The fit and proper person test and acquittals in the criminal courts

An appeal court has recently considered a taxi driver’s licence revocation after his acquittal in criminal courts. Gary Grant explains the outcome.

Mr Donald Richards is the owner-operator of Ashdown Cars in Crowborough, East Sussex. He has driven taxis and private hire vehicles for over 40 years under the authority of a dual hackney carriage/private hire driver licence issued by Wealden District Council. He was a popular and well-known figure in his home town.

Over the years the Council had received some complaints about his behaviour but none had resulted in any formal sanction. Things changed drastically in 2019. The Council became aware of a number of incidents that gave rise to serious concerns as to whether he remained a fit and proper person to hold a dual driver’s licence.

In July 2019 Mr Richards was arrested following a report to police by his daughter alleging she had witnessed an incident of domestic violence in the family home. The police did not take any further action in response to this allegation. Mr Richards failed to report his arrest to the Council as required by the Council’s Taxi Handbook.

Then a female passenger, who used his services to ferry her children to school, complained to the police that between July and September 2019, Mr Richards had made sexually provocative remarks to her that escalated into more hands-on inappropriate sexualised contact as she rode in his taxi. The police, once again, decided to take no action but referred the complaint to the Council indicating they should consider his suitability to work as a taxi/PHV driver.

A further incident occurred in October 2019 when Mr Richards got into a fight with a fellow taxi driver outside Crowborough Railway Station over an unpaid debt owed to him. The complainant ended up in A&E as a result of his injuries. This time the police did prosecute Mr Richards, but he was later acquitted of common assault at a summary trial before Brighton Magistrates’ Court on the grounds that he was acting in self-defence.

The Council’s Decision

At a licensing hearing before Wealden Council in November 2019 the Council determined to revoke his dual driver’s licence on the grounds that he was no longer a fit and proper person to hold a dual driver’s licence and this amounted to a “reasonable cause” to revoke (under s.61(1) (b) of the Local Government (Miscellaneous Provisions) Act 1976, “the 1976 Act”) . The Council also determined that the revocation should have immediate effect in the interests of public safety (under s.61(2B) of the 1976 Act).

Post-revocation hirings

Following the immediate revocation of this licence, Council investigators (including Nigel Harwood and Mark Randolph) discovered that Mr Richards had continued to drive customers of his taxi company. Some, by his own admission, he drove for free, whilst the evidence suggested he had also accepted payment for a number of other trips - despite doctored operator records and his denials.

Appeal proceedings

After considerable, but now familiar, delays in listing the appeal it was heard by lay justices at Brighton Magistrates’ Court between 11 – 13 August 2021.

The magistrates’ court was now faced with a number of allegations where the police had either decided to take no further action or, in the case of the assault, had resulted in an acquittal in court.

What was the correct approach of the appeal court in such cases?

The Council argued that because the criminal jurisdiction applied a different standard of proof to licensing, the approach of the police and criminal courts’ to the issues were not determinative of the correct decision in the licensing field. In the criminal jurisdiction cases would only be prosecuted if there was a reasonable prospect of conviction and a conviction could only follow if the Court was “sure” of guilt. In contrast, in licensing, factual disputes were to be determined on the civil standard, namely on the balance of probabilities or, in other words, whether it was more likely than not that the incidents had in fact occurred.

In support of their submissions, the Council referred the Court to this passage in the High Court judgment in Leeds City Council v Hussain [2002] EWHC 1145 where Silber J considered the existing authorities and stated:

“[15] Indeed, in R. v Maidstone Crown Court Ex p. Olson, The Times, May 21, 1992, it was held that a local authority was entitled, for the purpose of seeking to rebut his contention that he was a fit and proper person to hold a licence, to go behind the applicant’s acquittal entered on the hearing of an appeal of a charge of indecently assaulting a passenger.

[16] More recently, in McCool v Rushcliffe Borough Council, the Divisional Court upheld a decision of the Crown Court that the local authority was permitted to examine the facts which had led to a charge being made against the applicant driver of indecently assaulting a passenger for the purpose of seeking to rebut his contention that he was a fit and proper person to hold a licence even though the applicant had been acquitted of that charge. In other words, in both cases the local authority was permitted to suspend the driver’s licences on grounds of criminal conduct even though the holders of the licence had been found not guilty of those relevant offences.”

