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Ash
Ash, Solicitor
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Experience:  Solicitor with 5+ years experience
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Appendix K of the Dartford Borough Council Hackney Carriage

Customer Question

Appendix K of the Dartford Borough Council Hackney Carriage & Private Hire Licensing Policy 1 Aug 2010- 31 Jul 2013 (extended to Dec 2013) provides details of a Penalty Points Scheme the first two paragraphs of which are shown below.

1. The details of how the scheme will be operated are as follows:
1.1 The Licensing Authority’s Taxi Licensing and Enforcement Policy will be fully considered by an authorised officer when determining the manner on which any breach of legislation or the requirements of this Policy are dealt with.
1.2 Where it is decided that the use of the Penalty Points Scheme is appropriate, the points will be issued in accordance with this appendix.

The way the scheme operates is that there is a list of offences covering hackney carriage and private hire licensing law which range from Level 1 to Level 4 on the Criminal Justice Act Standard Scale of Fines for Summary Offences. Each offence is allocated a maximum number of penalty points, this being between 2 to 12 depending on the Councils assessment of the level of the offence. Any licence holder guilty of an offence will have points put on their licence up to the maximum number for that offence.

Penalty points are active for 12 months and anyone accumulating12 or more points on a 12 month rolling basis may be subject to disciplinary action which could result in suspension or revocation of their hackney carriage or private hire licence or prosecution.

Q1. The two introductory paragraphs suggest that the Council can choose whether or not to deal with an offence under Penalty Points Scheme. This would appear to defeat the object of a Penalty Points Scheme. It also creates dual standards and thereby the unequal treatment. As all licence holders are entitled to natural justice, can this be legal?

Q2. In many cases the penalty points associated with offences, are not in the same proportion to the Standard Scale of Fines for Summary Offences and in some cases the number of penalty points would appear to put them at a higher level than that provided for in law. The likely out come of this is that a licence holder may accumulate penalty points at a faster rate than would be the case if the points were in proportion to the Standard Scale; which does not seem to be in accordance with natural justice. Therefore, should the Councils Penalty Points Scheme use levels set by law for the offences and should the levels of points for offences be proportional to the levels of fines in the Standard Scale?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.
Alex Watts : What points do you have and what for please?
Expert:  Nicola-mod replied 2 years ago.
Hello,

Just a quick reminder, there is an information request here from the Expert. This means they need to know more details before they will be able to give you a full answer.

Thank you,
Nicola
Customer: replied 2 years ago.

I apologize for the delay in my response.


I do not have any points.


From Dec 03 to Mar 09 I was the officer responsible for hackney carriage and private hire licensing at Dartford Borough Council. Following public consultation to which I responded, the Council published its first HC &PH Licensing Policy in Jul 10 .


The Policy contains a Penalty Points Scheme and ecause of my knowledge, I provide assistance to hackney carriage and private hire licence holders that are being or have been dealt with under it. I believe the scheme to be flawed, but I am not a lawyer and this pretty much gives the Council a free hand.


I have been putting together some information based on a past case that would illustrate the problem that I and the people I represent face. However, a serious case has just come up and I am putting together some notes that I hope will help you and will send them in the next few days.


Tony Shilling

Expert:  Ash replied 2 years ago.
Was the new policy challenged at all? When did it come into force please?

Customer: replied 2 years ago.

I have made 3 previous attempts to reply to your questions with supporting evidence. The first attempt appeared to fail because I provided web page links to documents. The second was attempt was all text but appears to have failed to get through and my third attempt using attachments appears to have failed for the same reason as the first. Is there any other route by which I can provide the supporting information.


 


To answer your questions, I did comment on the draft policy when it was put out for public comment prior to its being implemented on 1 August 2010. I have also commented on the updated policy document that was put out for public comment in October 2013.


 


My comments were part of the supporting information I have tried to provide.


 


Tony Shilling


 


 


 

Expert:  Ash replied 2 years ago.
Tony I am sorry to say it is bad news. If they consulted and you lodged your objections but they went ahead anyway, as long as they took the objections into account the policy is lawful.

What you can do is challenge it by way of a Judicial Review, but there is a limited time to do this. This is where a senior Judge in the High Court examines the decision of the public body to see whether they have the legal power and whether it is a decision which a reasonable public body can make.

The decision in this case is likely to be lawful and it will come down to whether or not it was a reasonable decision. The Judge can agree with the Council or remit it back for further consideration.

However you are likely to need a Solicitor to draft the documents and a Barrister to represent you.

I realise this may not necessarily be the answer you want and certainly not the one I want to give, but I have a duty to be honest.

Can I clarify anything for you about this today please?

Alex

Customer: replied 2 years ago.

Alex


 


Thank you for your reply. It is very timely as I recently provided comments on a draft of the updated policy that will be put to the next meeting of the Licensing Committee for approval and have been invited by Dartford Borough Council's Head of Legal Services to a meeting with her and officers of the Licensing Section. I'm sure that I will be made aware of the fact that they can do what they like providing they consult. I have also been told by the previous chairman of the Licensing Committee, on another issue, that I should seek a Judicial review if I wanted to take matters further.


 


Hopefully the meeting will be constructive and commonsense will prevail; but it would not surprise me to be confronted with the Judicial Review barricade.


 


I know that you don't have much to go on; but could you give me some sort of indicative cost for a Judicial Review. Could you also advise whether each party is responsible for its own costs and whether the costs can be covered by insurance.


 


What is the position if the case is remitted back for further consideration?


 


Regards


 


Tony

Expert:  Ash replied 2 years ago.
If the case is remitted back they need to consider all representations and make sure they take into account relevant factors and exclude irrelevant factors.

The answer may still be the same of course.

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.
Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Customer: replied 2 years ago.

Alex


 


Could you give me some indication of a what a Judicial Review might cost.


 


I cannot imagine they are cheap but what would be a minimum cost, £10K; £50K+?


 


Such a figure would be useful when dealing with those that use the defence of Judicial Review in order to do as they like.


 


Regards


 


Tony

Expert:  Ash replied 2 years ago.
I would say £10,000 Tony.

Alex

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