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 audio call and joined the
meeting by telephone.
Police Scotland opted to proceed by way of
video call and Sergeant David Holmes joined the meeting by MS Teams.
The Senior Solicitor advised that an
objection from Police Scotland had been received outwith
the time period allowed by the Civic Government (Scotland) Act 1982 for making
objections or representations. It was
noted that it would be competent under Paragraph 3(2) of Schedule 1 of the 1982
Act for the Committee to entertain a late objection or representation if they
were satisfied that there was sufficient reason for it not having been made
within the time allowed. She advised
that the objection had been received on 30 August 2023 but due to an
administrative error Police Scotland had not been notified of the application
until 21 August 2023 the day after the 28 day period had expired.
The Chair invited Police Scotland to comment.
Sergeant Holmes confirmed that the
application had been made on 24 July 2023 and that the Police would have had
until 18 August 2023 to lodge any objection.
Notification of the application was only received by Police Scotland on
21 August 2023 and they endeavoured to respond to this as quickly as possible
with an objection being submitted on 30 August 2023.
The Chair sought and received confirmation
from the Applicant that he had no comment to make.
The Chair sought the views of Members as to
whether or not this late objection should be taken into consideration.
The Committee agreed to accept the late
objection from Police Scotland and a copy of this was circulated by email to
the Committee.
Reference was then made to a request from
Police Scotland that the Committee take account of a matter that was considered
“protected” in terms of the Rehabilitation of Offenders Act 1974. It was noted that the Committee may take into
consideration such evidence relating to protected matters where they are
satisfied that justice cannot be done except by admitting such evidence.
The Chair outlined the procedure that would
be followed in this respect and invited Police Scotland to address the
relevancy of the protected matter.
POLICE SCOTLAND
Sergeant Holmes advised there was one
“protected” conviction which was connected to the licence applied for. He confirmed that it was Police Scotland’s
position that justice could not be done in this case except by admitting the
evidence relating to this “protected” conviction.
The Chair then invited the Applicant to ask
Police Scotland questions and to address the relevancy of the protected matter
to his application.
APPLICANT
Mr MacLean referred to all his convictions
being years ago and in the past. He
advised that he was currently working full time for Argyll and Bute Council and
that he had children. He said that he
was looking to do extra part time work at the weekends to help out his
Uncle. He said that all the convictions
were in the past and that he had not been in trouble since. He advised that he has been working for
Argyll and Bute Council for nearly 3 years.
He said he had nothing further to add in respect of the “protected”
conviction.
The Chair invited Police Scotland to comment
on the Applicant’s submission and Sergeant Holmes advised that he had nothing
further to add.
The Chair then invited questions from
Members.
Councillor Irvine sought and received
confirmation from Sergeant Holmes that the date of the “protected” conviction was
7 October 2020.
Councillor Kennedy asked Police Scotland why
the conviction was “protected”. Sergeant
Holmes explained that in terms of the Rehabilitation of Offenders Act 1974
there were certain convictions that Police Scotland could and could not disclose. Although a fairly recent conviction, this
fell under the protection status due to the nature of the offence and the
outcome of the court disposal.
Councillor Green sought and received
confirmation from Sergeant Holmes that it was considered that this conviction
was connected to the licence applied for and that justice could not be served
without admitting this evidence to the Committee today.
Councillor Kennedy advised that he agreed
justice could not be done without admitting this evidence if it was considered
relevant to the application.
Councillor Irvine referred to the date of the
conviction being after the other convictions and thought that this may be
something that would be relevant to this application.
Councillor Forrest advised that she agreed
that justice could not be done without admitting this evidence and that she
would like to hear the detail of it.
The Committee agreed to consider the
protected matter as part of this application on the grounds that justice could
not be done in this case without admitting this evidence and a copy of the
letter from Police Scotland was circulated by email to the Committee.
The Chair then outlined the hearing procedure
that would be followed and invited the Applicant speak in support of his
application.
APPLICANT
Mr MacLean advised that he had applied for a
Taxi Driver Licence so that he could help out his Uncle and that this would be
a part time job for himself. He said
that the convictions were several years ago and that he had not had any recently. He said he was hoping for a good outcome
today. He advised that he had submitted
his application in July and had hoped to be able to help out his Uncle a lot
sooner. He said that he hoped that
things could be resolved today and that he could help his Uncle part time at
the weekends.
QUESTIONS FROM
POLICE SCOTLAND
Sergeant Holmes advised that he had no
questions.
POLICE SCOTLAND
Sergeant Holmes referred to a letter dated 30
August 2023 which advised that the Chief Constable objected to this application
on the grounds that the Applicant was not a fit and proper person to be the
holder of a licence.
He advised that as a result of an incident
which took place on 22 June 2009, Mr MacLean was convicted of Breach of the
Peace on 15 September 2009 and received a fine of £300.
Sergeant Holmes also advised that as a result
of an incident which took place on 18 October 2009, Mr MacLean was convicted
under the Road Traffic Act 1988 Section 178(1)(a) and Section 5(1)(a) on 22
December 2009 and received fines of £275 and £675 and was disqualified from
driving for 18 months and had his licence endorsed.
Sergeant Holmes further advised that as a
result of an incident which took place on 16 July 2012, Mr MacLean was
convicted under the Criminal Law (Consolidation) (Scotland) Act 1995 Section
50A(1)(b) and (5) on 16 July 2012 and received a fine of £430 on 24 July 2012.
