To consider
an application by Mr A
(separate
copy for sub-committee members only)
Minutes:
a)
The Chair welcomed everyone
to the meeting. He explained 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 with the aim of protecting the public by ensuring
that:
• The individual is a fit and proper person
• The person does not pose a threat to the public
• The public are safeguarded from dishonest
persons
• Children and young people are protected
• Vulnerable persons are protected
• The public have confidence in using licensed vehicles.
The Licensing
Officer presented a written report on an 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. It was highlighted that an application from Mr A to renew his
hackney / private hire driver's licence had been refused by the Sub-committee
on 21.11.18. Mr A noted that the incident had taken place on his stag night and
that his behaviour was out of character. He regretted what he had done and
explained that he had apologised to the shop owner for his behaviour the
following morning. He was not aware that
the receiving of a caution was considered a conviction
and that it would appear on his DBS record. He expressed that he was now
working and had gained a first responder qualification – he had submitted a
personal statement, testimonials and references to support his application.
His prospective employer (should the application be approved) had no
additional comment to make.
The applicant and his representative withdrew from the room while the
Sub-committee members discussed the application.
b) It was RESOLVED that the
applicant was a fit and proper person to be issued
with a hackney vehicle/private hire driver's licence from Gwynedd Council.
c) In reaching its decision, the Sub-committee considered the following:
·
The requirements of
'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
·
the Licensing Department's report
along with the DBS statement
·
the applicant’s personal statement, testimonials /
references
Particular consideration was given to the
following matters.
The applicant had received convictions for a series of offences (January
2010). The first conviction was for failing to surrender to custody at the
allocated time, contrary to the requirements of the Bail Act 1976. He was fined £100.00 and ordered to pay £85 in costs. The
second conviction was for being drunk and disorderly under Section 91 of the Criminal
Justice Act 1967 (January 2010) where he was fined
£50. The applicant received a conviction from Wolverhampton Magistrates' Court
(February 2010) for damaging a property contrary to section 1 of the Criminal
Damage Act 1971. He was fined £65 and ordered to pay costs of
£85. In May 2017, the applicant received a caution from North Wales
Police for the use of threatening and insulting language/behaviour, or
disorderly behaviour intending to cause alarm / distress, contrary to the
Public Order Act 1986.
Paragraph 2.2 of the Council's Policy was considered, which 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 any 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 prove that he is a fit and proper person.
Paragraph
2.3 of the Policy confirms that "other matters to be considered" do
include cautions.
Paragraph
4.5 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. Paragraph 6.1 states that, since licensed
drivers come into close contact regularly with the public, the sub-committee shall
take a firm stance towards 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 (including cautions) for common assault and/or an offence
under S4 of the Public Order Act 1986 which happened less than three years
before the date of application. Paragraph 6.6 also states that an application will normally be refused if an applicant has more than one
conviction for an offence of a violent nature, or other matter to be considered
in connection with that, within the last 10 years.
The Sub-committee also gave consideration to
paragraph 16.1 of the Council's policy that deals with repeat offending.
Firstly, it was necessary to ensure that the convictions satisfied the policy
guidelines individually, but that they together created a history of repeat
offending which indicated a lack of respect for the welfare and property of
others. Under the Policy it is a requirement that 10
years have elapsed since the most recent conviction.
The Sub-committee determined that the offences in this application were
identical to those that had been considered by the
Sub-committee of 21 November 2018 in connection with a previous application made
by the applicant in 2018 for a hackney vehicle / private hire driver's licence.
Although the present Sub-committee was not bound fully
by the findings of the 2018 Sub-committee, they were duly addressed by it.
The 2018
Sub-committee had found that there was no specific provision in the Policy that
applied to offences of failing to surrender to bail and being drunk and
disorderly. Although these convictions were considered to be
serious, in light of their historical nature and in the absence of any
specific Policy recommending refusal, these convictions, individually, were not
grounds for refusing the application. The Sub-committee on the current
applicant were in agreement.
In considering the caution issued in 2017, the Sub-committee of 2018 had
found that the caution related to violent offending. The 2019 Sub-committee
came to the same conclusion.
Combined, the
Sub-committee of 2018 considered that the convictions of 2010 and the caution
of 2017 constituted more than one conviction or matter to be
considered within the past 10 years for an offence of a violent nature,
and therefore, under paragraph 6.6 of the Policy they were grounds for refusing
the application. In addition, the Sub-committee was of the opinion that repeat offending which indicated a lack of respect for the welfare
or property of others, was relevant to paragraph 16.1 of the policy.
A year later, it
was considered that the 2010 conviction and the caution in 2017 still
constituted 'more than one conviction or matter to be considered within the
past 10 years after making an application', and that this would remain the case
until the expiry of the 10 year period – namely 7
February 2020 in this case. Re-offending with
disregard to others or their property also still remained within the 10 year
timeframe, therefore in the circumstances, the present Sub-committee was
satisfied that the presumptions in favour of refusal under paragraphs 6.6 and
16.1 of the Policy applied. Even if the 2010 conviction was disregarded, the
2017 caution was sufficient grounds on its own to refuse the application under
paragraph 6.5 of the Policy until the three year
period had expired – in this instance, 29 May 2020.
The Solicitor
highlighted that the Policy's provisions were not mandatory and that the
Sub-committee could deviate from the recommendations if the facts of the case
justified that. Particular consideration was given
to paragraph 3.5 of the report which addressed the
seriousness of the offences, their relevance, the date they were committed, the
date of conviction and the applicant's age at the time of conviction, the
sentence given by the Court and whether the offences related to a pattern of
offending, as well as any other relevant factors.
Having considered the
background of the incident that had happened in 2017, the 2018 Sub-committee
had not been satisfied, despite the applicant admitting that he was guilty,
that the reasons for his behaviour were enough to excuse the offence. It was noted that the applicant had a hackney driver's licence
at the time of being cautioned by North Wales Police, and that this information
had not been shared with the Licensing Department. It seems the information had been shared when completing a licence renewal
application. Despite the applicant's explanation that he had not been aware of
the need to disclose the information about the caution, the Sub-committee did
not accept this since the licence application form clearly stated the need to
disclose information about offences and cautions. As a driver, he should have
been aware of this need.
The Sub-committee considered that the applicant had not
made an honest statement to his employer and that this in itself evidenced that
we has not a fit and proper person.
However, having
received a personal statement, testimonials and a reference which, amongst
other matters, addressed the incident that had led to the caution in 2017, the
Sub-committee accepted that the applicant was on good terms with the shop owner
and that he had apologised for his behaviour. Although it did not excuse the
crime, it provided an important context for the Sub-committee to consider in
respect of deviating from refusal of the application. Following the decision by
the 2018 Sub-committee that the applicant was not a fit and proper person as he had not disclosed details of his offences to
his employer, the applicant had submitted additional character references to
support his re-application. Consideration was also given
to the applicant's work along with his responsibilities as a first responder –
two jobs that demanded a high level of trust.
The Sub-committee
accepted that the applicant had now made amends for his dishonesty in failing
to disclose his offences to the Licensing Department and former employer, since
the applicant had learned from his mistakes and had changed direction since the
decision in 2018 by accepting responsibilities and gaining trust in his jobs.
The Chair of the Sub-committee noted that the application was a
difficult one to determine, however, after careful consideration of the
evidence and information, the Sub-committee was willing to deviate from the
Policy and it therefore decided that the applicant was a fit and proper person
to hold a hackney vehicle and private hire driver's licence.
The Solicitor reported that the decision would be
confirmed formally by letter to the applicant.