Is your authority only taking into account what it can do with these matters?
The rules regarding
the convictions and cautions that can be taken into account when
assessing whether someone is 'fit and proper' to hold a Hackney Carriage
/ Private Hire driver licence changed from the previous position, which could be leaving councils unable to have regard to the totality of a person's criminal history
Members will be aware that since 2002, councils have been able to consider to both the spent
and unspent convictions of persons who apply to become licensed as a Hackney
Carriage and/or Private Hire Driver. However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order
1975 in 2002 was amended to mean that convictions are never 'spent' for the
purposes of taxi driver licensing.
This was confirmed by the case of Herefordshire District Council v Prosser
(2008) EWHC 257 (Admin), in which the council had refused Mr Prosser a
licence in light of his multiple convictions which, were it not for the
amended Order, would have been deemed 'spent'. Deputy Judge Supperstone
QC stated, "when one looks at the offences as a whole ... the view
taken by the Justices of the offences is not compatible with the
significant element of trust that is imposed with the holder of licences
and with the overriding considerations of public safety. Not one of
those convictions recorded against the respondent could be said to be
irrelevant. All go to the heart of the fitness and propriety of this
applicant to hold a licence."
Most Council Officers and licensees alike would not wish to dispute that councils should be able to determine whether a
conviction is relevant to the assessment of an applicant's fitness and
propriety in light of the statutory obligation not to issue a licence
unless the council is satisfied that the applicant is fit and proper to
hold it. Almost all Council's have published policies setting out what
criminal conduct they will take into account when making this
assessment, and what weight will generally be placed on each incident or
patterns of conduct.
New categories of 'protected cautions' and 'protected convictions'
have been introduced, which since 2013 mean that after the passage of time the
applicant must be treated as not having been charged with, convicted of
or sentenced for any of those offences.
For a conviction to become 'protected' it must be the only conviction
that the individual has received'
For a cautions to become 'protected', this
happens simply by the passage of time.
This now means that councils cannot take into account an applicant's
'protected' cautions even where they form part of a pattern of behaviour
which, when looking at the totality of the individual's conduct, would
render them unsuitable to be licensed. In the case of people with criminal records who have been issued with
licences, fact that cautions become 'protected' by the passage to time
will mean that councils now need to 'forget' information that they have
held, and which their policies potentially indicate is actually relevant
to the person's fitness and propriety.
The recent case of R (on app of P) v Secretary of State for the Home Department
(2017) EWCA (Civ) 321 the Court of Appeal indicated that the current
'protected caution' and 'protected conviction' scheme needs further
refinement to make it fit for purpose, but for now it is what it is.
Councils must now only ask for and consider information that they can lawfully take into
account- it is recommened that applications wordings are checked for compliance or a bad day in court could follow rapidly!;
Please click here for a full list of matters which cannot become protected