The concept of ‘fit and proper’ is the cornerstone of hackney carriage and private hire licensing.  In my last PHTM article in August, I looked at fit and proper in the context of the new statutory guidance.  In this article, I want to focus on what the new statutory guidance says about criminal records checks.

Much of the enquiries through to Taxi Defence Barristers involve applicants or licence holders who have had licences refused or revoked due to relevant information on criminal records checks.  However, the scope of criminal records checks is not limited to convictions.  Formal cautions, criminal investigations and arrests can also lead to sanctions.  On the face of it, this might seems unfair because it appears to assume guilt before it has been proven.  However, the civil test of fit & proper is based on a lower threshold (balance of probabilities).

A reminder of the definition of fit & proper as defined in the statutory guidance:

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?  If, on the balance of probabilities, the answer to the question is ‘no’, the individual should not hold a licence.

Brief overview of Criminal records checks

Through the Disclosure and Barring Service (DBS), licensing authorities are able to access criminal record information for licence holders and applicants.  In addition to access to criminal record history, he DBS also maintains the lists of individuals barred from working in regulated activity with children or adults (known as the ‘barred list’).

Hackney carriage and private hire licensing is subject to enhanced criminal records checks.  Enhanced certificates with a check of the barred lists include details of spent and unspent convictions recorded on the Police National Computer (PNC), any additional information which a chief officer of police believes to be relevant and ought to be disclosed, as well as indicating whether the individual is barred from working in regulated activity with children or adults.

A brief word on filtering

In 2013 an important court case changed this and introduced filtering and with this “protected” convictions and cautions.  Prior to the Supreme Court ruling, if a role was considered ‘exempt’ under Rehabilitation of Offenders Act 1974, a licensing authority was entitled to know about an applicant or licence holder’s full criminal record history. This meant that all convictions, cautions, reprimands and final warnings held on the Police National Computer (PNC) were disclosed on standard and enhanced DBS (formerly ‘CRB’) checks until a person reached 100 years of age. 

In light of the court cases, the Government introduced legislation on 29 May 2013 to make changes to the 1974 Act.  The effect of the amendments  is that it allowed for certain minor offences to be removed or ‘filtered’ from standard or enhanced certificates, which are also known as DBS checks. 

For those 18 or over at the time of the offence, an adult conviction will be removed from a DBS certificate if:

  • 11 years have elapsed since the date of conviction; and
  • it is the person’s only offence, and
  • it did not result in a custodial sentence

It will only be removed if it does not appear on the list of offences which will never be filtered from a certificate. If a person has more than one offence, then details of all their convictions will always be included.

An adult caution will be removed after 6 years have elapsed since the date of the caution – and if it does not appear on the list of offences relevant to safeguarding.

For those under 18 at the time of the offence

  • The same rules apply as for adult convictions, except that the elapsed time period is 5.5 years
  • The same rules apply as for adult cautions, except that the elapsed time period is 2 years.

The statutory guidance

The statutory guidance has expended the remit of criminal records checks.  Prior to the statutory guide, criminal records checks were restricted to driver and vehicle licence holders (enhanced) and in most cases licensing operators (basic check).

Under the new guidance, the follow are now subject to criminal records checks:

  1. Drivers – “All individuals applying for or renewing a taxi or private hire vehicle drivers licence licensing authorities should carry out a check of the children and adult Barred Lists in addition to being subject to an enhanced DBS check (in section x61 of the DBS application ‘Other Workforce’ should be entered in line 1 and ‘Taxi Licensing’ should be entered at line 2). All licensed drivers should also be required to evidence continuous registration with the DBS update service to enable the licensing authority to routinely check for new information every six months. Drivers that do not subscribe up to the Update Service should still be subject to a check every six months.”
  1. Vehicle proprietors – “Licensing authorities should require a basic disclosure from the DBS and that a check is undertaken annually. Any individual may apply for a basic check and the certificate will disclose any unspent convictions recorded on the Police National Computer (PNC).

“Licensing authorities should consider whether an applicant or licence holder with a conviction for offences provided in the annex to this document (Annex – Assessment of previous convictions), other than those relating to driving, meet the ‘fit and proper’ threshold.”  

  1. Operators – “Licensing authorities should request a basic disclosure from the DBS and that a check is undertaken annually. Any individual may apply for a basic check and the certificate will disclose any unspent convictions recorded on the Police National Computer (PNC). Licensing authorities should consider whether an applicant or licence holder with a conviction for offences provided in the annex to this document (Annex – Assessment of previous convictions), other than those relating to driving, meet the ‘fit and proper’ threshold.”

