To consider
an application by Mr A
(separate
copy for sub-committee members only)
Minutes:
The Chairman welcomed everyone
to the meeting. He highlighted that
the decision would be made in accordance with
Gwynedd Council's licensing
policy. It was noted that
the purpose of the policy was to set guidelines for the criteria
when considering the applicant's application and the aim
was to protect the public
by ensuring that:
• A person is a fit and
proper person
• The person does not
pose a threat to the public
• That the public are safeguarded from dishonest persons
• The safeguarding of children
and young people
• The safeguarding of vulnerable
persons
• The public have confidence in their use of licensed vehicles.
The Solicitor highlighted the need
for clarity regarding what was to be
determined.
a) That it was an
application for a hackney/private
hire driver's licence before the Sub-Committee. The
application before them was not for an operator's licence
and therefore the Sub-committee's
resolution would not be a presumption of impact on other licences.
This would be for
discussion at another sub-committee.
b) That the result of the hearing
was not a revocation. It was noted that a revocation
suggested a driver's
licence that was in force.
The renewal system did not act as a review of a current licence but as a request
for a new driver's licence to be
effective from the final date of the current licence. The
only possible result from the hearing would be to grant
or refuse.
The Licensing Officer presented the written report on
the application received from
Mr A for a hackney/private hire driver's licence. The Sub-committee was requested to consider the
application in accordance with the DBS record, and
the guidelines on relevant criminal offences and convictions.
The applicant's representative
was invited to expand on the application and provide
information about the background of the offences and
the applicant's personal circumstances. It was noted that
he had run
a business for over 20 years and that
reference letters had been submitted noting that he
was a good employer and was
highly respected in the
local community.
In response to a comment regarding
the invalidity of the insurance
of the car inspected the applicant's
representative noted that the vehicle had full insurance, there was no risk
to the public, the car was safe
and the applicant had not
been found guilty. The Enforcement Officer argued that that the comprehensive
insurance for the vehicle was invalid at the time of the
inspection and a quote from
the relevant insurance policy
was given with the DBS record.
The applicant and his representative withdrew from the room while the Sub-committee members discussed the application.
RESOLVED that the applicant was not a fit and proper person to be issued
with a hackney vehicle/private hire driver's licence from Gwynedd Council.
In reaching their decision, the Sub-committee considered the following:
·
The requirements
of the 'Gwynedd Council's Licensing
Policy for Hackney Carriages
and Private Hire Vehicles'
·
the applicant's
application form
·
verbal observations presented by the applicant and his representative during the hearing
·
reference letters
·
the Licensing
Department's report along with the DBS statement disclosing convictions.
Specific consideration was given to the following matters.
The applicant had received a formal warning by North Wales Police for disorderly
behaviour or use of threatening,
aggressive or insulting language likely to cause harassment or distress. (February 2014) contrary to the Public Order Act 1986. On two occasions,
(2014 and 2015) the applicant
submitted forms to renew a driver's licence and failed
to declare on his application form a warning in 2014, contrary to the licensing condition in paragraph
6 of the Council's Licensing
Policy.
In January 2018, the applicant was found guilty by Caernarfon Magistrates Court on one charge
of allowing a vehicle to be
used as a private hire vehicle without
a current licence, contrary to section 46 (2) of the
Local Government (Miscellaneous Provisions) Act
1976. He received
a fine of £450.00, an order to pay costs
of £200 and a surcharge of
£45 to the victim.
As a result of the charge
the applicant received a driver's licence revocation notice from the Licensing Authority (February 2018) in accordance with
the provisions of section
61 of The Local Government
(Miscellaneous Provisions)
Act 1976. The revocation
was made by an officer under the delegated rights arrangements and not by a Sub-committee. The applicant submitted an appeal
to the Magistrates Court regarding the revocation and an arrangement
was agreed in a hearing (June 2018) that the applicant would withdraw his appeal, that the Council (Licensing Department) would withdraw the revocation, and the applicant's suitability as a 'fit and proper person' would be determined in a hearing before the Sub-committee.
It was highlighted that the applicant had not disclosed the
2014 warning and the 2018 offence on his application to renew his licence.
In October 2018, when submitting an application
form at Siop Gwynedd, Caernarfon, the applicant behaved in an unacceptable
manner by verbally responding in a personal and aggressive
manner to the Licensing Officer. Likewise, in a telephone call with the Line Manager of the member of staff, the applicant accused the member of staff of lying. On the following day a letter was sent to the applicant by the Line Manager outlining the incident and warning
him that no Council officer
would tolerate such behaviour.
