PAPER B3

Purpose: For Decision

Committee: LICENSING PANEL

Date: 3 FEBRUARY 2004

Title: TO CONSIDER WHETHER MR G MORROW IS STILL A FIT AND PROPER PERSON TO CONTINUE TO HOLD A HACKNEY CARRIAGE AND PRIVATE HIRE DRIVER’S LICENCE AND FOR BREACH OF HACKNEY CARRIAGE/PRIVATE HIRE DRIVER LICENCE CONDITIONS

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider whether Mr Gary Morrow of Flat 6, 32 Alexandra Road, Ryde, 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. Members will be aware that Mr Morrow requested an adjournment from the meeting on the 13 January 2004 to enable him to seek legal advice.

3. On 23 September 2003, at the Isle of Wight Magistrates’ Court, Mr Morrow was convicted of fraudulent use of a tax disc and driving without insurance, and was fined a total of £150 with £55 costs.

4. An undated letter was handed in to this office by Mr Morrow on 19 November 2003 giving an account of the offence is set out at appendix 1.

5. Mr Morrow fraudulently obtained a Hackney Carriage/Private Hire driver licence by making a false declaration on his application form.

6. Mr Morrow is also in breach of Hackney Carriage and Private Hire driver licence condition no. 3.

“3. A Hackney Carriage/Private Hire driver must notify the Council in writing immediately of any convictions imposed on him/her during the period of the Licence.”

LOCATION & SITE CHARACTERISTICS

7. Not applicable to this matter.

RELEVANT HISTORY

8. Mr Morrow applied for a licence on the 7 July 2003. He did not declare on his application form that he had a pending prosecution. Mr Morrow was granted a Hackney Carriage/Private Hire driver licence on the 10 September 2003, on

the information submitted on his application form, thirteen days prior to his conviction.

9. The investigating police officer in the case has provided a statement detailing the circumstances which 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 Morrow should have seen the statement when his case was heard in court.

It would appear that Mr G Morrow appeared in Court after the issue of a warrant for previous non appearances.

10. A copy of an extract from the Isle of Wight Magistrates’ Court register of convictions is set out at Appendix 2.

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 for an offence involving dishonesty, a person should be able to show three to five years free of convictions.

FORMAL CONSULTATION

12. Hampshire Constabulary were consulted regarding Mr Morrow and as a result the restricted statement in 8 above was prepared for the Panel.

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 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 this 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.”

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”.

Article 6 and Article 1 are particularly relevant to this case.

d) The Panel needs to be clear as 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 issue a written warning to Mr G Morrow with regard to his future conduct as a licensed Hackney Carriage/Private Hire driver.

20. To issue a formal caution to Mr G Morrow with regard to his future conduct as a licensed Hackney Carriage/Private Hire driver.

21. To suspend Mr Morrow’s Hackney Carriage/Private Hire Driver’s licence for a period to be determined by the Licensing Panel.

22. To revoke Mr Morrow’s Hackney Carriage/Private Hire Driver’s licence as he is no longer considered to be a fit and proper person to hold such a licence, due to being convicted of an offence involving dishonesty.

EVALUATION/RISK MANAGEMENT

23. Officers have considered the implications under the Human Rights Act and the Local Government (Miscellaneous Provisions) Act Part II Section 61(1). Failure to take disciplinary action against Mr Morrow could send the wrong message to the rest of the taxi trade.

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 revoke Mr Morrow’s Hackney Carriage/Private Hire Driver’s licence as he is no longer considered to be a fit and proper person to hold such a licence, due to being convicted of an offence involving dishonesty and obtaining a licence by deception.

APPENDICES ATTACHED

26. Appendix 1 – Letter from Mr Morrow

Appendix 2 - Extract from Isle of Wight Magistrates’ Court register of convictions.

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