The Court accepted that the Council’s approach was correct in law.

Similarly, the Court agreed with the Council’s submission that the impact on the livelihood of the driver was not a relevant consideration because the licensing regime focused on public safety as the paramount consideration (in line with the dicta in Leeds City Council v Hussain (ibid) and Cherwell District Council v Anwar [2011] EWHC 2943).

In relation to Mr Richards’ claim that he undertook all the post-revocation taxi journeys “for free” and, primarily, in his unlicensed personal car, the Council submitted that – even if believed – this did not assist him. The Divisional Court has previously ruled that the commercial benefit derived by the driver in protecting the goodwill of the business sufficed for the transactions to constitute a hiring even if no money was exchanged (see St Alban’s District Council v Taylor [1991] RTR 400).

During the appeal Mr Richards insisted that the allegations against him were all malicious fabrications. He suggested that a rival taxi company may have orchestrated them to put a rival out of business. In words Mr Richards used before the Council hearing, his customers could be assured that “their daughters would get home with their knickers on”.

Mr Richards produced a number of character witnesses from impressive individuals including from the local doctors’ surgery attesting to his good character. His lawyer forcibly argued that a man who had driven a taxi for over 40 years without any hint of sexual impropriety was unlikely to have suddenly turned into a sexual predator. In response, the Council observed that in recent years a number of famous and popular individuals had turned out to be just that. A positive previous good character was not conclusive of culpability.

The Council referred the Court to the guidance on the “fit and proper” test within the “Statutory Taxi and Private Hire Vehicles Standards” published by the Department of Transport in July 2020. The guidance, which incorporates a formulation of the test proposed by the Institute of Licensing, states [at paragraphs 5.12-5.14]:

“Fit and proper test

Licensing authorities have a duty to ensure that any person to whom they grant a taxi or private hire vehicle driver’s licence is a ‘fit and proper’ person to be a licensee. It may be helpful when considering whether an applicant or licensee is fit and proper to pose oneself the following question: Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night? If, on the balance of probabilities, the answer to the question is ‘no’, the individual should not hold a licence. Licensing authorities have to make difficult decisions but (subject to the points made in paragraph 5.4) the safeguarding of the public is paramount. All decisions on the suitability of an applicant or licensee should be made on the balance of probability. This means that an applicant or licensee should not be ‘given the benefit of doubt’. If the committee or delegated officer is only “50/50” as to whether the applicant or licensee is ‘fit and proper’, they should not hold a licence. The threshold used here is lower than for a criminal conviction (that being beyond reasonable doubt) and can take into consideration conduct that has not resulted in a criminal conviction.”

After careful scrutiny of the evidence the Court found the evidence of the female passenger to be credible. They also found that Mr Richards had unlawfully taken on paid hirings after the revocation of his licence. In relation to the common assault, the Court did not take a different view to the magistrates’ court that had previously acquitted him in criminal proceedings.

On the basis of these factual findings the Court found that Mr Richards was not a fit and proper person to hold a dual taxi/PHV licence. Therefore, the Council’s decision to revoke his licence with immediate effect was correct. His appeal was dismissed. In addition Mr Richards was ordered to to pay £10,000 towards the Council’s costs in responding to the appeal.

Conclusion

This case provides a good example of the proper approach to the fit and proper test being applied in practice in taxi licensing cases. The responsibility and trust placed on a taxi driver is an extraordinary one. Passengers get into a vehicle, often with an unknown driver who could lock the doors and take the passenger wherever they wish. A passenger places themselves under the complete control of their driver for the duration of their journey. Passengers must have complete confidence that they can rely on their driver not to betray the trust placed in them. That is the primary purpose of the taxi licensing regime. Where the evidence suggests, on the balance of probabilities, that the driver was not a safe and suitable driver, then licensing authorities are under a duty to intervene to protect the safety of the public, no matter what the impact may be on the livelihood of the driver in question. This appeal decision endorses that important role.

Gary Grant, Barrister at Francis Taylor Building, acted for the Wealden District Council instructed by Andy Eaton and Kirstie Leighton of Wealden and Rother DC’s combined legal department.