Convictions Policy. Private Hire & Hackney Carriage Driver Licences

Transcription

1 Convictions Policy Private Hire & Hackney Carriage Driver Licences

2 1. Background 1.1 It is a function of the Council to issue Hackney Carriage and Private Hire licences under the Local Government Miscellaneous Provisions Act In Wakefield, licensing and enforcement matters are dealt with by the Licensing Section. 1.2 The paramount concern when licensing hackney carriage and private hire drivers is the protection of the travelling public including other road users. The aim of this policy is to ensure that public safety is not compromised. 1.3 All licences are issued with a set of Conditions which the licence holder must comply with. Copies are attached to every licence and are available on request. 1.4 The Council must ensure that applicants / licence holders are and remain fit and proper to hold a licence. This requirement is contained within Sections 51 and 59 of the Local Government (Miscellaneous Provisions) Act 1976 (Part II). To do this, the Council have adopted the guidelines as set out below. 1.5 In this policy the word Conviction is to be defined as including convictions, cautions, warnings, reprimands and other relevant information. 1.6 In this policy from date sentence has ended means from the date the sentence given has ended and not sentence served has ended. 2. Applying the Guidance 2.1 The purpose of this policy is to provide guidance to an applicant or existing licence holder on the criteria taken into account by the Council when determining whether or not a person is fit and proper to hold a hackney carriage or private hire driver's licence. 2.2 Although each case will be decided on its own merits, when determining whether or not a person is fit and proper to become, or remain a licensed driver. The Council shall only depart from the Policy in exceptional circumstances. The otherwise good character and driving record of the applicant or licence holder will not ordinarily be considered as exceptional circumstances. 2.3 Whilst it is possible that an applicant or existing licence holder may have convictions that individually comply with the policy, the overall offending history and conduct of the applicant/licence holder will be considered. Appropriate weight will be applied where a series of convictions / incidents have been incurred over a period of time. When there are a number of convictions incurred by an applicant or licence holder which are detailed in this policy, weight will be given to the more serious offence. However, additional weight may be attached when considering any other relevant offences

3 2.4 For renewal applications and current licence holders the guidance will not be applied retrospectively. The Policy will be applied if any additional convictions are incurred or brought to the attention of the Council that would call into question a person s suitability to hold a licence. 2.5 When determining whether a person is fit and proper, the Council must under the Human Rights Act, Article 1 of Protocol 1 have regard to the following: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 2.6 Applicants for private hire and hackney carriage licences need to be aware that, as a consequence of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, they are excluded from the provisions of the Rehabilitation of Offenders Act 1974, in relation to spent convictions. This means that all convictions, cautions, warnings and reprimands must be declared. 2.7 When considering evidence of an applicants/licence holders fitness to hold a driver s licence, where previous convictions or other information relating to criminal matters are disclosed, the Council will consider the nature of the offence, when the offence was committed, the date of conviction, the applicant s age, and any other factors which might be relevant. Where an applicant has been convicted of a criminal offence, the Council cannot reconsider the circumstances of the conviction. 2.8 Whilst a licence will normally be granted after the elapsed period there may be circumstances where the elapsed period will be extended. For example; where an offence took place whilst a person was acting in a professional capacity including acting as a licensed private hire or hackney carriage driver. 2.9 Any foreign offence disclosed by the applicant/licence holder or revealed on an enhanced Disclosure & Barring Service Disclosure will be dealt with in line with this policy Any offences not covered by this Policy will not prevent the Council from taking into account the offences. 3. Responsibilities of the Applicant/Licence Holder 3.1 It is the responsibility of the applicant/licence holder to satisfy the Council that they are a fit and proper person to hold a licence. The applicant/licence holder must ensure that all convictions, cautions, warnings, reprimands, fixed penalties, arrests and summonses are disclosed to the Council

4 3.2 Any current hackney carriage/private hire driver licence holder is required by condition attached to their licence to notify the authority within 7 days of: a) any conviction (motoring or criminal) b) any caution, warning or reprimand (issued by the Police or any other agency) c) their arrest for any offence (whether or not charged) d) issue of any Magistrates Court summons against them e) any fixed penalty notice for any matter 4. Options when determining application/licence 4.1 When determining an application or reviewing an existing licence the Council have the following options: approve the application or take no further action refuse the application / revoke the licence / suspend the licence For existing drivers who have accumulated 9, 10 or 11 points on their DVLA driving licence, their private hire or hackney carriage driver licence will be suspended, until the driver has successfully undertaken a private hire or hackney carriage DSA driving test, at their own expense. 5. Appeal Rights 5.1 Any person whose application is refused or licence revoked or suspended by the Council has a right of appeal to the Magistrates Court. An Appeal must be lodged within 21 days of the decision at the appropriate Magistrates Court. Appeal rights are contained in Section 77 of the Local Government (Miscellaneous Provisions) Act 1976 (Part II) and Section 300 of the Public Health Act