Paragraph 2.2 of the Council's Policy was considered, this states that a person with a conviction for a serious offence
need not be automatically
barred from obtaining a licence, but would
normally be expected to remain free of conviction for an appropriate period as stated in the Policy, and to show evidence
that he/she
is a fit and proper person
to hold a licence. The applicant has a responsibility to show that he/she is a fit and proper person. Paragraph 2.3 states that the term 'other matters to be considered' may include warnings or other matters that
are relevant to 'fitness and propriety'.
Paragraph 4.5 of the Council
policy was considered which states that
the Rehabilitation of Offenders
Act 1974 (Exceptions) (Amendment)
Order 2002 allows the Sub-committee to take into account all convictions recorded against an applicant,
whether spent or otherwise under the 1974 Act.
Paragraph 6 of the Policy addresses violent offences and paragraph 6.1
states that licensed drivers have close regular contact with the public
therefore the sub-committee should adopt a robust stance with those who have
offences involving violence. Paragraph 6.5 of the Policy states that an
application for a licence will usually be refused if the applicant has a matter
to be considered for common assault that is less than three years prior to the
date of application. The paragraph lists amongst other matters offences that
deal with common assault and obstruction. Paragraph 6.6 states that an
application will normally be refused if an applicant has more than one
conviction in the last 10 years for an offence of a violent nature.
Paragraph 16.1 of the Council's policy deals with repeat offending.
Firstly, it is necessary to ensure that the convictions satisfy the individual
policy guidelines, but that they together create a history of repeat offending
that indicates a lack of respect for the welfare and property of others. The
policy states that 10 years must elapse since the most recent conviction.
Paragraph 17 of the Policy addresses breach of legislation, byelaws and licence
conditions.
17.1 states that an applicant with
a conviction for the above matters is unlikely to be granted a licence unless a period of at least 12 months has elapsed
since the most recent breach.
The Sub-committee concluded that the caution given in 2014 involved
violence and should therefore be considered under paragraph 6.5 of the
policy. However, as the conviction was
historic (beyond the policy requirements of three years) there was no reason to
refuse the application. Although the Sub-committee had decided that the
conviction on its own was insufficient to refuse the application, it was
recognised that the conviction with a combination of similar convictions, could
be grounds to refuse bearing in mind paragraphs 6.6 and 16.1.
The Sub-Committee noted that the applicant's failure in 2014, 2015 and 2018
to disclose the 2014 warning when renewing his licence breached licence
conditions. Since the last conviction had occurred three months ago, it was
anticipated that there was a need to consider paragraph 17.1. The
Sub-committee's attention was drawn to the fact that the 2018 conviction had
not been listed on the DBS statement as it was not recognised as a crime by the
National Police Records (Recordable Offences) Regulations 2000. However, the Solicitor highlighted,
although there was no record of the offence, it was still relevant to the
hearing.
In considering the October 2018 incident as outlined by the Licensing
Manager, the Sub-committee came to the decision, as the applicant had not taken
any steps to argue against the accusations, that the behaviour was of a violent
nature. The 2014 warning and the October 2018 incident were considered to be of
a violent nature, and they had taken place within the last ten years. Consequently, paragraph 6.6 of the policy was
being considered.
Additionally, the 2014 warning, 2018 conviction and the October 2018
incident were a series of repeat offending within ten years, that demonstrated
a lack of respect towards the welfare and property of others. Again, this led to the Sub-committee's decision
to consider paragraph 16.1.
The Solicitor highlighted, although there were clear
reasons to refuse the application, the Policy's provisions were not mandatory, and that it was possible to deviate from the recommendations if the facts of the case justified this.
It
was noted that 'fit and proper', amongst
other matters, required an assessment
of the applicant's business
competence, which would include looking
at the care given when submitting paperwork to renew a licence. The applicant failed to note the 2014 warning three times
which suggested a disorderly slap-dash attitude towards paperwork and an
attempt to hide relevant information.
It
was noted that 'fit and proper' also
considered if the applicant could behave in a way
that was not threatening under challenging situations. The applicant should be able to act in a calm and
composed manner in any dispute
or there would be doubts about the way he treats
customers. If the applicant had acted in a proper
manner in October 2018, the 2014 warning would be an individual
matter and therefore it would not be necessary to consider paragraph 6.6 (re-offending). The
Sub-committee noted that in future
the applicant when applying for a licence should treat Council officers
with respect.
Having considered all the elements, the Sub-committee were not convinced that they should deviate
from the presumption to refuse the application. As a result, the application was refused.
The
Solicitor reported that the
decision would be confirmed formally
by letter sent
to the applicant and the Licensing
Unit would be in contact to
confirm the licence
documentation