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TAXI LAW EXPLAINED


On the one hand there is almost a duty to take the guidance as read but the DfT on the other hand gives licensing authorities room for local discretion. This dichotomy will inevitably lead to some licensing authorities blindly following the proposed DfT conviction policy without considering the merits of the case. This approach raises important questions concerning proportion- ality, discretion and a fair hearing. Can a policy put in such absolute terms be lawful? In my view, this will certainly be challenge- able on good grounds but more importantly rob licence holders of their fundamental legal rights.


PENALTY POINT SCHEMES


Some licensing authorities operate penalty point schemes. These schemes exist to deal with complaints, allegations and witnessed incidents of misconduct or infractions of a type which is not considered sufficiently serious in itself to justify a review of a per- son’s suitability to hold a taxi or private hire driver, vehicle or operator licence, but which may give rise to such concerns if repeated or if regarded cumulatively with other such incidents.


Under a penalty point scheme, once a licence holder is issued with a set amount of penalty points within a certain amount of time, action will be taken by a licensing authority.


Readers may recall recent strike action by Leeds hackney carriage and private hire drivers who were protesting “over plans to revoke their licences if they get six penalty points in a year” known as Leeds City Coun- cil’s “six point policy”.


Similar to “bright line” convictions policies discussed above, penalty point schemes that could result in automatic revocations or suspensions also raise a number of legal questions.


There have been several examples of unlaw- ful approaches by licensing authorities operating penalty point schemes. The most relevant case on the matter of penalty point schemes is the case of R (application of Singh) v Cardiff City Council [2012] EWCH 1852 (Admin).


Cardiff City Council’s penalty point scheme was challenged in the High Court on a num- ber of grounds discussed below in Mr Justice Singh’s judgement.


Whilst the entirety of the claim was not found by Mr Justice Singh, the claim did succeed on the point of lack of fairness.


MARCH 2020


submissions in this regard is that the pol- icy does not recognise that the outcome even of concluding that a person is not a fit and proper person is not necessarily revocation, it may be under section 61 the sanction of suspension.”


IMPORTANCE OF DISCRETION


The council’s penalty point scheme con- tained a provision of an “...automatic revocation of a licence if ten points have been accumulated in a three-year period”. Singh J commented in his judgement that this approach “...leaves no room for judg- ment or discretion.”


Whilst he ruled that, in principle, penalty point schemes can be operated lawfully, great care should be taken by licensing authorities to ensure that this enforcement approach is operated fairly where licence holder’s right to a fair hearing is preserved saying:


“...I would note that in my view section 61 does not confer only a discretion. In my view, it includes an element what may be called the exercise of a judgment in par- ticular in subsection (1)(b) which requires there to be any other reasonable cause. It was common ground before me, in sub- stance, for present purposes, that means whether a person continues to be a fit and proper person to hold a driver’s licence.


He continued: “There are three ways at least in which the point can be formulated and was on behalf of the claimant. These three submissions in essence summarise the fundamental defects in law, as I see them to be in the policy of the council as adopted and applied. The first is that the policy calls for the automatic revocation of a licence if ten points have been accu- mulated in a three-year period. That, on its face, leaves no room for judgment or dis- cretion.


“The second fundamental defect is that this means that there is no consideration required, or it would appear perhaps even permitted by the policy of the underlying facts which lay behind the earlier imposi- tion of points which a driver may have. That may, as the case of Mr Singh illus- trates, be some years before the decision of the Committee which eventually decides to revoke a licence. “The third fundamental defect, in my judgment, again accepting the claimant’s


It is a long established statutory principle that licensing policy cannot, and should not fetter the discretion of decision makers. This simply means that whilst a licensing author- ity should be guided by its licensing policy and not arbitrarily deviate from it, the over- arching principle that each case should be determined on its own merits remains.


Determining each case on its merits means that it should be within the remit of the licensing authority to consider the individu- al circumstances of a case and to come to a conclusion that may be different from their own policy.


Whilst ‘absolute’ or ‘bright line’ policies must allow for discretion in decision making, the trade cannot rest on their laurels. Licensing authorities take seriously misconduct by licensing holders and applicants and should only consider exercising their discretion in exceptional circumstances. This is why legal advice and representation is very important.


RIGHTS OF APPEAL


A decision by a licensing authority to refuse, revoke or suspend a hackney carriage of pri- vate hire licence carries a right of appeal.


Appeal hearings are hearing de novo which means that the appellate court (Magis- trates’ Court) will hear and deal with the appeal afresh or as if the case had not pre- viously been heard nor decided.


The advantage of a hearing de novo is that it gives the appellant a second and fresh opportunity to present their case. In prac- tice, the appellate court will hear the case afresh (de novo) and from this will draw its own conclusions and judgements on the case and its merits. It will then compare its own conclusions and determinations to that of the licensing authority’s, which will form the basis for a decision on whether the licensing authority was wrong (or not). If the appellate court determines that, in its view, the licensing authority’s decision was wrong, it should overturn the deci- sion.


If you are in this situation, please feel free to contact Taxi Defence Barristers for an initial free case conference.


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