5 CONVICTIONS POLICY This schedule sets out the offences and the period of time elapsed before a licence will normally be granted or allowed to continue. The policy may be amended from time to time. 6. Dishonesty Perverting the course of justice All Dishonesty offences Caution, warning or reprimand for any dishonesty offence Conditional Caution 10 years from date of sentence or if an imprisonment or suspended sentence imposed 10 years from date sentence has ended. 5 years from date of sentence or if an imprisonment or suspended sentence imposed 5 years from 12 months 2 years 7. Violence Murder Manslaughter Arson Wounding Grievous Bodily Harm Actual Bodily Harm Robbery Aggravated Burglary Possession of Offensive Weapon/Imitation/ Weapon/Firearm Riot Common Assault Damage Public Order s Assault on Police Officer Battery Harassment Caution, warning or reprimand for any Violence offence Conditional caution No period is thought appropriate to have elapsed and an application would normally be refused 10 years from date of sentence or if an imprisonment or suspended sentence imposed 10 years from date sentence has ended. 5 years from date of sentence or if an imprisonment or suspended sentence imposed 5 years from 12 months 2 years - 5 -

6 8. Drugs Possession with intent to supply drugs 10 years from date of sentence Trafficking drugs or if an imprisonment or Manufacturing drugs suspended sentence imposed 10 years from date sentence has ended. 2 or more offences 15 years from date last sentence has ended Possession only 3 years from date of sentence or if an imprisonment or suspended sentence imposed 3 years from 2 or more offences 5 years from date last sentence has ended Caution, warning or reprimand for any drug 12 months offence Conditional caution 2 years 9. Drunkenness (no vehicle involved) Any Drunkenness offence not involving a vehicle e.g. Drunk & Disorderly, incapable through drink Caution, warning or reprimand Conditional caution When 2 or more offences, 3 years from date of most recent conviction 12 months 2 years 10. Sexual/Indecency Where an applicant or licence holders details are held on the Sex Offenders Register an application would not be granted and a licence would be revoked. Rape Sexual Assault Child sex offences Abuse of position of trust Familial Child sex offences Indecent photographs of children Abuse of children through prostitution or pornography Exploitation of prostitution Trafficking Preparatory offences Gross Indecency Buggery Unlawful Sex Exposure No period is thought appropriate to have elapsed and an application would normally be refused 3 years from date of sentence or if imprisonment or suspended

7 Voyeurism Soliciting a prostitute sentence imposed 3 years from 12 months from date of sentence or if imprisonment or suspended sentence imposed 12 months from 11. Miscellaneous s Breach of Probation / Community Order Being carried in a vehicle without owners consent Restrict or Obstruct a police officer s of Harassment Sending offensive communication Involvement in unlawful immigration s of Benefit fraud not including dishonesty Caution, warning or reprimand for any Miscellaneous Conditional caution 3 years from date of sentence or if an imprisonment or suspended sentence imposed 3 years from 3 years from date of sentence or if an imprisonment or suspended sentence imposed 3 years from 3 years from date of sentence or if an imprisonment or suspended sentence imposed 3 years from 2 years from date of sentence or if an imprisonment or suspended sentence imposed 2 years from 12 months 2 years 12. Motoring or more points / Disqualification Disqualification under totting up Accumulation of 12 or more points and no disqualification due to exceptional circumstances Accumulation of 12 or more points and Courts not considered disqualification Any other form of disqualification 12 months from end of period of disqualification 12 months from date determined by the Court 12 months from the date of most recent offence or date the Council has knowledge of the offence 12 months from end of period of disqualification - 7 -

8 12.2 Major Road Traffic s Causing death through careless driving when unfit through drink (CD40) Causing death through careless driving when unfit through drugs (CD50) Causing death by careless driving with alcohol level above the limit (CD60) Causing death by careless driving then failing to supply a specimen for analysis (CD70) Causing death through careless driving then failing to supply a specimen for drug analysis (CD71) Manslaughter or culpable homicide while driving a vehicle (DD60) Causing death by dangerous driving (DD80) AC10 Failing to stop after accident AC20 Failing to report an accident AC30 undefined accident offences BA10 Driving whilst disqualified DD40 Dangerous driving DR10 Driving or attempting to drive with alcohol level above limit DR20 Driving or attempting to drive while unfit through drink No period is thought appropriate to have elapsed and an application would normally be refused 5 years from date of conviction or if applicable 5 years from date disqualification ended or term of imprisonment ended DR30 Driving or attempting to drive then failing to provide a specimen DR31 - Driving or attempting to drive then failing to supply a specimen for drug analysis DR40 in charge of a vehicle while alcohol level above limit DR50 in charge of a vehicle while unfit through drink DR60 Fail to provide a specimen for analysis in circumstances other than driving / attempting to drive DR61 - Fail to provide a specimen for drug analysis in circumstances other than driving / attempting to drive DR70 Failing to provide specimen for breath test DR80 driving or attempting to drive when unfit through drugs DR90 in charge of a vehicle when unfit through drugs MS50 Motor racing on the highway - 8 -

