In my last article “offences – what are the odds of getting a licence” I considered the likelihood of applicants, and licence holders, with convictions being successful in their application for a licence – or to retain their licence.

In this article, I will consider what impact the forthcoming statutory guidance will have on decision making by licensing authorities in similar circumstances.

Before I do, a quick reminder of a couple of important points:

1. Decision making in taxi and private hire licensing is based on the civil standard and burden of proof, or in other words, on the balance of probabilities.

2. No person can be granted, or hold, a taxi or private hire driver’s licence without the relevant licensing authority being satisfied they are fit and proper.

3. Fit and proper is not defined in law. Instead, the concept of fit and proper, as we understand it today, has been developed through a variety of statutory contexts to fill the statutory void.
The forthcoming statutory guidance

The DfT has recently proposed a statutory definition in its consultation on forthcoming statutory guidance, it being:

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?

The proposed definition above will become the de facto standard against which applicants for a taxi and private hire driver’s licence – including applications for renewals and reviews – will be judged.

Prior to the definition above it has been established that fit and proper is concerned with the personal qualities and professional qualifications of an individual. Several attempts have been made by licensing authorities to “stretch” the fit and proper definition to address concerns around cross-border hiring, such as in the case of Knowsley Metropolitan Borough Council and Brighton Council. In cases where authorities have attempted to “stretch” the definition, the courts have consistently quashed these policies and decisions.

The proposed definition by the DfT has not changed the fundamental principle that fit and proper should be concerned with the personal qualities and professional qualifications of an individual.

Whilst the fundamental principle has remained unchanged, the application (or interpretation of it) will have a future impact because the guidance has made it clear that “an applicant or licensee should not be ‘given the benefit of doubt’.”

Since taxi and private hire licensing is determined on the civil burden of proof, in cases where the assessment of a taxi or private hire driver’s fitness is “50/50”, often I found that licensing officers or, more often, licensing committees will give the driver the benefit of the doubt safe in the knowledge that the licence can be reviewed at any time.

In the near future, licensing authorities will be compelled – because they will be required to “have regard” to the guidance – to turn applications down in these circumstances. The guidance goes on to say:

“Licensing authorities have to make difficult decisions but the safeguarding of the public is paramount. All decisions on the suitability of an applicant or licensee should be made on the balance of probability. This means that an applicant or licensee should not be ‘given the benefit of doubt’. If the committee or delegated officer is only “50/50” as to whether the applicant or licensee is ‘fit and proper’, they should not hold a licence. The threshold used here is lower than for a criminal conviction (that being beyond reasonable doubt) and can therefore include information that goes beyond criminal convictions.”

This new approach, whist correct in light of public safety, may prove problematic for licence applicants and holder. Notwithstanding the statutory guidance, it is also a fundamental legal principle that each case must be determined on its merits.

I anticipate many cases where licensing authorities will hide behind the new statutory guidance instead of dealing with cases in a professional and honest way. This will inevitably lead to more appeal hearings which is not only costly but also unnecessary.

Key to this will be training. Licensing committees should be trained (as is also a recommendation in the draft guidance) to understand that the new definition of fit and proper does not negate the need for a full and proper consideration of the fact of each case.

The wording of the proposed definition of fit and proper may lead many decision makers to apply a subjective assessment to cases (i.e. “would you allow”). Licensing authority decision makers must not lose sight of the “Without any prejudice” requirement which compels them also to ensure there is no loss or waiver of rights or privileges of applicants or existing licence holders.

If you have had your licence refused, suspended or revoked, contact me for a free case assessment and discussion.

Stephen McCaffrey

Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.

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