Hackney carriage and private hire policy - Appendix E - Conviction and Fitness Policy

Hackney Carriage and Private Hire Conviction and Fitness Policy

Bassetlaw District Council

Introduction

  • This policy provides guidance to the Licensing Committee (and its sub-committee) on the criteria to take into account 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 Operator Licence. Any decision made by the Licensing Committee (and its sub-committee) will be made on the balance of probabilities and not beyond all reasonable doubt.
  • It is the responsibility of Bassetlaw District Council (referred to as the Council) to issue Hackney Carriage and Private Hire licences under the Local Government (Miscellaneous Provisions) Act 1976 and the Town Police Clauses Act 1847. In exercising this duty, the Council will consider the safety of the public as its primary consideration.
  • In seeking to safeguard the public, the Council, as the Licensing Authority will ensure:
    • That a person is a fit and proper person in accordance with Sections 51 and 59 of the Local Government (Miscellaneous Provisions) Act 1976 (Part II)
    • That the person does not pose a threat to the public
    • That the public are safeguarded from dishonest persons
    • The safety of children, young persons and vulnerable adults
  • The term “Fit and Proper Person” for the purposes of licensing is not legally defined and in assessing whether someone may be “Fit & Proper” the Licensing Authority will consider the following, and take any other relevant information into account:
    • Criminality
    • Human Rights
    • Period of holding a driver’s licence
    • Number of endorsed driving licence penalty points
    • Right to work
    • Medical fitness
    • Driving ability test
    • The fitness and proprietary of Private Hire Operators, ensuring the business is run in a safe and professional manner, having regard to management controls, compliance with the law and that drivers are properly monitored to ensure that they behave in an appropriate manner and comply with their duties and responsibilities, including the monitoring of driver’s hours.
    • The conduct of the applicant in making the application (e.g. whether they have acted with integrity during the application process).
    • The previous licensing history of existing / former licence holders and any complaints made against them and investigated by any local authority licensing service.
  • In addition, the Council will also consider further information sources such as the Police (including abduction notices), Children and Adult Safeguarding Boards and other statutory agencies.
  • This policy provides guidance to any person with an interest in taxi and private hire licensing. In particular, but not exclusively:
    • Applicants for a driver’s licence (Hackney Carriage or Private Hire Vehicle)
    • Existing licensed drivers whose licences are being reviewed
    • The holders of Private Hire Operators licences
    • Applicants for Private Hire Operators licences
    • Licensing Officers
    • Members of the licensing committee/sub-committee
    • Magistrates hearing appeals against local authority decisions
  • In considering this guidance the Council must be mindful that each case must be considered on its individual merits and, where the circumstances demand, the committee may depart from the guidelines. Where an applicant has been convicted of a criminal offence, the licensing authority cannot review the merits of the conviction (Nottingham City v Mohammed Farooq [1998]).
  • In this policy the word “Conviction” is to be defined as including convictions, cautions, warnings, reprimands fixed penalty notices and other relevant information.
  • In this policy ‘from date sentence has ended’ is taken to be the date which is reached once the whole of the period as sentenced by the court has elapsed and not necessarily the length of time served by the applicant. For example, if a sentence is five years’ imprisonment then the date that the sentence ends will be five years from the date of sentencing – regardless of the amount of time actually served by the applicant. If the sentence is amended by a court at a later date, then this new sentence becomes relevant for the purposes of this policy. The term ‘since completion of sentence’ is to be construed in a similar way.
  • In this policy the word applicant refers to either new applicants, or those existing licence holders who are seeking renewal, or when offences have come to light of existing licence holders.

General Policy

  • Whilst the Council may consider that a person with a conviction for a serious offence may not need to be automatically barred from obtaining a licence, it is however to be normally expected that the applicant would be required to:
    1. Remain free of conviction for an appropriate period as detailed below; and
    2. Show adequate evidence that they are a fit and proper person to hold a licence (the onus will be 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.
  • The Council may depart from this policy if good reasons exist. The otherwise good character and driving record of the applicant or licence holder will not ordinarily be considered as exceptional circumstances.

