TAXI LAW EXPLAINED
‘given the benefit of doubt’. If the com- mittee or delegated officer is only ‘50/50’ as to whether the applicant or licensee is ‘fit and proper’, they should not hold a licence.”
The position outlined above places the odds against a licence holder or applicant, which makes a fair and open minded approach to decision making even more important.
A REVIEW OF THE LICENCES ALREADY ISSUED
The new statutory guidance and decision making might not be limited to new appli- cants alone. Since the main motive behind the new statutory guidance is safeguarding through the introduction of common licensing standards, a review of existing licence holders might be necessary. The Government wants licensing standards raised and safeguarding improved. It might be that previous conclusions reached on the fitness and propriety of a driver no longer applies under the new standards set out in the guidance. Under these circum- stances, the guidance at paragraph 3.14 states:
“Any changes in licensing requirements should be followed by a review of the licences already issued. If the need to change licensing requirements has been identified, this same need is applicable to those already in possession of a licence.”
Admittedly the statutory guidance does not envisage a wholesale review of all licences issued but acknowledges that there might be isolated instances where a licence was issued which would no longer comply with the new standards or where a court overturned the decision of a licensing authority. In these cases, the statutory guidance expects licensing authorities to review the licence under the new stan- dards.
ASSESSMENT OF PREVIOUS CONVICTIONS
When I discussed the general issue of the ‘fit and proper’ definition, I mentioned that decision making should be underpinned by a comprehensive licensing policy. Whilst the phrasing of the new definition of ‘fit and proper’ arguably lends itself more towards a subjective approach, a policy document should re-establish the right balance by providing objectivity to decision making.
An important aspect of licensing policy, SEPTEMBER 2020
and one clearly linked to whether a person is fit and proper, is an assessment of a per- son’s previous criminal convictions. The statutory guidance includes policy on the relevance of convictions that it expects licensing authorities to adopt in some form. This policy, also commonly known as a ‘Rel- evance of Convictions Policy’, stipulates clear boundaries for licence holders and applicants with previous or current convic- tions.
For some types of offences and convic- tions, the policy states that no licence will be issued irrespective of how much time has elapsed since the conviction. For other less serious offences, the policy expects a specified time to have elapsed before con- sideration will be given to the granting, or continuation, of a licence.
Relevance of Convictions policies are not new and have been around for many years. What has changed recently however is what has become known as “bright line” policies that clearly set firm boundaries for what is acceptable.
In the past, the boundaries have been less stringent and clear out of fear that such an approach would be seen as fettering the licensing authority’s discretion. The consequence of this has been a great amount of variation in what was deemed to be acceptable from a ‘fit and proper’ point of view. These “bright line” policies however clearly sets firm boundaries to overcome the issue of inconsistent deci- sion making. Although the convictions policy in the statutory guidance recognis- es the need for some discretion (i.e. “authorities must consider each case on its own merits”), the expectation is clearly set out in the document “recommenda- tions to be implemented unless there is a compelling local reason not to do so.” The practical consequence therefore is that, unless there is a compelling local reason not to do so, licensing authorities are likely to adopt the measures outlined in Annex A.
APPEALS
A final word on the relevance of the statu- tory guidance on hackney carriage and private hire licensing appeals. I have already discussed the strength of the statutory guidance and Government’s view on local implementation of the measures contained within it. This clearly must also impact on subsequent appeals following decisions made in accordance with the statutory guidance and its provisions.
The statutory guidance makes an impor- tant and significant statement at paragraph 2.8 which states:
“Although it remains the case that licens- ing authorities must reach their own decisions, both on overall policies and on individual licensing matters in light of the relevant law, it may be that the Statutory Taxi and Private Hire Vehicle Standards might be drawn upon in any legal chal- lenge to an authority’s practice, and that any failure to adhere to the standards without sufficient justification could be detrimental to the authority’s defence.”
This is a significant statement because it gives a court of law clear government instruction as to how the courts should approach legal challenges under the statu- tory guidance. From the above, the default position for any legal challenge under the provisions of the statutory guidance is clear: the statutory guidance is of utmost importance and any local deviation from it will be at the detriment of the local author- ity, without sufficient justification.
CONCLUDING REMARKS
The concept of ‘fit and proper’ is the cor- nerstone of hackney carriage and private hire licensing. As discussed in this article, the new statutory guidance will change, in some cases potentially significantly, the way licence applicants and licence holders are judged on their fitness.
However, the reality is that the extent of any change will depend on how the new guidance is applied locally. As mentioned previously, there appears to be some scope for subjectivity which will inevitably lead to inconsistent decision making.
As always, Taxi Defence Barristers is here to represent applicants and licence holders with expert legal advice and representa- tion. If you are facing legal difficulties, please speak to one of our expert lawyers.
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