Character and taxi/PHV drivers

The task of licensing authorities to make decisions about the character of taxi/private hire drivers and applicants is a tough one. Ian De Prez examines the issues involved.

A council acting as licensing authority [1] must not grant a hackney carriage (taxi) or private hire vehicle driver’s licence unless it is satisfied that the applicant is a fit and proper person to hold such a licence [2].

Councils also exercise a disciplinary function over existing licensed drivers; section 61 of the Local Government (Miscellaneous Provisions) Act 1976 provides that a taxi or private hire driver’s licence may be suspended or revoked:

(i) if he has been convicted since the grant of the licence of an offence involving dishonesty, violence or indecency;

(ii) for non-compliance with the licensing requirements of this act and related legislation; or

(iii) for any other reasonable cause.

These provisions provide reassurance to the travelling public, as is illustrated by the controversy over the current Deregulation Bill. [3]

An inquiry into an applicant’s fitness to be licensed is likely to include enquiries into his health, local knowledge and understanding of the responsibilities of a licensed driver. However, character is usually investigated first; this article deals with the legal issues likely to arise when a licensing authority addresses its mind to this important and sensitive issue.

Most authorities have adopted a Statement of Policy about relevant convictions; statements adopted by English and Welsh councils tend to be broadly similar, based on Home Office guidance issued in the early 1990’s. Whilst each application must be determined on its individual merits, recommended minimum period free of conviction for offences falling into broad categories will act as a guideline to the decision maker.

The Disclosure and Barring Service (DBS) created in 2012 by the merger of the Independent Safeguarding Authority (ISA) and the Criminal Records Bureau (CRB) will issue:

1. Standard Disclosure Certificates containing information about spent and unspent convictions, cautions, final warnings and reprimands; and
2. Enhanced Disclosure Certificates which contain all of that plus any additional information held by local police that is reasonably considered relevant to the workplace applied for.
3. Enhanced Disclosure plus barred lists, which generally concern the caring professions.

Current or spent convictions

Amendments to the Rehabilitation of Offenders Act 1974 which came into force in March 2014 made rehabilitation periods (after which a conviction is regarded as spent) generally more generous to ex-offenders. For a number of years decision makers were guided by the principles laid down by the High Court in Admanson v Waveney DC [1997] All ER 898 which required a rather convoluted two-stage process in determining whether it was fair to take account of a spent conviction. However in Herefordshire DC v Prosser [2008] EWHC 257 (Admin) the Court confirmed that Admanson is no longer relevant in the light of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002 [4]. A decision maker can take into account any spent conviction without jumping through any particular hoops, but of course must do so in a fair and proportionate way, following the authority’s policy. It is still appropriate to note the distinction between spent and unspent convictions when considering an application, and there will be many cases in which a particular spent conviction is no longer relevant.

Sometimes an applicant/driver will assert that he was wrongly convicted, or only pleaded guilty to get it over with, to shield a family member or to avoid the risk of a more severe sentence. However the licensing authority should not go behind the existence of the conviction (see Nottingham City Council v Farooq 1998 EWHC Admin 991.)

A decision maker dealing with a currently licensed driver should not regard the licence as an item of property to which Article 1 of the First Protocol of the ECHR applies[5]. Furthermore, when making decisions at both the application stage or in a disciplinary situation with an existing driver, the sole deciding factor should be the safety of the travelling public. Exceptional mitigation may be relevant to assessing the risk to the travelling public, if it shows that the driver/ applicant acted out of character, so that the misdemeanour is unlikely to be repeated – however his personal circumstances are not a factor to weigh in the balance against the safety of passengers. [6]

Other Information

This usually means unproven allegations, which may have caused the applicant to have been arrested and charged, but have not resulted in a case proceeding to trial.

The process of disclosure for other information, made possible by the Police Act 1997, became much more rigorous as a result of the Bichard Report in 2003 which followed the tragic failure of vetting and information sharing procedures that preceded the Soham murders. Ian Huntley, the murderer, had obtained a job as a primary school caretaker because he had no previous convictions, but he had been arrested or investigated for underage sex four times, rape at least twice and indecent assault and burglary once each between 1995 and 1999.

Unproven allegations are not disclosed automatically; the Police are obliged to consider whether it is appropriate to make disclosure. This issue has proved to be legally controversial as individuals have brought judicial review challenges against decisions by the Police to include certain facts in Enhanced Disclosure certificates.

In X v Chief Constable of the West Midlands 2005 1 WLR 65 a social worker had been charged with indecent exposure, but the case did not proceed to trial because the alleged victim failed to identify him. The Police included information about this matter in his certificate, because the investigating officers believed that his demeanour when interviewed indicated guilt. His challenge to this disclosure decision succeeded in the High Court, but the Court of Appeal overturned that decision, concluding that the Police ought generally to disclose information unless there was a very good reason not to.

