We are often asked about non-conviction information and whether licensing authorities an rely on this type of information to make decisions about the fitness of an applicant or licence holder to hold a taxi or private hire licence.
What is non-conviction information?
Non-conviction information is information that is not relevant to a conviction by a court of law. This could include a wide range of things such as:
- Cases where the police decided to not take any further action
- Cases where a conviction was quashed on appeal
- Cases where prosecutions fail for whatever reason (i.e. lack of evidence or credible witnesses)
- Local intelligence or information
Is there a power for licensing authorities to act?
In relation to driver licensing, section 61 of the Local Government (Miscellaneous Provisions) Act 1976 gives licensing authorities the power to refuse, revoke or suspend a driver’s licence for “…any other reasonable cause.”
It is this power that licensing authorities rely on in cases of non-conviction information.
Non-conviction information can be disclosed to licensing authorities as part of an enhanced criminal records check. Police forces have the discretion to disclose this type of information on DBS certificates as part of “Other Relevant Information”. The judgement as to whether to make such a disclosure will come down to the individual police force who will make a judgement whether such a disclosure is proportionate considering the role the criminal disclosure relates to.
AR v Chief Constable of Greater Manchester Police
The ability for licensing authorities to rely on non-conviction information was confirmed in the case of AR v Chief Constable of Greater Manchester Police.
The case concerned the legality of an Enhanced Criminal Record Certificate issued by the Chief Constable in respect of AR (Appellant) in connection with an application for a job as a lecturer. The certificate gave details of a rape charge for which AR had been tried and acquitted.
The main issue was whether the disclosure constituted a justified and proportionate interference with his right to respect for private and family life under article 8 of the European Convention of Human Rights.
The Supreme Court unanimously held that the disclosure of the information in question was proportionate, striking an appropriate balance between the potential risks to the vulnerable and the interference with AR’s rights under article 8.
Why can non-convictions be considered?
Licensing authorities make decisions based on the civil burden of proof (as opposed to the criminal burden required of criminal courts). The civil burden of proof is based on the balance of probabilities. This means that licensing authorities can consider a non-conviction information because, for example, a decision to take no further action does not necessarily mean that a person is innocent. A common example of this may be that a witness changed their mind or is deemed to be unreliable. While this will not satisfy the criminal burden of proof, it may still be relevant to the civil burden of proof.
What can you do if your licence is at risk due to the disclosure of non-conviction information?
It is really important that you seek legal advice at a very early stage. Since the circumstances are relevant to both criminal and licensing law, it is important that your legal advice comes from someone who is qualified in both aspects of law.
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.
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