1. Purpose of policy
1.1 The purpose of the policy is to provide guidance on the criteria taken into account by the Council when determining whether or not an applicant or an existing licence holder is a fit and proper person to hold a Hackney Carriage and/or Private Hire Driver or Private Hire Operator licence.
1.2 The overriding aim of the Licensing Authority is to protect the safety of the public. The Licensing Authority is concerned to ensure:
- That a person is a fit and proper person
- That the person does not pose a threat to the public
- That the public are safeguarded from dishonest persons
- The safeguarding of children, young persons and vulnerable adults
1.3 The term ‘fit and proper person’ for the purposes of licensing is not legally defined and in assessing whether someone is ‘fit and proper’ the Council will consider the following together with and other relevant information:
- Criminality
- Human rights
- Length of time holding a driver’s licence
- Number of penalty points endorsed on driving licence
- Right to work
- Medical fitness
- Conduct of the applicant in making the application
- Previous licensing history
In addition the Council will also consider further information provided by sources such as the Police (including abduction notices) and other statutory agencies.
As set out above, there is no definition of ‘fit and proper’ however the case of McCool v Rushcliffe BC 1998 assists by way of Lord Bingham, Lord Chief Justice in determining that:
“One must it seems to me approach this case bearing in mind the objectives of this licensing regime, which is plainly intended among other things to ensure so far as possible that those licensed to drive private hire vehicles are suitable persons to do so, namely that they are safe drivers with good driving records and adequate experience; sober, mentally and physically fit, honest and not persons who would take advantage of their employment to abuse or assault passengers”.
1.4 The policy will provide guidance to any person with an interest in taxi and private hire licensing. In particular, but not exclusively:
- Applicants for licences
- Existing licence holders whose licences are being reviewed
- Licensing Officers
- Members of the Licensing Committee (Drivers’ Panel)
- Magistrates hearing appeals against Local Authority decisions
1.5 Where Licensing Officers have delegated powers to grant licences, they will utilise these guidelines when making a decision to grant a licence. In all other cases applications for licences will be referred to the Licensing Committee (Drivers’ Panel). Whilst Officers and the Licensing Committee (Drivers’ Panel) will have regard to the guidelines contained in the policy, each case will be considered on its individual merits and where the circumstances demand, the Committee (Drivers’ Panel) may depart from the guidelines.
1.6 There may be occasions where it is appropriate to depart from the guidelines, for example where the offence is a one-off occasion or there are mitigating circumstances or alternatively where there are many or continuous offences, which may show a pattern of offending and unfitness.
2. Consultation
2.1 The draft Hackney Carriage and Private Hire Criminal Convictions Policy went through a six week public consultation including individuals, businesses and public bodies with an interest in the policy.
2.2 The consultation responses were individually considered by the Licensing Committee and the draft Hackney Carriage and Private Hire Criminal Convictions Policy was amended where appropriate.
2.3 On 15th November 2017 the Licensing Committee considered the consultation responses and determined that the policy be recommended to Full Council for approval.
Policy
1. Introduction
1.1 The purpose of this Policy is to provide guidance on the criteria taken into account by the Council when determining whether or not an Applicant or an existing Licence Holder is a fit and proper person to hold a Hackney Carriage and/or Private Hire Driver or combination of both or Private Hire Operator’s Licence .
1.2 The overriding aim of the Licensing Authority is to protect the safety of the public. The Licensing Authority is concerned to ensure:
- A person is a fit and proper person
- A person does not pose a threat to the public
- The public are safeguarded from dishonest persons
- The safeguarding of children, young persons and vulnerable adults
1.3 The term ‘fit and proper person’ for the purposes of licensing is not legally defined and in assessing whether someone is ‘fit and proper’ the Council will consider the following together with and other relevant information:
- Criminality
- Human rights
- Length of time holding a Driver’s Licence
- Number of penalty points endorsed on Driving Licence
- Right to work
- Medical fitness
- Conduct of the Applicant in making the application
- Previous licensing history
In addition, the Council will also consider further information provided by sources such as the Police (including Abduction Notices) and other Statutory Agencies.
