HHJ Black in the Crown Court CO/829/2017 A20160101 Simmonds v Guildford Borough Council - Transcript of proceedings and order
IN THE CROWN COURT A20160101
AT GUILDFORD
Guildford Crown Court Bedford Road, Guildford Surrey. GU1 4ST
Thursday 29th September 2016 Before:
HIS HONOUR JUDGE JONATHAN BLACK
IN THE MATTER OF THE APPEAL OF: BENN SIMMONDS
MR. A. COLVIN appeared on behalf of the RESPONDENTS THE APPELLANT appeared in person with McKenzie friend MARK ROSTRON
P R O C E E D I N G S
Transcript of the DARTS recording by Marten Walsh Cherer, 1st Floor, Quality House, 69 Quality Court, Chancery Lane,London WC2A 1HP. Telephone: 020 7067 2900 Fax: 020 7831 6864
Thursday 29th September 2016
(At 2.45 p.m.)
THE CLERK OF THE COURT: Mr. Simmonds?
MR. SIMMONDS: Yes.
THE CLERK OF THE COURT: Will you please stand. Are you represented?
MR. SIMMONDS: Yes.
THE CLERK OF THE COURT: Is your barrister here today?
MR. SIMMONDS: I've got Mr. Rostron who is going to represent me.
THE CLERK OF THE COURT: And he is in attendance?
MR. SIMMONDS: He is here. (Pause)
JUDGE BLACK: Mr. Simmonds, will you stand up please. The question as to whether you are represented was whether you have a solicitor or barrister representing you, which I presume you don't.
MR. SIMMONDS: I don't, no.
JUDGE BLACK: The gentleman over here, he is going to assist you, is he?
MR. SIMMONDS: Yes.
JUDGE BLACK: What is his name, please?
MR. SIMMONDS: Mr. Mark Rostron.
JUDGE BLACK: You realise the limitations on someone who assists you. He cannot address the court, he cannot ask questions on your behalf, but he can sit beside you and advise you as to what you might say in various situations, you understand that? Mr. Rostron, if you would like to sit next to.
MR. ROSTRON: If I may say, sir, what I did say to the gentleman was I am here as a lay advisor, and not as a McKenzie friend and the purpose of me saying that is I don't think Mr. Simmonds actually understood the point you were making, so I want to be able to speak for him and not just advise him.
JUDGE BLACK: Not in Crown Court proceedings you are not, no.
MR. ROSTRON: I beg your pardon?
JUDGE BLACK: When you say a lay advisor, are you legally qualified.
MR. ROSTRON: No, I am not legally qualified.
JUDGE BLACK: Then, I am sorry, you have no right of audience.
MR. ROSTRON: It is in the discretion of the court, sir, in the interests of justice if Mr. Simmonds doesn't feel.
JUDGE BLACK: No, I am sorry, if you are not a McKenzie friend, I don't recognise the term "lay advisor", but if you are not a McKenzie friend that would be the limit upon which you could sit next to Mr. Simmonds.
MR. ROSTRON: Mr. Simmonds doesn't feel confident about speaking to this court on his own behalf. If you are refusing him the right to be represented that is a matter for you, sir.
JUDGE BLACK: I am not refusing him a right to be represented, I am refusing him a right to be represented by you and to give you a power of speaking in this courtroom. If you want to sit by him and advise him that's up to you.
MR. ROSTRON: Thank you. That is very clear, sir. Thank you.
JUDGE BLACK: Mr. Simmonds, can we just clarify exactly what it is you are appealing against.
MR. SIMMONDS: Okay. (Pause) I am appealing under the section 47 and 48 of the Local Government Miscellaneous Provisions Act 1976.
JUDGE BLACK: That is the legal provision under which you are appealing.
MR. SIMMONDS: Yes.
JUDGE BLACK: What I asked you is what you are you appealing against, what decision are you appealing against?
MR. SIMMONDS: I am appealing against a licensing condition.
JUDGE BLACK: Right. Now, as I understand it, you are a taxi driver.
MR. SIMMONDS: That's correct.
JUDGE BLACK: And the appeal is in relation to the requirement for taxis to be liveried.
MR. SIMMONDS: That's correct.
JUDGE BLACK: As I also understand it your taxi is now liveried.
MR. SIMMONDS: That is correct.
