By Richard Hanstock
In the wake of the Jay and Casey reports into the Rotherham child abuse scandal, the Department for Transport is consulting on new statutory guidance for local authorities exercising taxi and PHV licensing functions. The consultation will remain open until 22 April 2019.
Placing safeguarding matters front and centre, the draft guidance forms part of wider government efforts to modernise taxi and PHV licensing. As summarised in a recent update by Matt Lewin and Tara O'Leary, the draft guidance contains the following key proposals:
1. A single "fit and proper" test (para 2.14)
2. The applicant/licence holder should not be given the benefit of the doubt when making decisions about their suitability (para 2.16)
3. A self-reporting requirement where the licence holder is arrested, charged or convicted of any motoring, dishonesty, indecent or violent offence – triggering an automatic review of their suitability to hold a licence (para 2.41)
4. Duty to refer applicants/licence holders to the DBS where they have been refused a licence, or had their licence revoked, due to safeguarding concerns (para 2.44)
5. Mandatory safeguarding awareness training (para 2.72)
6. Support for in-vehicle CCTV (para 2.104) – but caution about making it a mandatory condition in all cases (para 2.109)
7. Guidance on length of time following conviction for offences before a new licence can be granted (Annex A)
This article considers items 1, 2 and 7 above, after reflecting on the scope of the guidance and the tension between localism and consistency of outcome.
Local authorities will be obliged to "have regard to" the new guidance by section 177(4) of the Policing and Crime Act 2017. Authorities should interpret this as a call to review all their taxi and PHV licensing policies and practices in light of the statutory guidance.
Authorities and the trade alike should assume that regard should be had to the guidance in essentially all cases.
It is well established that licensing decisions are taken by local councils on behalf of local people. The importance of localism pulls against the national policy imperative of consistency of protection for vulnerable passengers. Local authorities are left with the delicate task of considering what is right for their local areas in light of the wider drive from central government towards the nationalisation of licensing standards.
It is important to distinguish here between consistency of approach and consistency of outcome. Neighbouring authorities paying due regard to policy and guidance may legitimately reach different decisions faced with the same evidence. This reflects different tolerances to risk.
The guidance, however, invites a profoundly risk-averse approach, specifically excluding the possibility of extending the benefit of the doubt to drivers facing refusal or revocation, setting seemingly arbitrary minimum periods that should elapse before a convicted driver should be granted a licence and expecting departure from the guidance to be kept to a bare minimum.
This sends a clear message to the licensed trade that safeguarding risk will trump their commercial freedoms more often than not.
To that extent, the draft guidance threatens localism in licensing decisions. The statutory duty to "have regard" to the guidance leaves open the possibility for rational dissent, but this appears to be discouraged by the guidance itself: whilst authorities remain free to depart from the guidance where they have good reason to do so, they are warned that government guidance will be of powerful persuasive effect in litigation.
Whilst the government's top-down approach has its benefits, it effectively removes any scope for local dissent. Whilst licensing decisions continue to be taken at a local level, central government should avoid being overly-prescriptive, to ensure that licensing committees still have a meaningful role to play in shaping local policy and representing their communities.
Fit and proper
The draft statutory guidance proposes (at 2.14) that "it may be helpful" when determining whether a person is fit and proper to consider the following question:
"Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night?"
This is not especially radical: the question invites reflection on the evidence to reach a subjective assessment of fitness and propriety. Some authorities have already included a version of this test in their own policies. It should be seen as a guide to decision-making, rather than a strict legal test, but a helpful guide nevertheless. It is not clear whether this test, or a modification thereof, should apply to operators.
The draft guidance invites authorities to consider their answer to this question "on the balance of probabilities". It follows that if the answer is "probably not", the person is not fit and proper.
Whilst it makes sense to use the balance of probabilities to decide matters of fact, it is not clear that this is the correct tool for matters of licensing judgment. As a colleague once put it to me, if passengers at an airport are informed that their plane is only "probably" going to land safely, they are unlikely to be inclined to climb aboard. Similarly, if a taxi driver can only "probably" be trusted to collect a child from school each day, members of that authority might well struggle to have confidence that the driver does not pose an unacceptable safeguarding risk. In an apparent acknowledgment of this this difficulty, whilst the guidance is clear that where the answer is 'no' the applicant will not be fit and proper, there is silence about what to do if the answer to the question is 'yes': it appears that, in such cases, further reflection on the evidence is still required to reach a decision.