Sergeant Holmes also advised that as a result
of an incident which took place on 2 March 2014, Mr MacLean was convicted of
Assault to Injury on 3 March 2015 and received a fine of £400.
In terms of the protected matter, Sergeant
Holmes advised that as a result of an incident which took place on 2 July 2019,
Mr MacLean was convicted under the Road Traffic Act 1988 Section 3 on 7 October
2020 and received a fine of £540 on 1 December 2020.
QUESTIONS FROM
APPLICANT
Mr MacLean advised that he had no questions.
MEMBERS’ QUESTIONS
Councillor Kennedy asked Mr MacLean why he
had not declared his previous convictions on his application form. Mr MacLean advised that as the charges were
so long ago he did not think they needed to be disclosed. When questioned about the driving
convictions, Mr MacLean advised that he had not realised that a driving
conviction was a criminal conviction. He
said that he had put all that behind him and that he had not been in trouble
since. He said he wanted to better
himself and earn some extra money. Mr
MacLean confirmed that he understood now that he should have declared all his
convictions on the application form.
Councillor Brown asked Mr MacLean why he did
not think to declare the careless driving charge on his application form given
this was an application for a taxi driver licence. Mr MacLean said that it was a simple mistake
as he did not realise that a driving offence would be classed as a criminal
conviction. He referred to the incident
in question and advised that it had been an accident.
Councillor Green sought and received
confirmation from Mr MacLean that the accident had occurred as a result of him
being blinded by the sunlight. Mr
MacLean advised that it had happened so fast.
He said that he clipped a van mirror and panicked which caused him to go
off the road.
Mrs MacFadyen pointed out to the Committee
that as this particular conviction was ‘spent’ the Applicant would not have
been required to disclose it on his application form.
Councillor Irvine sought and received
confirmation from Sergeant Holmes that Section 3 of the Road Traffic Act 1988
related to careless driving without due care and attention.
Councillor Kennedy referred to some of the
convictions in the past involving members of the public. He pointed out that carrying out the duties
of a taxi driver would involve meeting members of the public. He asked Mr MacLean how his life had changed
since these incidents had taken place.
Mr MacLean advised that he had a partner and 2 children and that the
majority of these incidents had occurred before he had children. He explained that he worked for Argyll and
Bute Council and had a Heavy Goods Vehicle (HGV) Licence. Part of this role involved gritting the
roads. He said that all his crimes were
in the past and that he had since matured.
Going forward he wanted to help his Uncle and earn some extra
money.
Councillor Armour sought and received
confirmation from Mrs MacFadyen that Mr MacLean did not need to declare the
2020 conviction on his application form.
She confirmed that there were other convictions that should have been
declared.
Councillor Green sought and received
confirmation from Mr MacLean that being blinded by the sunlight had been a one
off. He advised that in future, if this
were to happen again, he would be more cautious, reduce his speed or stop, and
try to find an alternative route to avoid being blinded.
Councillor Kennedy sought and received
confirmation from Mr MacLean that he had accepted the charge of careless
driving at Court and that the case did not go to trial. He confirmed he was charged under Section 3
of the Road Traffic Act 1988.
Councillor McCabe sought and received
confirmation from Mr MacLean that he obtained his HGV licence after the
incident in 2020. He advised that the
Traffic Commissioner had allowed his licence as he needed it for his job.
Councillor Green sought and received
confirmation from Mr MacLean that he had obtained his HGV licence towards the
end of 2020 after the accident had occurred.
SUMMING UP
Police Scotland
Sergeant Holmes advised that he had nothing
further to add.
Applicant
Mr MacLean advised that he had nothing
further to add.
When asked, both parties confirmed that they
had received a fair hearing.
DEBATE
Councillor Green commented that the offences
were regrettable, however, he had noted the dates and the Applicant’s age at the
time. He pointed out that Mr MacLean had
just turned 18 at the time of the first offences and the ones in his early 20s
were relatively minor in relation to driving.
He referred to the most recent driving conviction and said that he was
satisfied that Mr MacLean had learnt his lesson and from that he was minded to
grant the licence.
Councillor Kennedy advised that looking at
the whole case and what Mr MacLean had said about his change in behaviour and
lifestyle, he would tend to concur with Councillor Green. He pointed out that Mr MacLean had a good job
which he needed to keep. He said that he
hoped that Mr MacLean had learnt from his past and that he was inclined to
grant this licence.
Councillor Brown said that she agreed with
what had been said and that Mr MacLean should be given a chance. She commented on him driving for a living
with his HGV licence and that there had been no incidents since 2020. She confirmed that she would like to grant
this licence.
Councillor Armour agreed with what had been
said. He commented that Mr MacLean had
been 18 years old and in his early 20’s when the incidents occurred and that
they were in the past and that he was a family man now. He advised that due to the previous convictions
being a fair time ago and the circumstances around the most recent one
regarding being blinded by the sunlight, he would be willing to agree to grant
the licence.
Councillor Hampsey
said she would agree with the previous comments made. Taking into consideration
the age of Mr MacLean when the offences were made, and being encouraged to hear
of his role currently working with the Council driving HGVs, she said this
played quite a role in her willingness to grant this licence and that she would
wish Mr MacLean well if it was granted.
DECISION
The Committee agreed to grant and Taxi Driver
Licence to Mr MacLean and noted he would receive written confirmation of this
within 7 days. It was further noted that
the licence would not be issued until after 28 days due to the objection from
Police Scotland.
(Reference: Report by Head of Legal and
Regulatory Support, submitted and letters from Police Scotland dated 30 August
2023, tabled)