JUDGE BLACK: And you have been granted a licence.
MR. SIMMONDS: Yes.
JUDGE BLACK: Which has been subsequently renewed?
MR. SIMMONDS: Yes.
JUDGE BLACK: So I am slightly at a loss to understand what it is that you are aggrieved about that you want to appeal about.
MR. SIMMONDS: I am aggrieved about I am aggrieved by the full body wrap that has been applied to the vehicle.
JUDGE BLACK: Right.
MR. SIMMONDS: There are other ways of applying a livery rather than a full wrap.
JUDGE BLACK: So you are appealing against a decision of the Licensing Authority to impose requirements on those who are licensed.
MR. SIMMONDS: Yes, a condition of licence, yes.
JUDGE BLACK: Right, let me stop you there.
MR. SIMMONDS: Yes.
JUDGE BLACK: I am just going to hear from the Council then as to whether that is an area that is capable of being appealed in the Crown Court. Just have a seat a moment.
MR. COLVIN: I did get the chance, your Honour, to speak to Mr. Rostron outside the court and I said obviously I would like to do anything I could to assist Mr. Simmonds, so I hope Mr. Simmonds doesn't feel outgunned, I am just going to try and do my very best to make sure it is a level playing field for him. did the skeleton argument find its way through to the court?
JUDGE BLACK: It arrived this morning.
MR. COLVIN: Okay, if you have managed to glance at it that would be helpful. What actually happened was that the Council, after a long consultation process which went on for at least a year, adopted a policy that from X date vehicles should be liveried, and cutting a long story short, Mr. Simmonds applied for a licence and by the time he was granted his licence his vehicle was in fact liveried and therefore he was given the licence. He appealed against that on grounds which, with the greatest of respect and not to disrespect Mr. Simmonds at all, didn't appear to be entirely clear. Then there happened to be something of a coincidence of dates, because the licence he was granted expired on 30th June and the case came up in court just a few days after that, but Mr. Simmonds by now had applied to renew his licence, represented his car, still liveried, and was given his licence for the new year, so the appeal that the court is hearing is against a licence which has now actually expired. So that is the first issue which in a sense we can park, it is important if we came to that, but it is a sort of legal technical issue about what happens to licences. The bigger, and with the very greatest respect to Mr. Simmonds, insurmountable problem he has got is that what he doesn't like is the policy of Guildford Borough Council that cars should be liveried. We don't need to go into the reason for the policy, but it is all to do with public safety, it is so that when somebody gets into a cab late at night they know they have got a proper cab and not someone just posing as a cab driver. That is the policy. Not every Council has adopted the like policy, but the whole issue about public safety in relation to taxis has become a very pressing one for Councils in the light of the horrors of Rotherham and other places, so the Council revised its policy. The High Court has said on a number of occasions that if you don't like a policy of the Council the only way you can challenge it is by judicially reviewing it in the High Court, otherwise it becomes the adopted policy of the Council, and any court of appeal, be it the Magistrates or the Crown Court, have to stand in the shoes of the Council for the purpose of applying the policy, and you can see what would happen if that were not so, you would get different decisions from different parts of the Magistrates and the Crown Court. So now we know for Mr. Simmonds that what he really doesn't like is not the timing of the imposition, the manner of the imposition, just this condition imposed according to the policy, he is straight up against a brick wall that the court has got no choice but to apply the policy.
So we wrote a skeleton a couple of weeks ago just to try to avoid, if we could, coming to the court, because they are public funds and Mr. Simmonds is at risk and so forth, but the consequence of doing that was that Mr. Simmonds has elected to pursue this further, making the point he has just made, but also on his brief skeleton argument also complaining about the costs which were awarded against him. He says that he is unhappy at6,000 costs being awarded against him. As it happens, and I have got the court record but also I was there, there were4,500 costs awarded against him on an application for costs of just over6,000, so 75% of the costs came to Guildford. So I guess our real interest today is to see if we can avoid racking up further costs which if we win would be for Mr. Simmonds, but in a way it is for Mr. Simmonds to satisfy you that there is something to go forward to appeal. At the moment we are not able to see what there is.
JUDGE BLACK: Mr. Simmonds, is it correct that essentially what you want to appeal against is the policy of the Local Authority to require taxis to be liveried?