1.4 This Policy provides guidance to any person with an interest in taxi and Private Hire Licensing. In particular, but not exclusively:
- Applicants for Licences
- Existing License Holders whose Licences are being reviewed
- Licensing Officers
- Members of the Licensing Committee
- Magistrates hearing Appeals against Local Authority decisions
1.5 Where Licensing Officers have delegated powers to grant Licences, they will utilise these guidelines when making a decision to grant a Licence. In all other cases applications for Licences will be referred to the Licensing Committee. Whilst Officers and the Licensing Committee will have regard to the guidelines contained in the Policy, each case will be considered on its individual merits and where the circumstances demand, the Committee may depart from the guidelines.
2. General Policy
2.1 There may be occasions where it is appropriate to depart from the guidelines, for example where the offence is a one-off occasion or there are mitigating circumstances or alternatively, where there are many or continuous offences, which may show a pattern of offending and unfitness.
2.2 A person with a conviction for a serious offence need not be automatically barred from obtaining a Licence but would normally be expected to:
a. Remain free of conviction for an appropriate period; and
b. Show adequate evidence that he/she is a fit and proper person to hold a Licence (the onus is on the Applicant to produce such evidence). Simply remaining free of conviction may not generally be regarded as adequate evidence that a person is a fit and proper person to hold a Licence.
2.3 Where an Applicant has been convicted of a criminal offence, the Licensing Authority cannot review the merits of the conviction [Nottingham City Council v. Mohammed Farooq (1998)].
2.4 For the purpose of this Policy Formal/Simple Cautions/Warnings and Fixed Penalties will be treated as though they were convictions.
2.5 A very serious view will be taken of any conviction; no matter how minor or serious, that occurs whilst the person is the holder of a current Licence and especially if the offence occurred whilst in the course of their employment as a licensed proprietor, Driver or Operator.
3. Appeals
3.1 Any applicant refused a Driver’s Licence on the grounds that the Licensing Authority is not satisfied he/she is a fit and proper person to hold such a Licence has a right to appeal to the Magistrates’ Court within 21 days of the Notice of refusal.
3.2 Any Applicant refused a Private Hire Operator’s Licence on the grounds that the Licensing authority is not satisfied that they are a fit and proper person to hold such a Licence has the right to appeal to the Magistrates’ Court within 21 days of the Notice of refusal.
3.3 Any Licensee whose Licence is suspended or revoked has the right to appeal to the Magistrates’ Court within 21 days of the suspension or revocation.
4. Powers
4.1 Sections 61 and Section 62 of the Local Government Miscellaneous Provisions Act 1976 allow the Licensing Authority to suspend, revoke or refuse to renew a Licence if the Applicant/Licence holder has been convicted of an offence involving dishonesty, indecency, violence; failure to comply with the provisions of the Town Police Clauses Act 1847; failure to comply with the provisions of Part II of the Local Government (Miscellaneous Provisions) Act 1976; or any other reasonable cause.
4.2 The Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, allows the Licensing Authority to take into account all convictions recorded against an Applicant or the Holder of a Private Hire Vehicle or Hackney Carriage Driver’s Licence, whether spent or not. Therefore, the Licensing Authority will have regard to all relevant convictions, particularly where there is a long history of offending or a recent pattern of repeat offending.
4.3 In this Policy the term “disqualification” refers to the period served, in order to take account of the fact that a court may reduce the period of disqualification from driving. An Applicant must provide evidence in advance to prove that the court agreed a reduction in the period of disqualification.
5. Consideration of Disclosed Criminal History
5.1 Under the provisions of Sections 51, 55, and 59, Local Government (Miscellaneous Provisions) Act 1976, the Licensing Authority is required to ensure that an Applicant for the grant or renewal of a Hackney Carriage and/or a Private Hire Driver’s Licence and/or Private Hire Operator’s Licence is a ‘fit and proper’ person to hold such a Licence. However, if an Applicant has any convictions, warnings, cautions, or charges awaiting trial, the Licensing Authority will look into:
- How relevant the offence(s) are to the Licence being applied for
- How serious the offence(s) were
- When the offence(s) were committed
- The date of conviction
- Circumstances of the individual concerned
- Sentence imposed by the court
- The applicant’s age at the time of conviction
- Whether they form part of a pattern of offending
- Any other character check considered reasonable (e.g. personal references)
- Any other factors that might be relevant
5.2 Existing holders of driver’s licences are required to notify the Licensing Authority in writing within seven days of receiving a driving licence endorsement, fixed penalty notice or criminal conviction (including cautions).
5.3 Applicants can discuss further what effect a caution/conviction may have on any application by contacting the Licensing Officer on 01376 557790 in confidence for advice.
