The purpose of this blog entry is to describe what the fit and proper person test is, who it applies to and its practical application. The test applies to licensed drivers for both hackney carriages and private hire vehicles (phv) and also to private hire operators.
Before laying out the relevant legislation and some case law on the fitness test, It is important to briefly outline why this test exists and what it seeks to achieve. Taxis and private hire vehicles tend to be used by people who for one reason or another can be seen as vulnerable members of society or in a vulnerable position. A passenger may be in a taxi/phv rather than another mode of transport precisely because they are too young or too elderly, have a physical or mental disability or special need, then we have revellers and people who have consumed alcohol and out till 3am, or perhaps a person is in an unfamiliar place for example a visitor from another country who does not speak any English, doesn’t understand the home currency and in turn has no idea of the cost of their journey. For all of these reasons the trustworthiness of the driver is of crucial importance.
The case of Mccool-v-Rushcliffe Borough Council (1998) Lord Bingham, Lord Chief Justice at that time gave a clear definition of the test when he stated that;
“One must it seems to me approach this case bearing in mind the objectives of this licensing regime which is plainly intended among other things to ensure so far as possible that those licensed to drive private hire vehicles are suitable persons to do so, namely that they are safe drivers with good driving records and adequate experience ; sober, mentally and physically fit, honest and not persons who would take advantage of their employment to abuse or assault passengers”. (Refers to ph drivers but this also equally applies to hackney carriage drivers)
The fit and proper test is multi layered. Not just your character is called into question before granting a licence but also; the likelihood of you conducting bad behaviour, coupled with factors such as your health, driving skills and ability, local knowledge of the area you cover, appreciation of your duties and the clear obligations placed on the driver both by the law and the council’s licence conditions impose on you as a licensed driver. The character aspect is most likely to be a source of great weight when it comes to various disputes and of decisions as to fitness being appealed to the Magistrates court and beyond if that happens to be the case.
Some key pieces of legislation which are crucial to this area are
Section 51 of the Local Government (Miscellaneous Provisions) 1976 – This provides that a licensing authority shall not grant a private hire driver’s licence unless they are satisfied that the applicant is a fit and proper person to hold such a licence.
Section 59 – Imposes the same test in respect of applications for a hackney carriage driver’s licence and then so does section 55 for private hire operators.
It is crucial to note the structure in which this legislation is created
The council as the Licensing Authority must have a positive duty to satisfy itself of the fitness of an application before granting the licence. So, the fit and proper test must be utilised in the beginning when a new applicant seeks a licence. Since under the act, drivers’ licences last for a maximum of 3 years, the fit and proper person test kicks in again on renewal of the licence.
What if a driver has a criminal conviction?
If a driver is convicted of an offence or complaint is upheld then Section 61 of the above act allows for suspension or revocation of a licence for an array of reasons. In the light of these facts a fit and proper person test is utilised in order for the person to continue to hold a licence – if not it must be taken off them. In this situation where there is a criminal issue an Enhanced Disclosure Certificate is issued by the Disclosure and Barring Service (DBS). Information contained in an Enhanced Disclosure Certificate will fall into 2 categories.
On the one hand-criminal convictions (including spent convictions) and cautions, on the other hand is the highly contentious area of any additional information held by local police that is reasonably considered relevant to the workplace applied for (other information) that is to say unproven allegations which the police regard as having some credibility and as being relevant to the job or the licence. The difference of these two can be summarised as follows
First category – convictions and cautions, a convicted person has either pleaded guilty or a court has found him guilty applying the criminal standard of proof which is beyond reasonable doubt or satisfied to convince a jury. Regardless of the how the conviction was reached the law is clear; a licensing authority should not go behind the existence of the conviction (the authority for that is Nottingham City Council-v- Farooq 1998 EWHC Admin 991.).
The Rehabilitation of Offenders Act 1974 kicks in and provides that for most kinds of employment a criminal conviction should be considered spent (that is – no longer relevant) over time. However it is well established that due to the nature of people that get into taxis the licensing authority must have access to the information of the applicant to classify that the spent conviction enables them to grant them a licence.
The case of Herefordshire DC-v Prosser  EWHC 257 (Admin) the Court confirmed that the statutory instrument, the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002 means that a decision maker can take into account any spent conviction without jumping through any particular hoops. Amendments to the Rehabilitation of Offenders Act 1974 which came into force in March 2014 made rehabilitation periods (after which a conviction is regarded as spent) generally more generous to ex-offenders, therefore it is clearly a balancing test and enables people to get into employment if the authority is certain that the convictions are spent.
The second category of other information held on a person that may not have been convicted but information that the police may have, has been far more contentious in law and has raised questions of the individual rights against society and public safety.
The question is just how much information a licensing authority must have access to this without jumping to conclusions, but it is important to assess the person as a whole to enable a decision maker to assess whether the licensed applicant would have a tendency to behave in ways that meant he was unsuitable to work with children or vulnerable adults.
This issue has proved to be legally controversial as individuals have brought judicial review challenges against decisions by the Police to include certain facts in Enhanced Disclosure certificates. X–v-Chief Constable of the West Midlands. On the one hand there’s the protection an individual’s rights of privacy and then having admission or disclosure of applicant’s facts can lead to situations where individual with ulterior motives may end of up in with a licence. The pro’s and pitfalls and case law that has derived could be debated endlessly.
Without delving too much into the existing case law which in itself has brought up issues of criminal justice, human rights and of the protection of society at large. As this blog is a general overview of the test, however it must be noted that when determining the fitness of an applicant or existing licence holder the safety of the travelling public is of paramount importance. If a committee decides that someone is not a fit and proper person, then they will not be granted a licence
When a decision has been made and if the licensing Authority feel that the person is not a fit and proper person to hold a licence, they may appeal to the magistrate’s court and then to the Crown court.
The magistrates will conduct a re-hearing of the matter (not a review). Although the magistrates are able to come to a different view of the facts that of the council, they do not start with a blank sheet. The magistrate will take into account the decision of the licensing authority
Our barristers are highly knowledgeable in giving advice in this area, we know that a person’s livelihood is at stake and that if you feel your decision has been unjust and the fit and proper person test has not been applied to you in a proportional way we have an experienced team on hand to guide you through the process.