Guidelines relating to the relevance of Cautions and Convictions, Criminal Behavioural Orders, Injunctions to prevent nuisance and annoyance, County Court and High Court Judgments, all relevant antisocial behaviour sanctions, all other criminal court orders including Domestic Violence protection orders and Fixed Penalty Notices when determining applications for Hackney Carriage and Private Hire Licences.
The council is empowered in law to check for the existence and content of any criminal record held in respect of an applicant for a hackney carriage or private hire vehicle, driver or operator licence. When submitting an application for such a licence an applicant is required to declare all convictions (whether or not spent), Cautions, Conditional Cautions, Community Resolutions, Criminal Behaviour Orders, County Court and High Court Injunctions, including Injunctions to prevent nuisance and annoyance or Fixed Penalty Notices (personally or business related), they have recorded against them, and any pending proceedings including matters for which they have been released by the police or any other statutory body but still under investigation(reported for summons or otherwise facing a criminal investigations.
The above is not an exhaustive list, there may be other sanctions or findings which are relevant to our decision making.
Note: The duty to report any of the above matters also applies to those with an existing licence (driver, vehicle or operator) Failing to disclose any of the above will be regarded as a serious breach of the terms of the license and action will normally take place. An applicant’s failure to disclose any of the above will be taken into consideration when assessing their propriety to be a licensed driver. Where there are multiple convictions irrespective of when, then serious consideration will need to be given as to whether they are a safe and suitable person.
As the idea of what “Fit and Proper” means, has not been defined, it will be at the officers discretion to decide what is relevant information and from what source it can be obtained. To be relevant, evidence has to be more than mere suspicion or innuendo. Public protection is an important function and as such all information that may mean that a person or persons are not fit and proper will be considered.
Where there are aggravating factors such as hate crime (homophobia; racism and so on), this will be taken into account.
In making its decision the council will consider the nature of the information, its own guidelines on the relevance of Cautions, Convictions, Conditional Cautions, Community Resolutions Anti-Social Behaviour Orders, Criminal Behaviour Orders, Injunctions to prevent nuisance and annoyance, County Court and High Court Judgments and Fixed Penalty Notices (personally or business related), in the licensing process and any other factors which may be relevant. These guidelines will also be taken into account in relation to renewal applications, and decisions to suspend, revoke or not to renew a licence.
9.1
Each case will be decided on its own merits with the overriding objective of protecting the public.
9.2
A person with a conviction for a crime need not be permanently barred from obtaining a licence but should be expected to remain free of any conviction (depending on the nature of the offence) for, at least 3 to 5 years (however more serious offences may attract a longer period and in certain circumstances a lifetime applicability) before any application is entertained. The nature of the offence will be taken in to account when deciding on the period that they should be offence free. However, persons with convictions for sexual offences of any nature or any offences related to children, vulnerable adults or other serious crime will not normally be issued with a licence. Persons subject to pending proceedings for such offences will be properly investigated and if appropriate will have any licence suspended or revoked / not renewed pending the outcome of the hearing of the case at court. If they are subsequently convicted or acquitted then the matter will be reviewed again.
9.3
Some discretion may be appropriate if the serious offence is historic, isolated and there are exceptional mitigating circumstances. However, as stated above, the overriding consideration must be the protection of the public.
9.4
Hackney carriage and private hire drivers are classed as ‘regulated occupations’ by the Rehabilitation of Offenders Act 1974 (exemption order as amended) which means that the Rehabilitation of Offenders Act 1974 does not apply to them (and thus their convictions are never spent). Furthermore, in respect of applications or renewals for Hackney Carriage Proprietor or Private Hire Operators Licences, the Council as a judicial authority under the Rehabilitation of Offenders Act 1974 may take into account spent convictions involving serious offences, (e.g. Death by Dangerous Driving, Drug Offences, Offences of Violence, Sexual offences, Dishonesty Offences or offences of an habitual nature).
9.5
Cautions require an admission of guilt and are never spent. The Council must therefore treat a caution as an admission of guilt and cannot be required to go behind the decision of the police or enforcing body. The age and gravity of the offence for which the caution has been accepted will be taken into account as for convictions.
9.6
Fixed penalty notices and Community Resolutions are now used in relation to a range of offences and they will be taken into consideration depending upon their number, the nature of the offence and all the circumstances including the applicant’s lack of compliance.
9.7
Civil actions including injunctions are also a relevant factor where it has an impact on the driver being fit and proper. These will be assessed on a case by case basis.
9.8 Note: Suspension and revocation
The authority has the power to use its discretion to suspend or revoke or refuse to renew a drivers’ licence depending on the seriousness of any established misbehaviour. Since the 2012 case of Singh v Cardiff City Council it has been ruled that an Authority cannot impose an interim suspension so the decision to suspend, revoke or refuse to renew must be a final one made after a considered determination of all the facts in a particular case. This will include the driver having an opportunity to put their case to an officer under the principle of natural justice.
