|The driver was in attendance along with his legal representative, Mr Allanson from Allansons Solicitors. The purpose of the meeting was for the Committee to determine what action to take in respect of the driver's Combined Private Hire and Hackney Carriage Driver's Licence.|
Prior to the commencement of the meeting Mr Allanson, the driver's legal representative raised concern at Cllr Kirton Chairing the meeting.
The Legal Advisor to the Committee provided advice on this issue. It was noted that this issue had been raised by Mr Allanson prior to the meeting and the Director of Law and Democracy had provided a clear response and made no findings against Cllr Kirton and as such there were no valid reasons that he should not chair the meeting.
Members of the Committee expressed their full confidence in Cllr Kirton as Chair of the meeting.
The Committee considered the report which contained allegations about the driver's conduct as a licensed driver with this Authority.
Members were reminded that the driver attended a previous Licensing Committee on 17 April 2012 when Members resolved to defer this item at the request of the driver and his representative to give the driver more time to seek legal advice.
The driver then attended Licensing Committee in May 2012 when Members had to adjourn the meeting owing to time constraints. The driver also attended Licensing Committee in June 2012 when Members resolved to defer this item at the request of the driver and his solicitor.
In addition, just before a special Licensing Committee arranged to consider the matter in October 2012, the driver and his Solicitor again requested that the matter be adjourned as the driver was suffering with back pain /sciatica. Members decided to grant the request for an adjournment but owing to the driver's medical condition also decided that his driver's licence should be suspended with immediate effect on the grounds of public safety.
The Committee heard evidence from Miss Maloney, Mr Barnes, Mr Mills and Mr Brockhurst. The Committee noted that the driver had raised an issue of concern as to the fact that the typed version of Mr Brockhurst's witness statement which appeared as appendix 10 in the Committee report was not signed. This was a typed copy of the original handwritten statement dated 09 March 2012 which was signed by Mr Brockhurst. The typed version which appeared as appendix 10 had been typed solely to make it easier for the Committee to read and for that reason it was not signed by Mr Brockhurst. The original version of the statement which was handwritten was signed and dated by Mr Brockhurst on 09 March 2012. Both copies of the statement should have been included in the Committee report as appendices but only the typed version had been included. This issue was raised by the driver at the Committee meeting on 11 February 2013 and a copy of Mr Brockhurst's handwritten statement was circulated during the meeting after copies were made by the Committee Clerk. It was noted that Mr Brockhurst had made his Section 9 Statement to the Council on 09 March 2012. Prior to making his Section 9 statement to the Council he had provided Miss Maloney a typed account which he had prepared himself. Miss Maloney was in possession of that document prior to the interview which the driver attended at the Council offices on 22 February 2012. A copy of that document was provided to the driver at the Committee meeting on 11 February 2013.
The driver played an audio recording which had been covertly recorded by himself. The audio recording was of a conversation between Mr Barnes and the driver in the early hours of 12 May 2012. The driver also provided the Committee with a written transcript of that recording.
There was insufficient time to complete consideration of the matter and the Committee agreed to adjourn the meeting to another date. A further hearing was arranged for 27 March 2013. On or around 22 March the driver and Mr Allanson, your Solicitor, contacted the Council to seek an adjournment as the driver had further health problems. The driver provided additional information from his GP and in consultation with the Chair it was agreed to adjourn that hearing and it was rearranged for 14 May 2013.
Reconvened Licensing Committee Meeting of 14th May 2013
Present: Cllr Paul Kirton (Chair); Cllr Michael Clark, Cllr Phil Dennis, Cllr Tina Large, Cllr Maurice Perry, Cllr David Wilburn
Officers: J Jones (DNS); T Harrison, J Nertney (LD)
Also in attendance: Driver ref 001025 and R Allanson (Allansons Solicitors), J Khazir, J Nightingale
Apologies: Cllr Evaline Cunningham, Cllr Ray McCall, Cllr Bill Woodhead.
There were no declarations of interest.