Outstanding Charges or Summonses

  • If the individual is the subject of an outstanding criminal charge or summons their application should be suspended until the matter is resolved.
    • 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 the proceedings, depending on the type of offence.
    • 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.

Non-conviction information

  • If an applicant has on one occasion, been arrested or charged, but not convicted, for a serious offence which suggests he could be a danger to the public, consideration should be given to refusing the application (McCool v Rushcliffe Borough Council [1998]).
  • In assessing the action to take, the safety of the public must be the paramount concern.
  • Where an applicant has had a Hackney Carriage/Private hire driver’s licence revoked by another local authority, the Council will not consider the application until at least twelve months has elapsed since the revocation.

Powers

  • Section 61 and Section 62 of the Local Government Miscellaneous Provisions Act 1976 allow the Council as the licensing authority to suspend, revoke or refuse to renew a licence if:
    • The application/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.
  • The Rehabilitation of Offenders Act 1974 (Exceptions)(Amendment) Order 2002, allows the Council as 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. In accordance with this Act, all convictions, cautions, warnings and reprimands must be declared by the Applicant.
  • Under the provisions of Sections 51, 55 and 59, Local Government (Miscellaneous Provisions) Act 1976, the Council as the licensing authority is required to ensure that an applicant for the grant or renewal of a Hackney Carriage and/or a Private Hire Vehicle driver’s licence and/or Private Hire Vehicle 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 consider:
    1. How relevant the offence(s) are to the licence being applied for
    2. How serious the offence(s) were
    3. When the offence(s) were committed
    4. The date of conviction
    5. Circumstances of the individual concerned
    6. Sentence imposed by the court
    7. The applicant’s age at the time of conviction
    8. Whether they form part of a pattern of offending
    9. Any other character check considered reasonable (e.g. personal references)
    10. Any other factors that might be relevant, for example:
      1. The previous conduct of an existing or former licence holder,
      2. Whether the applicant has intentionally misled the council or lied as part of the application process,
      3. Information provided by other agencies / council departments.
  • It may also be appropriate to consider the sentencing powers engaged by the court in disposing of criminal proceedings and the Judges reason’s (obita dictum) for coming to that decision.
  • 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). Failure to do so will raise concerns as to the honesty of the licence holder and will be taken into account as part of any subsequent renewal applications or reviews.
  • Applicants can discuss further what effect a caution/conviction may have on any application by contacting the Licensing Service on 01909 533137 or licensing@bassetlaw.gov.uk in confidence for advice. The Council however reserves the right to enforce its powers if required to do so on the information provided.
  • The Council conducts enhanced disclosures from the Disclosure and Barring Service (DBS) of any applicant for a driver’s licence. Applicants applying for the grant or a renewal of a driver’s licence will be required to obtain an enhanced disclosure at their expense, and also at other times as determined by the Council.
  • The Council 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 Council or other licensing authorities, and information disclosed by the police.
  • 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.
  • For current licence holders this policy will only be applied if any additional convictions are incurred or brought to the attention of the Council that would call into question a person’s suitability to hold a licence.
  • Any offences not covered by this Policy will not prevent the Council from taking into account the offences.

