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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Munro v. Highland Council [2002] ScotCS 283 (18 October 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/283.html Cite as: [2002] ScotCS 283

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Marnoch Lord Caplan	XA144/00 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL From the Sheriffdom of Grampian, Highland and Islands at Inverness in the cause RODERICK ALISTAIR MUNRO Pursuer/Appellant and Respondent; against THE HIGHLAND COUNCIL Defenders/Respondents and Appellants: ________

 

Act: Ellis, Q.C.; Balfour & Manson (McClurg & Co., Inverness) (Pursuer/Appellant and Respondent)

Alt: R.W.J. Anderson, Q.C.; Biggart Baillie (Defenders/Respondents and Appellants)

18 October 2002

1. The defenders have appealed against the decision of the sheriff in which he sustained the pursuer's appeal against the refusal by the defenders' Inverness Area General Purposes Committee Licensing Sub-Group of his application for a taxi licence on the ground that he was "not a fit and proper person to hold such a licence".
2. The sheriff held that the licensing authority had erred in law in taking into account the pursuer's conviction on 10 September 1997 in respect of a drink driving offence, for which he was fined and disqualified from driving for 15 months. In the view of the sheriff, by 6 August 1999 when the application was refused, the conviction was "spent" for the purposes of the Rehabilitation of Offenders Act 1974, to which we will refer as "the Act".
3. The sheriff noted that, according to table A which forms part of section 5(3) of the Act, the rehabilitation period applicable to a fine was five years. However, he took the view that, where an order for disqualification was made in addition to a fine, section 5(8) of the Act entailed that the rehabilitation period depended solely on the length of the period of disqualification. On this basis the rehabilitation period ended on 10 December 1998.
4. Counsel for the defenders submitted that in reaching that conclusion the sheriff had fallen into error. Counsel for the pursuer did not resist that, but since the sheriff reached a determination in regard to the application of the Act, it is right that we should satisfy ourselves that the defenders' submission is indeed well-founded.
5. It appears that in reaching his conclusion the sheriff proceeded on the view that an order for disqualification was "separate and distinct from sentence". He pointed out that for purposes of appeal provision had been made by section 38(2) of the Road Traffic Offenders Act 1988 that such an order should be treated in the same way as a sentence.
6. The sheriff sets out the competing arguments before him at some length. However, it does not appear that he was referred to, or took into account, the terms of section 1(3) of the Act, which expressly provides, subject to certain exceptions with which we are not concerned, that for the purposes of the Act the expression "sentence" includes "any order made by a court in dealing with a person in respect of his conviction of any offence or offences". This provision makes it clear that in the case of a person who has been both fined and disqualified from driving there are in fact two sentences. Section 6(5) of the Act has the effect of requiring that the longer of the periods relating to such sentences is to be regarded as the rehabilitation period. In the present case it therefore follows that the relevant period was that of five years, and accordingly the pursuer's conviction was not "spent" as at the date when his application was refused.
7. In these circumstances we will allow the defenders' appeal.
8. Having reached the conclusion which he did the sheriff took the view that it was proper for him not to comment on what he referred to as the pursuer's second ground of appeal. In short that was to the effect that the fact that the appellant had been disqualified for a drink driving offence did not in any event provide a sufficient, or at any rate a reasonable, basis for the refusal of a licence.
9. Counsel for the pursuer invited the court to accept this contention; and, if so, to remit the case to the sheriff with instructions that he should remit the case to the defenders with instructions that they should grant the licence (cf. McDowall v. Cunninghame District Council 1987 S.C. 217 at page 221).
10. It is clear that the pursuer's contention should have been dealt with by the sheriff. It is not appropriate that this court should take upon itself to decide a matter which, in accordance with the legislation, was one for the sheriff. We may add the counsel for the defenders indicated that, while he would have difficulty in arguing against the contention which the pursuer sought to advance, he did not consent on behalf of the defenders to the remit to which we have referred.
11. In these unsatisfactory circumstances we consider that the correct course is for us to remit the case to the sheriff to deal with the second ground of appeal for the pursuer and to proceed as accords.
12. Parties were agreed in the particular circumstances of this case that no expenses should be found due to or by either party either in regard to the proceedings in the Sheriff Court or in this court.