The driver was in attendance along with Mr Allanson his legal representative. At the commencement of the meeting Mr Allanson requested that Cllr Kirton remove himself as Chair. The legal advisor provided legal advice and Cllr Kirton indicated that he was of the view that there was no reason for him to stand down as Chair of the meeting.
The Committee was provided with copies of correspondence regarding the witness statement and evidence of Mr Brockhurst. It was noted that the driver sought to challenge the validity of Mr Brockhurst's evidence and in particular his signature which appeared on an incident log from the Keys Public House in Yarm and his witness statement. On 08 May 2013 the driver and his Solicitor were provided with an additional witness statement from Mr Brockhurst dated 07 May 2013. In that statement Mr Brockhurst confirmed that the signatures on The Keys incident log and his witness statement of 09 March 2012 were his. The driver requested that Mr Brockhurst attend Committee with his driving licence and passport. The driver was informed that it was not reasonable or necessary to facilitate Mr Brockhurst's further attendance at Committee as he had given his evidence on 11 February 2013. Licensing Officers made further enquiries to obtain further clarification from Mr Brockhurst as the driver had indicated that he was seeking to instruct a Home Office approved handwriting expert. The day before the meeting Officers were able to obtain from Mr Brockhurst a copy of his passport and driving licence and on the morning of the hearing the driver was provided with copies of these with personal information redacted. Mr Allanson, the drivers Solicitor, informed the Committee that the driver no longer disputed the validity of Mr Brockhurst's signature which appeared on The Keys incident log and his witness statement.
Evidence was called from Miss Edwards. No further witnesses were called and the Committee were invited to have regard to additional witness statements which were included in the Committee report as appendices namely the statements of PC Wilson and PC Meredith.
The Committee invited the driver to give evidence and make submissions. The driver gave evidence himself about the allegations made against him and he also called evidence from Mr Nightingale and Mr Khazir. The driver requested that the Committee view CCTV from 10 December 2011 which was provided to him and which was recorded by a Council CCTV camera located on Yarm High Street. Mr Nightingale provided the Committee with statistics on the number of Hackney Carriage rank spaces in the Borough and the time at which they operated. Mr Allanson, the drivers Solicitor, made submissions on the driver's behalf. The driver also provided to the Committee two photographs, one showing a member of the public on a night out in Yarm who was allegedly hit by a car on Yarm High Street. The second photograph was produced by the driver in relation to the incident involving Mr Brockhurst. That photograph indicated a location showing a Silver Mercedes which the driver said was where his vehicle was allegedly parked when the female passenger got into his vehicle. The driver also produced to the Committee documentation, namely copy receipts from 2006 and 2007 which showed that he had handed property into Cleveland Police which had been left in his vehicle by passengers. The driver called Mr Khazir and Mr Nightingale to give evidence.
After all evidence and submissions had been heard all parties, apart from the Council's Legal Advisor, left the Council Chamber in order for the Committee to make their decision.
The Committee considered all of the evidence including the report, appendices and oral evidence that had been given over the two day hearing which was held on 11 February and 14 May 2013. The Committee noted that their role was to determine firstly whether the allegations of driver misconduct occurred and secondly if, on the balance of probabilities they did occur, what action should be taken against the driver. As part of this process the Committee could consider a range of sanctions including the ultimate sanction which was the revocation of the driver's licence. When deciding what action to take the Committee would consider a number of issues which could include the seriousness of the allegations, the driver's previous history, whether the driver co-operated with officers and the length of time the driver had been licensed with the Authority. The Committee noted that as well as considering what action to take in relation to the driver's suspended licence the driver had also submitted an application for renewal of his licence, as his licence had expired in February 2013.
The Committee noted that there were a number of issues which they needed to consider which were detailed in the report and included in the summary at Appendix 35.
