Broadly speaking, good character (or fit and proper) is determined by consideration of the applicant’s convictions as well as his medical fitness. Applicants and licensees are under a duty to report to TfL details of any convictions, cautions, charges or summonses before any Court.
But when and what to declare?
Cautions and convictions to declare
Generally speaking, you must declare cautions or convictions including those that are considered ‘spent’ unless they are a protected caution or protected conviction. You must always declare a caution or conviction if it is for a ‘listed offence’.
We will look at protected cautions and convictions below, but a brief word on ‘spent’ convictions. You must not withhold information about convictions which, for other purposes, are ‘spent’.
The Rehabilitation of Offenders Act 1974 usually permits people who have been convicted of criminal offences to treat their convictions as spent, after a period of time. “Spent” means you can act as it these offences never took place. However, under the 1974 Act, certain professions are exempt from the provisions of the Act which means that, for these professions, convictions are never considered “spent” and must therefore always be declared. Taxi and private hire drivers are exempt from the 1974 Act and you must therefore declare all criminal offending unless it is protected.
Protected cautions or convictions
Recent changes to the Rehabilitation of Offenders Act 1976 mean that you do not have to declare certain cautions and convictions for offences old enough and minor enough to have no bearing on your current character and good standing. These cautions and convictions are considered ‘protected’.
A caution is ‘protected’ – and you do not have to declare it – if it was not for a ‘listed offence’, and:
- you received it more than six years ago, or
- you received more than two years ago and you were under 18 at the time of the offence.
A conviction is ‘protected’ – and you do not have to declare it – if it was not for a ‘listed offence’, and:
- you did not receive a custodial (prison) sentence, and
- you have no other convictions (whether as an adult or under 18), and
- you received the conviction more than eleven years ago (or more than five-and-a-half years ago if you were under 18 at the time of the offence).
Remember, you must always declare a caution or conviction if it is for a ‘listed offence’ as these will never be protected.
In licensing, the standard of proof is based in the civil standard which is “the balance of probabilities”. This means that a licensing authority will assess the evidence and decide is whether something is more likely than not to have happened.
The relevance of this is that the civil burden of proof of lower than the criminal burden of proof (which is “beyond reasonable doubt”) and for this reason, it is still open to a licensing authority to act on criminal behaviour where this behaviour did not lead to a conviction.
There might be a number of reasons why alleged criminal behaviour resulted in a non-conviction. For example, lack of evidence to meet the criminal evidential threshold, witness credibility and the case failed in a technicality.
DfT Statutory guidance
Bearing in mind the civil burden of proof (i.e. on the balance of probabilities), the DfT guidance states that applicants or licensees should not be ‘given the benefit of doubt’.
This, in practice, means that if, on the balance of probabilities, the answer to the question of fit and proper is ‘no’, you are unlikely to be granted a licence (or licence revoked for licensees).
The DfT guidance goes on to say that if TfL is only “50/50” as to whether the applicant or licensee is ‘fit and proper’, they should not hold a licence.
Decisions by TfL to refuse, suspend or revoke licences are appealable. Through many successful appeals of TfL decisions, it is a clear that there is value in appealing a decision by TfL to refuse, suspend or revoke a licence.
Taxi Defence Barristers understand the distress of losing your licence particularly if the process was not fair. We take the time to fully investigate allegations and complaints to clearly establish the facts and evidence. This meticulous approach often leads to success because it exposes the lack of willingness by TfL to actually investigate allegations.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.
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