Policy on immediate revocation/suspension of driver’s licence

  • If the Council decides to revoke or suspend a driver’s licence, it will then have to consider whether that revocation/suspension should take immediate effect under Section 61(2B) of the Local
    Government (Miscellaneous Provisions) Act 1976.
  • The Council only has the power to resolve that the revocation/suspension will take immediate effect if it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect.
  • The interests of public safety” is not defined in the statute and is for a matter for the Council to determine. Regard will be had to any risks to public safety arising from concerns about the licence-holder’s driving standards, his/her character including but not limited to dishonesty, violent behaviour, involvement in drink or drugs, inappropriate sexual conduct, any relevant previous convictions and any other matters the Council may deem relevant.
  • Before reaching a decision, where practical, the Council shall give the licence holder the opportunity to make representations as to whether or not the revocation/suspension will take immediate effect.
  • The overriding consideration shall always be the safety and protection of passengers and the general public.
  • Matters such as unemployment and home circumstances should not be taken into account when determining whether the revocation or suspension will take place immediately and therefore shall not outweigh the public safety factor.
  • Where the Council has decided that a licence-holder is no longer “fit and proper” to hold a licence, the presumption will be that the interest of public safety require the revocation of the licence to have immediate effect. The Council may, however, consider that the particular circumstances of a case are exceptional and compelling to justify allowing the licence to continue to have effect until 21 days after the date of the decision to revoke or if an appeal is lodged, until that appeal is determined. For example, a licence-holder may be able to demonstrate that the risk to public safety is so diminished that it is right to allow the licence to continue.
  • If, however, it is considered that a person is still a fit and proper person to hold such a licence but that his conduct falls below the standard required by the Council, and the Council has therefore decided to suspend him, the presumption will be that the interest of public safety will not require the suspension of the licence to have immediate effect. The Council may however consider that the particular circumstances of a case are exceptional and compelling and do not justify allowing the licence to continue to have effect until 21 days after the date of the decision to revoke or if an appeal is lodged, until that appeal is determined.
  • If it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect, the Council will give notice to the driver, which includes a statement to that effect and an explanation why, the suspension or revocation takes effect when the notice is given to the driver.

Appeals

  • Any applicant refused a driver’s licence, or who has their licence suspended or revoked on the grounds that the licensing authority is not satisfied they are a fit and proper person to hold such a licence has a right to appeal to the Magistrate’s Court within 21 days of the notice of refusal [Local Government (Miscellaneous Provisions) Act 1976, s77 (1)].

Considerations given to Offences

  • This section deals with the types of offences and applies to new applicants and those who are re-applying for a licence (“renewal applications”), and upon review of a current licence.

Serious offences involving violence

  • Licensed drivers have close regular contact with the public. A firm line will 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.
  • Unless there are exceptional circumstances a licence will not normally be granted where the applicant has a conviction for an offence such as:
    1. Murder
    2. Manslaughter
    3. Manslaughter or culpable homicide while driving
    4. Terrorism offences
    5. Kidnapping or abduction
    6. Or any similar offences (including attempted or conspiracy to commit) offences which replace the above
  • A licence will not normally be granted where the applicant has a conviction for an offence or similar offence(s) to those below until at least 10 years have passed since the completion of any sentence and /or licence period
    1. Arson
    2. Malicious wounding or grievous bodily harm which is racially aggravated
    3. Actual bodily harm which is racially aggravated
    4. Grievous bodily harm with intent
    5. Robbery
    6. Possession of firearm
    7. Riot
    8. Assault Police
    9. Common assault with racially aggravated
    10. Violent disorder
    11. Threats to kill
    12. Resisting arrest
    13. Hate crime against a person
    14. Or any similar offences (including attempted or conspiracy to commit) offences which replace the above.
  • A licence will not normally be granted where the applicant has a conviction for an offence or similar offence(s) which replace the offences below until at least 5 years have passed since the completion of any sentence and/or licence period:
    1. Racially-aggravated criminal damage
    2. Racially-aggravated offence
    3. Hate crime against property
    4. Or any similar offences (including attempted or conspiracy to commit) offences which replace the above.
  • A licence will not normally be granted where the applicant has a conviction for an offence or similar offence(s) which replace the offences below until at least 3 years have passed since the completion of any sentence and/or licence period:
    1. Common assault/Battery
    2. Assault occasioning actual bodily harm
    3. Affray
    4. S5 Public Order Act 1986 offence (harassment, alarm or distress)
    5. S.4 Public Order Act 1986 offence (fear of provocation of violence)
    6. S4A Public Order Act 1986 offence (intentional harassment, alarm or distress)
    7. Obstruction
    8. Criminal damage
    9. Harassment
    10. Offences involving anti-social behaviour
    11. Or any similar offences (including attempted or conspiracy to commit) offences which replace the above
  • 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.
  • In the event of a licence being granted, despite convictions against the Applicant, a strict warning both verbally and in writing should be administered. If a warning is issued, this will remain in place for a period commensurate with the time periods in the relevant sections above.

Possession of a weapon

  • If an applicant has been convicted of possession of a weapon or any other weapon related offence, depending on the circumstances of the offence, at least 3 years must have passed since the completion of the sentence, before a licence is granted.

