The fit and proper person test Ian de Prez Solicitor Advocate, Suffolk Coastal District Council 1

Judicial definition of the test McCool v Rushcliffe Borough Council All ER 889. One must it seems to me approach this case bearing in mind the objectives of this licensing regime which is plainly intended among other things to ensure so far as possible that those licensed to drive private hire vehicles are suitable persons to do so, namely that they are safe drivers with good driving records and adequate experience; sober, mentally and physically fit, honest and not persons who would take advantage of their employment to abuse or assault passengers. Lord Bingham, Lord Chief Justice 2

Section 51 of the Local Government (Miscellaneous Provisions) 1976 Provides that a licensing authority shall not grant a private hire driver’s licence unless they are satisfied that the applicant is a fit and proper person to hold such a licence. Section 59 imposes the same test in respect of applications for hackney carriage driver’s licences. Section 55 imposes the same test for private hire operators. 3

Spent convictions Herefordshire DC v Prosser [2008] EWHC 257 (Admin). Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order (SI 2002 No. 441). The licensing authority shall not go behind the existence of the conviction (see Nottingham City Council v Farooq 1998 EWHC Admin 991). 4

Other information R (on application of L) v Commissioner of Police for the Metropolis 1 AC The police decision must conduct a balancing exercise mindful of the alleged offender’s human rights under article 8 – weighing prejudice to the alleged offender against public safety. R (on application of AR) v Chief Constable of Greater Manchester 2013 EWHC An example of a case where disclosure was made despite an acquittal. 5

McCool v Rushcliffe Borough Council 3 principles of law 1.Hearsay evidence is admissible (but not rumour innuendo or gossip!). Assess the reliability of the evidence and attach appropriate weight to it 2.Licensing authority can go behind an acquittal 3.The standard of proof is the civil standard; the balance of probabilities (the so called heightened civil standard does not in fact exist Re B( Children) 2008 UKHL 35. 6

Human rights Article 6 of the ECHR will apply – right to a fair trial in civil proceedings. Article 1 of the First Protocol - Protection of property applies will not generally apply to drivers; Cherwell v Anwar DC High Court 2011 EWHC 2943 Admin. 7

Summary Make sure that the applicant/licence holder has had chance to explain/comment upon all of the relevant material. If there is a factual dispute resolve it - make findings of fact on the balance of probabilities. If it is relevant, take into account the council’s policy – if you are departing from it give reasons for doing so. Give clear and full written reasons for the decision. 8