Fresh case law and or government guidance may change this position.
9.9 Immediate Suspension
The Council in determining its powers of immediate suspension or immediate revocation will consider each case according to its merits. Where, after investigation, it is satisfied that the interests of public safety require such a course of action or an offence is committed of such a serious nature as to warrant such action, the decision will normally be to suspend or revoke with immediate effect. For the purpose of these guidelines, cautions will be treated as convictions.
9.10 Police Investigations
Hackney Carriage and Private Hire Drivers are expected to adhere to this Policy’s definition of “fit & proper” person. A person who already holds a licence with the Authority, if arrested, reported, summons or attends a voluntary interview for an alleged offence, and subsequently released by the Police on Bail, or released whilst under investigation depending upon the nature of the alleged offence, can expect action to be a possibility. Where Suspension is put in place, normally the suspension shall remain in force until (the licence expires or) such time as the case is resolved by either the Police or by the Courts. The matter will then be reviewed.
9.11 Police Recommendation
Hackney Carriage and Private Hire drivers maintain close contact with the public, often carrying unaccompanied and vulnerable passengers, and are therefore expected to adhere to this Policy’s definition of a “fit and proper” person. Any person, who in the view of the Police Officer represents a threat to the safety and well-being of the public, should expect action. . Any suspension shall remain in force until (the licence expires or) such time as the case is resolved by either the Police or by the Courts and the local licensing authorty has the opportunity to review the case.
9.12 Offences or allegations involving an element abuse or sexual exploitation or violence against children or vulnerable persons
Where an applicant has a conviction for any offence involving or connected with illegal sexual activity, a licence will not normally be granted. The authority will not grant a licence to any applicant who is currently on the Sex Offenders Register or on any ‘barred’ list, other than in exceptional circumstances As these offences cover a wide range of behaviour each case will be considered on its own merit. A very serious view will be taken of rape, sexual assaults, gross indecency particularly where a child or adult with vulnerability is concerned. Allegations of sexual assault where drugs are a feature will also be considered to be very serious.
Except in the most exceptional of cases an existing driver or applicant that is arrested, charged, cautioned, convicted, reported, summons or attends a voluntary interview for offences that fall into the above category will have his/her licence suspended, revoked, refused or not renewed.
The same applies in relation to offences or behaviour involved violence against children or vulnerable adults including to any modern slavery/trafficking/forced marriage
9.13 Child safeguarding including trafiking Child Sexual Abuse and Exploitation
When considering whether an applicant or driver is fit and proper and moreover what risk the driver presents to others, the authority will take into consideration all information that represents more than gossip, speculation and unsubstantiated innuendo. In addition to sexual activity and violence as referred to above this section relates to general issues around the protection of the vulnerable and could for instance include forced marriage; radicalisation and genital mutilation by way of example ( and in so far as they are not already actionable).
In making its enquiries the authority will rely on all relevant information provided by other departments of the council. This will include information provided by Children’s Services and the Local Authority Designated Officer (LADO) responsible for child protection. Issues raised on any DBS check will also be pursued and may be relevant evidence even where no charge follows. Enquiries will be made of the Police.
Where the authority has reasonable cause for concern based on the information from these and other relevant sources it will act appropriately to safeguard children and young persons. As the prevention of child sexual abuse is such an important issue, there will be a presumption in favour of protective measures.
This also extends to other vulnerable groups who may be at risk of exploitation. This may mean that based on this information an applicant will not be allowed to proceed or an existing driver may have his/her licence suspended, revoked or not renewed. The nature of the issue will determine time periods for refusal or revocation.
9.14 Exploitation
Where an applicant or existing licence holder has been convicted of a crime involving, related to, or has any connection with abuse, exploitation, use or treatment of another individual irrespective of whether the victim or victims were adults or children, they will not other than in exceptional circumstances be licensed. This includes slavery, child sexual exploitation, grooming, psychological, emotional or financial abuse, but this is not an exhaustive list.
9.15 Drugs
An applicant or existing driver with a caution / conviction for a drug related offence should normally be required to show a period of at least 5 years free of any caution / convictions / street warning before any application is entertained or a minimum of three years after detoxification treatment if applicant was drug dependent. Where the offence involves supply or production of drugs then the minimum period will normally be 10 years, but will be determined by the facts of the situation assessed on its own merit.
Where there is evidence of prohibited drug use or abuse of prescription medication the applicant or existing driver will be expected to produce medical evidence to confirm to the Council’s satisfaction that they are free of substances ( in so far as it impacts on their driving). The Council reserves the option to seek its own expert medical evidence where necessary.