It was clear to the Committee that Yarm had a thriving night time economy and as such was a popular place for licensed drivers to work. The success of Yarm's night time economy had led to strains on the ability of licensed drivers to utilise the taxi rank which was licensed for 8 vehicles. If the taxi trade had issues or concerns over licensing issues including the operation of taxi ranks then these should be dealt with through the appropriate channels. Members were aware that regular taxi trade meetings were held with managers and an elected Member and that members of both the private hire and hackney carriage trade were encouraged to bring any issues they had to that forum. The Council also had an Officers Traffic Group which considered highway related matters including the provision of taxi ranks.
It was not appropriate for licensed drivers to simply act as they saw fit and to ignore, obstruct or seek to frustrate the role of licensing officers carrying out their duties. Examples of this included the manner in which the driver was wearing his driver's badge which on the balance of probabilities the Committee found was not displayed by the driver in such a manner as to be plainly and distinctly visible. On two occasions separate officers, Mr Barnes and Mr Mills, had cause to question why the driver failed to display his driver's badge in the correct manner. On both occasions the evidence of the Officers was that the driver's tone and manner in dealing with them was not appropriate. The driver gave an explanation in interview that he would if asked by a customer show his badge to them. The driver had previously been warned by an Officer as to how his driver's badge should be displayed but the driver chose to ignore such advice and Mr Mills again had cause to question why the driver's badge was not displayed correctly. This was an example of the manner in which he chose to conduct himself with Licensing Officers which in the opinion of the Committee was not fit and proper behaviour for a Licensed Driver. A further example of the driver's attitude to Officers was corroborated in the witness statement given by PC Meredith who described the driver as being "stubborn and quite rude to Polly Edwards and the Police".
From the evidence included in the Committee report and the oral evidence he gave the driver believed that he was being victimised and that officers had a personal vendetta against him. The driver gave evidence to the Committee that Mr Barnes had said to him on the evening of 9th into the 10th December 2011, "You don't know what I'm capable of". The driver put that forward as an explanation as to why he then took the view that Mr Barnes had been responsible for the damage caused at the driver's home address to his wife's car when her tyres were slashed on 16 December 2011. Mr Barnes denied making such a comment. The Committee were of the opinion that the allegation that Mr Barnes had said, "You don't know what I'm capable of" was a fabrication. The Committee reached this view as Mr Barnes had been quite candid with comments he had made to the driver as in his witness statement dated 07 February 2012, he stated that he used the words "I can't believe you have just done that, that may be the final nail in your coffin". The Committee were satisfied that Mr Barnes would not have threatened the driver or used the words which he alleged.
In relation to Mr Barnes and his evidence the driver and his Solicitor made a great issue of the fact that in Mr Barnes' statement dated 06 January 2012 he had referred to an incident on 9th into the 10th December 2011 when he had cause to speak to the driver. Mr Barnes' statement noted that, "Both myself and my colleague Mr Mills were wearing our own high visibility vests clearly marked as Licensing Officers in reflective lettering". The driver informed the Committee that Mr Barnes had not been wearing his high visibility vest when he spoke to the driver. The driver admitted that he was well aware of whom Mr Barnes was but his issue was that Mr Barnes was lying and the statement was therefore not accurate in its entirety. Mr Barnes was questioned on this and he fully accepted that he had been mistaken in his belief that when he spoke to the driver he was wearing his high visibility jacket. Mr Barnes explained that he had been wearing his high visibility jacket earlier in the evening and that he had taken a comfort break and as he was going to use the toilet facilities in a licensed premise he had removed his high visibility jacket and put it in his vehicle. When he had exited the licensed premise he had then noticed the driver's vehicle and that was when he had approached the driver. The Committee accepted this as a reasonable explanation and that it was merely a mistake on the part of Mr Barnes and did not call into question the accuracy of the rest of his statement and evidence.
