Taxi licensing Roy Light, St John s Chambers 10 December 2013

Transcription

1 Taxi licensing Roy Light, St John s Chambers roy.light@stjohnschambers.co.uk 10 December 2013

2 Utilitarianism

3 Recent cases R (application of Singh) v Cardiff City Council [2012] EWCH 1852 (Admin) taxi drivers licence penalty points scheme and suspension as a punishment Aylesbury DC v Call A Cab (Nov 2013) Prosecution defence that LG(MP)A 1976 not properly adopted

4 Suspension/revoc/refusal to renew By s.61 Local Government (Miscellaneous Provisions) Act 1976 a district council may suspend or revoke or refuse to renew the licence of the driver of a hackney carriage or a private hire vehicle on any of the following grounds: (a) that he has since the grant of the licence- 1. been convicted of an offence (dishon, indec or viol) or 2. been convicted of an offence taxi legisl ; or (b) any other reasonable cause. fit & proper person criterion

5 Question how is an authority to deal with unacceptable behaviour by those holding taxi drivers licences? some matters arising after grant will not require action by the authority but what of matters which require a response but not by way of suspension or revocation?

6 Penalty points scheme Cardiff adopted penalty point scheme 10 points in three year period and licence revoked Singh J found that introduction and enforcement of penalty point scheme not unlawful in principle nothing wrong [with] adopting the policy, which seeks, both in fairness to the driver... and also to protect the public interest, to have... a staged process by which the cumulative effect of incidents of misconduct may well lead ultimately to the conclusion that in the judgment of the local authority, a person is not a proper person to continue to enjoy the relevant licence (para.65).

7 Formulation of policy But how a defendant authority... goes about formulating such a policy is perhaps of more critical importance... (para.67). Singh J went on to find the policy unlawful in three ways.

8 unlawful 1 The first is that the policy calls for the automatic revocation of a licence if 10 points have been accumulated in a 3-year period. That, on its face, leaves no room for judgment or discretion (para.74).

9 unlawful 2 The second fundamental defect is that this means that there is no consideration required, or it would appear perhaps even permitted by the policy of the underlying facts which lay behind the earlier imposition of points which a driver may have. That may, as the case of Mr Singh illustrates, be some years before the decision of the Committee which eventually decides to revoke a licence (para.76).

10 unlawful 3 The third fundamental defect, in my judgment, again accepting the claimant's submissions in this regard is that the policy does not recognise that the outcome even of concluding that a person is not a fit and proper person is not necessarily revocation, it may be under section 61 the sanction of suspension (para.78).

11 Summary of Singh lawful to adopt a penalty points scheme scheme shall not remove authority s discretion when considering f&pp criterion scheme could, for example, state that once a number of points have been accumulated within a certain period of time the authority should apply its judgement on whether the criterion has been breached and if so exercise its discretion on the appropriate response, if any (paras.69-71).

12 Example When a driver has accumulated 12 points within a two year period the drivers licence will be re-evaluated and the driver will have the opportunity to offer any mitigation for any of the offences that have caused the totalling of 12 points.

13 This means that the Council can correctly make its decision based on the fit and proper test. The penalty points scheme simply provides evidential assistance as to whether a driver meets this requirement.

14 Singh - suspension s.61 does not confer a power of interim suspension it is a sanction, it cannot be used as an administrative measure to allow authority to investigation matters it is a final determination on the fitness and propriety of the driver If necessary for public safety rev/susp takes place when notice given (s.61(2b) authority for proposition that licence suspension may be used as a punishment?

15

16 purposes of punishments retributive vengeance just deserts utilitarian incapacitation deterrence individual or general reformation/rehabilitation

17 Suspension not retributive in order to suspend or revoke authority must be of view that driver fails f&p criterion if failure rectifiable suspension may be appropriate clear from cases (and nothing different in Singh) that suspension is not there to punish driver for bad behaviour (it is a sanction but not a punitive sanction) purpose of licensing regime to protect public not punish driver

18 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.

19 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.

20 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?

21 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.

22 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.

23 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?

24 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.

25 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

26 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.

27 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?

28 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

29 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.

30 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?

31 Aylesbury Vale DC v Call a Cab Ltd March 2013 Prosecution dismissed by DJ as Council could not prove that a resolution made 24 years previously properly made as records destroyed. R(Malpass) v Durham County Council [2012] EWCH 1934 (Admin) principle that one should assume that official acts have been done correctly (omnia praesumunter rite esse acta). Here however research contradicted this.

32 Aylesbury Vale DC v Call a Cab Ltd November 2013 Div Court allowed appeal. Single breach of procedural requirement does not automatically fatal. Significant that Ds suffered no prejudice as Act did not require notification to them. Should consider degree to which substantial compliance with procedural requirement. Starting point presumption of regularity.