MR. SIMMONDS: Actually it's a condition of licence that was determined in the Magistrates' Court before this hearing. So it was put down as a policy, which is the way the Council tried to disguise this and it was now deemed a condition of licence, so it is not a policy, it is a condition of the vehicle licence. I am not appealing against the policy we are appealing against a condition.
JUDGE BLACK: But the condition, if it has been applied to you, has been applied in your favour because you now have the licence.
MR. SIMMONDS: I am agreeing about the condition, whether it is in my favour or not; it is not in my favour, it cost me a lot of money.
JUDGE BLACK: Well that may be the case, but the fact that you now have a licence means that there is no one issue upon which an appeal to this court can be predicated, can be made out. If your complaint is against Guildford Borough Council for having a policy or applying conditions to everybody, if it is an appeal on that basis then your appeal is to the High Court, because what you are basically saying is that the Borough Council has acted in excess of its powers.
MR. SIMMONDS: Well we are saying it is an appeal against a condition of licence. Irrespective of my licence being renewed halfway through the first trial or the first hearing
JUDGE BLACK: Okay.
MR. SIMMONDS: I don't have a choice because I can't work, so the vehicle would have had to have been renewed, so it is the condition of a licence that governs everyone, not just me, because it has been made for everyone.
JUDGE BLACK: Yes.
MR. SIMMONDS: So all the time, every day or every week a licence is being renewed.
JUDGE BLACK: Let me turn it round then. If you are successful in this appeal what would you want the court to do?
MR. SIMMONDS: Remove the livery condition on the licence.
JUDGE BLACK: Just your licence, or every licence in the city?
MR. SIMMONDS: Just mine because each one is individual.
JUDGE BLACK: And why is the condition applied to you and not to the others?
MR. SIMMONDS: It is applied to everyone.
JUDGE BLACK: On a blanket basis.
MR. SIMMONDS: Yes.
JUDGE BLACK: I think that's where you fall down, Mr. Simmonds, I am sorry. Your only appeal in a case like this is to the High Court against the decision of the Local Authority.
MR. SIMMONDS: In a case in Durham the Crown Court then issued in the driver's favour, the judgment matters like this have been heard in a Crown Court before and decisions have been made.
JUDGE BLACK: You say that. What do you know about the Durham hearing? Was that an appeal against a blanket condition, or was it an appeal against a decision to refuse a licence to a taxi driver who wasn't liveried?
MR. SIMMONDS: It was a condition against all drivers, an appeal against a condition for all drivers but in particular the driver who appealed against being forced to make his taxi white. There are other cases.
JUDGE BLACK: Do you have a transcript of the decision or hearing?
MR. SIMMONDS: I don't have the transcript with me, it is on a computer, but I can produce it if and when the hearing is granted.
JUDGE BLACK: Have a seat a moment then.
MR. SIMMONDS: Thank you.
JUDGE BLACK: Mr. Colvin.
MR. COLVIN: Yes, it was actually a case which was handed to me at court by counsel who was appearing for Mr. Simmonds below, and I said to him firstly these cases are not citable on appeal, but secondly, in any case, that the Crown Court decided the case without any apparent reference to the law, that policy is policy in force to be applied by the higher courts. So it didn't come before the Magistrates' Court. I have got a transcript of it here, I haven't looked at it for four months, but it is here and you are very welcome to look at it if you wish.
JUDGE BLACK: Could I have a look, please?
MR. COLVIN: Of course. (Same handed) (Long pause)
JUDGE BLACK: Mr. Colvin, I look at section 47 of the Local Government Miscellaneous Provisions Act, which states a District Council can attach to the grant of a licence for a hackney carriage such conditions as a District Council may consider reasonably necessary.
MR. COLVIN: Yes.
JUDGE BLACK: Which is what they have done.
MR. COLVIN: Yes.
JUDGE BLACK: And then subsection (3) says: "Any person aggrieved by any conditions attached to such a licence may appeal to a Magistrates' Court."
MR. COLVIN: That's right.
JUDGE BLACK: Notwithstanding the fact that Mr. Simmonds has been granted a licence, there is nothing in the section that suggests that because they have been the recipient of the Council's positive decision that that prevents them from appealing a condition attached to that licence.
MR. COLVIN: There is an entitlement to appeal against a condition on a licence, as there is against the licence itself.