5.4 The Licensing Authority conducts enhanced disclosures from the Disclosure and Barring Service (DBS) of any Applicant for a Driver’s Licence. The Licensing Authority follows the DBS’s Code of Practice on the fair use of disclosure information. A copy is available on request.
5.5 Applicants applying for the grant or a renewal of a Driver’s Licence will be required to obtain an Enhanced Disclosure Certificate at their expense. A check of both child and adult barred lists will also be conducted Applicants for a Private Hire Operator’s Licence will be required to obtain a basic criminal records check DBS check at their own expense (unless they are the holder of a current Hackney Carriage, Private Hire or Dual Driver’s Licence issued by Braintree District Council. The Licensing Authority abides by the DBS’s Policy on the secure storage, handling, use, retention and disposal of disclosure information, which is available on request.
5.6 More information about the DBS can be found on their website.
5.7 The Licensing Authority is also entitled to use other records and information that may be available to it, in determining applications or an entitlement to continue holding a Licence. This may include information held by the Licensing Authority or other Licensing Authorities.
5.8 It is an offence for any person knowingly or recklessly to make a false declaration or to omit any material particular in giving information required by the application for a Licence. Where an Applicant has made a false statement or a false declaration on their application for the grant or renewal of a Licence, the Licence will normally be refused.
5.9 For renewal application and current Licence holders the Policy will not be applied retrospectively where there are no new concerns or convictions. The Policy will be applied to existing Licence holders if any additional convictions are incurred or they are otherwise brought to the attention of the Council for conduct that would call into question a person’s suitability to hold a Licence.
5.10 Offences not covered by this Policy will be considered by the Council when determining whether the Applicant or Licence holder is a fit and proper person.
6. Serious Offences Involving Violence
6.1 Licensed drivers have close regular contact with the public. A firm line is to be taken with those who have convictions for offences involving violence. An application will normally be refused if the Applicant has a conviction for an offence that involved the loss of life.
6.2 In other cases anyone of a violent disposition will normally be refused to be licensed until at least 3 years free of such conviction. However, given the range of the offences that involve violence, consideration must be given to the nature of the conviction.
6.3 Unless there are exceptional circumstances a Licence will not normally be granted where the Applicant has a conviction for an offence such as:
- Murder
- Manslaughter
- Manslaughter or culpable homicide while driving
- Terrorism offences
- Or any similar offences (including attempted or conspiracy to commit) offences which replace the above
6.4 A Licence will not normally be granted where an applicant has a conviction for an offence of similar offence(s) which replace the offences below and the conviction is less than 10 years prior to the date of application:
- Arson
- Malicious wounding or grievous bodily harm, which is racially aggravated
- Actual bodily harm, which is racially aggravated
- Grievous bodily harm with intent
- Robbery
- Possession of firearm
- Riot
- Assault Police
- Common assault with racially aggravated
- Violent disorder
- Resisting arrest
- Or any similar offences (including attempted or conspiracy to commit) offences, which replace the above
6.5 A Licence will not normally be granted where an applicant has a conviction for an offence or similar offence(s) which replace the offences below and the conviction is less than 5 years prior to the date of application:
- Racially-aggravated criminal damage
- Racially-aggravated offence
- Or any similar offences (including attempted or conspiracy to commit) offences which replace the above
6.6 A Licence will not normally be granted where an applicant has a conviction for an offence or similar offence(s) which replace the offences below and the conviction is less than 3 years prior to the date of application:
- Common assault
- Assault occasioning actual bodily harm
- Affray
- S.5 Public Order Act 1986 offence (harassment, alarm or distress)
- S.4 Public Order Act 1986 offence (fear of provocation of violence)
- S.4A Public Order Act 1986 offence (intentional harassment, alarm or distress)
- Obstruction
- Criminal damage
- Or any similar offences (including attempted or conspiracy to commit) offences, which replace the above
6.7 A Licence will not normally be granted if an applicant has more than one conviction in the last 10 years for an offence of a violent nature.
6.8 In the event of a Licence being granted, a strict warning both verbally and in writing will be administered.
7. Possession of a Weapon
7.1 If an Applicant has been convicted of possession of a weapon or any other weapon related offence, this will give serious concern as to whether the person is fit to carry the public.
7.2 Depending on the circumstances of the offence, an applicant should be free of conviction for 3 years (or at least 3 years must have passed since the completion of the sentence, whichever is longer) before a Licence is granted.