Sexual and indecency offences

  • As licensed drivers often carry unaccompanied and vulnerable passengers, applicants with convictions for sexual offences must be closely scrutinised. All sexual offences should be considered as serious. Applicants with convictions for sexual offences will normally be refused a licence upon application, renewal or review. Such offences include:
    1. Rape
    2. Assault by penetration
    3. Offences involving children or vulnerable adults
    4. Grooming, Trafficking or other Sexual Exploitation related offences (adults and/or children)
    5. Making or distributing obscene material
    6. Possession of indecent photographs depicting child pornography.
    7. Sexual assault
    8. Indecent assault
    9. Exploitation of prostitution
    10. Any similar offences (including attempted or conspiracy to commit) offences which replace the above
  • In relation to indecency offences, an applicant should be free of conviction for at least 5 years (or at least 5 years must have passed since the completion of the sentence, whichever is longer), if he / she has a conviction for an offence such as:
    1. Making indecent telephone calls
    2. Importuning
    3. Indecent exposure
    4. Soliciting (kerb crawling)
    5. Any similar offences (including attempted or conspiracy to commit) offences which replace the above.
  • A licence will not normally be granted if an applicant has more than one conviction for an indecency offence.
  • 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 or any other similar register.

Dishonesty

  • A licensed driver is expected to be trustworthy. In the course of their working duties drivers will deal with cash transactions and valuable property may be left in their vehicles. Drivers may well deal with customers who are vulnerable or intoxicated and potentially easily confused. For these reasons, a serious view is taken of any conviction involving dishonesty.
  • In general, a minimum period of 3 years free of conviction or at least 3 years have passed since the completion of sentence (whichever is longer) should be required before granting a licence. Offences involving dishonesty include:
    1. theft
    2. burglary
    3. fraud
    4. benefit fraud
    5. handling or receiving stolen goods
    6. forgery
    7. conspiracy to defraud
    8. obtaining money or property by deception
    9. other deception
    10. taking a vehicle without consent
    11. or any similar offences (including attempted or conspiracy to commit) offences which replace the above
  • Applicants or existing licence holders that are found to have intentionally misled the council, or lied as part of the application process, will not normally be issued with a licence.

Alcohol and Drugs

  • An isolated conviction for drunkenness need not debar an applicant from gaining a licence. In some cases, a warning may be appropriate. However, a number of convictions for drunkenness, including drunk and disorderly or drunk and incapable, could indicate a medical problem necessitating critical examination and refusal of licence.
  • In addition, the applicant will normally be required to show a period of 10 years has elapsed after completion of detoxification treatment if he/she was an alcoholic.
  • 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.
  • A licence will not normally be granted where the applicant has more than one conviction for offences related to the supply of drugs and has not been free of conviction for 10 years.
  • A licence will not normally be granted where the applicant has more than one conviction for offences related to the possession of drugs and has not been free of conviction for 5 years.
  • 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.
  • If there is evidence of persistent drug use, misuse or dependency, a specialist examination (in accordance with the DVLA group two medical standards) may be required before the 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.

Driving offences involving the loss of life

  • 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. A licence will not normally be granted if the applicant has a conviction for:
    1. Causing death by dangerous driving
    2. Causing death by careless driving whilst under the influence of drink or drugs
    3. Causing death by driving: unlicensed, disqualified or uninsured drivers
    4. Or any similar offences (including attempted or conspiracy to commit) offences which replace the above.
  • Before a licence is granted, an applicant should be free of conviction for 10 years (or at least 10 years must have passed since the completion of the sentence, whichever is longer) if the applicant has a conviction for:
    1. Causing death by careless driving
    2. Causing death by driving: unlicensed, disqualified or uninsured drivers.

Driving offences involving alcohol and/or drugs

  • A serious view will be taken of convictions of driving, or attempting to drive, or being in charge of a vehicle while under the influence of drink or drugs. Where a disqualification has occurred as a result of a drug or drink-driving offence, at least 5 years free of conviction should elapse after the restoration of the DVLA licence before an applicant is granted a licence.
  • More than one conviction for this type of offence or one such offence within the last 5 years is likely to merit refusal.
  • In addition, applicants will normally be required to show a period of at least 5 years has elapsed after completion of detoxification treatment if he/she was an alcoholic or drug addict.
  • Appendix one sets out the traffic offences related to in this section.

