Taxi driver licence appeals: burden of proof
Prof Roy Light analyses the case law around the burden of proof in taxi driver licence appeals.
The burden of proof is important because the party with the burden of proof must prove its case. If it fails to do so the appeal will fail. The burden of proof in an appeal lies on the party bringing the appeal unless the burden has been shifted to the respondent by case law or legislation. Where a taxi driver brings an appeal against a decision of a licensing authority that he is not a ‘fit and proper person’ to hold a driver’s licence it was accepted that the burden of proof lies on the driver bringing the appeal.
However, appellants in some cases continue to challenge this in taxi driver’s licence appeals to the magistrates’ courts arguing that while the burden of proof lies on the driver to show that he is a fit and proper person when applying for a driver’s licence the burden shifts to the respondent where the respondent’s finding that the driver is not a fit and proper person is challenged on appeal.
The argument relies on the judgment in Kaivanpor 2015,[1] which was based on the Divisional Court case of Muck It 2005,[2] where it was held that on an appeal against a taxi driver’s licence revocation the burden of proof is on the council to show that the driver is not a fit and proper person to hold the licence. However, as only one party appeared in Kaivanpor the decision falls foul of the Lord Chief Justice’s practice direction that cases where only one party appears should not be cited as an authority in subsequent cases.[3]
In any event, the decision in Kaivanpor is, on a number of grounds, generally agreed to be wrongly decided. First, the decision in Kaivanpor, failed to distinguish the differing licensing regime in Muck It from the taxi licensing regime.
Muck It is concerned with The Goods Vehicles (Licensing of Operators) Act 1995 which implements the European Council Directive 96/26 which provides:
Member States shall see to it that the competent authorities withdraw the authorisation to pursue the occupation of road transport operator if they establish that the conditions of Article 3(1)(a),(b) or (c) are no longer satisfied (emphasis added).
The burden of proof is shifted to the licensing authority by the legislation. There is no such provision in the Local Government (Miscellaneous Provisions) Act 1976 which regulates taxi licensing.
Further, appeals under The Goods Vehicles (Licensing of Operators) Act lie to the Traffic Tribunal, which has its own rules of procedure. Appeals under s.61 of the 1976 Act are to the magistrates’ court and Crown Court each with their own rules (Magistrates’ Court Rules 1981; Crown Court Rules 1982).
The decision in Muck It does not apply to appeals under the 1976 Act; nor can it be relied upon to interpret or import provisions in relation to the 1976 Act. It concerns a significantly different licensing regime and appeals system.
Secondly, the decision in Kaivanpor was reached per incuriam as the leading case of Hope and Glory[4] was not considered. Its importance lies not in the substance of the appeal, noise caused by customers drinking outside a public house, but in the reaffirmation of the nature of an appeal from a licensing body to the courts. Hope and Glory sets out what is accepted to be the correct approach to licensing appeals at para.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. We see no indication that Parliament intended to create an exception in the case of appeals under the Licensing Act. (Nor did it under the 1976 Act.)
Thirdly, whether to uphold the decision of the licensing authority to revoke the driver’s licence is not a question of fact - it is a question of judgment in relation to the suitability of the driver to hold a licence based on the facts. The test on an appeal against an administrative decision is whether the decision appealed is ‘wrong’ (Joffe,[5] Sagnata,[6] Hope & Glory). To succeed it is for the appellant to prove on the balance of probabilities, based on the evidence presented to the court, that the authority was wrong to decide that he is not a fit and proper person to hold a taxi driver’s licence.
The burden of proof cannot be on the respondent to an appeal unless it is shifted by case law or statute. 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 legal burden of proof therefore remains with the appellant who must persuade the court on the balance of probabilities that the respondent licensing authority’s decision that he is not a fit and proper person is wrong.
This is not to say that the licensed driver has continually to prove that he or she is a fit and proper person. It is only if information comes to the licensing authority’s notice which raises questions over whether the driver remains a fit and proper person that the authority will have to exercise its judgement on the matter.
Prof Roy Light is a barrister at St John’s Chambers, Bristol.
[1] Kaivanpor v Director of Public Prosecutions [2015] EWHC 4127 (Admin) and see also LGL November 6, 2015.
[2] Muck It Limited v Merritt & others [2005] EWCA Civ 1124
[3] Practice Direction on the Citation of Authorities, The Lord Chief Justice of England and Wales, 9 April 2001.
[4] R (oao Hope and Glory Public House Limited) v Westminster Magistrates’ Court [2011] EWCA Civ 31. See also R(Developing Retail Limited) v East Hampshire Magistrates’ Court [2011] EWHC 618 (Admin); Canterbury City Council v Ali [2013] EWHC 2360 (Admin).
[5] Stepney BC v Joffe [1949] 2QB614
[6] Sagnata Investments Limited v Norwich Corporation [1971] 2QB 614.
