Report by Head of Legal and Regulatory Support
Minutes:
The Chair welcomed everyone to
the meeting. In line with recent
legislation for Civic Government Hearings, the parties (and any
representatives) were given the options for participating in the meeting today. The options available were by video call, by
audio call or by written submission.
For this hearing the Applicant
opted to proceed by way of video call and joined the meeting by Microsoft
Teams. Police Scotland opted to proceed
by way of audio call and Sergeant David Holmes joined the meeting by telephone.
The Chair outlined the procedure
that would be followed and invited the Applicant to speak in support of his
application.
APPLICANT
Mr Oliphant-Smith referred to the
2008 conviction which had not been declared on his application form and advised
that he had not been aware that he had to declare it as he thought it was spent. He said that before submitting his
application to the Council he had attended Dunoon
Police Station and took all his files with him.
This included his Disclosure Certificate which detailed his convictions. He advised that a Police Sergeant had
informed him that he did not think it would be necessary to add this conviction
to the application form but in the interests of transparency suggested that he
should add a code. He said that he did
not know the code and that the Police Sergeant had obtained this for him and
added it to the form. He advised that he
had been surprised that an objection from Police Scotland had been received. He said that he now had a clean driving
licence with no points and that he had no disqualifications. He said that he
had received no other convictions, cautions or reprimands over the last 9
years. He advised that he held a Taxi
Driver Licence for the Isle of Man and presented a copy of this for the
Committee to view. He advised that he’d
had no problems, cautions or reprimands while holding this licence. He said
that it was his intention to move to Dunoon to be
close to family and to contribute to Dunoon and
Argyll and Bute. He referred to Argyll
and Bute Council actively seeking people to come and live and invest in the
local area and that he was trying to do that.
He advised that he had previously worked in government in 5 separate
departments. He referred to working in
local hospitals during Covid on the Isle of Man on
various wards, looking after vulnerable patients. He said he was also undertaking a Law Degree
through the Open University which would take 5 or 6 years to complete and that
this was very much his future idea. He
also advised of previously being elected as a local authority Councillor on the
Isle of Man in 2016 in which he was a member of several Committees.
POLICE SCOTLAND
Sergeant Holmes advised that the
submission by Police Scotland was not an objection. He said it was a representation to allow the
Committee to make an informed decision in respect of this application.
He referred to the letter from
the Divisional Commander dated 18 October 2022 which advised that the Applicant
had 2 convictions dated 16 December 2008 and 8 April 2014. Both of these convictions related to being in
charge of a motor vehicle whilst over the prescribed alcohol limit.
MEMBERS’ QUESTIONS
Councillor Brown referred to Mr
Oliphant-Smith’s conviction in 2014 which resulted in him being banned from
driving for 6 years. She sought and
received confirmation from Mr Oliphant-Smith that this ban was lifted in 2020
and that he had only been driving regularly for the past 2 years and that this
would be 3 years in April 2023.
Councillor Kain
sought and received confirmation from Mr Oliphant-Smith that he received his
Taxi Driver Licence for the Isle of Man last year.
Councillor Kennedy asked Mr
Oliphant-Smith why he had not declared his 2008 conviction on his application
form. Mr Oliphant-Smith said that he had
been confused between English and Scottish legislation regarding spent
convictions.
Councillor Kennedy pointed out
that Mr Oliphant-Smith had been charged twice for being in charge of a vehicle
but not for driving. He commented that
these sentences appeared quite severe for these charges. He asked Mr Oliphant-Smith to explain why he
was banned from driving for so long. Mr
Oliphant-Smith advised that Isle of Man laws were a lot stricter and came down
harshly on any crimes. He said that in
respect of the 2008 conviction, he advised that even though it stated ‘in
charge of a motor vehicle whilst over the prescribed alcohol limit’, he was
driving. He said that he had been just
over the limit as he had not eaten all day.
He advised that the Sergeant who breathalysed him had said that if he
had eaten a sandwich during the day he would have been under the limit. Mr Oliphant-Smith confirmed that in respect
of the 2014 conviction he was not driving and that he was in the back seat of
the vehicle. The Police Officers who
charged him made the decision that this was a crime and the Courts followed the
process that for 2 alcohol related offences within a 5 year period they had to
issue the toughest sentence they could give.