From the evidence given by Officers and on the driver's own evidence it was clear to the Committee that the driver seemed to have an issue with authority and would not accept advice, guidance or reasonable instructions given to him by Licensing Officers or on one occasion Police Officers. Even though Licensing Officers had been carrying out their normal duties the driver interpreted their contact with him as harassment and victimisation. The driver's relationship with some Licensing Officers, in particular Mr Barnes, had deteriorated to such a stage that the driver made a complaint to Cleveland Police that Mr Barnes was responsible for slashing the car tyres on his wife's car. The driver accepted that he had no evidence whatsoever that Mr Barnes was responsible for that incident, yet he made a formal complaint about Mr Barnes to Mr Batty, Head of Community Protection. That complaint was investigated by Mr Batty and he found no evidence to support the driver's allegation. Mr Barnes gave evidence that he had been "devastated" that a member of the licensed trade could make such a serious allegation against him. Mr Barnes was particularly saddened as when the driver was initially licensed he had given assistance and guidance to the driver and his wife during the application process. The driver's justification for making the complaint and reaching his view that Mr Barnes was responsible for criminal damage to his wife's car was based on the allegation that approximately 6 days prior to his wife's car being damaged Mr Barnes had allegedly said to him, "You don't know what I'm capable of". The covert recording the driver made of his conversation with Mr Barnes in the early hours of 12th May 2012 showed that Mr Barnes had dealt with the driver in a polite and reasonable manner. At no time was Mr Barnes rude or threatening to the driver. The covert recording of a Licensing Officer could in itself be deemed inappropriate. However the Committee noted that Mr Barnes did not know he was been covertly recorded, yet he treated the driver with patience and respect in what must have been frustrating circumstances given the driver's persistent refusal to follow advice given in relation to his manner of operation in Yarm. The Committee noted that the driver also submitted that he was polite with Mr Barnes but the driver was well aware that he was covertly recording the conversation and would have been unlikely to have acted in any other way. On the contrary Officers including Mr Barnes, Mr Mills, Miss Maloney and PC Meredith have all commented on the attitude which the driver had displayed in his dealings with them. That was of course when the driver was not covertly recording his conversations.
When the driver gave evidence to support his good character he gave as an example an incident when a female had got into his vehicle. The female's partner was extremely aggressive and jumped onto the driver's bonnet causing damage in the region of £3,000 to his vehicle. The driver had locked his car doors to protect the female and called the Police who attended the incident. The driver told the Committee that the male was arrested and charged with criminal damage, witness intimidation/harassment and breach of an ASBO. The matter was heard in the Magistrates Court on or around September 2011 and the driver was not required to attend but had given a witness statement. It was reasonable to assume that this male was therefore aware of his name and the vehicle that he drove and therefore it may have been possible for him to identify the driver or identify his address. The Committee questioned whether the driver had ever given any thought to the fact that it could well have been this individual who had a motive to damage the driver's or his wife's property rather than Mr Barnes. The driver said that he had not as he did not believe that individual knew his home address. In the Committee's opinion it was extraordinary to reach the view that Mr Barnes, an experienced and long standing Licensing Officer would risk his entire career and a criminal record to commit an act of criminal damage on the driver's property.
On a number of occasions the driver had acted in a manner which was obstructive to officers and furthermore disrespectful. In the view of the Committee, Officers have acted with great restraint in seeking to address the problems and issues that had arisen in Yarm. Officers could, if they so wished have taken a firmer approach towards drivers who were clearly flouting the local Hackney Carriage byelaw. It should be remembered that these byelaws were in place for the benefit of the wider taxi trade and to ensure fairness for all members of the trade. The lengthy history of the parking issues in Yarm were detailed in the reports but it was clear that Licensing Officers sought to resolve the issues in Yarm by exercising a light touch approach and seeking driver's co-operation. With that in mind drivers who failed to comply with the requirements to use the authorised rank were written to and advised of their legal obligations. The vast majority of drivers co-operated with this request. However a small minority chose to ignore this simple and reasonable request and act in a manner which the Committee found was in breach of the local Hackney Carriage byelaw and furthermore was not fit and proper behaviour for a Licensed Driver. There were only three drivers, including the driver in the report, who continued to act in a manner contrary to the byelaws and they were all referred to the Council's Licensing Committee in order for the Committee to determine what action, if any, should be taken.
