Taxis: fit & proper person; safeguarding. Roy Light St John s Chambers, Bristol Newton Abbott 30 October 2015

Transcription

1 Taxis: fit & proper person; safeguarding Roy Light St John s Chambers, Bristol roy.light@stjohnschambers.co.uk Newton Abbott 30 October 2015

2 Background raised concern generally, reporting of celebrity child abusers and Rotherham/Rochdale/Oxford events, have propelled safeguarding into the public consciousness child sexual exploitation and grooming of vulnerable young people must be addressed events such as those in Rotherham and Rochdale have presented huge challenges and highlighted the role that local authorities can play to safeguard children and vulnerable adults there is a need to develop information sharing networks within and across areas

3 Definition of safeguarding protect from harm with an appropriate measure safeguarding means protecting people's health, wellbeing and human rights, and enabling them to live free from harm, abuse and neglect. applies to all people, particularly children/young persons and vulnerable adults

4 Adults may be elderly, living alone, in care homes, lacking support from family or friends have mental health issues, physical disability, learning difficulties may be trafficked, exploited, abused

5 Definition protecting the right to live in safety, free from abuse, harm or neglect wider than say child protection as intends to promote children s welfare as well as protect them from harm specific responsibility does not need to be allocated and everyone who comes into contact in their everyday work has a duty thus the licence holder has responsibility when children on premises or in taxi

6 Aim of session this session cannot cover all issues relevant to safeguarding children and vulnerable adults my expertise is in licensing and I have trawled the approaches of others in addressing safeguarding in licensing this session focuses taxi licensing but the issues are relevant to all areas of licensing, including the Licensing Act 2003 it concentrates on children (those under 18)

7 Legislation s.13 Children Act 2004 safeguarding children board Care Act 2015, in force April 2015 consolidation and reform in particular lays down what councils will have to do guidance for councils published licensing authorities must consider safeguarding issues when undertaking licensing functions

8 Children: duty of licence holder all owners, licence holders and staff should have a basic awareness of child protection issues licence holder has responsibility when children on premises or in taxi to create safe environment (for physical, psychological and moral welfare) unable to access alcohol or drugs and with an appropriate level of supervision

9 Duties of licence holder must be competent in recognising indicators and knowing what action to take in emergency and who to contact information is available in What to do if you re Worried a Child is Being Abused (HM Gov 2015) complaints may result in meetings, informal action and possibly suspension or revocation

10 Joint operational protocols other RAs, such as the police, will share responsibility for safeguarding and need to work together and develop joint operational protocols such protocols will ensure understanding of each RA s role, provide a mechanism for information collating, effective working relationships and involvement in taxi licensing

11 Due diligence policy clear written children policy: for example: staff training (incl recognising and responding to indicators of harm and abuse) staff training records monitor cabs (cctv, taxi marshals) report suspicious activity to police and keep log with details (eg. car regs, descriptions)

12 Child sexual exploitation risk awareness of safeguarding issues needs to be communicated to those running taxi businesses adult venues frequented by young people underage drinking where goods and services offered (perhaps by staff) for sex (taxi fare, free food, drink, cigarettes)

13 Risk/control method inappropriate staff: recruitment practice, verify identity, follow up references, CRB staff awareness: communicate issues and responsibility arrange training (initial and refresher) monitor training and record keeping provide advice and support to staff receive and record staff concerns

14 Taxis possibly a stranger carries unaccompanied passengers: school runs, elderly fit and proper persons safeguarding role: reporting any incidents a Code of Conduct: so know what s expected of them training: to spot safeguarding issues

15 Rotherham: Jay & Casey reports weak and ineffective arrangements for taxi licensing which leaves public at risk two teams: policy & enforcement used different data bases, which didn t interface and didn t share information easily complaints & information gathering not recorded on data system taxi policy significantly out of date (1974) no indication of what would be classified as a serious concern members put officers under pressure to facilitate the trade rather than protect the public

16 Initiatives information sharing: no national database partnership working with Safeguarding Board taxi policy: safeguarding information review convictions policy applications/renewal: requirement for safeguarding training benchmarking: with other authorities in area

17 Compulsory training example of revised licensing policy and training introduced two hour session by council s Safeguarding manager and police sergeant (both operational experience) safeguarding children/vulnerable adults making referrals signposting to relevant agencies domestic violence child sexual exploitation hate and mate crime

18 Legislation Town Police Clauses Act 1847 Local Government (Miscellaneous Provisions) Act 1976

19 Driver hackney/phv Hackney (s.59(1)) and PHV (s.51(1)) 1976 Act A district council shall not grant a licence to drive a hackney carriage/phv: (a) unless they are satisfied that the applicant is a fit and proper person to hold a driver s licence or (b) to any person who has not nor at least 12 months been authorised to drive a motor car...

20 Removal By s.61 Local Government (Miscellaneous Provisions) Act 1976 a district council may suspend or revoke... the licence of a driver of a hackney carriage or private hire vehicle on any of the following grounds: (a) that he has since the grant of the licence; (i) been convicted of an offence involving dishonesty, indecency or violence... Or (ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or this Part of this Act; or (b) any other reasonable cause

21 Case law Leeds City Council v Hussain [2002] EWCH 1145 (Admin), a case concerning suspension of a hackney driver s licence for any other reasonable cause, the following was said: The purpose of the power of suspension is to protect users of licensed vehicles and those who are driven by them and members of the public. Its purpose, therefore, is to prevent licences being given to or used by those who are not suitable people taking into account their driving record, driving experience, sobriety, mental and physical fitness, honesty, and that they are people who would not take advantage of their employment to abuse or assault passengers. (Silber, J at 25)

22 To my mind the phrase "any other reasonable cause" [s.61] has been specifically selected to show the width of the discretion which is given to a council. Their task of making a decision is very much a jury question for them in which they are entitled to take account of all relevant circumstances (para. 12)

23 NDC Policy 2014 In line with best practice authorities will have adopted a Hackney Carriage and Private Hire Licensing Policy. While a policy is guidance rather than rules a committee should apply the policy and give reasons if it decides to depart from the policy.

