It is well established that licensing exists to ensure that only those people deemed to be fit and proper are able to obtain, and retain, a taxi or private hire licence. One aspect of determining a person’s fit and proper state involves scrutiny of a person’s character. It is, generally speaking, right that a cautious approach should be taken in cases where a person who holds a licence, or applies for a licence, has a criminal history.
However, this also needs to be balanced with the need for a fair hearing and the right to exercise discretion in some cases. In this article I will look at some relevant considerations for taxi and private hire licensing concluding with some practical advice and specific case examples.
Looking at the issue and relevance of offences in terms of taxi and private hire licensing, we need to firstly consider the strictly legal position as this will form the basis for any action of decision made.
Under section 61 of the Local Government (Miscellaneous Provisions) Act 1976, licensing authorities have the power to suspend, refuse or revoke a hackney carriage or private hire driver’s licence in cases where an applicant or driver has:
- 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.
In London this is covered by various Acts and Orders including London Cab Order 1934 and the Private Hire (London) Vehicles Act 1998.
Similar provisions also existing in Scottish taxi and private hire law under section 4 and schedule 1 of the Civic Government (Scotland) Act 1982 were the Chief Constable is consulted on applications. Any objection or representation relating to an application for the grant or renewal of a taxi or private hire licence will be refused if the applicant is disqualified or is not a fit and proper person to be a holder of the licence.
It is clear from the above then that as far as the primary legislation is concerned, criminal offences by licence holders or licence applicants should be viewed as particularly serious by licensing authorities.
However, whilst this is clearly important and right, it is not the end of the matter. The existence of an offence (or offences) should not automatically trigger a severe sanction such as a revocation or refusal. Aside from the primary legislation, there a numerous other factors that must be taken into account before any decision should be taken. The most relevant or these is local and national licensing policy.
The finer details of how the statutory right to refuse, revoke or suspend is exercised are outlined in local licensing policy. It is rare these days for licensing authorities not to have some form of adopted convictions policy. The DfT taxi and private hire licensing statistics for 2018 suggested that 97% of licensing authorities have some sort of adopted convictions policy.
Generally speaking, convictions policies will stipulate a time period a licensing authority will expect to have elapsed since a person’s conviction. The more serious the offence the longer the time period would be.
Most taxi and private hire licence holders will understand this general concept of a convictions policy. However, there are a few very important policy matters relating to convictions that I would like to highlight.
What constitutes an “offence”?
In a normal criminal sense, an offence is doing something that is prohibited in or by law. Whilst this meaning is also relevant to taxi and private hire licensing, most local authorities will apply a much broader meaning to the term “offence”.
Convictions policies will often stipulate that taxi and private hire licence holders or applicants must not constrain their disclosure to purely the criminal understanding of offences. Instead, licensing policies will often require applicants to also disclose to them details relating to cautions, arrests, criminal investigations and fixed penalty notices.
This is because licensing decisions are made based on the civil standard of evidence. It is therefore within the remit of licensing authorities to make decisions based on the balance of probabilities (as opposed to beyond reasonable doubt as would be the case in criminal proceedings).
The balance of probabilities allows licensing authorities to make decisions on a licence holder or applicant’s history even where they may have been, for example, acquitted, their cases thrown out or no further action taken by the police.
“Clear line” policies
Increasingly, convictions policies are taking a “clear line” or “bright line” approach to convictions. Simply put, these types of policies will stipulate instances where a licensing authority will “never” issue a licence.
Whilst this may be the policy position, “clear line” or “bright line” policies cannot fetter discretion it should however give licence holders and applicants a strong indication of the local perspective on the seriousness of certain offences and the likelihood of having licences refused or taken away.
Importance of discretion
I want to spend some time discussing the very important issue of discretion on decision making and particularly how this relates to convictions policies.
It is a long established statutory principle that policy cannot and should not fetter the discretion of decision makers. These simply means that whilst licensing authorities should be guided by its licensing policies and not arbitrarily deviate for it, the overarching principle that each case should be determined on its own merits remains.
Determining each case on its merits means that it should be within the remit of the licensing authority to consider the individual circumstances of a case and to come to a conclusion that may be different from their own policy.
I was recently involved in a case against the refusal of a private hire licence by Transport for London (TfL). In the case my client was refused a private hire licence by TfL on the basis of a DBS entry conviction dating back to 2012-2013.
I advised my client to wait a year before proceeding on advice that his chances would be much stronger which he did by TfL still refused the application notwithstanding the fact that the application complied with TfL’s policy on convictions.
My efforts to get TfL to give special consideration to my client’s case – given the policy allowed applications after a 5-7 year conviction free period – was turned down by TfL who insisted on applying a higher limit.
On appeal we put forward an argument based on the very point I made above on the scope of discretion and the need for each application to be determined on its merits. We advanced a strong argument as to why they should have deviated from their policy and why the Court should do the same.
The Court agreed accepting that our client had clearly changed, committed the offences when very young and now had a family to support. The court consequently quashed the decision of TfL.
What I hope this case illustrates is the importance and value of exercising discretion in decision making particularly on important issues such as licence holders and applicants with some sort of criminal history.
Rehabilitation of offenders
The Rehabilitation of Offenders Act (ROA) is legislation that stipulates when an offence becomes spent and therefore supports the rehabilitation into employment of reformed offenders.
Under the ROA, following a specified period of time (which varies according to the disposal of the offence), cautions and convictions may become spent. As a result the offender is regarded as rehabilitated.
For most purposes, the ROA treats a rehabilitated person as if he or she had never committed an offence and as such they are not required to declare their spent caution(s) or conviction(s).
However, certain types of employment are exempt from the ROA including taxi and private hire licensing. This means that offences involving a licence holder or applicant are always considered unspent and relevant.
Duty to report offences
Since all offences involving a licence holder or applicant are always considered unspent, it is important for licence holder and applicants to be honest about declaring any criminal history that may be relevant to their licences or applications. In doing so, licence holders or applicants must be mindful of the broader definition of what constitutes an offence that I discussed above (What constitutes an “offence”?).
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.
Can I get a licence?
I am often contacted by licence holders and applicants asking for advice in relation to the relevance and significance of a criminal past and the likelihood of this affecting their licensing chances.
The simple fact is that each case will be determined on its merits but in theory, and in most cases, there is no reason why someone that has been found guilty of an offence, or offences, should have their right to a fair hearing be taken away.
As I have already explained in this article, decision makers can exercise their right of discretion. Just because things look black and white on paper does not mean that is the end of the matter. In recent cases, I have successfully represented licence holders alleged to have committed sexual offences (not found guilty), a licence holder with historic offences relating to domestic assault and a licence holder who a council revoked our client’s driver’s licence following complaints of racist comments made by him in two old videos that resurfaced in 2017.
There is no doubt that licensing rightfully exists to ensure public safety but there must always be scope for a fair hearing and discretion in cases.
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.
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