The Status of the guidance
Section 177(1) of the Policing and Crime Act 2017 confers power on to the Secretary of State to “issue guidance to public authorities as to how their licensing functions under taxi and private hire vehicle legislation may be exercised so as to protect children, and vulnerable individuals who are 18 or over, from harm.”
Under subsection four of the 2017 Act,
“any public authority which has licensing functions under taxi and private hire vehicle legislation must have regard to any guidance issued under this section.”
“Having regard” is more than having a cursory glance at a document before arriving at a preconceived conclusion. And The Department therefore expects these recommendations to be implemented unless there is a compelling local reason not to.
Clear therefore that legislation has placed a duty on licensing authorities to have full regard to the guidance any only depart from the guidance compelling local reasons in doing so.
The point made above is important when considering legal difficulties with the guidance because on the one hand licensing authorities are compelled to follow the guidance but on the other hand, where the guidance is not clear or presents a legal conundrum, licensing authorities will need to choose whether to follow the guidance notwithstanding, or depart from it.
In this article, we will look at some of these potentially legal difficulties in the guidance and what they mean, in practice, for the trade.
Any changes in licensing requirements should be followed by a review of the licences already issued
Perhaps the most difficult provision in the guidance is the requirement for existing licences to be reviewed in line with the requirements of the guidance.
In practice, this means that licensees will be judged against the amended standards and, in cases where they no longer meet the “fit and proper” standard, they face the possibility of having their licences revoked. For example, changes to a convictions policy might mean that the “fit and proper” threshold has been raised and what was deemed acceptable prior to the change is now no longer so which might trigger a review.
Whilst in theory this might appear clear, the practical implications are far from it and licensing authorities will need to very carefully consider how they approach the requirement to review existing licences against the guidance.
Imagine a licensee who has passed the authority’s assessments and was granted a licence notwithstanding any previous convictions. They have since the grant of that licence not raised any further concerns for many years. Under these circumstances, for example, the licensee might now not meet the revised standards but it would be inconceivable for them to be declared unfit to hold a licence.
Notwithstanding the guidance on reviewing existing licences, licensing authorities will need to ensure they are fair and that each case is determined on its merits taking into account array of facts before reaching a decision.
Subscription to the DBS Update Service
The guidance recommends that licensees sign up to the DBS’ update service. Most licensed drivers will be aware of the service that “allows those with standard and enhanced certificates to keep these up to date online.” This means that licensing authorities can easily access a licence holder’s criminal history. However, the DBS update service relies on the individual’s consent.
The use of the DBS update service presents two potential difficulties; how can a licensing authority mandate the use of the update service and what will happen if a driver refuse consent?
It will be unusual for a licensing authority to use licensing conditions to impose the requirement. Generally speaking there are too many requirements in the guidance to impose these through a new set of licence conditions.
More realistic will be for the requirement to subscribe to the DBS update service to be reflected in policy requirements. The policy requirement will be based on the statutory guidance and will therefore carry some weight. Licensing authorities take different approaches to compliance with policy requirements. Some licensing authorities will refer the matter to a licensing committee for determination but other will outright refuse the application.
We must not forget that not everyone is comfortable with the technology required to comply with this requirement. Some provision will need to be made by licensing authorities for those who are not familiar with the use of technology.
The guidance places a requirement on licensees 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” and “, 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.”
There are a number of potential issues with this requirement; the duty to report, the nature of the offences and the subsequent action taken by the licensing authority.
Unlike the DBS update service, a licence condition reflecting this requirements might be more appropriate. As a licence condition, the requirement (and failure to comply) will carry more weight than had it been a policy requirement.
The most obvious issue is that the guidance excludes the requirement to report applicants and licensees under criminal investigation or formal cautions. In some cases, a person can be subject to a criminal investigation or accepted a formal caution without having been arrested or charged.
