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Follow us on TwitterFollow us on LinkedinThe Supreme Court recently handed down an important ruling concerning information that can be disclosed on an enhanced criminal records certificate (“ECRC”).  The ruling handed down by the Supreme Court in this case will have implications for the taxi and private hire sector.

In this editorial, I will consider the Supreme Court case briefly but mainly focus on the implications of the case for taxi and private hire drivers.

AR v Chief Constable of Greater Manchester Police

AR, the appellant in the case, was working as a taxi driver in 2009.  He was arrested and charged with the rape of a 17 year old female passenger. When he appeared before the court in 2011, AR pleaded not guilty and was eventually acquitted. AR also qualified as a teacher. Following the court case, he applied for a number of jobs including teaching jobs and taxi work.  During the course of these job applications, AR was subject to criminal disclosure checks.  Two enhanced ECRCs were issued, one in March 2011, and the other in March 2012. Both these certificates included the disclosure and information relating to the fact that he had been acquitted of rape.  The information had been provided by the Chief Constable of Greater Manchester Police.

AR sought permission from the High Court to bring a judicial review challenge of the Chief Constable of Greater Manchester Police’s decision to disclose information of the rape allegation disclosed to prospective employers in AR’s ECRC.  The permission was refused by the High Court as well as a subsequent appeal to the Court of Appeal.

AR appealed to the Supreme Court[1]. Judges in the Supreme Court unanimously dismissed AR’s appeal ruling that disclosing his acquittal was proportionate in the context of the types of job applications (i.e. teaching and driving a taxi). In Lord Carnwath’s view it was relevant that information about the charge and acquittal was not a secret and was a matter of public record, which might have come to an employer’s attention via another source, such as the internet.

Relying on the case of R (L) v Commissioner of the Police of the Metropolis [2010] 1 AC 410, Lord Carnwath held that the requirement to protect potential young and vulnerable people outweighed the potential prejudicial effect of such disclosure.

Enhanced Criminal Record Checks: What can be disclosed?

Before we consider the implications of this case on the taxi and private hire sector, it is worth understanding the context.

Criminal records checks can only be undertaken in relation to specific roles.  Applicants for taxi and private hire drivers’ licences falls within what is known as “regulated activity” and as such is subject to regulations that permit enhanced criminal checks to be undertaken.

Enhanced criminal records checks undertake checks against a number of sources:

  • details held on the Police National Computer (i.e. convictions/cautions etc.);
  • data held by local police forces relating to relevant non-conviction information;
  • information from the Government’s Protection of Children Act List;
  • information from the Government’s Protection of Vulnerable Adults List; and
  • information held by the Department for Education and Skills (DfES).

Much of the information disclosed from the sources referred to above would relate to the existence, or non-existence, of a criminal record relating to an applicant for a licence.

The complication exists with information held and disclosed by local police forces relating to non-conviction information.  This type of information could include disclosures relating to allegations, complaints, local intelligence or any other information the particular local police force may consider relevant and appropriate to disclose.

There are no explicit rules or guidance on what local police forces can and should disclose under the “non-conviction information” category and as such, the decision more often than not comes down to the discretion and interpretation of the designated officer in the local police force.  The local designated officer will consider the type of role or job when deciding what non-conviction information is relevant and appropriate to release on a ECRC.

Enhanced Criminal Record Checks: What can be considered relevant?

Fit & Proper

Section 61 of the Local Government (Miscellaneous Provisions) Act 1976[2] gives licensing authorities the power to suspend, revoke or 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:
  • been convicted of an offence involving dishonesty, indecency or violence; or
  • 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.

Offences and convictions

Information disclosed in relation convictions are relatively straight forward because these are based on factual information and therefore not open to a great deal of interpretation.  In these cases, licensing authorities should look to their own convictions polices for guidance.  Information relating to offences (including formal police cautions) can be considered relevant by licensing authorities.

Rehabilitation of Offenders Act 1974

A brief word on the Rehabilitation of Offenders Act.  Under this Act, certain convictions expire after a specified amount of time has elapsed.  The effect of the Rehabilitation of Offenders Act is that, in law, a person’s previous conviction(s) will be forgotten after a specified time has elapsed.  Convictions subject to the Rehabilitation of Offenders Act does not need to be declared after the specified time has elapsed.

However, taxi and private hire licensing is exempt from the Rehabilitation of Offenders Act.  This means that, in theory, the criminal history of a licence holder (or prospective licence holder) never becomes spent and can be considered relevant irrespective of the time that has elapsed since the conviction(s).  It is important that licence holders and applicants for a licence make sure they disclose full criminal history information on their application forms.

