PAPER B3

Purpose: For Decision

Committee: LICENSING PANEL

Date: 11 MAY 2004

Title: TO CONSIDER WHETHER MR A D PENN IS A FIT AND PROPER PERSON TO HOLD A HACKNEY CARRIAGE AND PRIVATE HIRE DRIVER’S LICENCE

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider whether Mr A D Penn, 6 Albert Road, Shanklin, Isle of Wight, is a fit and proper person to hold a Hackney Carriage/Private Hire driver’s licence.

DETAILS

2. A request by Mr A D Penn for the Council’s Licensing Officer to use his delegated authority to issue a Hackney Carriage/Private Hire driver licence was refused on the 12 March 2004 as the Panel had previously revoked his drivers licence on the 22 May 2001. Mr Penn’s application form is attached as Appendix 1.

LOCATION & SITE CHARACTERISTICS

3. If the licence is granted Mr Penn states he will be driving for Mr Crawley (Domino Cabs, Shanklin in the former Borough of South Wight)

RELEVANT HISTORY

4. On the 22 May 2001 Mr A D Penn had his Hackney Carriage/Private Hire driver licence revoked under Section 61(1) sub-section (a)(i) as he had been convicted of an offence involving dishonesty and (b) any other reasonable grounds in that he was not considered to be a fit and proper person to hold a Hackney Carriage/Private Hire driver licence, following a court appearance for theft.

5. A letter was received on the 26 September 2002 from Mr Penn by the licensing section stating that he wished to apply again for a Hackney Carriage/Private Hire driver licence.

6. A report was submitted to consider Mr Penn’s application to the Council’s Licensing Panel on the 17 January 2003 and after hearing all the relevant facts it was resolved to refuse the application as the Panel felt there was no compelling reason to grant a licence less than two years after conviction of an offence for dishonesty.

7. On the 28 March 2003 Mr A D Penn’s appeal against the Isle of Wight Council’s Licensing Panel decision to revoke his Hackney Carriage/Private Hire driver licence was heard at the Isle of Wight Magistrates’ Court.

8. At that time the Isle of Wight Magistrates’ Court upheld the Council’s decision and dismissed the appeal by Mr Penn.

9. Mr Penn states that he has been clear of conviction since the 19 April 2001 and the Police have confirmed this.

COUNCIL POLICY

10. The Council’s policy is the Guidelines Relating to the Relevance of Convictions as issued by the Department of Transport and adopted as the Council’s policy. It shows that for an offence involving dishonesty, a person should be able to show three to five years free of convictions.

FORMAL CONSULTATION

11. The Principal Road Safety Officer has no comments to make on this application.

12. The Crime & Disorder Unit has no comments to make on this application.

THIRD PARTY REPRESENTATIONS

13. Not applicable to this matter.

FINANCIAL IMPLICATIONS

14. Broadly, Council expenditure on Licensing matters and in particular, those which are administered and enforced through Consumer Protection, balances income received from licence fees.

LEGAL IMPLICATIONS

15. The legislation governing the granting of Hackney Carriage/Private Hire driver licences is set out below:-

Local Government (Miscellaneous Provisions) Act 1976 Part II

Section 59(1)(a)

Notwithstanding anything in the Act of 1847, a district council shall not grant a licence to drive a hackney carriage –

(a) unless they are satisfied that the applicant is a fit and person to hold a driver’s licence.

16. Each case should be considered individually so as to comply with the rules of Natural Justice.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

17. Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

18. Members are advised that this application must be considered against a background of the implications of the Human Rights Act 1998.

There are three convention rights which need to be considered in this context:-

a) Article 6 - Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It has been held that the fact that there is a right of appeal to the magistrates’ court from any decision of the Panel is sufficient to make the Council’s licensing system compliant with the convention rights.

b) Article 8 - Right to respect for private and family life.

Everyone has the right to respect for his private and family life, his home and his correspondence. In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

c) Article 1 of the first protocol – protection of property.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol it states that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties”.

In this particular case Article 6 would appear to be relevant.

d) The Panel needs to be clear as to the rights granted and the need to ensure that the reasons given for any interference are proportionate and in accordance with the Council’s legitimate aim.

OPTIONS

19. To grant a Hackney Carriage/Private Hire driver licence to Mr A D Penn along with a warning letter with regard to his future conduct as a licensed Hackney Carriage/Private Hire driver.

20. To refuse the application for the grant of a Hackney Carriage/Private Hire driver licence to Mr A D Penn as the Panel consider that he is not a fit and proper person to hold such a licence due to being convicted of an offence involving dishonesty.

21. To refuse the Hackney Carriage/Private Hire driver licence application by Mr A D Penn and to inform him when the Panel think it may be appropriate for him to re-apply.

EVALUATION/RISK MANAGEMENT

22. Mr Penn has been free of conviction to three years which is in line with Council policy.

23. Officers have considered the implications under the Human Rights Act and the Local Government (Miscellaneous Provisions) Act Part II Section 61(1).

24. Insofar as any risk to the Council is concerned, the issue of Crime and Disorder and Human Rights have been evaluated. Any resolution the Panel makes is within its delegated powers.

RECOMMENDATION

25. To grant a Hackney Carriage/Private Hire driver licence to Mr A D Penn along with a warning letter with regard to his future conduct as a licensed Hackney Carriage/Private Hire driver.

APPENDICES ATTACHED

26. Appendix 1 – Mr A D Penn’s application form.

BACKGROUND PAPERS

27. Checklist for this report in relation to the Human Rights Act, Wednesbury principles, and proportionality.

Contact point: John Murphy, F 823152

ROB OWEN

Head of Consumer Protection