The allegations against the driver were detailed in the report and after considering all of the evidence the Committee found on the balance of probabilities that the driver was acting in a manner which breached the local Hackney Carriage byelaw. On a number of occasions the driver was standing for hire outside of premises on Yarm High Street in order to obtain custom and the driver was doing so in the full knowledge that he was not using the rank in Yarm High Street. It should be noted that Officers had allowed drivers a degree of flexibility in relation to Yarm and that some tolerance had been given to drivers who were queuing outside of the rank on the Town Hall side of the High Street. The driver accepted that he refused to queue on the rank side of the High Street and his explanation for this was that he did not want to queue on double yellow lines or zig zags. Mr Khazir, former chairman of Stockton Hackney Carriage Drivers Association, was called by the driver to give evidence to the Committee on his behalf. He was asked whether he was aware of any Licensed Driver receiving a ticket for parking on double yellow lines or zig zags close to the taxi rank. Mr Khazir stated that he was not aware of any drivers receiving a ticket for those matters.
For a rank to be created proper process must be followed. The Committee were of the view that it was not fit and proper behaviour for the driver to seek to circumvent or ignore the byelaw and obtain an advantage over other Licensed Drivers by parking in locations close to public houses where the driver was more likely to obtain fares from passengers leaving those public houses, whilst other drivers who did comply with the use of the rank waited for fares. Members noted that it was not illegal for drivers to collect pre-booked fares or take a fare if they were hailed by members of the public whilst driving.
Members noted that the driver was asked how he would operate on Yarm High Street if he retained his Hackney Carriage driver's licence. The driver indicated that he would not act in any way differently than that for which he appeared before the Committee as he did not believe he was doing anything wrong.
Members noted that the driver's disciplinary record was good and the only matters which appeared on his file were a warning letter in September 2005, an advisory letter in October 2009 and a warning letter in December 2009 which were referred to in paragraphs 34, 35 and 36 of the Committee report. Members noted that this was the first time that the driver had appeared before them and that he had been licensed with the Council since 2003. Members noted that in support of his character he had provided documentation, namely copy receipts from 2006 and 2007 which showed that he had handed property into Cleveland Police which had been left in his vehicle by passengers.
Members considered what action to take in relation to the driver's licence as in the opinion of Members he had deliberately and wilfully flouted the byelaws and acted in a manner which fell far short of the standards expected of a Licensed Driver. It was totally unacceptable for the driver to be obstructive to Officers or treat them in a disrespectful manner. Members may have taken a step back from revoking the driver's licence if he had accepted in any way that the manner in which he operated in Yarm would change. Members did note that the driver believed he was acting within the law. However in the view of Members and on the balance of probabilities the driver's actions were found to be in breach of the Council's Hackney Carriage byelaw. The driver was asked whether he understood the frustration of drivers who queued to use the taxi rank in Yarm and yet he chose to park outside The Keys, one of the busiest public houses in Yarm and take fares which were not hailed by a customer or pre booked. The driver was of the view that he was acting lawfully. If the driver had been genuinely waiting to join the rank from the locations he had parked in then when approached by a member of the public he could have informed them that he was not for hire as he was waiting to join the rank and direct persons to the rank. Even if the driver was concerned that he felt the law required him to take a fare when approached by a member of the public he was aware that he could decline a fare if he had a reasonable excuse. In the opinion of Members if the driver was not for hire and was genuinely waiting to join the rank then that would be a reasonable excuse to refuse the fare. Despite been warned on a number of occasions by Officers the driver chose not to do that but to stand for hire, and on evidence given to Members, in some cases tout by beckoning members of the public to his vehicle. Even on his own evidence the driver accepted that he would do so and in relation to the incident involving Mr Brockhurst he entered into negotiation with the female passenger over the fare and again this indicated that the driver was not genuinely waiting to join the rank. The driver's explanation that he was waiting to join the rank was in the opinion of Members not a valid explanation as it appeared to them that he operated in Yam by continuing to park outside The Keys and on a number of occasions took fares which had not flagged him down and which were not pre-booked. It was these actions which resulted in complaints from other members of the trade and it was these actions which Members found in breach of the byelaws and not fit and proper behaviour for a Licensed Driver. In the opinion of Members the driver had wilfully and deliberately chosen to use his interpretation of the law to act in a manner which resulted in complaints from other members of the trade and which if his interpretation was correct could result in chaos in Yam. The whole purpose of the rank system and the local byelaw was to ensure that members of the public could obtain a hackney carriage vehicle from a designated rank and that hackney carriages drove around the Borough so that they could be hailed by members of the public.