Somewhat curiously, the guidance states (at 2.16, in bold) that the application of the civil standard of proof means that "an applicant or licensee should not be 'given the benefit of the doubt'" in licensing decisions. This is likely to be particularly resisted by drivers, as it could be argued that risk-based decisions will always involve some element of doubt. If this section survives the consultation process, local authorities will wish to think carefully whether they wish to transpose this into their own practices.
This guidance does not deal with continuing uncertainty about the burden of proof in licensing decisions following the cases of Kaivanpor and Muck It. The comment in the guidance regarding the 'benefit of the doubt' suggests that it is the licensee who is expected to prove that he is fit and proper. However, it is sometimes argued that the burden on appeal is borne by the authority to show the contrary, at least in cases other than refusals of to grant new licences (e.g. revocations, suspensions). In the absence of primary legislation, the inclusion of these words in the statutory guidance is likely to generate litigation that should resolve this legal tension.
There has been extensive engagement with the Institute of Licensing, local authorities, the licensed trade and other stakeholders on the proper approach to convictions, cautions and intelligence relating to criminal conduct on the part of drivers.
The government approach has been to fix a (somewhat arbitrary) number of years for the (prospective) licensee to remain free of conviction before he or she could be regarded as "fit and proper" (para 2.50 and Annex A). These periods are to be adhered to "in all but truly exceptional circumstance[s]", with "a particularly cautious" approach to offences against vulnerable people. Notwithstanding these rather firm minimum periods, the guidance purports to leave room for "past offenders to sufficiently evidence that they have been successfully rehabilitated", reminding authorities to assess each case on its merits.
The "minimum" periods are set from the date of conviction, rather than the date of the offence or the type of sentence imposed, and the guidance is silent about how these matters might influence a decision whether a case is "truly exceptional" such as to justify a shortening or disapplication of the minimum period. Authorities should remember that convictions resulting in discharge orders are not to be regarded as convictions for any purpose outside those proceedings (s. PCC(S)A 2000); local licensing policies should be structured to inform councillors about their proper approach to such offences.
The draft statutory guidance (at 2.55) positively encourages the use of "non-conviction information" in licensing decisions, encouraging local authorities to seek out police intelligence regarding licensees and prospective licensees in its area. There are obvious policy reasons to ensure that decisions are taken in full knowledge of all relevant information. However, it is said at paragraph 2.57 that "obtaining the fullest information minimises the doubt as to whether an applicant or licensee is 'fit and proper'". Although this is said in the context of encouraging the sharing of information between local authorities, it must be remembered that a licensee mounting an appeal against a finding that he or she is not 'fit and proper' faces a significant hurdle, especially if it is the case that the licensee bears the burden of proof. It may be the case that more information from more authorities creates a skewed impression of risk, creating more doubt, not less.
Where decision-makers face risk arising from uncertainty, the guidance relating to the 'benefit of the doubt' favours a highly risk-averse approach. This is likely to lead to more decisions that are adverse to licensees – and more appeals.
The draft statutory guidance makes a welcome contribution to licensing policy in the name of safeguarding the vulnerable. It will prompt local authorities to review their own policies with a view to institutionalising greater commonality of approach. Whilst this will go some way towards reducing the problems of arbitrage and inconsistency that have emerged in the wake of the Rotherham scandal, the trade is unlikely to welcome a policy shift towards even greater cautiousness in the assessment of fitness and propriety.
The licensed taxi and PHV trade involves an element of trust between authority and licensee in their dealings with the travelling public. In a policy environment that removes the benefit of the doubt from licensees accused of wrongdoing, the professionalism and courage of local councillors and licensing officers has never been more important: it is down to them to strike a balance between risk-aversion on the one hand and fairness on the other, ensuring that licensees and prospective licensees are not prejudiced or treated with hostility in the pursuit of the laudable aims of safeguarding the vulnerable.