The requirement relates to a limited scope of offences; sexual, dishonesty, violence or any motoring offence. The issue here is that there is much variation in the definition or understanding of these offences. For example, violence is a very wide offences encapsulating a variety of actions – some very serious but others very arguably minor. For example, there is a wide range of circumstances that might be relevant to “assault” as a sub-category of an “offence involving violence”.
The point here is that whilst on paper the requirement might appear clear, in practice the issues can be very complex and this complexity might cause licensees to potentially fall foul of the reporting requirements.
“In some circumstances it may be appropriate under the Safeguarding Vulnerable Groups Act 2006 for licensing authorities to make referrals to the DBS. 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.”
A referral to the DBS can have a devastating impact for any individual and this is not limited to licensing. Clearly any referral to the DBS must be carefully considered and only once all legal appeals and recourse have been exhausted or passed.
The significance of this is such that it again demonstrates the importance of proper legal advice and representation at hearings.
Similar to DBS referrals, “action taken by the licensing authority as a result of information received should be fed-back to the police” can present the same difficulties. This type of information sharing could very well include very sensitive information and if reported wrong or inaccurate, could hold significant implications for licensees with very difficult and expensive legal recourse.
‘Certificates of Good Character’
“Licensing authorities should seek or require applicants to provide where possible criminal records information or a ‘Certificate of Good Character’ from overseas in this circumstance to properly assess risk and support the decision-making process.”
‘Certificates of Good Character’, or overseas criminal records can be difficult to obtain and/or translate in certain cases. This might present an issue for applicants who are from, or have spent, extended periods of time abroad. It will be for each individual licensing authority to define its own approach and policy on this.
The official home office advice regarding overseas criminal records checks is that applicants who cannot obtain such a certificate should provide a written explanation detailing the reasons why they have not been able to obtain the certificate. These reasons will then need to be assessed and a decision made whether to exempt the requirement or not.
In the absence of any detail in the guidance, it is assumed that licensing authorities will follow a similar practical approach as set out above.
Criminal convictions and rehabilitation
My last PHTM article looked at the issue of criminal records check in greater detail. Here I briefly want to look at an aspect of the guidance’s convictions and rehabilitation proposal that has come in for some criticism. Briefly, the proposals for convictions and rehabilitation are:
- 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
The potential difficulty is that the guidance’s approach takes a very broad brush approach to convictions. For each of the categories mentioned above, there is a whole range of circumstances that could give an indication of how serious an offence might be and this range should be taken account of. Not any offence of the categories mentioned above should automatically result in the guidance’s rehabilitation times. Licensing authorities should note the guidance does state that “These periods should be taken as a starting point” rather than an absolute. The guidance places the duty on “past offenders to sufficiently evidence that they have been successfully rehabilitated” and that applicants are entitled to a “fair and impartial” hearing notwithstanding the guidance’s rehabilitation periods.
Ways to make complaint to the authority should be displayed in all licensed vehicles
There is a requirement in the guidance for vehicle licence holders to display, inside their vehicle, public information on how the to make a complaint.
In order to implement this requirement at a local level, licensing authorities will either, need to make this a requirement via their licensing policy or through the imposition of licensing conditions on vehicle licences. Either way, it is arguably possible for a vehicle licence to be subject to a suspension notice in cases where the notice is not on display or incorrectly displayed.
Criminality checks for operators
A final word on operators.
Under the guidance
“Operators should be required to evidence that they have had sight of a Basic DBS check on all individuals listed on their register of booking and dispatch staff and to ensure that Basic DBS checks are conducted on any individuals added to the register and that this is compatible with their policy on employing ex-offenders.”
This requirement not only compels operators to have its own policy on employing ex-offenders, but also for them to act on the policy. To act will require operators to have an adopted policy that stipulates its approach to dealing with employees with a criminal record. Similar in principle to the guidance’s convictions and rehabilitation policy, a policy adopted by an operator should include details of offences and acceptable rehabilitation times but could also include provisions of managing people ex-offenders such as excluding them from certain duties of supervision.
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.
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