However the Supreme Court in R (on application of L) v Commissioner of Police for the Metropolis 1 AC 410 2009 ruled that the West Midlands case had tilted the balance too far away from the rights of the individual. Disclosure may well engage Article 8 of the ECHR. The interference with the alleged offender’s human rights that results from the disclosure is only justified if the police decision maker has conducted a proper balancing exercise, weighing the harm to the individual against the need for public protection, and assessed whether the disclosure is proportionate. In cases of doubt, the subject of the information should be able to make representations to the Police.

Following L there were several successful judicial review cases brought by teachers and social workers against Police decisions to disclose unproven matters relating to them which were either old, isolated, or judged to be at the less serious end of the spectrum.

In R (on application of AR) v Chief Constable of Greater Manchester 2013 EWHC 2721 Admin the claimant was a 32-year-old man of good character who had been charged with raping a 17-year-old passenger who alleged that he had driven her to a secluded location for that purpose. He denied the offence, asserting that she had made sexual advances to him, which he rejected. The jury acquitted him. The High Court held that the Police’s decision to disclose information about the prosecution did not amount to an unacceptable interference with his Human Rights. Although the matter was isolated, it was recent and very serious. The Police had concluded that although the jury had not been satisfied as to his guilt beyond reasonable doubt, it was arguable that there was some probability of the allegation being true. This case is unusual in that it concerns not unproven allegations, but rather one that had been found not proven to the criminal standard.

All of this case law is concerned with the fairness and hence the lawfulness of Police decisions to disclose information. It provides no direct assistance to licensing authorities when they have to determine the fitness of a person to hold a licence, after such information has been disclosed. I suggest the following principles:

1. Anecdotal evidence suggests that some authorities have been reluctant to attach much weight to other information, and in some instances have even doubted the propriety of reporting it to members. However, there is no doubt, given the wording of the relevant statutory provisions, that this kind of information can sometimes be taken into account and that on occasion a  refusal, or a suspension or revocation may be based solely upon it.
2. When dealing with allegations rather than convictions and cautions, a decision maker must not start with any assumptions about them. Allegations will have been disclosed because they reasonably might be true, not because they definitely are true. It is good practice for the decision makers with the help of their legal adviser to go through the contents of an enhanced disclosure certificate with an applicant /driver and see what he says about it. If, as sometimes happens in practice, admissions are made about the facts, that provides a firm basis for a decision.
3. The Soham case provides an, admittedly extreme, illustration of how allegations that are unproven in the strict sense should quite properly have led to someone being excluded from certain categories of work. Ian Huntley had managed to get himself arrested or investigated six or seven times within a period of four years for serious sexual offences. A decision maker with access to this information might conclude, without presuming to ‘convict’ him of offences for which he was not tried, that, at the very least, he had a tendency to behave in ways that meant he was unsuitable to work with children or vulnerable adults.
4. The most challenging cases for a licensing authority to deal with will follow disclosures indicating, as in the Greater Manchester case, a very serious and recent, but isolated allegation where the facts are hotly contested. Some might argue that, as long as the allegation has some basis of credibility, the avoidance of risk to the travelling public outweighs the potential injustice in preventing a possibly innocent person from earning his living in his chosen way. In fact this principle was found wanting and rejected by the Supreme Court in the field of child protection law in Re B (Children) [7]. A Family Division Judge at first instance found himself unable to find as a fact that abuse within a family had occurred, but also unable to rule out the real possibility that such abuse had occurred. The Supreme Court held that events either happened or they did not; the court must decide whether they happened, applying the civil standard of proof; the balance of probabilities. Re B has also confirmed that the heightened civil standard which had been supposed to apply in cases of serious allegations, or where an adverse finding would have serious consequences, does not in fact exist. I suggest that this principle should also apply in the context of licensing law[8].
5. When dealing with existing licence holders there may be cases of alleged misconduct which do not result in criminal proceedings. The licensing authority will then hear directly from the complainants, and must come to its own conclusions about what happened. But what if a criminal trial has resulted in an acquittal? In some such cases the admitted facts still give rise to concern about a person’s fitness to be licensed. If a licensed driver has engaged in an altercation with a passenger, his acquittal of assault on the basis of self defence might not be the end of the matter. Without doubting the rightness of the verdict, the licensing authority might consider whether his behaviour is of a kind that they would expect. In other cases a stark factual conflict persists. Whilst it is true to say that a civil court, or an employer taking disciplinary action, may apply a standard of proof which is lower than the criminal standard, licensing decision makers are rarely in a position, after a criminal trial has occurred, to test the facts in their own way. Magistrates nowadays give reasons for their decisions, but juries do not. So, the licensing decision maker cannot know whether they thought that a person was innocent, or alternatively that they were almost but not quite certain of his guilt. A cautious approach in these cases is best.

Ian de Prez is a Solicitor Advocate at Suffolk Coastal District Council.