8. Sex and Indecency Offences
8.1 As licensed drivers often carry unaccompanied and vulnerable passengers, applicants with convictions for sexual offences must be closely scrutinised. Those with convictions for the more serious sexual offences will generally be refused. For other offences, applicants will be expected to show a substantial period (normally at least 5 years) free of conviction for such offences before a licence will be granted.
8.2 Unless there are exceptional circumstances, an application will normally be refused where the applicant has a conviction for an offence such as:
- Rape
- Assault by penetration
- Offences involving children or vulnerable adults
- Sexual assault
- Indecent assault
- Possession of indecent photographs, child pornography etc.
- Exploitation of prostitution
- Trafficking for sexual exploitation
- Indecent exposure
- Soliciting (kerb crawling)
- Or any sex or indecency offence that was committed in the course of employment as a taxi or PHV driver
- Or any similar offences (including attempted or conspiracy to commit) offences which replace the above
8.5 In addition to the above the Licensing Authority will not normally grant a Licence to any applicant who is currently on the Sex Offenders Register.
8.6 A Licence will not normally be granted if an applicant has more than one conviction for a sex or indecency offence.
9. Dishonesty
9.1 A licensed PHV or Taxi Driver is expected to be a trustworthy person. They deal with cash transactions and valuable property may be left in their vehicles. Taxi Drivers are required to deposit such property with the Police within 24 hours. PHV drivers must pass lost property to the Private Hire Operator. The widespread practice of delivering unaccompanied property is indicative of the trust that business people place in licensed drivers. Moreover, it is comparatively easy for a dishonest driver to defraud the public by demanding more than the legal or agreed fare, etc. Overseas visitors can be confused by our currency and may be vulnerable to an unscrupulous driver. For all these reasons, a serious view is taken of any conviction involving dishonesty.
9.2 In general, a minimum period of 5 years free of conviction or at least 3 years from completion of sentence (whichever is longer) should be required before granting a Licence. Offences involving dishonesty include:
- Theft
- Burglary
- Fraud
- Benefit fraud
- Handling or receiving stolen goods
- Forgery
- Conspiracy to defraud
- Obtaining money or property by deception
- Other deception
- Taking a vehicle without consent
- And any similar offences
- Or any similar offences (including attempted or conspiracy to commit) offences which replace the above
10. Drugs
10.1 A serious view is taken of any drug related offence. The nature and quantity of the drugs, whether for personal use or supply are issues which should be considered.
10.2 A Licence will not normally be granted where an applicant has a conviction for an offence related to the supply of drugs and has not been free of conviction for
5 years.
10.3 A Licence will not normally be granted where an applicant has more than one conviction for offences related to the possession of drugs and has not been free of conviction for 5 years.
10.4 An application from an applicant who has an isolated conviction for an offence related to the possession of drugs within the last 3-5 years may be granted a Licence but consideration should be given to the nature and quantity of the drugs.
10.5 If there is evidence of persistent drugs use, misuse or dependency a specialist medical examination (in accordance with DVLA Group 2 Medical Standards) may be required before a Licence is granted. If the applicant was an addict then they would normally be required to show evidence of 5 years free from drug taking after detoxification treatment.
11. Driving Offences Involving the Loss of Life
11.1 A very serious view is to be taken of any Applicant who has been convicted of a driving offence that resulted in the loss of life.
Unless there are exceptional circumstances a Licence will not normally be granted where the Applicant has a conviction for an offence such as:
- Causing death by dangerous driving
- Causing death by careless driving whilst under the influence of drink or drugs
- Causing death by driving: unlicensed, disqualified or uninsured drivers
- Or any similar offences (including attempted or conspiracy to commit) offences which replace the above
12. Drink Driving/Driving Under the Influence of Drugs/Using a Mobile Phone Whilst Driving
12.1 As Licensees are professional vocational drivers, a serious view is taken of convictions for driving or being in charge of a vehicle while under the influence of drink or drugs. An isolated incident would not necessarily debar an applicant from proceeding on the restoration of his DVLA Driving Licence but should be warned as to the significant risk to their Licence status in the event of re-offending. Normally at least 3 years after the restoration of the driving licence following a drink/drug drive conviction should elapse before an application will be considered. If there is any suggestion that an applicant is alcohol or drug dependent, a satisfactory special medical report must be provided before the application can be allowed to proceed.