9.16 Possession of a Weapon
Where an applicant has a caution or a conviction for possession of a weapon or any other weapon related offence, a licence will not be granted normally until at least 7 years have elapsed since the completion of any sentence imposed. As this offence covers a wide range of behaviour each case will be judged on its own merit. A serious view will be taken where a weapon was used or displayed in a public area.
9.17 Violence
As hackney carriage and private hire drivers maintain close contact with the public, a grave view will be taken with applicants who have cautions / convictions for grievous bodily harm, wounding, assault causing ABH, assault Police, assault Emergency Worker or common assault / battery (and any other offence that has an element of violence such as affray or false imprisonment).
Dependent on the nature of the assault a minimum of 10 years free of cautions / convictions should be shown before an application is entertained. Any grant of a licence will be entirely at the authorities’ discretion and will depend on the facts known to the authority and even then a strict warning will be administered. An existing licence holder could expect his licence to be suspended or revoked if convicted of these offences. The same applies where evidence of violent behaviour has been adduced before the civil courts.
The authority reserves the right in relation to violence but also other offences as appropriate to seek / obtain independent medical advice about the individual concerned.
Crimes Resulting in Death
Where an applicant or existing licence holder has been convicted of a crime which resulted in the death of another person or was intended to cause the death or serious injury of another person they will not normally be licensed.
9.18 Criminal Damage
As this offence covers a wide range of behaviours each case will be judged on its own merits. A serious view will be taken if the offence involves deliberate fire setting, the offence was committed in a group, the damage caused was of high value or the offence had a clear racial/ religious or homophobic motivation. An applicant with this type of more serious conviction/caution should normally be required to show a period of at least three years free of any caution / convictions before any application is entertained. Existing drivers convicted or cautioned for these types of serious criminal damage offences could normally expect to have their licence revoked.
9.19 Dishonesty
Licence holders are expected to be person of trust. The widespread practice of deliveries for companies, taking children to school and families on holiday shows this trust. It is easy for dishonest drivers to defraud foreign visitors when giving change, or other customers by taking them by other than the shortest route. Lost property can be kept by unscrupulous drivers. For these reasons a serious view will be taken of any cautions / convictions involving dishonesty. In general, a minimum period of at least 7 years free of any cautions / convictions will be required before entertaining an application for a hackney carriage or private hire drivers licence by the Council. Any existing driver convicted of offences involving dishonesty may expect any licence held to be suspended or revoked and a possible ban on holding a hackney carriage or private hire driver’s licence for three year period at minimum after conviction. The same applies where evidence of dishonest behaviour is adduced before the civil courts.
The amount of time will be at the discretion of the authority and will be determined by the facts of the situation
9.20 Discrimination / Hate Offences / Harassment
An applicant or existing licence holder with a caution / conviction relating to discrimination or harassing another person or legal findings against them in the civil courts for a discrimination or harassment related matters should be required to show a period of a minimum of 7 years free of any caution / convictions / incidents before any application is entertained.
Where no court finding has been made but the authority has formed the view based on evidence that there are issues of concern then they may act.
9.21 Minor Road Traffic Offences
A minor traffic or vehicle related offence is one which does not involve loss of life, driving under the influence of drink or drugs, driving whilst using a mobile phone, and has not resulted in injury to any person or damage to any property (including vehicles).
Isolated convictions or fixed penalty notices for minor traffic offences should not prevent a person from proceeding with an application. Where an applicant has more than one conviction showing a pattern or tendency irrespective of time since the convictions serious consideration will need to be given as to whether they are safe and suitable person.
Any new applicant must have held a full drivers licence as issued by DVLA for a period of twelve months without any period of suspension during those twelve months. Licence holders convicted during the period of licence of such an offence may be warned as to future conduct, or where appropriate may have their licence suspended or revoked for up to a time depending on the circumstances.
9.22 Major Road Traffic Offences
A major traffic or vehicle related offence is one which is not covered above and also any offence which resulted in injury to any person or damage to any property (including vehicles). It also includes driving without insurance or any offence connected with motor insurance. Where an applicant has more than one conviction showing a pattern or tendency irrespective of time since the convictions serious consideration will need to be given as to whether they are safe and suitable person
Where there is an isolated historic conviction for reckless driving, dangerous driving or driving without due care and attention and similar offences, these will merit for new applicants at least a warning as to future driving and advice on the standards expected of hackney carriage and private hire drivers but may lead to suspension or revocation or their licence. For applicants with more serious offences such as convictions for causing death by dangerous/careless driving a licence will not normally be granted. Existing drivers can expect their licence to be revoked and no further application will normally be considered until a period of at least seven years has elapsed from conviction.
9.23 Driving under the influence of Drink or Drugs/Using a hand held telephone or hand a held device
9.23.1
With a motor vehicle - where an applicant has a conviction for drink driving or driving under the influence of drugs, a licence will not be granted until at least 7 years have elapsed since the completion of any sentence or driving ban imposed. In these circumstances, any applicant will also have to undergo drugs testing at their own expense to demonstrate that they are not using controlled drugs.
