Remote hearings & decisions by officers

Since the outbreak of the coronavirus (Covid-19), local authorities have cancelled or postponed licensing committees.  However, action in relation to fit and proper would not have ceased and local authorities will continue enforce rules and regulations.  Decisions by licensing authorities will remain challengeable – irrespective of whether a decision is made by a panel of elected councillors or officers.

In this article, we will look at the remote hearing regulations, how the courts may deal with licensing related appeals and what all of this means in practice for taxi and private hire licence holders.

Remote Hearing Regulations

Fit and proper continues

It might be the case that licensing hearings in person may be postponed for the time being however, this by no means mean that licensing authorities will not deal with matters relating to the fitness and propriety of licence holders and new applicants.  As I will look at in more detail below, taxi and private hire licence holders and applicant may see more decision making by officers (that would normally have been the remit of elected councillors) or, to an expected lesser extent, remote hearings.  It is important however to bear in mind, the rights of licence holders and new licence applicants will remain the same.

Remote Hearing Regulations

The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 was published on the 2nd of April 2020.  These regulations were made under section 78 of the Coronavirus Act 2020 and enables local authorities to hold hearings remotely, including licensing committees/panels.

Under the remote hearing regulations, a licensing committee can now be held by relying on “…telephone conferencing, video conferencing, live webcast, and live interactive streaming” although the use of technological means to hold licensing committee hearings is not limited to specifically these means.

The remote hearings regulations will remain in force until May 2020 but could be repealed if Government advice and restricts are relaxed.

Your rights

Whilst there is now the ability for licensing committees/panels to be conducted remotely, it is important for licence holders and new applicants to understand that this cannot prejudice, or infringe, on their statutory rights.  Licensing authorities will need to ensure that remote committee/panel hearings – or decisions made by officers – remains fair and transparent.

Right to be heard before a decision is taken

The fact that licensing committees operate in a quasi-judicial way, means that the rules of natural justice will also apply to decisions made by it.  The first rule of natural justice is that people must be given a fair and reasonable opportunity to defend themselves.  In terms of taxi and private hire licensing, this means that licence holders or applicants must be given the opportunity to attend a hearing and to address the licensing committee before a decision is made in relation to their licence or application.

Under normal circumstances, this would mean attending a licensing committee/panel in person or being represented in person. However, if hearings are held remotely through the use of some form of technology, this is not possible.  Notwithstanding however, the statutory right to be given a fair and reasonable opportunity to defend yourself cannot be withheld or compromised under these circumstances.  I would expect any licensing authority, that conducts licensing committee/panels remotely, to provide a licence holder or applicant with adequate means to interact with decision makers.  By adequate means I would expect easy to use and fully functional technology, adequate opportunity to address decision makers and to receive and answer questions and means for the debate and decision making to be transparent. 

It is my suspicion however that licensing authorities will find conducting remote hearings too complex and will instead opt for a temporary change to delegations to enable more decision making by officers with some form of consultation with elected Members.  Clearly under these circumstances it will be harder, if not impossible, for licence holders or applicants to be given a reasonable opportunity to defend themselves in person.  However, there must still be fairness.  At the very least, I would expect the decision making officer to have sight of some form of written explanation to consider prior to any decision making.  If this is the case, a clear and comprehensive statement is vitally important and for this there is no substitute for specialist legal advice to advise on your statement.

Other rights to a fair hearing

Other statutory rights include:

  1. the right to know the case against you. In practice, this means you should be provided with all the relevant documents and reports outlying the matters relevant to your case.
  2. the right to be advised of the time and date of either the remote hearing or by when you need to submit any written statements. For remote hearings, it is also imperative that licence holders or applicants be given clear instructions on how to remotely attend.  Taxi Defence Barristers are setup with the right equipment, skills and knowledge to represent clients with remote hearings.
  3. the right to be represented. This right is not affected and as always we would strongly seeking specialist legal advice at the earliest opportunity.  Specialist legal advice and particularly representation will prove to be particularly important under these circumstances.  Appearing before a licensing committee/panel can be an anxious time for any licence holder or applicant however, with the added complication of technology and remote hearings, this could cause additional stress which may impact on your ability to clearly put your points across or respond to questions.