9 UT50 Aggravated taking of a vehicle Aiding, abetting, counselling or procuring (offence as coded above, but with 0 changed to 2 i.e. AC10 becomes AC12) Causing or Permitting (offences as coded above, but with 0 changed to 4 i.e. AC10 becomes AC14) Inciting (offences as codes above, but with 0 changed to 6 i.e. AC10 becomes AC16) 12.3 No insurance No insurance driving without insurance or causing or permitting no insurance No insurance 2 or more offences within a 3 year period 12 months from date of conviction 2 years from date of most recent conviction 12.4 Using mobile phone whilst driving Using mobile phone whilst driving 2 or more offences within a 3 year period 12 months from date of most recent conviction , 10, 11 points on DVLA driving licence For existing drivers who have accumulated 9, 10 or 11 points their private hire / hackney carriage driver licence be suspended until the driver has successfully undertaken a private hire/ hackney carriage DSA driving test, at their own expense. New applicants are required, as part of the application process, to undertake a DSA driving test and therefore will be able to satisfy the Council of their driving ability

10 13. Private Hire/Hackney Carriage s At this or any other Local Authority Acting as an unlicensed private hire or hackney carriage driver Plying for hire Obstruction of an officer 12 months from date of conviction 2 or more offences 4 years since date of last conviction Any other private hire or hackney carriage Requirement to pass offence including cautions, warnings and reprimands knowledge test within 3 months of date of conviction 2 offences 12 months from date of most recent conviction More than 2 offences 4 years from date of most recent conviction 13.1 If a licence holder plies for hire in a private hire vehicle the Council will suspend the driver licence with immediate effect in the interests of public safety. The Council will determine promptly but in any event no later than 28 days if there is sufficient evidence to prosecute the licence holder in the Magistrates Court and if so the suspension will remain in place until the case is determined. Once the case is determined the Council will decide what further action is to be taken in line with the policy. If the evidential test is not met then the suspension of the driver licence will be lifted Where a new application is pending and the applicant is reported for committing an offence under the hackney carriage or private hire legislation, the application will not be determined until the prosecution has been processed through the Court Applicants are required to disclose all hackney carriage and private hire offences on their application form and checks will be carried out to ascertain whether offences have been committed in other Local Authority areas. 14. Breach of Conditions attached to licence Breach of condition (not covered in other sections of the Policy) Stage 1 Breach of condition attached to licence following; 2 previous warning letters for breach of conditions within a period of 3 years Stage 2 Breach of licence condition following Stage 1 within a period of 3 years Requirement to pass knowledge test within 3 months 3 months from date condition breached

11 15. Disclosure & Barring Service Certificate 15.1 Protection of Children Act List Information/Protection of Vulnerable Adults List Information/Information from List Under s142 Education Act 2002 Any information contained in the Enhanced Disclosure & Barring Service Certificate that identifies that a person is not suitable to work with children or vulnerable adults will normally be refused. 16. Other Relevant Information 16.1 Information supplied by the Police Service as either Additional or Approved is done so after a thorough and robust risk assessment. The provision to disclose this information is set out in Part V of the Police Act 1997 in particular Section 115 deals with Enhanced Disclosures. Section 115 (7) requires the DBS to request the Chief Officer of every relevant police force to provide any information, which in their opinion: Might be relevant Ought to be included in the Disclosure 16.2 Information is provided that has a direct bearing on the role applied for and has been considered as such taking into account human rights and data protection. This information in particular relates to cases that may not have reached Court for what ever reason and in some cases where investigations are still ongoing (additional information) and it is felt that the Registered Body should be informed in order to protect the public/vulnerable groups Details regarding convictions can also be provided to ensure that the Registered Body are fully aware of the circumstances of a particular crime ensuring that an informed decision is made It is recognised that the decision taken to disclose may have an effect on the career and life of the applicant however, paramount is the safety of the vulnerable groups and each piece of information is considered on its own merit In summary, Police Forces supply information to Registered Bodies that is relevant to the post applied for and should be considered very carefully by that Registered Body in relation to the protection of the vulnerable groups with which they will be working. Not to do so may put those groups at risk of serious harm Where information contained in the Enhanced Disclosure & Barring Service certificate relating to Other Relevant Information is disclosed by the Police demonstrating a pattern of behaviour which gives rise to concern the application or licence will normally be refused or revoked

12 17 Suspensions / Revocations 17.1 A licence will be suspended by an Officer of the Council, with immediate effect, in the interest of public safety, in the following circumstances: A person is charged with a criminal offence in respect of which the sentencing powers carry a term of imprisonment or A person is summonsed to appear in Court for such an offence A person is deemed by a qualified general practitioner that the individual is unfit to drive to Group 2 Medical Standards A person after experiencing a change in medical condition fails to provide proof of his/her fitness to drive to Group 2 Medical Standards A person fails to provide a valid photo card DVLA driving licence, on request (in respect of , and until such time as the person has complied or upon expiry of the licence) 17.2 A licence will be revoked by an Officer of the Council with immediate effect in the interest of public safety in the following circumstances: a person s Ordinary Road Traffic Act Driving licence is revoked or suspended a person is disqualified from driving for any period of time. 18 Review 18.1 This policy will be continuously monitored and, if necessary, a review will be undertaken. It will be fully reviewed triennially. The policy was last reviewed in August 2012, although minor amendments were implemented on 1 July 2012 and 4 June