Private hire: scope of fit and proper test
Hull Crown Court has upheld decisions of East Riding Yorkshire Council to revoke a private hire operator’s and driver’s licence.
The case provides a practical example of a court looking at the wider conduct of the operator rather than just the nuts and bolts of running the operation.
Here, the court took into account, amongst other things, the appellant’s relationship with her regulator, her social media activity and her conduct as a driver in deciding whether she was fit to be an operator by the standards of fitness set by that Council and enshrined in its licensing policy.
Wendys Wheels, owned by Wendy Jackson, opened for business in August 2016. By the following month, she had acquired a final written warning and by March 2017 the Council’s licensing committee had revoked her operator’s licence (jointly held with a second Appellant) and her driver’s licence due poor driving standards, breach of licence conditions (principally relating to record-keeping), unacceptable professional conduct, absence of employers’ liability insurance and willfully leaving a hackney carriage vehicle on a hackney carriage rank.
The first appeal was heard and dismissed by the Magistrates’ Court in November 2017. The court referred to her failure to comply with record keeping requirements, inappropriate conduct towards council officers, use of offensive language on Facebook, failing to assist the police in connection with a road rage incident, together with speeding offences and use of a vehicle with a defective tyre.
By the time of the Crown Court appeal in July 2017, a computerised record system had been installed, so that continuing complaints about the operation itself had reduced or resolved, although there were continuing issues with Miss Jackson’s driving, including failing to slow down at a traffic light and writing on her hand while driving.
It was pointed out for Miss Jackson that the issues regarding the operator’s licence had resolved. As for her driving record, although she carried thousands of passengers a year and drove about 30,000 miles a year, she had not had a passenger complain about her driving or suffered an accident since being licensed in 2012. The driver’s and operator’s licence needed to be considered separately. In general, it was said that the Council had moved too quickly and revocation was disproportionate.
The Court found the Council’s case, in general, made out on the facts. Based on those facts it stated:
The Licensing Committee was justified in making its decision. There were serious matters of concern justifying its finding that Miss Jackson both as a driver and a PHO was not a fit and proper person. We are also satisfied that the Magistrates’ Court’s findings were well justified based on the evidence we have heard. We apply a proportionate approach, and have had regard to matters such as the positive qualities of Ms Jackson – she has had a lengthy period of time as a driver, and we also accept she has many satisfied customers – and in those circumstances the court should not say that all things were bad. We also commend her for finally putting in place an electronic booking system in place. However, overall, and bearing in mind the requirement we have to apply the policy as to a fit and proper person, we note and have particular regard to the fact that the policy itself requires a person to be fit and proper and remain a fit and proper person to hold a licence at all times. We are perfectly satisfied there has not been the consistent and ingrained compliance and approach towards all requirements placed on a driver and PHO. We are quite unable to say the decision of the Licensing Committee was wrong.
The fit and proper test is open-ended. What makes somebody fit and proper to hold a licence is not set down by statute. Provided that the test is approached by considering the purpose of the legislation – regulatory compliance and public safety – the authority is free to take into account any factor which they consider goes to the driver’s or operator’s fitness and propriety.
The authority will help itself by including in its policy factors which it considers to be relevant to the test. In this case, for example, the Council’s policy included a factor for drivers that they should: “work cooperatively with and be civil and respectful towards officers of the Licensing Authority who are carrying out their duties.” The failure of the Appellant to observe that requirement thus became an important factor at the trial.
Philip Kolvin QC, Head of Chambers at Cornerstone Barristers, acted for East Riding of Yorkshire Council, instructed by Carolyn Ashton, the Council’s solicitor.