TAXI LAW EXPLAINED
CRIMINAL RECORDS CHECKS AND THE STATUTORY GUIDANCE 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
of the barred lists include details of spent and unspent convictions recorded on the Police National Computer (PNC), any addi- tional information which a chief officer of police believes to be relevant and ought to be disclosed, as well as indicating whether the individual is barred from working in reg- ulated activity with children or adults.
A brief word on filtering
The concept of ‘fit and proper’ is the corner- stone of hackney carriage and private hire licensing. In my last PHTMarticle in Septem- ber, I looked at fit and proper in the context of the new statutory guidance. In this arti- cle, I want to focus on what the new statutory guidance says about criminal records checks.
Much of the enquiries through to Taxi Defence Barristers involve applicants or licence holders who have had licences refused or revoked due to relevant informa- tion on criminal records checks. However, the scope of criminal records checks is not limited to convictions. Formal cautions, criminal investigations and arrests can also lead to sanctions. On the face of it, this might seems unfair because it appears to assume guilt before it has been proven. However, the civil test of fit & proper is based on a lower threshold (balance of probabilities).
A reminder of the definition of fit & proper as defined in the statutory guidance:
Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night? If, on the balance of probabilities, the answer to the question is ‘no’, the indi- vidual should not hold a licence.
Brief overview of Criminal records checks
Through the Disclosure and Barring Ser- vice (DBS), licensing authorities are able to access criminal record information for licence holders and applicants. In addition to access to criminal record history, the DBS also maintains the lists of individuals barred from working in regulated activity with children or adults (known as the ‘barred list’).
Hackney carriage and private hire licensing is subject to enhanced criminal records checks. Enhanced certificates with a check
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An adult caution will be removed after six years have elapsed since the date of the caution – and if it does not appear on the list of offences relevant to safeguarding.
For those under 18 at the time of the offence:
• The same rules apply as for adult convic- tions, except that the elapsed time period is 5.5 years
• The same rules apply as for adult cau- tions, except that the elapsed time period is 2 years.
In 2013 an important court case changed this and introduced filtering and with this “protected” convictions and cautions. Prior to the Supreme Court ruling, if a role was considered ‘exempt’ under Rehabilitation of Offenders Act 1974, a licensing authority was entitled to know about an applicant or licence holder’s full criminal record history. This meant that all convictions, cautions, reprimands and final warnings held on the Police National Computer (PNC) were dis- closed on standard and enhanced DBS (formerly ‘CRB’) checks until a person reached 100 years of age.
In light of the court cases, the Government introduced legislation on 29 May 2013 to make changes to the 1974 Act. The effect of the amendments is that it allowed for certain minor offences to be removed or ‘filtered’ from standard or enhanced certifi- cates, which are also known as DBS checks.
For those 18 or over at the time of the offence, an adult conviction will be removed from a DBS certificate if:
• 11 years have elapsed since the date of conviction; and
• it is the person’s only offence, and • it did not result in a custodial sentence
It will only be removed if it does not appear on the list of offences which will never be fil- tered from a certificate. If a person has more than one offence, then details of all their convictions will always be included.
The statutory guidance has expended the remit of criminal records checks. Prior to the statutory guide, criminal records checks were restricted to driver and vehicle licence holders (enhanced) and in most cases licensing operators (basic check).
Under the new guidance, the following are now subject to criminal records checks:
1. Drivers - “All individuals applying for or renewing a taxi or PHV drivers licence licensing authorities should carry out a check of the children and adult Barred Lists in addition to being subject to an enhanced DBS check (in section 61 of the DBS application ‘Other Workforce’ should be entered in line 1 and ‘Taxi Licensing’ should be entered at line 2). All licensed drivers should also be required to evi- dence continuous registration with the DBS update service to enable the licens- ing authority to routinely check for new information every six months. Drivers who do not subscribe up to the Update Service should still be subject to a check every six months.” (Page 89)
2. Vehicle proprietors - “Licensing authori- ties should require a basic disclosure from the DBS and that a check is undertaken annually. Any individual may apply for a basic check and the certificate will dis- close any unspent convictions recorded on the Police National Computer (PNC).
“Licensing authorities should consider whether an applicant or licence holder with a conviction for offences provided in the annex to this document (Annex – Assessment of previous convictions), other than those relating to driving, meet the ‘fit and proper’ threshold.” (Page 89)
3. Operators - “Licensing authorities should request a basic disclosure from the DBS and that a check is undertaken annually. Any individual may apply for a basic check and the certificate will disclose any unspent convictions recorded on the PNC. Licensing authorities should consid- er whether an applicant or licence holder with a conviction for offences provided in the annex to this document (Annex – Assessment of previous convictions), other than those relating to driving, meet the ‘fit and proper’ threshold.”
Other sources of information Whilst the DBS is the principle source of
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