PAPER B2

Purpose: For Decision

Committee: LICENSING PANEL

Date: 17 OCTOBER 2003

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

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider whether Mr Mark Alston is still a fit and proper person to hold a Hackney Carriage/Private Hire driver’s licence, and what action, if any, to take following his recent conviction.

DETAILS

2. On 22 August 2003, Mr Alston was convicted of the offence of possession of cannabis. He was fined £50 with £500 costs.

LOCATION & SITE CHARACTERISTICS

3. Not applicable to this matter.

RELEVANT HISTORY

4. Mr Alston’s initial application for a licence, was considered by the Licensing Panel, on 14 May 2002. The Panel took into consideration Mr Alston’s relevant previous convictions, which were spent, and a conviction in 1999 for producing cannabis, for which he had received a fine.

5. After hearing the evidence, the Panel resolved to grant a licence to Mr Alston, on the condition that the licence should not commence until the receipt of a CRB check showing no other convictions, and subject to a written warning being issued to Mr Alston regarding his future conduct as a licenced Hackney Carriage/Private Hire driver.

6. On receipt of the CRB check on 8 July 2002 it was noted that there were two Cautions listed, one was in 1997 and one in 1999. Mr Alston therefore appeared again before the Panel on 19 July 2002, when it was resolved that a licence should be issued with a written warning, the licence to be for a period of 6 months with a review after that time, followed by another 6months with a review, followed by one year, with a review. It was also noted, and Mr Alston was informed in writing, that should he appear before the Panel again it would be viewed extremely seriously.

7. The licence was issued on 19 July 2002, to expire on 31 January 2003. The Licensing Officer noted that there had not been any problems and a further licence was issued from 1 February 2003 to 30 June 2003. Again, the Licensing Officer noted that there had not been any problems so a further licence was issued, this time for one year, to expire on 30 June 2004.

8. Mr Alston was convicted in IW Crown Court on 22 August 2003 of Possession of Cannabis.

9. The investigating police officers in the case have provided a statement detailing the circumstances that led to the charges and subsequent conviction. The statement is marked RESTRICTED, but the Panel may consider this in private session should they wish to do so, and a copy will be available. Mr Alston should have seen the statement when his case was heard in court.

10. The IW Crown Court has confirmed the details of the conviction and sentence.

COUNCIL POLICY

11. 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 following a drug-related conviction, a person should be able to show a period of at least three years free of convictions.

12. Hackney Carriage/Private Hire Driver’s Licence Condition no.7, states that the licence may be suspended, or revoked and not renewed by the Council:-

(a) If the driver commits an offence or otherwise fails to comply with the provisions of the Town Police Clauses Act 1847 and Part 2 of the Local Government (Miscellaneous Provisions) Act 1976;

(b) If the driver has been convicted of an offence involving dishonesty, indecency or violence;

(c) If the driver has become disqualified from driving under any of the Road Traffic Acts, in which case the licence shall be automatically revoked;

(d) On any other reasonable grounds.

FORMAL CONSULTATION

13. Not applicable to this matter.

THIRD PARTY REPRESENTATIONS

14. Not applicable to this matter.

FINANCIAL IMPLICATIONS

15. 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

16. The Panel will be aware that this is not a re-hearing of the Magistrates’ decision, as Mr Alston has already been convicted.

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

18. The Local Government (Miscellaneous Provisions) Act 1976 Part 2 governs the licensing of Hackney Carriage/Private Hire Drivers, and Section 61 (1) is set out below:-

“Notwithstanding anything in the Act of 1847 or in this part of the Act, a district Council may suspend or revoke or (on application therefore under Section 46 of the Act of 1847 or Section 51 of this Act, as the case may be), 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.”

19. In arriving at their decision the Panel will have taken into account all relevant matters, and not taken into account any irrelevant matters.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

20. 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

21. Members are advised that this matter should 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) 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 in 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.

b) Article 1 of the first protocol states, “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.”

Article 1 has particular relevance in this matter, as a hackney carriage/private hire driver’s licence is deemed to be a possession.

c) 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 aims.

OPTIONS

22. To issue a written warning to Mr Alston with regard to his future conduct as a licensed Hackney Carriage/Private Hire Driver.

23. To suspend Mr Alston’s Hackney Carriage/Private Hire Driver’s Licence for a period to be determined by the Licensing Panel.

24. To revoke Mr Alston’s Hackney Carriage/Private Hire Driver’s Licence as he is no longer considered a fit and proper person to hold a Hackney Carriage/Private Hire Driver’s Licence.

EVALUATION/RISK MANAGEMENT

25. Officers have considered the implication under the Human Rights Act 1998 and the Local Government (Miscellaneous Provisions) Act 1976 Part 2, Section 61 (1). Failure to take disciplinary action against Mr Alston could send the wrong message to the rest of the taxi trade and could make the travelling public feel uneasy whilst in licensed vehicles.

RECOMMENDATION

26. To revoke Mr Alston’s Hackney Carriage/Private Hire Driver’s Licence as he is no

longer considered a fit and proper person to hold such a licence.

APPENDICES ATTACHED

27. None

BACKGROUND PAPERS

28. Checklist for this report in relation to the Human Rights Act 1998, Wednesbury Principles and proportionality.

Contact point : John Murphy, Tel. 823152

ROB OWEN

Head of Consumer Protection