Members noted that in relation to the evidence given by Mr Brockhurst there was no corroboration from the two females involved in the incident or that any formal complaint had been made to Cleveland Police. It was noted that the driver's vehicle licence number had been entered into The Keys incident log and this therefore indicated that an incident had occurred which was witnessed by Mr Brockhurst. The driver did not dispute that there was an incident involving a female passenger and her friend. It was therefore clear to Members that some incident had occurred. There would be no reasonable justification for Mr Brockhurst to make a note in the incident log if an incident had not occurred which caused him some concern. The Committee noted that when Officers sought to interview the driver about this matter on 22 February 2012 the driver was very reluctant to answer questions and shortly after the matter was raised he terminated the interview. At the time of the interview Miss Maloney had been provided by Mr Brockhurst with his own hand typed statement detailing what he had witnessed. It was standard practice that an Officer would not give a person being interviewed a copy of a complainant's statement before interviewing them. The driver was advised at the interview that Miss Maloney wished to ask him questions about an incident involving a member of the door staff at The Keys. The driver's initial response in the interview was to claim that the statement or incident was "fabricated". It was clear that the driver now accepted the incident was not fabricated and he now accepted that there was an incident involving a female passenger and her friend when there was a dispute over a fare. The version of events the driver gave to Members was therefore the first time he had given a full explanation. Members noted that this explanation was only given after the driver had received a copy of the statement of Mr Brockhurst which was included in the Committee papers. Members found Mr Brockhurst to be a credible witness and that the version of events given in his statement and in his oral evidence had occurred. The fact that there was no direct complaint from the female passenger or her friend was not an ideal situation. However it was not in dispute that an incident had occurred albeit the driver denied retaining £20 or telling the passenger and Mr Brockhurst to "Fuck off". Members preferred the evidence of Mr Brockhurst and found the driver's explanation to be unconvincing especially given that he had failed to answer questions on the incident when questioned at interview. Members found that the use of foul language and the driver's behaviour was not fit and proper for a licensed driver and that he had taken advantage of a potentially vulnerable female passenger by retaining £20 which she had given to him.
The driver had failed to accept that his behaviour was in any way inappropriate. In the driver's opinion he have been victimised and he believed that Officers had conspired against him. Members were satisfied that this was not the case and that Officers had treated the driver politely and with some patience as he was given warning letters and numerous opportunities to comply with their reasonable requests. It was only after the driver had failed to comply with reasonable requests and advice that Officers took the view that he would have to be referred to the Licensing Committee. This matter would never have come before Members if the driver had acted on the advice and guidance given by Officers. The vast majority of members of the licensed trade comply with such requests or guidance. Mr Barnes was quite right to indicate to the driver that he would be brought before the Licensing Committee in order for Members to have regard to the evidence and decide what action, if any, to take. The driver still did not accept that he had acted in any way inappropriately and he continues to perceive a campaign of harassment against him. Members totally refuted any suggestion that this was the case and the driver had not provided any evidence to justify such a conclusion by him. Members noted that initially many drivers had been sent warning letters regarding the problems caused by vehicles operating in Yam. Only three drivers failed to comply with the Council's request and each of those drivers was referred to the Council's Licensing Committee.