Allegations and complaints

As the Supreme Court case has shown, disclosures relating to non-conviction information presents a much more complex situation.  This is because, unlike convictions, facts and information relating to non-conviction cases are often much less clear and therefore open to interpretation and debate.  Furthermore, non-conviction information is not subject to the Rehabilitation of Offenders Act and can therefore be disclosed and taken into consideration in perpetuity.

As mentioned, non-conviction information can relate to any information held by local police forces that they consider relevant to disclose.  Such information is not limited to, for example, just cases where there was a failed conviction or another form of formal action.  It can include, amongst other things, information relating to intelligence held on police computer systems, criminal investigations and complaints.

Non-conviction information can be considered relevant by licensing authorities.  Section 61 of the Local Government (Miscellaneous Provisions) Act 1976 include a very broad “any other reasonable cause” provision that can be relied on to act in relation to non-conviction information.

Burden of proof

It is important for licence holders to remember that licensing authorities are not bound by the criminal burden of proof, which is to prove something beyond reasonable doubt. Licensing authority decision making is bound by the civil burden of proof.  This means they can make decisions based on the balance of probabilities or, in other words, if they think something is more likely than not to have happened.

This is relevant to the consideration of non-conviction information.  When a licensing authority considers whether a licence holder is “fit and proper” in light of non-conviction information, they do not have to satisfy themselves beyond reasonable doubt that the information is true and therefore the licence holder may, as a consequence, not be fit and proper.  All they have to do is conclude that the circumstances relevant to the non-conviction information is more likely to be true than not.

Evidence

In relation to information disclosed on criminal records certificates, there are a number of points relating to evidence that is relevant.

The first is that any decision must be made in response to the evidence. This is particularly important in relation to non-conviction related information because there is greater scope for interpretation and consideration of the facts.  For example, a licence holder may have been subject to a malicious complaint that lead to a criminal investigation but no conviction. Clearly in such a case, it would be appropriate for a licensing authority to take into account the circumstances (i.e. malicious complaint) and evidence (no conviction) before making a determination on the fitness of a licence holder to keep their licence.

Secondly, the police may decide not to bring charges against a person due to lack of evidence.  I would urge some caution here however because “lack of evidence” can relate to a number to circumstances.  It may, for example, be that witnesses or victims were unwilling to provide statements or other evidence to the police.  The aforementioned may not satisfy the criminal burden of proof but may still satisfy the civil burden of proof and therefore could be actionable by licensing authorities.

Your right of appeal

The Supreme Court case and this article should have demonstrated the significance of information disclosed on criminal records certificates.  It is therefore important for licence holders to know and understand their rights of appeal in relation to such information.

There are a number of ways a licence holder can appeal against information held and/or disclosed by the Disclosure and Barring Service (DBS).

There is a right of appeal to the DBS that exists if they:

  • make a mistake on a DBS check;
  • make a decision to add you to the list of people barred from certain roles; and/or
  • have previously added you to the list of people barred from certain roles and you want them to review the decision

A person who is included in a barred list may also appeal to the Upper Tribunal (in England and Wales) against a decision to include them in one or both of the barred lists.

A person can request leave for an appeal from the Tribunal where they have been:

  • barred because they received a caution or conviction for a relevant offence; or
  • barred under the DBS discretionary powers

The grounds for an appeal mentioned above does not include the removal of historic information disclosed by, for example, local police forces.  This will need to be challenged by way of judicial review.

Finally, a decision reached by a licensing authority on the fitness and propriety or a licence holder can be appealed in the Magistrate’s Court.

Conclusions

Information disclosed on criminal records certificates can hold significant implications for licence holders.

The fit and proper test not defined and is therefore open to interpretation.  What makes a person fit and proper will come down to the individual circumstances of the case.  The lack of statutory definition has left the fit and proper test open-ended leaving local authorities to potentially consider anything as relevant if it is harmony with the purpose of the legislation – which is public protection and safety.

Taxi Defence Barristers act for taxi and private hire licence holders at every stage of appeals relating to disclosures on criminal records certificates and decisions made by regulators in response to such information.

[1] R (on the application of AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47

[2] The “fit and proper” rule also applies in other parts of the UK where the Local Government (Miscellaneous Provisions) Act 1976 does not have force.  Reference to “fit and proper” in this article will therefore equally apply to those areas.

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