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Follow us on TwitterFollow us on LinkedinIt is a fundamental principle of English law that a person is presumed innocent until proven guilty.  Does the same principle apply however to a hackney carriage or private hire driver?  With the increased awareness of safeguarding in the hackney carriage and private hire sector, licensing authorities are increasingly acting on allegations, complaints and police charges.

In this editorial I will be looking at whether formal action by licensing authorities can be justified and be proportionate where a licensed driver has not been found guilty and/or been convicted by a court of law.

Before I do so, it will be useful to understand some of the context that has led us to where we are today.

Context

Safeguarding in licensing is not new.  Licensing in all its forms exists to protect the public and this has always been the case.  In recent times however, a number of high profile child sexual exploitation (CSE) cases have reignited the debate about the role of, particularly, hackney carriage or private hire licensing and safeguarding.

The highest profile CSE case, but by no means the only, was that of Rotherham.  The Independent Inquiry into Child Sexual Exploitation in Rotherham report[1] stated:

“One of the common threads running through child sexual exploitation across England has been the prominent role of taxi drivers in being directly linked to children who were abused.”   For the sake of clarity, the reference to “taxi drivers” is misleading because the private hire sector has also been implicated in cases of CSE around the country.

This “common thread” has put the spotlight firmly back on the importance of robust safeguarding practices by licensing authorities.

The report also stated: “The guidance [Rotherham’s licensing policy for taxis/PH] suggests that the authority will not normally grant a licence if an applicant has more than one conviction for indecency or is on the sex offenders register. Inspectors find this unacceptable. One conviction should be more than enough to prevent a licence being granted.

In addition, there is no reference to how the service will deal with complaints/service requests where the complainant does not want to report the incident to the police or the police decide not to investigate or prosecute because of the criminal burden of proof. Our audit of complaints demonstrates that allegations relating to inappropriate behaviour including sexual harassment were not properly investigated. In our view, the reliance on convictions alone will not provide a strong message to the trade on acceptable standards or reassure parents and the public that drivers are safe to transport their children.

Partly as a consequence of this have we had begun to see an increase in licensing authorities taking action on complaints and allegations.

Cases of CSE are not the only reason for licensing authorities taking action notwithstanding the absence of a conviction.  I have previously written extensively about cross border hiring and the fact that increasingly licensed drivers from one authority predominately working in another.  There are a variety of reasons why licensed drivers predominantly work in districts where they are not licensed.  The one of particular concern to licensing authorities is where drivers who had their licences taken off them (by Authority A) are back working in the same district but now licensed elsewhere (Authority B).  It might be open to Authority B to take action giving consideration to the circumstances that has led to Authority A taking action even if the licensed driver has a clean record with Authority B.

The Law

Fit & Proper

It is a well-known fact that any licensed driver must be, and remain, a fit and proper person.

Section 61 (“Suspension and revocation of drivers’ licences”) of the Local Government (Miscellaneous Provisions) Act 1976 says:

Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district council may suspend or revoke or (on application therefor under section 46 of the Act of 1847 or section 51 of this Act, as the case may be) refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds:—

  • that he has since the grant of the licence—
  1. been convicted of an offence involving dishonesty, indecency or violence; or
  2. been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act;
  • that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty; or
  • any other reasonable cause.

Subsection (c) gives any licensing authority absolute discretion.  “Any other reasonable cause” can in theory encompass anything considered relevant by the licensing authority including cases realting to complaints, charges and allegations.

A punitive measure?

I previously mentioned that licensing exists primarily to protect the public. To this end, it is not open to licensing authorities to use their powers of revocation or suspension as a punitive measure.  To punish someone for an action is very different from acting to protect the public.   The outcome for the licence holder might appear to be the same, but in law there is an important difference.

Civil v criminal threshold

It is important to understand that when licensing authorities determine a licence holder’s fitness & propriety, they apply the same burden of proof as in a civil trial which is on the balance of probabilities.  The civil burden of proof is different from the criminal burden of proof which is beyond reasonable doubt.

The implication of applying the civil burden of proof, as opposed to the criminal, is that licensing authorities can apply their decision making to a lower burden of proof standard.