Major Traffic Offences

  • Subject to the above paragraphs an isolated conviction for a major traffic offence, without disqualification, such as dangerous driving or driving without due care and attention will require careful consideration of the facts and will at the very least merit a warning as to future driving and advice on the standard expected of hackney carriage and private hire drivers. However, where the conviction is within 6 months prior to the date of the application the application will normally be refused.
  • In cases of disqualification at least 3 years free from conviction after the restoration of the DVLA licence should normally elapse before an applicant is granted a licence.
  • Where an applicant has been convicted of a major traffic offence which has not resulted in disqualification, careful consideration should be given to the circumstances surrounding the offence. An application for a licence will normally be refused where the offence occurred less than 2 years prior to the application.
  • Where an existing licence holder is disqualified from driving as a result of a conviction for a major traffic offence, the licence will normally be revoked.
  • Where an existing licence holder is convicted of a major traffic offence, but the licence-holder is not disqualified from driving, the licence should normally be revoked or not renewed and any subsequent application for a new licence will be determined in accordance with the guidance above.
  • A list of offences to which this section applies is attached as Appendix Two.

Minor Traffic Offences

  • Isolated convictions for minor traffic offences should not prevent a person from proceeding with an application. However, the number, type and frequency of this type of offence will be taken into account. If there are several minor traffic offences the applicant will normally be expected to show a period free of conviction of at least 6 months.
  • An application with a points total above 7 will merit further consideration. A licence will normally be refused where the applicant has 12 or more penalty points on his DVLA licence for minor traffic offences but has not been disqualified from driving.
  • Where an offence has resulted in the applicant being disqualified from driving for a period of time this will normally be taken as reflecting seriously on the applicant’s driving standard.
  • Generally, a period of 12 months free from conviction must have elapsed from the restoration of the DVLA licence.
  • Where an existing licence holder is disqualified from driving the licence will normally be revoked by the Principal Solicitor (Licensing and Regulatory) under delegated powers.
  • A list of offences to which this section applies is attached as Appendix three.

Totting Up Disqualifications

  • Where a number of traffic offences has resulted in a driver receiving 12 penalty points or more on his/her licence the driver will be disqualified from driving unless the Court is satisfied that exceptional hardship would be suffered by an individual if disqualified. This is known as a “totting-up” disqualification. Where an applicant has a totting-up disqualification an application will usually be refused until a period of between 12 months and 2 years has lapsed from the restoration of the DVLA licence depending on the seriousness of the offences which led to the totting up.
  • Where an existing licence holder is disqualified from driving as a result of a totting up, the licence will normally be revoked.

Hybrid traffic offences

  • Offences of the type listed in Appendix three will be treated as major traffic offences if the court awarded 4 or more penalty points for the offence and as minor traffic offences if the court awarded 3 or less penalty points for the offence.
  • Any applicant who has committed an offence of plying for hire within 6 months of their application will normally be refused a licence. Any existing licence holder found to have committed this offence will be judged on the circumstances if the case, and at the least suspension of the licence should be considered. Where a driver is convicted on more than one occasion the licence may be revoked or not granted. Consideration will be taken if the offence of plying for hire was accompanied by the fact that at the time there was no insurance cover in place for the vehicle in line with 5.46 below. It will be up to the applicant to prove that there was valid insurance in place at the time of the offence.

Insurance Offences

  • A serious view will be taken of convictions of driving 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. More than one of these offences would normally prevent a licence being granted or renewed. Isolated incidents associated with a licensing offence will not necessity prevent a licence being granted or renewed. Each case will be prevented on its merits.
  • At least 3 years should elapse (after restoration of the DVLA driving licence), before a licence would normally be granted for a HC or PH drivers licence. An operator found guilty of aiding and abetting the driving passengers for hire and reward whilst without insurance will have his operator’s licence revoked immediately and prevented from holding a licence for 3 years. 

 

 


Last Updated on Wednesday, October 21, 2020