JUDGE BLACK: Yes.
MR. COLVIN: I think section 47, I am just trying to remember, I think you have actually got the copy there, actually says that without prejudice to the rig
ht to attach a condition they can attach a condition as to the vehicle's appearance, and so forth, and the way it normally then goes is you appeal against a licence condition and you come up against a case called Hope & Glory, where the Court of Appeal said it is for the Appellant to satisfy the court that the decision is wrong; but in a policy case you have got the added hurdle of the Westminster Council case, where the High Court are saying that you apply the policy.
JUDGE BLACK: That may well be the case, and that may well be the conclusion of the Crown Court once it hears the matter.
MR. COLVIN: Yes.
JUDGE BLACK: But does that stop Mr. Simmonds from making an application to appeal?
MR. COLVIN: Well I agree with you on the second point in relation to whether the policy should be applied. His case may be hopeless, but he has got a right to make it. The prior point is whether he is appealing against the right thing because the licence condition he is appealing against was a condition applied to his licence in February, whereas we are now into a completely new licensing year. He hasn't appealed against the condition which was imposed in June.
JUDGE BLACK: If he was to amend his particulars of appeal so that it now relates to the new licence then that would resolve that particular matter wouldn't it.
MR. COLVIN: Yes. I am not desperately keen on taking a technical point because he would be out of time to bring an appeal against the licences granted, but, your Honour, to be perfectly candid the trade in Guildford wants there to be an appeal about something, and if it is not Mr. Simmonds's licence it is going to be someone else's licence, so, without taking instructions, I am probably not going to take the time point; but the bigger point really is that the appeal is completely and utterly hopeless because you are up against a licensing policy which has gone through full consultation and has been unchallenged, so we are all going to gather here at great cost, certainly on Guildford's side, for a result which really is completely inevitable.
JUDGE BLACK: Can I prevent someone from appealing just because I am concerned as to the cost of that appeal?
MR. COLVIN: No. The two things you could do would be to just hear from Mr. Simmonds now and give him a pretty plain indication of where his appeal is going, because the ground of his appeal is he doesn't like the condition. There is no other reason why there would be an exception to the policy in this case, so that is one possibility, you just hear him out and you give him a clear indication. It is probably not a case to strike someone's appeal out as an abuse or anything of that sort, but we really did hope that by gathering here and by serving it all in advance that Mr. Simmonds could see that this is really a political question, it is not a legal question at all.
JUDGE BLACK: Well I think Mr. Simmonds has heard what you have to say and I get the impression he still wants to appeal.
MR. COLVIN: Yes, he appears to, yes.
JUDGE BLACK: That is the case, is it, Mr. Simmonds?
MR. SIMMONDS: Yes.
JUDGE BLACK: In which case I will set the matter down for appeal.
MR. COLVIN: Does your Honour wish to set a date now, or shall we retire to the List Office and see?
JUDGE BLACK: How long is it going to take?
MR. COLVIN: Realistically, there is prereading, half a day. It took half a day in front of the Magistrates' Court.
JUDGE BLACK: Can the prereading be served in advance of the hearing?
MR. COLVIN: Yes, it is the same material as we had before, nothing has changed, so we can get it all sorted fairly quickly. It would be good just to make a record, because last time we came to court really not having a clue what we were answering, but what Mr. Simmonds has said is that he is appealing against the imposition of the condition because he doesn't like the condition, and so all those matters about who said what to whom when and all of those sorts of things can fall away and we can just concentrate on the condition. He also said in his skeleton argument that he didn't like the costs order. I don't know whether he is still pursuing it, and maybe that is something which falls into the court's general discretion at the end of the hearing.
JUDGE BLACK: It only becomes part of the court's discretion if he is successful in his appeal.
MR. COLVIN: Yes.
JUDGE BLACK: Mr. Simmonds, we will fix a date for the hearing of this matter. You have just served a document which we might be able to read. Does this rely upon everything that you are going to raise in the appeal?
MR. SIMMONDS: Yes, it does. (Pause)
JUDGE BLACK: It deals a lot with the costs awarded in the Magistrates' Court. That matter will only become an issue in this appeal if you are successful in your appeal. If you are unsuccessful then the costs in the Magistrates' Court remain in place, so whilst this document deals with those issues it will depend very much on the way in which the new appeal to this court becomes the issue.
