A spent conviction by any other name...

Taxi 146x219There has been a significant change to the law regarding the convictions and cautions that can be taken into account when assessing whether someone is 'fit and proper' to hold a Hackney Carriage / Private Hire driver licence, which is leaving councils in the dark, writes Tim Briton.

Since 2002, councils have been able to have regard to both the spent and unspent convictions of persons who apply to be licensed as a Hackney Carriage and/or Private Hire Driver.  

Prior to that date, the Rehabilitation of Offenders Act 1974 served to treat applicants whose convictions were 'spent' as if they had not been charged with, convicted of or sentenced for those offences; and applicants with 'spent' convictions were under no duty to disclose their existence.

However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was amended to mean that convictions are never 'spent' for the purposes of taxi driver licensing.

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This was confirmed by the case of Herefordshire District Council v Prosser (2008) EWHC 257 (Admin), in which the council had refused Mr Prosser a licence in light of his multiple convictions which, were it not for the amended Order, would have been deemed 'spent'.  Deputy Judge Supperstone QC stated, "when one looks at the offences as a whole ... the view taken by the Justices of the offences is not compatible with the significant element of trust that is imposed with the holder of licences and with the overriding considerations of public safety. Not one of those convictions recorded against the respondent could be said to be irrelevant. All go to the heart of the fitness and propriety of this applicant to hold a licence."

Few would doubt the merits of enabling councils to determine whether a conviction is relevant to the assessment of an applicant's fitness and propriety in light of the statutory obligation not to issue a licence unless the council is satisfied that the applicant is fit and proper to hold it. Indeed, most councils have published policies setting out what criminal conduct they will take into account when making this assessment, and what weight will generally be placed on each incident or patterns of conduct.

However, amendments that were made to the Exceptions Order in 2013 have effectively blocked councils from being able to look at an applicant's offences as a whole.

New categories of 'protected cautions' and 'protected convictions' have been introduced, which mean that after the passage of time the applicant must be treated as not having been charged with, convicted of or sentenced for any of those offences.

For a conviction to become 'protected' it must be the only conviction that the individual has received, so in practical terms this is likely to be less troublesome than cautions that become 'protected', where this happens simply by the passage of time.

This means that councils cannot take into account an applicant's 'protected' cautions even where they form part of a pattern of behaviour which, when looking at the totality of the individual's conduct, would render them unsuitable to be licensed.

In the case of people with criminal records who have been issued with licences, fact that cautions become 'protected' by the passage to time will mean that councils now need to 'forget' information that they have held, and which their policies potentially indicate is actually relevant to the person's fitness and propriety.  

Last month in the case of of R (on app of P) v Secretary of State for the Home Department (2017) EWCA (Civ) 321 the Court of Appeal indicated that the current 'protected caution' and 'protected conviction' scheme needs further refinement to make it fit for purpose.

This should serve as a timely reminder to councils only to ask for (and have regard to) information that they can lawfully take into account; and moreover as a plea for the Rehabilitation of Offenders scheme to be defined in terms that allow councils to look a a person's criminal conduct as a whole and to make a fully informed assessment in their interests of public safety.

Tim Briton is a solicitor with Gateshead Council, and is Lawyers in Local Government’s National Lead Officer for Licensing & Litigation. Tim can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..