FAQS...FAQS...FAQS...FAQS..


This month’s FAQs came about as a result of a series of phone calls and emails we at the National Association have fielded over the past few weeks concerning the suspension of licences. Also it ties in with the rather large num- ber of articles we’re running in this month’s PHTM along those lines. It’s a meaty subject, so grab yourself a drink of whatever and see what you think.


The suspension of a vehicle licence is by far the more straightforward action on the part of a licensing authority; a vehicle can be suspended from use primarily for mechani- cal


failure either under


Government (Miscellaneous Provisions) Act 1976 section 60 or, following a roadside swoop, section 68.


The latter gives “any authorised officer of the council… or any constable” the power to inspect and test “for the purpose of ascer- taining its fitness” any licensed vehicle or its meter; if he “is not satisfied as to the fitness of the … vehicle or the accuracy of its meter” he issues a section 68 notice (it sez ‘ere… some enforcement officers still do not do this) suspending the vehicle until such time as the fault is rectified. Then if that does not occur within two months the vehi- cle licence is revoked.


So on the surface of things, this vehicle sus- pension procedure is the more basic. What complicates the issue is that magical phrase – and it appears many times throughout the LGMPA – “any other reasonable cause”. And of course that phrase also turns up in the legislation dealing with suspension of private hire and taxi drivers’ licences… which really can muddy the waters.


What we’re looking at here is quite simply: When is it suitable to suspend a driver licence? Should suspension be used as a punishment? This question arose as a by- product of a court case in 2012, namely R (on the application of Singh) v Cardiff City Council. What complicates matters is that there are two distinctly opposing views hav- ing been put


forward as to the


interpretation of this case, from two promi- nent members of the legal profession. Back to those in a moment.


The Cardiff case itself examined the legality of penalty point schemes – which as you all know are increasingly popular across the entire UK these days. The very name of “penalty points” implies naughtiness, does it not? In days gone by this Association was not a fan of such schemes, mainly because of the dreaded possibility of “double jeop- ardy”: a licence holder being penalised twice for the same misdemeanour.


48


However, many councils have maintained or started such schemes and insist that they are successful. Indeed, as the article about Nottingham’s recent scheme in this month’s edition sets out, the trade is often in favour of penalty point schemes as a way of squar- ing up the bad apples in the area.


the Local


Cardiff City Council had – and indeed still has – a penalty point system; the appeal brought by two licence holders in the Singh case was to challenge the fact that, after having accumulated a certain number of penalty points over a set period of time, automatic revocation of the licence would follow. Their licences were suspended in the meantime whilst awaiting the outcome of this case.


Singh J found that this particular penalty points scheme, providing as it did for auto- matic revocation of the licence upon the accumulation of points without any discre- tionary consideration of the particular circumstances of either case, was unlawful, and he quashed both decisions.


However, his findings opened up a totally different and extended line of thinking as regards the use of licence suspensions: “The claimant submitted that in any event… the defendant decided to suspend his licence rather than to revoke it. It was submitted… there is no power of interim suspension in section 61 of the 1976 Act.


“Returning to the language of section 61, I remind myself that this was not a case in which any attempt was made to activate the suspension of the licence to have imme- diate effect pursuant to the interest of public safety basis in subsection (2B). The notice sent… did not purport to invoke that provision or to make the suspension imme- diately effective.


“In my judgment, the way in which the con- cept of suspension is used by Parliament in section 61 of the 1976 Act is not, as it were, to create a power of interim suspension, it is rather after a considered determination - in other words, a final decision on whether grounds for either revocation or suspension of a licence is made out, for there to be either revocation or, as a lesser sanction, a sanction of suspension.


“By way of analogy, one can envisage for example in a professional context a solicitor or a barrister can be disciplined on grounds of his conduct. The relevant disciplinary body may conclude that even if the miscon- duct has been established, that the appropriate sanction should be something less than complete revocation of the prac- tising certificate for the relevant lawyer. It may be, for example, [that] a suspension for


a period of one year will constitute suffi- cient sanction in the interests of the public.


“It is in that sense, in my judgment, that Parliament uses the concept of suspension in section 61 of the 1976 Act. It does not use, as it were, to create an interim power, before a reasoned determination has been made, that the grounds in subsection (1A) or (1B) have been made out. It is not, as it were, a protective or holding power. It is a power of final suspension, as an alternative to a power of final revocation…”


What all this means is that Justice Singh found that penalty points per se were a law- ful control measure but automatic revocation was not. Also, while suspension could be used as a punishment, if a licence was suspended it could then not be revoked.


James Button examines this premise in detail in the latest version of his book “But- ton on Taxis: Licensing Law and Practice”: “For many years the power of suspension of a driver’s licence had been used by local authorities as a way of taking intermediate action (often with immediate effect) fol- lowing serious allegations or complaints made against the licensee (eg. violence, sexual assaults, dishonesty etc.) to protect the public while an investigation takes place.


“The effect of an immediate suspension was to prevent the driver from using the licence to drive a licensed hackney carriage or private hire vehicle and thereby offer an immediate degree of protection to the pub- lic. During the period of suspension, the local authority would investigate the allega- tions or complaints and then determine whether the licence should be revoked in the light of its findings. If the complaint was not substantiated, or the allegations were shown to be false, the suspension would then be lifted and the driver would be free to continue work.


“… This [Singh J] judgment prevents local authorities from suspending a driver’s licence pending further investigation if there is a possibility that the licence should ultimately be revoked. In the light of this, what options are available to a local author- ity to protect the public in the light of serious complaints or allegations?


“It would appear that the only approach that can be taken is to decide upon the sanction on the basis of the allegation and suspend or revoke this driver’s licence (which could be with immediate effect in the interest of public safety under s.61(2B)… It is also important to have a mechanism to enable the driver to be reli-


OCTOBER 2018


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