TAXI LAW EXPLAINED
information relating to criminal history and information, it is not the only source for this type of information. Whilst the guidance makes it clear that “that licensing authorities must not circumvent the DBS process and seek to obtain details of previous criminal con- victions and other information that may not otherwise be disclosed on a DBS certificate” it also goes on to say “DBS is not the only source of information that should be considered as part of a fit and proper assessment for the licensing of taxi and PHV drivers.”
The other sources of information are: Common Law Police Disclosures
Under the Common Law Police Disclosure power, police can disclose information to a licensing authority to allow them to act swiftly to mitigate any public risk. This nor- mally includes information about arrests or charges rather than waiting for a conviction that could take some time.
Licensee self-reporting
Reporting by licence holder is not new. Most licensing authorities will have a requirement in place for licence holder to report changes in circumstances. This requirement has now been formalised and a common standard imposed:
“Licence holders should be required to notify the issuing authority within 48 hours of an arrest and release, charge or conviction of any sexual offence, any offence involving dishon- esty or violence and any motoring offence.”
The statutory guidance goes further howev- er by also stating that:
“...a failure by a licence holder to disclose an arrest that the authority is subsequently advised of might be seen as behaviour that questions honesty and therefore the suit- ability of the licence holder regardless of the outcome of the initial allegation.”
Referrals to the Disclosure and Barring Service and the Police
A referral power that exists but not often used by licensing authorities, is the power to refer matters to the DBS. The guidance states on this matter:
“A decision to refuse or revoke a licence as the individual is thought to present a risk of harm to a child or vulnerable adult, should be referred to the DBS.”
Sharing licensing information with other licensing authorities
Under the new guidance “Applicants and OCTOBER 2020
licensees should be required to disclose if they hold or have previously held a licence with another authority. An applicant should also be required to disclose if they have had an application for a licence refused, or a licence revoked or suspended by any other licensing authority.”
Whilst this places the onus on the licence holder or applicant to provide this informa- tion, tools such as the national refusals database serves the same function.
Complaints against licensees
The statutory guidance has ramped up the provisions with regards to the complaints against drivers saying “Complaints about drivers and operators provide a source of intelligence when considering the renewal of a licence or to identify problems during the period of the licence.”
To this end, the guidance introduced requirements for:
• All licensing authorities should have a robust system for recording complaints, including analysing trends across all licensees as well as complaints against individual licensees; and
• Licensing authorities should produce guidance for passengers on making com- plaints directly to the licensing authority that should be available on their website. Ways to make complaint to the authority should be displayed in all licensed vehi- cles.
Overseas convictions
The final other source of criminal informa- tion and history is from overseas sources. This is perhaps the hardest nut to crack because information can be hard to come by and at times unreliable.
The guidance states that licensing authori- ties should, where possible, seek a ‘Certificate of Good Character’ where an applicant has previously spent an extended period (three or more continuous months) outside the UK.
Criminal convictions and rehabilitation
The statutory guidance does not change the rules of natural justice. Your case must still be heard and determined on its individ- ual merits. The statutory guidance includes a draft policy on the assessment of previous convictions (a relevance of convictions pol- icy), which in effect is a rehabilitation of offences policy. However, even if the time that has elapsed since a conviction has not lapsed, this should not mean that the case is settled.
The guidance carries a lot of weight but also acknowledge that: “In considering an individual’s criminal record, licensing authorities must consider each case on its merits, but they should take a particularly cautious view of any offences against individuals with special needs, children and other vulnerable groups, particularly those involving violence, those of a sexual nature and those linked to organised crime.”
As a consequence of the statutory guid- ance, all licensing authorities are required to adopt a convictions policy: “In order to achieve consistency, and to mitigate the risk of successful legal challenge, licensing authorities should have a clear policy for the consideration of criminal records.”
As I mentioned, Annexed of the statutory guidance is the Department’s recommenda- tions on the assessment of previous convictions. This convictions policy draws strongly on work done by the Institute of Licensing that the trade might be aware of. The policy in brief:
• Sexual Offences = No licence • Weapon = no licence for 7 years • Dishonesty = no licence for 7 years • Supply drugs = no licence for 10 years • Possession drugs = no licence for 5 years • Discrimination = no licence for 5 years • Drink Driving = no licence for 7 years • Using hand-held device = no licence for 5 years
A final point on criminal convictions and rehabilitation, the guidance states: “These periods should be taken as a starting point in considering whether a licence should be granted or renewed in all cases.
The Department’s view is that this places passenger safety as the priority while enabling past offenders to sufficiently evi- dence that they have been successfully rehabilitated so that they might obtain a licence. Authorities are however reminded that applicants are entitled to a fair and impartial consideration of their applica- tion.”
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