Other sources of information

Whilst the DBS is the principle source of information relating to criminal history and information, it is not the only source for this type of information.  Whilst the guidance makes it clear that “that licensing authorities must not circumvent the DBS process and seek to obtain details of previous criminal convictions and other information that may not otherwise be disclosed on a DBS certificate” it also goes on to say “DBS is not the only source of information that should be considered as part of a fit and proper assessment for the licensing of taxi and private hire vehicle drivers.”

The other sources of information are:

Common Law Police Disclosures

Under the Common Law Police Disclosure power, police can disclose information to a licensing authority to allow them to act swiftly to mitigate any public risk.  This normally includes information about arrests or charges rather than waiting for a conviction that could take some time.

Licensee self-reporting

Reporting by licence holder is not new.  Most licensing authorities will have a requirement in place for licence holder to report changes in circumstances.  This requirement has now been formalised and a common standard imposed:

“Licence holders should be required to notify the issuing authority within 48 hours of an arrest and release, charge or conviction of any sexual offence, any offence involving dishonesty or violence and any motoring offence.”

The statutory guidance goes further however by also stating that:

“…a failure by a licence holder to disclose an arrest that the issuing authority is subsequently advised of might be seen as behaviour that questions honesty and therefore the suitability of the licence holder regardless of the outcome of the initial allegation.”

Referrals to the Disclosure and Barring Service and the Police

A referral power that exists but not often used by licensing authorities, is the power to refer matters to the DBS.  The guidance states on this matter:

“A decision to refuse or revoke a licence as the individual is thought to present a risk of harm to a child or vulnerable adult, should be referred to the DBS.”

Sharing licensing information with other licensing authorities

Under the new guidance “Applicants and licensees should be required to disclose if they hold or have previously held a licence with another authority. An applicant should also be required to disclose if they have had an application for a licence refused, or a licence revoked or suspended by any other licensing authority.

 

Whilst this places the onus on the licence holder or applicant to provide this information, tools such as the national refusals database serves the same function.

 

Complaints against licensees

The statutory guidance has ramped up the provisions with regards to the complaints against drivers saying “Complaints about drivers and operators provide a source of intelligence when considering the renewal of a licence or to identify problems during the period of the licence.”

To this end, the guidance introduced requirements for:

  • All licensing authorities should have a robust system for recording complaints, including analysing trends across all licensees as well as complaints against individual licensees; and
  • Licensing authorities should produce guidance for passengers on making complaints directly to the licensing authority that should be available on their website. Ways to make complaint to the authority should be displayed in all licensed vehicles.

Overseas convictions

The final other source of criminal information and history is from overseas sources.  This is perhaps the hardest nut to crack because information can be hard to come by and at times unreliable.

The guidance states that licensing authorities should, where possible, seek a ‘Certificate of Good Character’ where an applicant has previously spent an extended period (three or more continuous months) outside the UK.

Criminal convictions and rehabilitation

The statutory guidance does not change the rules of natural justice.  Your case must still be heard and determined on its individual merits.  The statutory guidance includes a draft policy on the assessment of previous convictions (a relevance of convictions policy), which in effect is a rehabilitation of offences policy.  However, even if the time that has elapsed since a conviction has not lapsed, this should not mean that the case is settled.

The guidance carries a lot of weight but also acknowledge that: “In considering an individual’s criminal record, licensing authorities must consider each case on its merits, but they should take a particularly cautious view of any offences against individuals with special needs, children and other vulnerable groups, particularly those involving violence, those of a sexual nature and those linked to organised crime.”

As a consequence of the statutory guidance, all licensing authorities are required to adopt a convictions policy: “In order to achieve consistency, and to mitigate the risk of successful legal challenge, licensing authorities should have a clear policy for the consideration of criminal records.”

As I mentioned, Annexed of the statutory guidance is the Department’s recommendations on the assessment of previous convictions.  This convictions policy draws strongly on work done by the Institute of Licensing that the trade might be aware of.  The policy in brief:

  • Sexual Offences = No licence
  • Weapon = no licence for 7 years
  • Dishonesty = no licence for 7 years
  • Supply drugs = no licence for 10 years
  • Possession drugs = no licence for 5 years
  • Discrimination = no licence for 5 years
  • Drink Driving = no licence for 7 years
  • Using hand-held device = no licence for 5 years

A final point on criminal convictions and rehabilitation, the guidance states: “These periods should be taken as a starting point in considering whether a licence should be granted or renewed in all cases. The Department’s view is that this places passenger safety as the priority while enabling past offenders to sufficiently evidence that they have been successfully rehabilitated so that they might obtain a licence. Authorities are however reminded that applicants are entitled to a fair and impartial consideration of their application.”

Stephen McCaffrey

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

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