24 Fact of conviction Mitigating factors in relation to offences may be given by a driver. However, the authority cannot go behind the convictions. In any event, the fact of the convictions and the nature of the sentence would already reflect any mitigation that might have been put forward.

25 other reasonable cause It is clear that a licence may be revoked for conduct falling short of a criminal conviction. The underlying principle being the protection of the public.

26 Effect on driver Any personal circumstances said by the Claimant to 'disadvantage him in the labour market' or in any other way are not relevant. As Lord Bingham, cited with approval in Leeds City Council v Hussain by Silber J, put it:

27 Effect on driver The council, when considering whether to suspend a licence or revoke it, is focussing on the impact of the licence-holder s vehicle and character on members of the public and in particular, but not exclusively, on the potential users of those vehicles. This does not require any consideration of the personal circumstances which are irrelevant, except perhaps in very rare cases, to explain or excuse some conduct of the driver.' (paras.25-26)

28 Cherwell v Anwar This decision was recently applied in Cherwell v Anwar [2011] EWCH 2943 (Admin) where a magistrates' court was held to have been wrong to take personal factors into account when reaching their decision (paragraphs 22, 25, 26).

29 Common Law Police Disclosure replaces Notifiable Occupations Scheme where there is a public protection risk police will pass information to the employer or regulatory body this allows a quick reaction to put safeguarding measures in place information passed at charge or arrest where the police Chief Officer believes there is a public protection risk

30 Case study 1 Respondent made application for renewal in which declared he faced prosecution at Crown Court charges of dangerous driving and causing bodily harm by wanton and furious driving. On both occasions the Respondent was transporting paying passengers in a hackney carriage, on one occasion in excess of the number allowed by the vehicle licence.

31 Case study 1 Authority refused the renewal application on the grounds that it was not satisfied that the Respondent was a fit and proper person to hold such a licence. Magistrates allowed the driver s appeal and granted renewal of licence.

32 Case study 1 Authority s appeal against decision of magistrates taken out of list at request of driver pending outcome of criminal trial for the driving matters. Driver agreed to surrender licence and not operate as hackney carriage driver until conclusion of criminal trial. He was acquitted. Crown Court decision?

33 Case study 2 Private hire driver with four years experience and exemplary record drove into and killed a pedestrian and then left the scene of the accident. However, no blame was attached regarding the collision which happened late at night on an unlit country road; the pedestrian being drunk and wearing dark clothes.

34 Case study 2 Authority revoked Appellant s licence on basis that by leaving the scene of the accident the driver had acted in an irresponsible manner... he should not have left the scene and it is for this reason alone in carrying out their administrative duty that they unanimously voted that the licence should be revoked.

35 Case study 2 Appellant on hands-free phone to friend who lived 200 yards from scene. Told her to phone ambulance. He stopped, phoned police and drove on to friend s house. Used toilet, phoned his controller then returned to scene. Magistrates Court decision?

36 Case study 3 Application for hackney carriage drivers licence. Criminal Record Bureau Enhanced Check revealed 39 convictions for 97 offences dating from March 1991 to May In June 2009 Licensing Committee refused application on grounds not a fit and proper person to hold such a licence.

37 Case study 3 Respondent 32 years old. Convictions include offences involving dishonesty, violence and drugs; as well as offences relating to motor vehicles, including excess alcohol offences and many for driving while disqualified and with no insurance

38 Case study 3 July 2009 allowed appeal and granted hackney carriage drivers licence. Reason for decision: we have listened to the evidence from all the parties and taken into account the Rehabilitation of Offenders Act We have considered the matter fully and our decision is to allow the appeal.

39 Case study 3 Some offences committed as juvenile, vast majority as adult. Had served number of prison sentences, last a five year sentence for arson served concurrently with a 12 month sentence for possession of drugs with intent to supply. Released from prison March Been at liberty for some three and a half years. Decision of Crown Court?

40 Case study 4 Appellant applied for a hackney carriage drivers licence. Previous licence revoked by another authority based on a number of complaints regarding inappropriate conversations with passengers. No appeal against revocation (appellant gave conflicting reasons for this). Enhanced disclosure revealed four separate matters all relating to the safety of female passengers in the Appellant s taxi (complaints from passengers of two indecent assaults and two sexual conversations ). Appellant also admitted he was reported for overcharging, smoking while driving and asking a passenger inappropriate questions

41 Case study 4 Rape allegation - the Appellant carried two females in his taxi. He says that after dropping off the first and being alone with the second she started to touch him and tried to perform oral sex on him as he drove along. The female, who was intoxicated, reported that the Appellant had raped her. The Appellant was charged with rape but the matter was discontinued by the CPS.

42 Case study 4 Refused by Respondent s Passenger Transport Officer. Reheard and refused by Respondent s Private Hire and Hackney Carriage Licensing Sub-Committee. Decision of magistrates court?

43 LGA Handbook Councillors handbook March /L15-87+Councillor+Handbook+- +Taxi+and+PHV+Licensing_06.pdf/c73bec4 b-cd31-4bcd-be2c-f5fe3e87b4f4