12.2 Applicants should also be aware of the serious risk posed by driving whilst using a mobile phone. There is a substantial body of research which shows that drivers who use a mobile phone suffer physical and cognitive distraction which means they:
- Are much less aware of what's happening on the road around them
- Fail to see road signs
- Fail to maintain proper lane position and steady speed
- Are more likely to 'tailgate' the vehicle in front
- React more slowly, take longer to brake and longer to stop
- Are more likely to enter unsafe gaps in traffic
- Feel more stressed and frustrated.
12.3 There is evidence to show that drivers who use a mobile phone have slower reaction times than those who have consumed up to the legal alcohol limit. In light of this an equally serious view should be taken of convictions for driving whilst using a mobile phone as for driving under the influence of drink or drugs.
12.4 A Licence will not normally be granted if an applicant has more than one conviction for an offence of driving under the influence of drink or drugs or whilst using a mobile phone.
13. Outstanding Charges or Summonses
13.1 If the individual is the subject of an outstanding charge or summons their application can continue to be processed but the application will need to be reviewed at the conclusion of proceedings.
13.2 If the outstanding charge or summons involves a serious offence and the individual’s conviction history indicates a possible pattern of unlawful behaviour or character trait, then in the interests of public safety, the application may be put on hold until proceedings are concluded or the Licence may be refused.
14. Non-Conviction Information
14.1 If an applicant has, on more than one occasion, been arrested or charged but not convicted for a serious offence, which suggests they could be a danger to the public, consideration should be given to refusing the application.
14.2 In assessing the action to take, the safety of the travelling public must be the paramount concern.
15. Cautions/Warnings
15.1 Admission of guilt is required before a caution/warning can be issued. Every case will be considered on its own merits including the details and nature of the offence.
16. Licensing Offences
16.1 Certain offences under taxi legislation such as plying for hire, overcharging and refusing to carry disabled persons would normally prevent a Licence being granted or renewed until a period of 3 years has passed.
16.2 A Licence will not normally be granted if an applicant has more than one conviction for a licensing related offence.
17. Insurance Offences
17.1 A serious view will be taken of convictions of driving or being in charge of a vehicle without Insurance. An isolated incident in the past will not necessarily stop a Licence being granted provided he/she has been free of conviction for 3 years, however, strict warning should be given as to future behaviour.
17.2 A Licence will not normally be granted if an applicant has more than 1 conviction for an insurance related offence.
17.3 A Private Hire Operator found guilty of aiding and abetting the driving of passengers for hire and reward whilst without insurance, will normally have their Private Hire Operator’s Licence revoked immediately and be prevented from holding a Licence for at least 3 years.
18. Overseas Residents
18.1 If an Applicant or Licence holder has spent 6 continuous months or more overseas the Licensing Authority will expect to see evidence of a criminal record check from the country/countries covering the period.
19. Licences Issued by Other Licensing Authorities
19.1 Applicants who hold a Licence with one Licensing Authority should not automatically assume that their application will be granted by another. Each case will be decided on its own merits.
19.2 Licensees who are licensed by multiple Authorities are expected to inform all such Authorities that they are licensed by and to advise each Authority of any changes in this respect and should expect those Authorities to share information regarding their conduct and to take it into account as appropriate.
20. Summary
20.1 To summarise, a criminal history in itself may not automatically result in refusal and a current conviction for a serious crime need not bar an applicant permanently from becoming licensed. As the preceding paragraphs indicate, in most cases, an applicant would be expected to remain free from conviction for 3 to 10 years, according to circumstances, before an application can be considered. However, there may be occasions when an application can be allowed before 3 years free from conviction have elapsed.
20.2 Any person who has committed an offence and has to wait before an application is positively considered is more likely to value their Licence and act accordingly.
20.3 While it is possible that an applicant may have a number of convictions that, individually, meet the above guidelines, the overall offending history must be considered when assessing an applicant’s suitability to be licensed. A series of offences over a period of time is more likely to give cause for concern than an isolated minor conviction. Obviously some discretion can be afforded if an offence disclosed is isolated and there are mitigating circumstances but the overriding consideration is the protection of the public.
Annex A – Motoring Offences and Penalty Points
The following is a guide to the number of penalty points a Court may impose. It does not reflect the fact that some offences may incur a disqualification. These codes are recorded from information supplied by the Courts (accurate at the time of this document).