I have extensively written about fit and proper and what this means for licence holders and applicants for a taxi or private hire licence.  In my previous PHTM article, “Offences – What are the odds of getting a licence?”, I looked at some relevant points to consider for applicants or licence holders who may have relevant information on their criminal records checks.

In this article, I will consider what information regarding a licence holder’s criminal history must be declared to a licensing authority.  It used to be the case that taxi and private hire offences and cautions never became spent irrespective of the time that has elapsed since the offence.  This is no longer the case with the introduction of “filtering” and “protected” convictions and cautions.

Duty to declare

There is both a statutory and mostly likely a local policy duty on taxi and private hire drivers, applicants and private hire operators to report convictions and other information to their licensing authority.

This is important because a licensing authority must make a judgement on the fitness and propriety of the licence holder or applicant.  Based on the outcome of this, a suspension and/or revocation could follow as set out in section 61 of the Local Government (Miscellaneous Provisions) Act 1976 where licensing authorities have the power to suspend and revoke a driver’s licence where, since the grant of the licence, the driver has:

• been convicted of an offence involving dishonesty, indecency or violence;
• been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 of this Part of this Act;
• been convicted of an immigration offence or required to pay an immigration penalty.

The statutory duty relates specifically to convictions and the duty to declare these:

s.57(2)(b)(vii):

Power to require applicants to submit information.

A district council may require any applicant for a licence under the Act of 1847 or under this Part of this Act to submit to them such information as they may reasonably consider necessary to enable them to determine whether the licence should be granted and whether conditions should be attached to any such licence.

Without prejudice to the generality of the foregoing subsection a district council may require an applicant for an operator’s licence to submit to them such information as to any convictions recorded against the applicant.

The significant majority of licensing authorities will have a relevance of convictions policy.  These policies raise the bar significantly in order to require taxi and private hire drivers, applicants and private hire operators to also declare arrests, charges, criminal investigations and formal cautions.

The Department for Transport’s draft “Taxi and private hire vehicle licensing – protecting users: statutory guidance for licensing authorities” has reinforced this and clearly sets out an expectation that licensing authorities should be taking into consideration not just convictions but also cautions and complaints. 

Rehabilitation of Offenders Act 1974

Whilst there is a statutory duty on taxi and private hire drivers, applicants and private hire operators to declare convictions and formal cautions, this must be considered within the context of the Rehabilitation of Offenders Act 1974.

The effect of the 1974 Act is that after this rehabilitation period (as set out in the 1974 Act), if there has been no further conviction the conviction is considered “spent” and, with certain exceptions, need not be disclosed by the ex-offender in any context such as when applying for a job, obtaining insurance, or in civil proceedings.

Rehabilitation of offenders Act 1974 (exceptions) Order 1975

There are certain professions however that is exempt from the provisions of the 1974 Act.  The exemptions Order recognise that in certain circumstances, convictions and cautions should never be considered spent and should therefore always be taken into consideration when someone’s fitness and suitability is taken into consideration.  Taxi and private hire licensing is a listed occupation under the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002.

The effect of the 1975 exemption Order is that the 1974 Act does not apply to listed occupations and all convictions and cautions should never be considered spent and should therefore be declared and considered relevant irrespective of the amount of time that has elapsed since the conviction or caution.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)

As explained above, it used to be the case that taxi and private licence holders, applicants and operators’ convictions and caution were forever considered unspent.  This meant that these would be disclosable on criminal records checks and could be taken into account.

However, in 2013 an important court case changed this and introduced filtering and with this “protected” convictions and cautions.  In January 2013, the Court of Appeal ruled that the Police Act 1997 and the Rehabilitation of Offenders Act Exceptions Order 1975 (the Exceptions Order) were incompatible with Human Rights legislation and in particular a person’s right to protect their private life under Article 8 of the European Convention on Human Rights.

The Court of Appeal ruling concerned two individuals who challenged the Secretary of State for the Home Department.  The two individual complained that they faced significant barriers in finding employment due to previous cautions and final warnings having to be disclosed on enhanced criminal record checks when they applied for job opportunities. 

The Secretary of State appealed the Court of Appeal ruling.  In June 2014, the Supreme Court dismissed the government’s appeal, as the Court deemed the Police Act 1997 and the Exceptions Order interfered with an individual’s human rights in a way which did not meet the requirements of a democratic society and did not contribute to any adequate assessment of risk.

Prior to the Supreme Court ruling, if a role was considered ‘exempt’ under 1974 Act, a licensing authority was entitled to know about an applicant or licence holder’s full criminal record history. This meant that all convictions, cautions, reprimands and final warnings held on the Police National Computer (PNC) were disclosed on standard and enhanced DBS (formerly ‘CRB’) checks until a person reached 100 years of age.

In light of the court cases, the Government introduced legislation on 29 May 2013 to make changes to the 1974 Act.  The effect of the amendments  is that it allowed for certain minor offences to be removed or ‘filtered’ from standard or enhanced certificates, which are also known as DBS checks.

These changes are only applicable in England, Wales and Northern Ireland.

Filtering

Aside from the requirement to declare convictions and cautions, licence holders and applicants are subject to an enhanced criminal records (DBS) check.  An enhanced DBS check will contain details of:

1. both spent and unspent convictions, cautions, reprimands and warnings that are held on the Police National Computer;
2. information held on the DBS’ barred list; and
3. non-conviction information supplied by relevant police forces

that are not subject to filtering (and are therefore protected).

Those subject to filtering (see below) are considered protected.

“Protected” Cautions and Convictions

A conviction is “protected” if:

• it is not for a ‘listed offence’[1]; and
• you did not receive a custodial sentence; and
• you have not been convicted of any other offence at any time; and
• more than 11 years have passed since the date of conviction (or more than five years and six months have passed if you were under the age of 18 when convicted).

An caution is protected:

• more than six years have passed since you received the caution (or more than two years have passed if you were under the age of 18 at the time of the caution); and
• it is not for a ‘listed offence’[2].

What should you declare?

There is no doubting the importance of ensuring only people who are fit and proper should be able to obtain and retrain a taxi or private hire licence.  It is also important to mention that the rules around “protected” cautions and convictions do not exist to hide anything and licence holder and applicants should not use the rules for this purpose.

The assessment as to whether they are fit and proper should be a fair and balanced exercise.

The legislation and common law position on disclosing convictions and cautions for the purpose of taxi and private hire licensing is now clear; that taxi and private licence holders, applicants and operators must declare all convictions and cautions unless they are considered protected as outlined above.

Not needing to declare protected cautions and convictions also means that these cannot be taken into consideration when your fitness to be licensed as a taxi/private hire driver or operator is assessed.  Since there is no limit on the number of cautions that can be filtered, is it also the case that a licensing authority cannot take into consideration a pattern of behaviour if these relate to having accepted cautions that are now considered protected.

If you are a taxi or private hire licence holder or prospective applicant but unsure about what you are required to disclose, Taxi Defence Barristers can advise you including any subsequent representation at licensing panels and appeals.

[1] https://www.gov.uk/government/publications/dbs-list-of-offences-that-will-never-be-filtered-from-a-criminal-record-check

[2] https://www.gov.uk/government/publications/dbs-list-of-offences-that-will-never-be-filtered-from-a-criminal-record-check