TAXI LAW EXPLAINED


Whilst this may be the policy position, “clear line” or “bright line” policies can- not fetter discretion; it should however give licence holders and applicants a strong indication of the local perspec- tive on the seriousness of certain offences and the likelihood of having licences refused or taken away.


IMPORTANCE OF DISCRETION


I want to spend some time discussing the very important issue of discretion on decision making and particularly how this relates to convictions policies.


It is a long established statutory princi- ple that policy cannot and should not fetter the discretion of decision makers. This simply means that whilst licensing authorities should be guided by their licensing policies and not arbitrarily deviate from them, the overarching prin- ciple 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 individual circumstances of a case and to come to a conclusion that may be dif- ferent from their own policy.


I was recently involved in a case against the refusal of a private hire licence by Transport for London (TfL). In the case my client was refused a private hire licence by TfL on the basis of a DBS entry conviction dating back to 2012- 2013.


I advised my client to wait a year before proceeding on advice that his chances would be much stronger, which he did, but TfL still refused the application notwithstanding the fact that the appli- cation complied with TfL’s policy on convictions.


My efforts to get TfL to give special con- sideration to my client’s case - given the policy allowed applications after a five to seven year conviction-free period – was turned down by TfL who insisted on applying a higher limit.


On appeal we put forward an argument based on the very point I made above regarding the scope of discretion and the need for each application to be determined on its merits. We advanced a strong argument as to why they should


OCTOBER 2019


have deviated from their policy and why the court should do the same.


The court agreed, accepting that our client had clearly changed, committed the offences when very young and now had a family to support. The court con- sequently quashed the decision of TfL.


What I hope this case illustrates is the importance and value of exercising dis- cretion in decision-making, particularly on important issues such as licence holders and applicants with some sort of criminal history.


REHABILITATION OF OFFENDERS


The Rehabilitation of Offenders Act (ROA) is legislation that stipulates when an offence becomes spent and therefore supports the rehabilitation into employ- ment of reformed offenders.


Under the ROA, following a specified peri- od of time (which varies according to the disposal of the offence), cautions and con- victions may become spent. As a result the offender is regarded as rehabilitated.


For most purposes, the ROA treats a rehabilitated person as if he or she had never committed an offence and as such they are not required to declare their spent caution(s) or conviction(s).


However, certain types of employment are exempt from the ROA including taxi and private hire licensing. This means that offences involving a licence holder or applicant are always considered unspent and relevant.


DUTY TO REPORT OFFENCES


Since all offences involving a licence holder or applicant are always consid- ered unspent, it is important for licence holders and applicants to be honest about declaring any criminal history that may be relevant to their licences or


I am often contacted by licence holders and applicants asking for advice in rela- tion to the relevance and significance of a criminal past and the likelihood of this affecting their licensing chances.


The simple fact is that each case will be determined on its merits but in theory, and in most cases, there is no reason why someone who has been found guilty of an offence, or offences, should have their right to a fair hearing taken away.


As I have already explained in this arti- cle, decision makers can exercise their right of discretion. Just because things look black and white on paper, it does not mean that is the end of the matter. In recent cases, I have successfully rep- resented licence holders alleged to have committed sexual offences (not found guilty); a licence holder with historic offences relating to domestic assault; and a licence holder whose council revoked their driver’s licence following complaints of racist comments made by him in two old videos that resurfaced in 2017.


There is no doubt that licensing right- fully exists to ensure public safety but there must always be scope for a fair hearing and discretion in cases.


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applications. In doing so, licence hold- ers or applicants must be mindful of the broader definition of what constitutes an offence that I discussed above (What constitutes an “offence”?).


There is an obligation on all applicants for a licence and licence holders to report convictions to their licensing authority.


Whilst there is a duty to report convic- tions, most licensing authorities will also require applicants for a licence or licence holders to report to them any cautions, allegations or other formal sanctions.


I often deal with cases where applicants for a licence or licence holders fail to report convictions to their licensing authority or where they were not aware of this duty. When this is the case, it can make the case against a refusal, suspen- sion or revocation harder to argue.


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