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TAXI LAW EXPLAINED LEGAL DIFFICULTIES WITH THE STATUTORY GUIDANCE


This article was supplied by: Stephen McCaffrey Head of Taxi Defence Barristers and Taxi Defence Scotland 020 7060 4773 www.taxidefencebarristers.co.uk


should be followed by a review of the licences already issued.


Perhaps the most difficult provision in the guidance is the requirement for existing licences to be reviewed in line with the requirements of the guidance.


THE STATUS OF THE GUIDANCE


Section 177(1) of the Policing and Crime Act 2017 confers power on to the Secretary of State to “issue guidance to public author- ities as to how their licensing functions under taxi and private hire vehicle legisla- tion may be exercised so as to protect children, and vulnerable individuals who are 18 or over, from harm.”


Under subsection four of the 2017 Act, “any public authority which has licensing func- tions under taxi and private hire vehicle legislation must have regard to any guid- ance issued under this section.”


“Having regard” is more than having a cur- sory glance at a document before arriving at a preconceived conclusion. And The Department therefore expects these recom- mendations to be implemented unless there is a compelling local reason not to.


Clear therefore that legislation has placed a duty on licensing authorities to have full regard to the guidance any only depart from the guidance compelling local reasons in doing so.


The point made above is important when considering legal difficulties with the guid- ance because on the one hand licensing authorities are compelled to follow the guidance but on the other hand, where the guidance is not clear or presents a legal conundrum, licensing authorities will need to choose whether to follow the guidance notwithstanding, or depart from it.


In this article, we will look at some of these potentially legal difficulties in the guidance and what they mean, in practice, for the trade.


DRIVER LICENCES Any changes in licensing requirements 88


The use of the DBS update service presents two potential difficulties; how can a licens-


The most obvious issue is that the guidance excludes the requirement to report


NOVEMBER 2020


In practice, this means that licensees will be judged against the amended standards and, in cases where they no longer meet the “fit and proper” standard, they face the possi- bility of having their licences revoked. For example, changes to a convictions policy might mean that the “fit and proper” threshold has been raised and what was deemed acceptable prior to the change is now no longer so which might trigger a review.


Whilst in theory this might appear clear, the practical implications are far from it and licensing authorities will need to very care- fully consider how they approach the requirement to review existing licences against the guidance.


Imagine a licensee who has passed the authority’s assessments and was granted a licence notwithstanding any previous con- victions. They have since the grant of that licence not raised any further concerns for many years. Under these circumstances, for example, the licensee might now not meet the revised standards but it would be incon- ceivable for them to be declared unfit to hold a licence.


Notwithstanding the guidance on reviewing existing licences, licensing authorities will need to ensure they are fair and that each case is determined on its merits taking into account an array of facts before reaching a decision.


SUBSCRIPTION TO THE DBS UPDATE SERVICE


The guidance recommends that licensees sign up to the DBS’ update service. Most licensed drivers will be aware of the service that “allows those with standard and enhanced certificates to keep these up to date online.” This means that licensing authorities can easily access a licence holder’s criminal history. However, the DBS update service relies on the individual’s consent.


ing authority mandate the use of the update service and what will happen if a driver refuses consent?


It will be unusual for a licensing authority to use licensing conditions to impose the requirement. Generally speaking there are too many requirements in the guidance to impose these through a new set of licence conditions.


More realistic will be for the requirement to subscribe to the DBS update service to be reflected in policy requirements. The policy requirement will be based on the statutory guidance and will therefore carry some weight. Licensing authorities take different approaches to compliance with policy requirements. Some licensing authorities will refer the matter to a licensing commit- tee for determination but others will outright refuse the application.


We must not forget that not everyone is comfortable with the technology required to comply with this requirement. Some pro- vision will need to be made by licensing authorities for those who are not familiar with the use of technology.


LICENSEE SELF-REPORTING


The guidance places a requirement on licensees to “notify the issuing authority within 48 hours of an arrest and release, charge or conviction of any sexual offence, any offence involving dishonesty or vio- lence and any motoring offence” and “, a failure by a licence holder to disclose an arrest that the issuing authority is subse- quently advised of might be seen as behaviour that questions honesty and therefore the suitability of the licence holder regardless of the outcome of the initial alle- gation.”


There are a number of potential issues with this requirement; the duty to report, the nature of the offences and the subsequent action taken by the licensing authority.


Unlike the DBS update service, a licence condition reflecting this requirements might be more appropriate. As a licence condition, the requirement (and failure to comply) will carry more weight than had it been a policy requirement.


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