Professionalism Through Knowledge

Protected Cautions and Convictions- Are you considering the right matters?

13/10/2017

Protected Cautions and Convictions- Are you considering the right matters?

 Is your authority only taking into account what it can do with these matters?

 

The rules 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 changed from the previous position, which could be leaving councils unable to have regard to the totality of a person's criminal history

 

Members will be aware that since 2002, councils have been able to consider to both the spent and unspent convictions of persons who apply to become licensed as a Hackney Carriage and/or Private Hire Driver.  However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 in 2002 was amended to mean that convictions are never 'spent' for the purposes of taxi driver licensing.

 

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."

 

Most Council Officers and licensees alike would not wish to dispute that councils should be able 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. Almost all Council's 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.

 

New categories of 'protected cautions' and 'protected convictions' have been introduced, which since 2013 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'

For a cautions to become 'protected', this happens simply by the passage of time.

 

This now 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.  

The recent case 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, but for now it is what it is.

 

Councils must now only ask for and consider information that they can lawfully take into account- it is recommened that applications wordings are checked for compliance or a bad day in court could follow rapidly!;

 

Please click here for a full list of matters which cannot become protected

2017

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