Agenda item

To consider replacing the Council’s existing criminal convictions guidance document with a more comprehensive policy, which has been drafted to reflect the recently published ‘Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades’, produced and published by the Institute of Licencing.

The Committee considered a report (Agenda Item 4) which set out proposals that had been consulted upon since the Committee Meeting on the 11 February 2019. Officers had considered the responses and where appropriate had amended the guidance issued by the Institute of Licensing. The responses to the consultation were included in the paperwork at Appendix H. The changes were summarised in Appendix F. It was explained that in excess of 300 emails had been sent out and only 11 responses had been received.

Members were being asked to consider the document and decide if any additional changes were needed.

Suzanne McLaughlin explained that it was being proposed that the fit and proper test would be applied  to existing licence holders and new applicants for Hackney Carriage driver licences, Private Hire driver licences, and Private Hire Operators licences. Officers were advocating that the Council’s existing criminal convictions guidance document be replaced with a more comprehensive policy. The intention would be to work towards a national policy with minor changes to reflect local issues so that licence holders were subject to the same scrutiny irrespective of where the licence was issued in order to protect customers.

Councillor James Cole noted that the authors of the Institute of Licencing guidance were eminent experts in this field and there he believed that cognisance should be taken of their advice.

Councillor Adrian Abbs noted that the revised rules would be applied to both new and existing licence holders and he queried if the legal implications of this had been looked into.  Suzanne McLaughlin explained that legal advice had been sought and read out that advice .In essence the advice stated that both the guidance and case law set out that each case had to be determined on its own merits at the time and that there would be no blanket response to say that an applicant would not have their license renewed just because the Council’s polices had changed. It was noted that this aspect was referred to in paragraph 1.4 of the policy which was set out on page 55 of the paperwork.

Members discussed potential concerns about applying the revised policy to existing license holders. Potentially existing licence holders that had been permitted to operate might no longer be able to do so due to changes to the exclusion periods as well as the introduction of new categories.

Sean Murphy explained that most licence holders renewed their licences every three years albeit that it was possible to renew it annually. If a crime was committed in the interim period the police would inform the Council. He reminded Members that the exclusions would only be applied where a licence holder was convicted. The decision to prosecute would be made by the Crown Prosecution Service. They would need to apply the public interest test and it was conceivable that not all cases would go to court.

Councillor Peter Argyle noted the requirement to consider each case on its own merits. He suggested that it might be useful to change the wording to ‘up to x years’ rather than ‘at least x years’.

Councillor Martha Vickers commented that the Council also had a duty to protect the public who used the services as they could be vulnerable  when using their services. The authors of the Institute of Licensing guidance were very knowledgeable on the subject and they would have given a lot of thought to the proposed timescales.

Councillor James Cole noted that there had only been a small number of responses to the consultation which could indicate support for the changes. A number of the responses did indicate support and in some instances actually advocated a more restrictive approach. Members considered all of the responses to the consultation.

Councillor James Cole queried what the other authorities in the Joint Public Protection Partnership’s views were. Officers noted that Wokingham Borough Council would be considering the document the following day.  Bracknell Forest Council had looked at the policy but had requested that it be brought back to a second meeting. In response to a question about the level of response to the consultation Officers reported that Wokingham had received a larger number of responses and that these responses generally were not supportive of the changes.

Sean Murphy stated that Members would need to balance the need to protect the public against the right of the licence holders to work. He reminded Members that many of the customers were vulnerable. He also noted the wish to work towards a national policy as licence holders could work wholly outside of the area they were licences in. Varying policies could lead to drivers choosing to be licensed in areas where the policies were more lenient. He also reminded Members that if an application was refused the applicant could appeal the decision in a Magistrate’s Court.

Councillor James Cole queried how man refusals there had been in the previous financial year. Officers responded that there had been no refusals in West Berkshire. They commented that they were not very commonplace. It was however a sector that was not without risks and there had been a few cases involving license holders over the past few years.

Members debated whether more stringent conditions could or should be applied. They noted that if they deviated too far from the national guidance the policy might be subject to challenge. Members also noted that the trade had a vested interest in their customers having faith in them as operators.

Councillor Martha Vickers proposed accepting the revised policy. Members requested that the following changes be included in the document:

·         Paragraph 1.3 (page 55) insert vehicle owners into the list;

·         Paragraph 3.2 (page 56) be amended to include the ability for the licensing authority to ask for evidence of a criminal record check where an applicant had spent six or more months overseas;

·         Consider tougher conditions for offences committed while ‘on the job’ versus offenses when not operating, the suggestion being to increase the time period from five to seven years;

·         The wording in paragraph 4.1 be amended;

·         The time periods around weapons crime be reviewed in a year’s time;

·         The policy to be reviewed annually.

RESOLVED that after considering the consultation responses the Council adopt the amended policy, subject to the inclusion of the additional amendments agreed at the meeting, as its policy position on the relevance of criminal convictions in determining whether someone is ‘fit or proper’ to hold Taxi or Private Hire Drivers Licence or Private Hire Operators Licence.