MR. SIMMONDS: Okay.
JUDGE BLACK: Now you have heard me say to Mr. Colvin that the way around his objection to the fact that the matter that you are appealing against relates to a licence that has now effectively time expired is for you to change your appeal to the condition attached to the current licence that you have.
MR. SIMMONDS: Okay.
JUDGE BLACK: Is that what you are asking me to do?
MR. SIMMONDS: Yes.
JUDGE BLACK: And because that licence was granted in February this year, did I understand?
MR. SIMMONDS: Yes. (Pause) The original appeal was made within time.
JUDGE BLACK: Yes, well that is the next point I am coming to. If you change to the current licence it is effectively out of time, so are you applying to me for leave to appeal out of time?
MR. SIMMONDS: Leave the complaint as it stands.
JUDGE BLACK: I don't think you could possibly be successful, in those circumstances, because the appeal would then relate to a licence that no longer exists and on a point of law it would be open to the Authority to make that point and say the appeal is against something that doesn't exist. What I am asking you to do is to say that you will change your appeal to the current licence, and if you ask I will give you leave to appeal out of time.
MR. COLVIN: Can I make a suggestion to help Mr. Simmonds, bearing in mind the inequalities here. There is actually no jurisdiction to ask for leave to appeal out of time under any of the licensing legislation. Can I just indicate, in fairness to Mr. Simmonds and to see if we can crack through the issue, that the appeal might be academic but I suppose if the court were to make a declaration at the end of the appeal that this condition should never have been applied then Guildford would have to listen, and so I think we can just get through it by having an adjudication on the appeal as it is. I can't see any other way of doing it. It is a jurisdictional issue.
MR. SIMMONDS: Any person can appeal against a licensing condition, not just one licence but every licence.
JUDGE BLACK: I am not quite sure what you are saying there.
MR. ROSTRON: But the Act says that any aggrieved person can appeal against a licence condition imposed by the Council, it doesn't have to be a licence condition imposed on them or existing, it doesn't say that in the Act, it says you can appeal against a licence condition, and that's what we're doing.
JUDGE BLACK: I think I understand what is being said. I am not sure I agree with that position, because what the Act says is that "... any person aggrieved by any conditions attached to such a licence..." and that must be your licence and not a general licence.
MR. ROSTRON: It doesn't say "a current licence" either.
JUDGE BLACK: Well "such a licence" must be a current licence.
MR. ROSTRON: It doesn't say that.
JUDGE BLACK: I have to interpret it, and that is my interpretation.
MR. SIMMONDS: Are we clear to go ahead with the appeal?
JUDGE BLACK: That's what I'm giving you leave to appeal for. I am just trying to get to a position where we can actually appeal against something that exists.
MR. SIMMONDS: Yes.
JUDGE BLACK: I don't want to be in a position where one of my colleagues deals with this and he comes to a different conclusion. He might well say: "Well this licence doesn't exist, there is no appealable ground", which is why I am asking you to change your appeal to your current licence and then giving you leave to appeal out of time so that whether that is necessary or not when we come to the appeal date it is the condition attached to your current licence which is still in existence that we are dealing with.
MR. SIMMONDS: Yes.
JUDGE BLACK: Okay, well we will do that, and then that is on the record as having been done. How many witnesses are you likely to call?
MR. SIMMONDS: Possibly about five.
JUDGE BLACK: Are they all going to say the same thing?
MR. SIMMONDS: No.
JUDGE BLACK: What I don't want you to do is to call a group of your colleagues who all say the same thing, because it doesn't get any better for repetition. If one of you is going to say what the ground of objection is and then we stick at that ground of objection.
MR. SIMMONDS: Yes.
JUDGE BLACK: Think about that; we don't need witnesses unnecessarily.
MR. COLVIN: Your Honour, if we are going to have five witnesses, it comes as a bit of a surprise to me, we had one below, and given that we have got fewer grounds now than we had below I am not quite sure what all five are going to say. Could we have a direction for witness statements so that we can see what they are going to say and file any evidence which is necessary in reply.
JUDGE BLACK: Who are you calling, Mr. Simmonds? Are they colleagues of yours.