9.23.2
Where an applicant has a conviction for using a held‐hand mobile telephone or a hand‐held device whilst driving, a licence will not be granted until at least 5 years have elapsed since the conviction or completion of any sentence or driving ban imposed, whichever is the later. Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades
9.23.3
Drunk or Evidence of Drug use but not in a motor vehicle. An isolated caution / conviction for drunkenness or possession of drugs need not debar an applicant from obtaining a licence, however, a number of cautions / convictions for these matters could indicate dependency necessitating a medical examination, (see 9.14. above) and possibly suspension or revocation. Where an applicant has more than one conviction showing a pattern or tendency irrespective of time since the convictions serious consideration will need to be given as to whether they are safe and suitable person.
9.24 Insurance Offences
9.24.1
With a motor vehicle - a serious view will be taken of any caution/convictions of driving or being in charge of a vehicle without insurance. An isolated incident in the past will not necessarily debar an applicant provided he has been 3 years free of any caution/conviction, but strict warning will be given as to future behaviour. More than one caution/conviction for these offences will raise grave doubts as to an applicant’s fitness to hold a hackney carriage or private hire licence.
9.24.2
A driver found guilty of driving passengers for hire and reward whilst without insurance will normally have his hackney carriage or private hire driver’s licence revoked immediately and be banned from holding a hackney carriage or private hire driver’s licence with the Council for a minimum of five years.
9.24.3
Any applicant with three insurance offences or more will not normally be considered fit and proper to hold a hackney carriage or private hire licence with the Council.
9.25 Hackney Carriage and Private Hire Offences
Where an applicant has a conviction for an offence concerned with or connected to hackney carriage or private hire activity (excluding vehicle use set out elsewhere), a licence will not normally be granted until at least a minimum of 3 years have elapsed since the completion of any sentence imposed Where an applicant has more than one conviction showing a pattern or tendency irrespective of time since the convictions serious consideration will need to be given as to whether they are safe and suitable person.
9.26 Vehicle use Offences
Where an applicant has a conviction for any offence which involved the use of a vehicle (including hackney carriages and private hire vehicles), a licence will not normally be granted until at least a minimum of 3 years have elapsed since the completion of any sentence imposed. Where an applicant has more than one conviction showing a pattern or tendency irrespective of time since the convictions serious consideration will need to be given as to whether they are safe and suitable person.
9.27 Breaches of Licensing Conditions (not connected with Hackney / Private Hire), Public Spaces Protection Orders, Community Protection Notice, other Local Authority Offences and Fire Authority Offences
Isolated convictions / cautions for breach of licensing conditions or other local authority offences should not prevent a person from proceeding with an application but these offences may be considered when determining if an applicant should be granted a licence. Anyone found to be in breach of a Public Spaces Protection Order (PSPO) or issued a Community Protection Notice (CPN) will be considered liable for investigation. These matters may be considered when determining if an applicant should be granted a licence. Licence holders committing offences during the period of licence may be warned as to future conduct and may lead to revocation or suspension of any hackney carriage or private hire licence held with the Council.
9.28 Criminal Behaviour Orders/Injunctions. Molestation Orders or any other court order, including those under the Anti-Social Behaviour and Policing Act 2014
Criminal Behaviour Orders/Injunctions to prevent nuisance and annoyance during their current term or within three years of their final date should not prevent any person from proceeding with an application, but it will be considered, taking into account all the circumstances, and severity of the behaviour, when determining if an applicant should be granted a licence.
If the driver is already licenced then in all likelihood this will lead to suspension or revocation.
9.29 County/High Court Injunctions
Any Court injunction and/or order relating to anti-social behaviour especially those for harassment or violence (including domestic violence) within the last three years should not prevent any applicant from proceeding with an application, but will be considered when determining if an applicant should be granted a licence, taking into consideration the nature and severity of the behaviour and all relevant circumstances.
If the driver is already licenced then in all likelihood this will lead to suspension or revocation.
9.30 Other Issues
If any applicant or Licensed driver is or has been under investigation in the Court process relating to, or subject to any order finding that is a breach of any statutory provision or is subject to an adverse court finding which is or maybe of concern to the licensing authority then the authority can refuse, suspend or revoke a licence, for that period it deems appropriate subject to proper reasons being given.
9.31 Scanners
Anyone convicted of the use of a radio scanner will normally be banned from holding any licence for a minimum of a five-year period.
9.32 Notes
Any information disclosed to the Council will be kept in strict confidence and will only be taken into account in relation to the application and will be retained no longer than necessary. It is an offence for any person knowingly or recklessly to make a false statement or to omit any material particular in giving information required by the application for a licence, punishable by up to seven years imprisonment upon conviction.
