Bright Lines? Absolutely

Publish date: 23/07/2018

"For far too long, criminals or those with poor track records have been able to exploit licensing authority inconsistencies and obtain a taxi licence. To address the problem, the Institute of Licensing has drawn up new Guidance which every local authority is invited to consider and apply" as James Button and Stephen Turner explain in an article published by the Journal of Licensing

Article published in the Journal of Licensing (2018) 21 JoL p35-37.

We have all seen, and far too often, horror stories in the press where an individual has committed a serious offence or a series of offences and it has come to light that said individual was the holder of a private hire or hackney driver's licence. Just look at the recent media storm surrounding the Worboys case. Sometimes the licence and the licenced vehicle has been used in the perpetration of a crime. That is no surprise when you accept that it is perfectly normal to see a hackney or a private hire vehicle at any time of the day or night in any place with or without passengers on board. It is the norm and does not cause eyebrows to be raised or ears to be turned in today's 24/7 society. Is it actually conceivable that if Worboys is ever now released, he could seek and be granted a new licence under an assumed identity? The answer, bluntly, is yes. Why you cry, how could that ever happen in a modern country with a respected legal system and with a licensing system where the bottom line is the protection of the public? Let us explain.

The Department for Transport's Taxi and Private Hire Licensing – Best Practice Guide recommends that local authorities in fulfilling their licensing functions should have a policy against which the character of an individual seeking a licence can be assessed in terms of any previous convictions, cautions or other matters impacting on their fitness and propriety. Sadly, even today there are some authorities which do not have such a policy, others which have one but don't use it and yet others which have one but have not reviewed or updated it for more than two decades. Of course, there is no statutory requirement to have such a policy but it is certainly best practice and more modern legislation (the 2003 Licensing Act and the 2005 Gambling Act) requires each licensing authority to have one. Of those authorities that have policies and use them, there is oft en inconsistency and wide variation between the approach each one takes, which can lead to different decisions being made on the same set of facts. That presents an inviting opportunity for those with an adverse history who are seeking a licence to target what they perceive as a weak authority. Chances are that such applications will succeed and undermine the very purpose of the fit and proper person test. The only permanent solution to this is the setting of national standards and conditions which would require primary legislation, and this is unlikely to be forthcoming in the near future.

The first, albeit temporary solution, is therefore for all authorities to review existing policies or establish such policies where they are absent. In doing so, the opportunity can be taken to drive up standards and set the bar high in determining what level of "criminality", if any, is acceptable in a licence holder or potential licence holder. Such a policy could include "bright lines", for example, such that the policy could state that "an applicant with a conviction for sexual assault will not be granted a licence" or "an applicant with a conviction for supplying drugs will not be granted a licence until at least 10 years have elapsed since conviction". Such bright lines within a policy can also be referred to as "absolute" provisions, though this prompts some to think that because of their "directional" nature they are binding in their effect and at the very least fetter the discretion of the decision makers. But they do not, simply on the basis that no policy is binding in its nature, rather it is there to guide or to off er a reference or starting point against which to exercise a discretion. It makes no difference to the fundamental principal that each case must be determined according to its own facts and merits. Further there is now ample authority from the Senior Courts to that effect (see R (on the application of S) v Brent LBC [2002] All ER (D) 277 CA; R (on the application of Nicholds) v Security Industry Authority [2007] 1 WLR 2067 Admin Ct, which was referred to with approval by the Court of Appeal in R ( on the application of Sayaniya) v Upper Tribunal (Immigration and Asylum Chamber), [2016] 4.WLR.58 CA). Therefore, an applicant whose adverse history has triggered a bright line within a policy has the opportunity (in their attempt to satisfy the authority as to their fitness and propriety) to present evidence and make submissions that persuade the decision makers that they should depart from the bright line in the exceptional circumstances of that particular case. The reasons for that departure, if departure is indeed made, should be recorded as part of the decision so as to show that the departure is peculiar to the facts and merits of that case. As future cases will also be decided on their own particular facts and merits it is highly unlikely that any two cases will turn upon identical or even largely similar facts and this all but eliminates any precedent argument. In any event, a departure from policy cannot create a precedent per se; at most it might be seen as a possible direction of travel for future decisions.

So much for policy, what about guidance? Here, essentially the same considerations and parameters apply. Guidance is guidance, it is not law. It is not a set of rules; it is there, once again, to assist the decision makers in the exercise of their discretion. Guidance cannot, of itself, take account of the facts and merits of any particular case. It is more a distillation of a collection of knowledge gathered over time about a particular function. Guidance may be statutory or non-statutory and the norm is a direction in legislation or otherwise to "have regard" to it. Even in the absence of such a legislative instruction, it will be a relevant factor that must be considered in Wednesbury terms (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). Because it is guidance not law, rules or policy and because it does not direct them, in the same way that a policy guides or forms a reference or starting point for consideration, so does guidance. It can be followed or departed from for good reasons pursuant to the exercise of discretion. And again, the reasons for any departure should be recorded as part of the decision, and there is minimal danger of precedent being set.

