Report of the Assistant Chief Executive Legal and Governance Services to the Licensing Board 18/July/2006
Hackney Carriage and Private Hire Licensing
Criminal record checks
1.0 Purpose
1.1 To consider representations from the relevant trades associations regarding the frequency of the criminal record checking of licensed hackney carriage and private hire drivers.
2.0 Background
2.1 It is the practice of the Council to take up a criminal record check on all applicants for the grant or renewal of a hackney carriage and private hire drivers licences.
2.2 The trades associations have made representations concerning the increasing cost of renewing a drivers licence that results almost entirely from the cost of the criminal record check. The Licensing Board at its meeting in March requested that a report on this matter be submitted to it following consultation with the trades associations.
3.0 History of criminal record checking
3.1 Before 1993 there was limited facility to undertake criminal record checks on applicants for drivers licences.
3.2 From around 1993 criminal record checks were undertaken by the police on behalf of the Private Hire & Taxi Licensing Section and no charge was made for the service.
3.3 Since March 2002 all criminal record checks have been done by the Criminal Record Bureau (CRB) and the CRB charges a fee.
The fee charged by the CRB in 2002 was £12. The fee charged by the CRB is now £36.
4.0 The cost of drivers renewal fees
4.1 In April 2000 (when criminal record checks were free) the fee for the renewal of a drivers licence was £80.
4.2 The present fee for the renewal of a drivers licence is £120 which is inclusive of £36 that is payable to the CRB. The actual portion of the fee increases since 2000 that remains with the Council is £4, sufficient only to cover the increased administration costs associated with processing the complex CRB check forms.
4.3 All reasonable costs incurred in the administration of the licensing system are recovered through the charging of fees. The CRB check being part of the driver licensing system is financed through the drivers application fee. The usual term for a drivers licence is 18 months, the cost of the CRB check equates to a little under 50 pence per week of the driver application fee.
5.0 The Legal Situation
5.1 The Licensing Board has determined a policy that sets out the circumstances in which Officers have delegated powers to grant or renew licences and those in which the application must be referred for determination. This is known as the referral policy.
5.2 An applicant for the grant of a licence has to demonstrate to the Council that they are a fit and proper person to hold a licence. The Council assists the applicant in doing this by setting a number of tests and checks that if the applicant passes are deemed by the Council to satisfy the requirement. One of the checks undertaken is a criminal record check through the CRB.
5.3 On application to renew a drivers licence there is an assumption that a licence will be renewed unless something has occurred since the grant of a licence that gives rise to doubt as to whether that person is still a “fit and proper” person to hold a licence. The new factor need not be something that on its own would seem to merit the refusal of a licence, it could be an accumulation of matters over a period of time, ie the whole picture must be considered not just recent events.
5.4 Section 61 of the Local Government (Miscellaneous Provisions) Act 1976 states -
“a district council may ……… refuse to renew the licence of a 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 -
i) been convicted of an offence involving dishonesty, indecency or violence; or
ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act; or
b) any other reasonable cause.”
There is sufficient case law to confirm that a council can suspend, revoke or refuse to renew a licence even in instances where criminal prosecutions have failed or not yet been taken provided that the council has access to sufficient information to determine, on the balance of probabilities, that some action/s of a driver casts doubt on his fitness and propriety.
5.5 Section 57 of the Act of 1976 states -
“A district council may require any applicant for a licence …. 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.”
5.6 The Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002 sets out a relatively small number of occupations that are exempt from the provisions of the Rehabilitation of Offenders Act. These exempted occupations are the ones that the Government believes should be subject to more stringent criminal record checking than other occupations. Taxi driver and private hire vehicle driver are exempted occupations.
6.0 Representations / Submissions
6.1 The Chief Licensing Officer met with representatives of the trades associations on 25/May/2006 to discuss the matter of the frequency of criminal record checking.
6.2 It was agreed that the 3 trades association representatives attend a further meeting to put together a common proposal regarding a reduction in the frequency of criminal record checking and that that proposal be attached to the report for consideration by the Board.
6.3 The written proposal is attached and can be summarised in the following terms:
Criminal Record Check on first application and first renewal application; and then
Criminal Record Check on alternate renewals (every 3 years);
NB existing licensees would automatically fall into this category.
Exemptions
Where a person has poor previous record or has misled or attempted to mislead Officers (re declaration of criminal convictions) then a Criminal Record Check is to be undertaken on every renewal application thereafter.
Note. The trades associations also recommend that all licensees should be fully informed of any change of policy in this area.
6.4 Representatives of the trades associations have been invited to attend this meeting.
7.0 Officer comment
7.1 Licensing authorities may grant licences to drivers only where satisfied that the applicant is a fit and proper person to hold such a licence. Legislation is in place allowing a licensing authority to undertake such checks as it considers reasonably necessary to determine an application for a licence. Specific exemptions are in place that allow all convictions, including those that in other circumstances would be spent, to be considered. A licensing authority should not lightly grant applications for licences and may need to justify why a licence had been granted when checks had not been undertaken.
8.0 Financial implications
8.1 Not undertaking a criminal record check would result in the Council not needing to pay the CRB check fee (currently £36). As the Council can only recover the costs reasonably incurred the saving would have to be passed on to applicants for drivers licences by charging a lower fee.
8.2 Should a decision be taken to reduce the frequency of criminal record checking then consideration will need to be given to the method by which those savings can be passed on to applicants for licences.
9.0 Options
9.1 Make no change to the current arrangement whereby criminal record checks are undertaken on every application for a drivers licence.
9.2 Determine some other arrangement regarding the frequency of criminal record checking.
10.0 Recommendation
10.1 That Members consider the information available and representations made and determine the frequency of criminal record checking on applications for drivers licences.
10.2 Should Members decide that it would be appropriate to reduce the frequency of criminal record checking then it is recommended that they outline their requirements and require Officers to submit a further report setting out how it could be brought into operation.
18/July/2006
Liz Bashforth
Assistant Chief Executive
Legal & Governance
Town Hall
Sheffield