under section 61 of the Local Government (Miscellaneous Provisions) Act 1976 is by way of rehearing. The appellate court must consider all the evidence, but that includes the licensing authority’s policy. It must give proper regard to the authority’s view and should not lightly reverse it: Darlington Borough Council v Kaye [2004] EWHC 2836 (Admin); Sagnata Investments Ltd v Norwich Corporation [1971] 2 All ER 1441.

3. The Council’s guidelines were not prescriptive. They allowed discretion in cases involving violence, but that discretion was directed to mitigating circumstances relating to the offence. The statutory question remained whether the respondent was a fit and proper person, assessed by reference to public protection.

4. The magistrates treated the hardship to Mr Anwar’s wife and children as an independent and important reason for overturning the Council’s decision. That was inconsistent with Leeds City Council v Hussain [2002] EWHC 1145 (Admin), under which personal circumstances unrelated to fitness or propriety are irrelevant, save possibly where they explain or excuse the driver’s conduct in a very rare case.

5. The family-hardship consideration had materially influenced the result. The court could not speculate what decision the magistrates would have reached without it. Their decision was therefore one which no reasonable court could have reached, and it was quashed.

6. The licences were not possessions for the purposes of article 1 of the First Protocol to the European Convention on Human Rights. The court followed Waltham Forest NHS Primary Care Trust v Malik [2007] EWCA Civ 265. The contrary aspect of Crompton v Department of Transport, North-Western Area [2003] EWCA Civ 64 had been assumed without argument and was regarded in Malik as having been decided per incuriam.

• North Oxfordshire Magistrates’ Court: allowed the respondent’s appeal against the Council’s refusal to renew his licences on 22 January 2010.
• High Court (Administrative Court): allowed the Council’s appeal by way of case stated, quashed the magistrates’ decision and remitted the appeal for reconsideration by a fresh bench.