The second solution delivered in order to assist authorities achieve greater consistency in their decision making and to drive up standards was launched in April this year when the IoL launched its paper Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades. This document has been developed with the cooperation of and in partnership with the Local Government Association, Lawyers in Local Government and The National Association of Licensing and Enforcement Officers and is endorsed by all three organisations. Additionally, the Suzy Lamplugh Trust has expressed its support for the Guidance. The Guidance has been developed and issued against the background of outdated legislation and a lack of recent statutory, ministerial or other guidance as to how licensing decisions should be made. Its aim is to enhance licensing authorities' ability to protect the public in the delivery of their licensing functions in respect of hackney and private hire drivers, vehicle proprietors and operators. It cannot satisfy the basic and long-standing need for legislative reform, in particular in respect of national standards and conditions, but it can help, if widely adopted, to create far greater consistency between decisions and standards in different authorities which itself would prevent applicants "shopping around".

Initially the Institute's working party put out a consultation to establish the extent of differing practices up and down the country. The results showed that standards, policies, procedures and consequently decisions varied to an even greater extent than had been feared. The results provided a very clear evidence base proving the need. However, areas of good practice and procedure were discovered, and these were later absorbed into the mix when draft ing the document. It was also felt that the Guidance should contain some form of "justification" for the bright lines and indeed for the settings of the bar in relation to time lapsed since conviction. Consequently, consideration was given from criminological and probation points of view, particularly with regard to re-off ending tendencies. It was hoped that such opinions and theories could be backed up by hard science but rather surprisingly there does not appear to be any. However, what can be said is that the prospects of re-off ending do diminish with time, but the periodicity is uncertain. Chapter 2 therefore gives a detailed exposition of off enders and off ending. For there to be greater consistency between different authorities, then irrespective of an increase in commonality of any policy or guidance there must also be a more uniform understanding, interpretation and application of the relevant law under which all such decisions are made. Chapter 3 is written to deliver just that.

Turning to Chapter 4, which is the Guidance itself, the first thing to say is that it applies equally to drivers, operators and vehicle proprietors. All are involved in the trades and form the so-called trinity of licenced activity. It would be counterproductive and inequitable to say that one aspect of a trade should permit a greater potential involvement of those who exhibit or have exhibited criminal tendencies than another, and would certainly not serve to protect the public. Chapter 4 contains bright lines in that it says "No" and "Never" without fettering any discretion as explained above. The time periods specified are longer than many authorities' current terms, based on the survey evidence, but not as long as one or two others. They have been carefully considered and on further consultation widely supported. The omission of a long list or schedule of specific off ences is perfectly deliberate. It is considered that simply categorising off ences by the nature of the off ence removes the possibility of substantial argument as to whether or not a specific off ence is included on the list, or whether an off ence involving a knife is less or more serious that a like off ence involving a gun. Having prepared a complete working draft , the Institute again consulted widely, both by survey and with targeted individuals and organisations. The responses were overwhelmingly supportive of the approach in general and the majority of the detail, particularly in Chapter 4. The results and responses again form a significant volume of evidence justifying the Institute's approach. A final meeting of the Institute's working party was held to consider the response and that resulted in some of the bars set in Chapter 4 being raised yet further. Now it is over to you.

The Guidance is there for your use and it is hoped that many authorities will adopt it in both principal and in detail. Chapter 4, of course can, in whole or in part and with any necessary "localisation", form the basis of an authority's policy and the entire document can be available to both officers and members as Guidance. Adoption of the principles contained in Chapter 4 cannot be required nationally: it is for each authority to decide whether to take this route, and unless a significant number do, it will not improve the national position. Authorities should be keen to do so, however. It lays down a clear marker that criminality will not be tolerated within the hackney carriage and private hire trades and that the authority sees public protection as paramount. Authorities that do not adopt these standards should be prepared to explain why they are less concerned about public safety than other authorities, and why they are prepared to become an "authority of convenience" for criminals who want to remain in the taxi industry. The Institute will continue to advance the cause of new legislation in the strongest possible way but in the mean time it is submitted that this Guidance is a powerful tool which will help afford enhanced protection of the public at large.

James Button, CIoL

Solicitor, James Button and Co

Stephen Turner Solicitor, Hull City Council

The Guidance can be found HERE