Taxi and private hire licensing exists to ensure that only those judged to be fit and proper are licensed. Taxi and private hire applicants and drivers are subject to a range of assessments to test whether they are fit and proper.
One important assessment, that is almost universal, is a criminal record check for all applicants and drivers. Taxi and private hire applications are subject to enhanced criminal records checks, that includes cautions, warnings, reprimands, spent convictions and unspent convictions and a search against the children and vulnerable adults barred list.
The fact that a criminal records check shows convictions should not automatically result in the application being refused – or licence revoked for licence holders. In these circumstances, the relevant licensing authority should give the applicant or licence holder a right to a fair hearing and right to respond.
In this article, I will consider some relevant points to consider for applicants or licence holders who may have relevant information on their criminal records checks.
Fit & Proper
It is right to start this discussion looking at fit and proper since it is the central pillar of taxi and private hire licensing.
The legislation is very clear that no licensing authority should license any person who is not deemed fit and proper:
s.55 Local Government (Miscellaneous Provisions) Act 1976:
“…a district council shall, on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles grant to that person an operator’s licence:
Provided that a district council shall not grant a licence unless they are satisfied
(a) that the applicant is a fit and proper person to hold an operator’s licence…”
s.59 Local Government (Miscellaneous Provisions) Act 1976:
“Notwithstanding anything in the Act of 1847, a district council shall not grant a licence to drive a hackney carriage—
(a) unless they are satisfied
(i) that the applicant is a fit and proper person to hold a driver’s licence…”
Similar provisions apply to taxi and private hire licensing in London.
Whilst the baseline test is fit and proper, there currently exists no statutory definition of fit and proper. As I explained above, a number of assessments are undertaken to determine whether a person can be judged to be fit and proper but there exists no formal statutory standard and benchmark.
A number of attempts have been made by various organisations to adopt a standard definition of fit and proper. Most recent has been the DfT’s draft Statutory Guidance for licensing authorities:
2.14…It may be helpful when considering whether an applicant or licensee is fit and proper to pose oneself the following question:
Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night?
2.15 If, on the balance of probabilities, the answer to the question is ‘no’, the individual should not hold a licence.
Whilst an attempt to set a standard definition of fit and proper is welcome as it will promote consistency, there is a danger that the above definition may result in decision makers being clouded by subjective assessments of matters instead of focussing on the material facts. This is where expert legal advice and representation becomes essential for any taxi or private hire applicant or licence holder.
The legislations make specific reference to the effect of convictions on the fitness of a taxi and private hire licence holder:
s.61 Local Government (Miscellaneous Provisions) Act 1976:
“… a district council may suspend or 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:
(a) that he has since the grant of the licence—
(i) been convicted of an offence involving dishonesty, indecency or violence; or
(ii) 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;
(aa) that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty…”
It is important to note that – and this is the point of this article – that a driver who has been convicted on an offence(s) is not automatically disqualified from certainly applying for a licence but also being granted one.
The legislation (s.61) leaves it open to the licensing authority to use to decide: “…a district council may suspend or revoke or refuse to renew…”.
The next question then is what approach a licensing authority should take to determine if it should exercise its discretion to grant a licence to a person whose fitness may be brought into question due to a criminal history.
In my experience of representing taxi and private licence holders for many years, I know that licensing authorities do not take decision making in relation to applicants or licence holders with convictions lightly. It is therefore very important to be very well prepared when facing a licensing committee/panel.
What constitutes an “offence”?
The rules around what is defined as an “offence” requires careful consideration in the context of taxi and private hire licensing. In a criminal context, an offence is being found guilty by a court of law of a breach of a law.
However, licensing authorities are also concerned with cautions, motoring offences, warnings, pending court proceedings and even conduct that cause concern but where no formal charges or action has been brought.
Strictly speaking, not all of these can be defined as “offences” in its formal sense but are all seen as relevant for the purpose of licensing. I make this point because I often find that licence holders or applicants sometimes fail to fully disclose what is required of them by their licensing authority.
Duty to report
There is an obligation on all applicants for a licence and licence holders to report convictions to their licensing authority.