Denning J in Miller v Minister of Pensions [1947] 2 All ER 372:

“If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

In other words if a licensing authority on considerations of all the facts relating to a complaint or allegation, conclude it more probable than not that a licensed driver acted in a way alleged by the complaint to allegation, they can take action.  Clearly such a decision must be based on credible information and facts, but they will not be required to prove beyond reasonable doubt that a licensed driver acted in a way alleged by the complaint to allegation.

Disclosure of information

Hackney carriage and private hire licensing is a notifiable occupation. This means that if a licensed driver is arrested, charged, convicted or is the subject of an investigation the relevant licensing authority must be informed.

In cases of complaints and allegations where there is an ongoing investigation, information disclosed can be heavily redacted out of fear that not doing so may 1) jeopardise any ongoing formal investigations and 2) it may disclose sensitive information about other interested parties such a children or complainants/witnesses.

This raises further questions about a fair hearing because if material information about an allegation or complaint is so heavily redacted, can a licensing authority reasonably rely on this information to take action?

Disclosure of information can also be made via a criminal records check that all licenced drivers are required to routinely undertake.

The Disclosure and Barring Service (DBS) check uses the same Police National Computer (PNC) information as the standard check but also includes a check of police intelligence records held locally. Any intelligence information held locally can, at the discretion of the Chief Officer of Police, be disclosed on the certificate.

Right of appeal

As with any decision of a licensing authority, it is subject to legal challenge.  In the case of a licensing authority’s decision to suspend or revoke a hackney carriage or private hire driver’s licence, there is a right of appeal to the Magistrates’ Court in the first instance.

The appeal hearing is a hearing de novo which means that it is rehearing or a hearing afresh.  The legal burden of proof will be on the licensing authority to show that the licence holder is not a fit and proper person.  A critical facet of this will be the licensing authority’s reasons for reaching the decision it did because this will form the basis of the appeal.

In Hope and Glory[2], Lord Justice Toulson said: “The statutory duty of the licensing authority to give reasons for its decision serves a number of purposes. It informs the public, who can make their views known to their elected representatives if they do not like the licensing sub-committee’s approach. It enables a party aggrieved by the decision to know why it has lost and to consider the prospects of a successful appeal. If an appeal is brought, it enables the magistrates’ court to know the reasons which led to the decision. The fuller and clearer the reasons, the more force they are likely to carry.

“…in very general terms…It is right in all cases that the magistrates’ court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.”

Corrective action

The question of corrective action by a licensing authority is an important issue.  If an investigation relating to a licensed hackney carriage or private hire driver is subsequently dropped and/or no formal charges are brought but that driver has had their licence suspended or revoked, where does this leave the hackney carriage or private hire driver?

In the circumstances above, the licensing authority should revaluate its decision.  It may still conclude on revaluation that the suspension or revocation was appropriate (bearing in mind the civil burden of proof).  Alternatively, they can take action to reinstate the licence and would be expected to do so without undue delay.

If an appeal was lodged of the initial decision to suspend or revoke the licence, the licence holder (appellant) will need to decide whether to abandon the appeal if the licence is to be reinstated.  If the licence holder decides to proceed with the appeal notwithstanding, this will be a material consideration when the appeal is heard.

Protect yourself

Whilst some complaints and allegations relating to taxi and private hire drivers are valid and warrant action, many are not.  We have seen numerous reports of malicious complaints and allegations made against licensed drivers.  There are some things a licensed driver can do to protect themselves against malicious complaints and allegations:

  • Consider installing CCTV in your licensed vehicle
  • Report any suspicious or concerning behaviour to the relevant authorities or your operator
  • Where possible, make passengers sit in the rear passenger seat
  • Do not engage any passengers in unsavoury, provocative or flirtatious conversation
  • When carrying unsupervised minors, check if they have the means to pay for the journey
  • Act professionally at all times and separate your personal life with your work life
  • Be extra careful when carrying lone minors or other vulnerable people

The list above is not exhaustive. We have seen many malicious complaints and allegations that started, for example, as a simple fare dispute and resulted in false allegations made that have had a devastating impact on the livelihood of drivers.

[1] http://www.rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham

[2] R (Hope and Glory Public House Limited) v City of Westminster Magistrates’ Court [2011] EWCA Civ 31

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