Councillor Kennedy queried the
difference between Scottish and English alcohol limits and asked which limits
the Isle of Man used. Mr Oliphant-Smith
said he believed that the Isle of Man had its own limits. He said that based on the limit of 35
micrograms of breath, the reading for his first conviction was 36.4 micrograms.
Councillor Kennedy referred to
the cost of car insurance for taxi driving and suggested Mr Oliphant-Smith’s might
be quite high as a result of these convictions.
Mr Oliphant-Smith said that his driving licence was clear with no
penalty points and that car insurers did not consider convictions that were
more than 5 years ago.
Councillor Hume asked Mr
Oliphant-Smith what his breathalyser reading was in 2014. Mr Oliphant-Smith said he could not remember
but he thought that it was a bit higher than in 2008. He said that the driving ban was not down to
the reading but because of the proximity in time between the 2 drink driving
convictions. He advised that if the
reading had been high, based on guidance, he would have received a custodial
sentence.
Councillor Armour said he had
noted from the Police letter that Mr Oliphant-Smith had to retake his driving
test and attend a drink driving rehabilitation course. He asked Mr Oliphant-Smith to advise when he
attended this course and what it had entailed.
Mr Oliphant-Smith said he attended the course in November 2014 and that
it was a one day course, sitting in a classroom watching YouTube videos of
American Police Officers showing car crashes in America in the 1980s. He advised that he did not find the course
particularly helpful. He commented that
it would be beneficial if they came up with a good rehabilitation course or
education course which could be shown to young drivers before they got their
licences. He said that would be useful
and that he had suggested this in a letter to the Court following his
attendance at the rehabilitation course.
Mr Oliphant-Smith advised that he did not just lose his licence, he had
also lost his job and that this had affected his family. He advised that educationally this conviction
had been a very good lesson for him and something that he would like to put to
use.
Councillor Brown asked if Mr
Oliphant-Smith had undertaken any other counselling. Mr Oliphant-Smith said he did have
counselling. He advised of losing a son
just before the 2014 conviction and that he had been suffering from anxiety and
depression, which he did not recognise at the time, and which led to him
self-medicating with alcohol. Losing his
licence led him to seek help and counselling.
He added that when he started working in the hospital in 2020 he was
sent on other counselling courses as a staff member in order to help
patients. He said that these courses had
also helped him.
Councillor Green referred to the
dates of the convictions and asked Mr Oliphant-Smith to confirm when the
offences took place. Mr Oliphant-Smith
said that for the April 2014 conviction he believed the incident took place in
March 2014. He said that for the 2008
conviction he was in Court the same day.
Councillor Green asked Mr
Oliphant-Smith how his use of alcohol had changed since these convictions. Mr Oliphant-Smith referred to being older now
and having other responsibilities. He
said the idea of going for drink was no longer worth it. He said he had a son to look after and had to
think ahead if he would need to drive the next day or think about whether he
would want a hangover. Referring to his
mental health, he said that if he did take a couple of drinks he found he did
not feel great for a couple of days after.
He advised that after driving taxis on the Isle of Man, he decided to
stop drinking altogether. He said that
when you started as a taxi driver you were learning every day and were
responsible for picking up people with very small children, and vulnerable
people going to hospital, some of whom required assistance in and out of the
car. He said you could not do any of
these tasks if under the influence of alcohol from the night before and that it
was not safe.
Councillor Green sought and
received confirmation from Mr Oliphant-Smith that he was 22 and 28 years old
when the offences took place and that he was now 36 years old.
Councillor Kennedy referred to Mr
Oliphant-Smith receiving his Taxi Driver Licence on the Isle of Man and asked
if he had to attend a Committee to obtain his Licence. He also asked what types of Committee Mr
Oliphant-Smith sat on when he was a Councillor.
Mr Oliphant-Smith confirmed that he had to attend a meeting of the Road
Traffic Licensing Committee which was an independent body separate from the
Council. He advised that when he was a
Councillor the Committee he sat on overseen beach management and waste
management.
Councillor Kennedy asked Mr
Oliphant-Smith if the Committee that granted his Taxi Driver Licence had
discussed his convictions in a severe manner.