MR. SIMMONDS: No. We are going to call another taxi driver to speak and give his opinion, the Chairwoman of a Disabled Group in Guildford and someone who applies the liveries to the vehicles to give his opinion on the actual condition of the vehicle that could be left after the livery is removed.
JUDGE BLACK: Okay. The lady from the Disabled Association, can her evidence be put into a statement in writing, because it may well be that the Authority will accept what she says.
MR. SIMMONDS: It could be, yes.
JUDGE BLACK: Well let's try that, put it into writing, serve it on Guildford Borough Council. I think you can probably do the same for the gentleman who is going to talk about the condition of the vehicle after the livery has been disapplied.
MR. SIMMONDS: Okay.
JUDGE BLACK: There is probably not going to be a major issue that the Council will want to object to, so that can save those two witnesses having to come to court.
MR. SIMMONDS: It is also to do with the durability of the dye and the wrap that is on it as well.
JUDGE BLACK: Yes, I understand that point you are making, but if it is a question of fact and there is no dispute as to that question of fact there is no point in calling someone unnecessarily; it can all just be agreed evidence. Two taxi drivers, yourself and one other.
MR. SIMMONDS: We haven't finalised our witness list yet, but we did disclose that on the application form.
JUDGE BLACK: I think the point I am making, I know the point you are going to make and you are going to say that it is unjust, it is unreasonable, it is disproportionate; it doesn't take two or three of you to say the same thing, because once one of you has said it you can speak on behalf of all the taxi drivers in the area who are affected by that particular position.
MR. SIMMONDS: Okay.
JUDGE BLACK: You need to remember it is your licence we are talking about, your condition that we are talking about
MR. SIMMONDS: Yes.
JUDGE BLACK: so other drivers might have the same condition attached, but they are not appealing.
MR. SIMMONDS: No.
JUDGE BLACK: So all I am trying to do is just to cut down the amount of repetition that we don't need.
MR. SIMMONDS: We will do our best to cut it down.
MR. COLVIN: I just wonder whether we just might have an order for service of the evidence within, say, 28 days. We don't need it to be point perfect but we would like to see what points we are supposed to be answering.
JUDGE BLACK: Well the two stems I have just referred to, the person from the Disabled Association and the person who is going to deal with the impact of removing the livery, can serve their statements within 21 days.
MR. COLVIN: Thank you. And as for Mr. Simmonds, we are going to have to learn: what is his actual attack on this policy? I would rather not wait until the day to find that out.
MR. SIMMONDS: Can I just state that it is not actually an attack on the policy, it is a condition of licence. He keeps referring to it as a policy and it is not, it is a condition.
MR. COLVIN: Well the policy says the vehicle must be liveried, Mr. Simmonds came to the court and said because it is a policy it is an implied condition and they are indistinguishable. I would just like to know why he is saying this condition shouldn't have been applied to him.
JUDGE BLACK: Is there any reason why you can't put that into a statement?
MR. SIMMONDS: No.
JUDGE BLACK: Okay, so 21 days to do that as well, please. 4th November is the date being offered. That is a Friday.
MR. SIMMONDS: Yes.
JUDGE BLACK: Okay, I will fix it for 4th November, ten o'clock, I will give it half a day court time, it will be a judge and two Magistrates, have everything ready, serve the three statements by 21 days from today's date and we should be in a position to go ahead. Have you served your documents on Mr. Simmonds?
MR. COLVIN: We have already served for the Magistrates' Court we had a bundle of material which explained how the policy came about and explained the process which was gone through on the application. If there is anything further from Mr. Simmonds which requires reply we will just put it in in good time.
JUDGE BLACK: Everything you will rely on at the appeal has already been served on Mr. Simmonds.
MR. COLVIN: For sure, yes.
JUDGE BLACK: Well there is nothing more I can order in respect of that then. Thank you: 4th November then please.
MR. COLVIN: Thank you very much, your Honour.
MR. SIMMONDS: Thank you.
JUDGE BLACK: (To the Appellant) Do you want your folder back?
MR. SIMMONDS: Thank you. (Same handed) (3.19 p.m.)
I certify that I have faithfully transcribed this part of the proceedings in the appeal of Benn Simmonds and that the pages numbered 1 to 26 are a true and correct transcript of the said proceedings, to the best of my skill and ability. Member, British Institute Verbatim Reporters