Whilst there is a duty to report convictions, most licensing authorities will also require applicants for a licence or licence holders to report to them any cautions, allegations or other formal sanctions.
I often deal with cases where applicants for a licence or licence holders fail to report convictions to their licensing authority or where they were not aware of this duty. When this is the case, it can make the case against a refusal, suspension or revocation harder to argue.
Rehabilitation of Offenders Act 1974
On the issue of duty to report and the common mistake of being unsure of when to do so, applicants for a licence and licence holders should be aware that, for the purpose of taxi and private hire licensing, offences are never considered spent. This is because taxi and private hire licensing is exempt from the provisions of the Rehabilitation of Offenders Act 1974.
Under normal circumstances, the 1974 Act enables some criminal convictions to be ignored after a rehabilitation period. The rehabilitation period is automatically determined by the sentence as specified in the Act.
The effect of the 1974 Act is that after this rehabilitation period, if there has been no further conviction the conviction is “spent” and, with certain exceptions, need not be disclosed by the ex-offender in any context such as when applying for a job, obtaining insurance, or in civil proceedings.
The ability therefore for convictions and cautions to become spent, and therefore not disclosable, does not apply to taxi licensing. It is therefore important that you are always clear about any criminal convictions and/or cautions when notifying your licensing authority regardless of how old or minor a conviction may seem to you.
In determining whether applicants for a licence or existing licence holders are, and continue to be, fit and proper people, licensing authorities will be guided by their own licensing policies. Often licensing policy will set higher standards than what may be laid down in legislation.
It is also the case that licensing authorities should not arbitrarily deviate from its own policies and where it does so, it should provide clear, defensible and comprehensive reasons why it has done so.
Most licensing policies will have a section that specify how the licensing authority will determine applications for a licence where the applicant or licence holder has a criminal history. Usually these “relevance of convictions” policies will outline how much time should have elapsed before they will consider the grant of a licence to anyone with a criminal history.
It is of course not beyond the ability of the licensing authority to make a decision contrary to its own policy. Licensing committees are required to function as quasi-judicial bodies which means that are under a duty objectively determine facts and draw conclusions from them so as to provide the basis of an official action. To this end, it is within their remit to, based on the evidence and facts, to grant licences contrary to their own policies.
There may, for example, be adequate mitigating circumstances that can be argued in order to persuade the licensing committee to deviate from their policy.
Right of appeal
An appeal must be lodged properly with the Magistrates’ Court within 21 days of a licence holder or applicant being given notice of the decision of the licensing authority. The right of appeal means that the decision of the licensing authority will not take effect until the appeal has been determined. The exception to this rule is where a decision to suspend or revoke is taken with immediate effect under section 61(2B) of the 1976 Act. Appeals lodged after the statutory 21 days is likely to be rejected unless extraordinary circumstances apply that are accepted by the court.
Section 61 (Suspension and revocation of drivers’ licences) of the Local Government (Miscellaneous Provisions) Act 1976 states:
(2A) Subject to subsection (2B) of this section, a suspension or revocation of the licence of a driver under this section takes effect at the end of the period of 21 days beginning with the day on which notice is given to the driver under subsection (2)(a) of this section.
(2B) If it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect, and the notice given to the driver under subsection (2)(a) of this section includes a statement that that is so and an explanation why, the suspension or revocation takes effect when the notice is given to the driver.
(3) Any driver aggrieved by a decision of a district council under subsection (1) of this section may appeal to a magistrates’ court.
Similar provisions exist in respect of suspension and revocation of a private hire operator’s licence (s. 62), refusals (s. 52) and in London.
Things to remember
- Do not try to hide any criminal offences or history when apply for a licence (or renewal)
- Remember that offences are never spent so disclose everything even if you think it is not necessary
- For existing licence holder, remember to notify your licensing authority of any arrests, convictions, formal cautions and/or penalties
- If you are referred to a licensing committee/panel, seek expert legal advice without delay
- You have the right to appeal a decision to refuse or remove your licence which gives you another opportunity to argue your case. Again, seek expert legal advice without delay.
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.
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