Mr Oliphant-Smith said that the Committee had been quite harsh. He said that the meeting had been adjourned
after an hour and that he had been called back for a second meeting . He said
the whole process took 4 months. He said
that it was worse than going to court.
He advised that the process followed by Argyll and Bute Council was a
lot easier and that everyone was a lot nicer.
Councillor Kennedy asked Mr
Oliphant-Smith if there were any mitigating circumstances that swayed the Isle
of Man Committee to grant the licence.
Mr Oliphant-Smith referred to his previous standing in the community,
references from charities he worked with, and his work in the local
community. He also referred to the fact
that he had not been in any trouble with the Police in 9 years and that it
could be seen from his history that he had turned his life around. Mr Oliphant-Smith confirmed that if this
Committee wished, he could obtain references to support this application.
Councillor Kennedy sought and
received confirmation from Mr Oliphant-Smith that he was not currently employed
in Dunoon. He
said that he had parents in Dunoon who helped and
supported him. He advised that if he
could not gain any meaningful employment in Dunoon he
would need to consider moving elsewhere.
Councillor Green sought and
received confirmation from Mr Oliphant-Smith that he was in politics for 10
years but was not a Councillor on the Isle of Man for very long. He advised that he had resigned from this
post after 2 months due to being a victim of crime within the Council.
Councillor Hardie
referred to Mr Oliphant-Smith using alcohol to self-medicate. He asked if life got stressful again would Mr
Oliphant-smith go back to alcohol or if he had other support mechanisms in
place. Mr Oliphant-Smith said he had not
self-medicated because of stress. He
referred to having a lot of symptoms at the time which later led to a diagnosis
of fibromyalgia which resulted in pain in the upper part of his back. He said he found that lifestyle changes were
the best approach. He said that alcohol
was the worst thing for that condition.
He said he had turned his life around in a health sense.
SUMMING UP
Police Scotland
Sergeant Holmes advised that he
had nothing further to add.
Applicant
Mr Oliphant-Smith thanked the Members
for the opportunity to talk.
When asked, both parties
confirmed that they had received a fair hearing.
DEBATE
Councillor Kain
said he was minded to approve this application.
He commented that the Police submission was a representation and not an
objection. He said that bearing in mind
that the Isle of Man had stricter rules, Mr Oliphant-Smith was granted a Taxi
Driver Licence there 12 months ago, and that he was inclined to approve this
application.
Councillor Kennedy said he was
very much of the same mind as Councillor Kain. He referred to the offences occurring some
time ago, with the most recent one 9 years ago for being drunk in charge. He said that it appeared Mr Oliphant-Smith
had turned a corner and wanted to make a go of it and have a future in
law. He said he was minded to grant this
licence.
Councillor Armour said he could
not disagree with anything said by Councillors Kain
and Kennedy. He commented that Mr
Oliphant-Smith had given frank and full information as requested. He said he had done a bit of “googling” and
could see that Mr Oliphant-Smith had done a lot in helping out as a
volunteer. He advised that he thought
that Mr Oliphant-Smith was someone that had made mistakes and that he had
learnt from these mistakes. He advised
that he would not want to stop anyone from gaining employment and trying to put
the past behind them. He confirmed that
he fully supported granting this licence.
Councillor Hume said that he
totally agreed with his colleagues. He
advised that he thought Mr Oliphant-Smith had been very transparent and honest
and that he had no objection to granting this licence.
Councillor Daniel Hampsey said he was of the same mind. He advised that as a Dunoon
Councillor it was good to have more people in business for the local
economy. He said that Mr Oliphant-Smith
had been very transparent with everything that had happened and that he
supported the granting of this licence.
Councillor Hardie
said that Mr Oliphant-Smith had been very open and honest and that he had no
problem with granting this licence.
Councillor Green referred to Mr
Oliphant-Smith being 22 and 28 years old when the offences took place. He commented that being older now, with
different responsibilities, Mr Oliphant-Smith gave the impression of having
learnt his lesson regarding alcohol and vehicles and in that respect he was
happy to grant the licence.
DECISION
The Committee unanimously agreed
to grant a Taxi Driver Licence to Mr Kevin Oliphant-Smith and noted that he
would receive written confirmation of this within 7 days.
(Reference: Report by Head of
Legal and Regulatory Support, submitted)