How to deal with remote hearings

Remote hearings can often times be difficult to manage if you are not used to them.  From experience, we understand how stressful a normal hearing in person can be, however, remote hearings add additional layers of complication that can add to the stress and anxiety felt by taxi and private hire licence holders and particularly new applicants who will be less familiar with the licensing process.

It is always advisable that you seek specialist legal advice when facing legal difficulties with your taxi or private hire licence but, this type of legal advice and representation is particularly important for remote hearings.

Here are some practical matters licence holders and applicants would need to consider when dealing with remote hearings:

  1. Documents – If you will be relying on documents such as statements, character references and other documentary evidence, make sure you serve these on the licensing committee/panel well in advance of the meeting. This is necessary to ensure they have had copies distributed to them and have had time to read them.
  2. Procedure – Be clear on the committee/panel procedure for conducting its business remotely. Remote meetings will not be conducted in the same way as if they were in person.  It is equally important that you log on to any remote facilities in good time before the meeting starts. Logging on late would be disruptive to the meeting.
  3. Technology – Following on from the above, you have to also understand the technology you are using. For video conferencing tools, make sure you follow any instructions given on procedure and etiquette and most importantly you need to use the technology to be able to address the committee/panel clearly and be able to answer questions put to you.
  4. Do not be afraid to ask – Taxi and private hire licence holders and new applicant can severely be impacted by committee/panel decisions. It is therefore important, particularly with remote hearings, to ask questions.  No committee/panel will penalise a licence holder or applicant for asking questions if, for example, you are not clear on the process, cannot hear people speaking to you or if you are having trouble with following conversation remotely.  It is better to ask than face injustice and possible costly appeals.
  5. Environment – If you are represented by a legal specialist, you will most probably be represented by them from an office location where there will be no disruption. If you chose not to be represented, you need to carefully chose your environment to ensure you eliminate any possible distractions during the committee/panel hearing; a quiet room or potentially a location away from your house.
  6. Appearance – Appearance matters even for remote hearings. Approach and prepare for a remote hearing as if it was a meeting in person.

Decision making by officers

Whilst I have focussed on remote hearings in this article, it is worth noting that some licensing authorities may not be setup or willing to conduct remote hearings.  As I have previously alluded to in this article, some licensing authorities will opt for a change to delegation to enable officers to make important decisions which, under normal circumstances, would have been a committee/panel decision.

A few important matters to consider:

  1. Right to a fair hearing – Where decision are made by officers, there will not be the opportunity to address decision makers or to answer questions and give an explanation. Notwithstanding, a fair hearing is still a fundamental legal right.  At the very least, a request for written explanations and evidence must be made for consideration.  As this could likely form the substantive part of your ‘defence’, it is vitally important to have a clear and concise statement and evidence.  It is important to seek specialist licensing legal advice to assist you with this.
  1. Reasons – As there will note be a hearing and opportunity for discussion and debate, the reasons given for officer decisions must be comprehensive and clear so to not leave any uncertainty over how a decision was reached. This is particularly important in appeal situations.

Appeals

As is the case normally, any decision by a licensing authority is challengeable in a court of law.  Initially this is usually by way of an appeal but in some limited instances, by way of a judicial review.

For the purpose of appeals, it is materially not relevant of the decision was made a licensing committee/panel or licensing officers – the right of appeal is not affected.

Appeals must normally be lodged with 21 days of the notice of the decision accompanied by the relevant fee.  With this too it is important to seek legal advice to ensure your appeal is lodged correctly and in time.

During the coronavirus (Covid-19) outbreak, most courts will conduct hearings remotely.  It is likely that criminal cases will be given priority over civils hearings and therefore licence holders and applicants should expect longer delays in court listings for taxi and private hire appeal cases.  A licence holder is able to continue to work until such a time as either the appeal period has expired or the appeal determined.  If a taxi or private hire licence has been revoked or suspended but, not with immediate effect, the impact will not be as acute.  However, where decisions have had immediate effect under section 61(2B) of the Local Government (Miscellaneous Provisions) Act 1976, an expedited appeal is necessary.

Please contact Taxi Defence Barristers in the first instance and at the earliest opportunity for specialist advice and representation.  We are setup to deal with remote hearings and able to assist licence holders and applicants with remote hearings and representation.

Stephen McCaffrey

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

Taxi or private hire legal issue?

If you are facing a taxi or private hire legal issue or difficulty, speak to us today for a free no obligation case assessment.