Agenda item

The Applicant was in attendance with his Legal Representative and Interpreter.

 

The Licensing Officer outlined the background to the application as follows:

 

·                     The application was for the renewal of a Private Hire Driver licence and Private Hire Vehicle licence;

·                     An initial disclosure from police had been revealed, following checks as part of the application process, about an alleged sexual assault incident;

·                     On receipt of this information, Licensing Officers made a data protection request to the Police, but the Police had refused to provide the requested information even though the Complainant had agreed that her statement could be distributed;

·                     PC Quinton, the police officer who deals with taxi licensing matters, had also tried to obtain further disclosure but without success;

·                     The Applicant had not declared the incident to the Licensing Officer at the time it had happened or on his renewal application;

·                     In accordance with Council policy, in the case of offences involving decency and serious sexual offences, an application would only be considered if there had been a period of 15 years free of conviction;

·                     The Committee’s main concern was the safety of the public and Members needed to consider whether the applicant was a “fit and proper person”;

·                     The Officers were recommending refusal in accordance with Council policy.

 

The Council’s Legal Advisor confirmed that nothing has been proven in relation to the incident and so Members needed to make findings of fact on the complaint on the balance of probabilities and only if they found in favour of the Complainant should they consider taking any further action.  In response to a question about the difference between criminal proceedings and the function of the Committee, the Legal Advisor clarified that the criminal standard used in court was “beyond reasonable doubt” whereas as the civil standard of proof used by the Committee was “the balance of probabilities”, a lower standard of proof based on whose evidence the Committee believed to be the most credible.

 

The Applicant’s Legal Representative questioned the use of guidelines for criminal behaviour in considering the application when there had not been a Police conviction.  The Licensing Officer confirmed that, in relation to the policy, the Council could take into account any issues of concern raised by a disclosure regardless of whether a conviction had taken place.  The Policy stated that where offending behaviour was proved to the satisfaction of the Council, then any reference to conviction should be construed accordingly

 

The Applicant apologised for not informing the Licensing Office of the incident, and confirmed that this was not deliberate.

 

The Witness gave evidence via video link as follows:

·         On the day of the incident she had called a taxi to take her to the shop;

·         She had been drinking vodka before she got into the taxi so she was a bit merry;

·         When the taxi arrived at the shop, she could see that it was closed and so she asked the driver to take her home;

·         She asked the driver to open the window as she had a headache;

·         She had put her head against the window;

·         The taxi pulled over at the top of her road and as she was leaning out of the window he put his hand down her top and then down her trousers;

·         She threw the money at him for the fare and got out of the taxi and ran back to her flat.

 

In response to questioning from the Committee, the Witness confirmed:

·         She was wearing pyjamas with a bra underneath;

·         The pyjama top was a T shirt style;

·         She did not say anything to the driver after the incident, but she did report it to the police immediately;

·         He touched her breast by putting his hand down her top and then put his hand down her trousers and put his finger inside her;

·         Before the incident had taken place, she had been making conversation with the Driver, but he wasn’t really talking to her and there had not been any argument between them or dispute over the fare;

 

In response to questioning from the Legal Representative, the Witness replied:    

·         She was drinking a lot around the period when the incident had taken place, but as a result she had a high tolerance level for vodka;

·         On the night of the incident she hadn’t started drinking until the evening and when she went in the taxi she had only had one or two drinks;

·         She was drinking double vodkas, and she measured the vodka using the lid;

·         Her friend had not bought vodka to her flat, they were drinking a bottle that she already had;

·         The bottle was a standard size bottle 75cl, and was about half full when they started drinking, it was not empty but she decided to go to the shop and get some more before the shop closed;

·         She did not get in the back of  the taxi, she sat in the front, she would always sit in the front in taxis;

·         She did not get in the back and then climb to the front seat, that did not happen;

·         She did  not get out of the taxi to see if the shop was  shut as she could see the shutters were down; she didn’t remember saying that  she did get out of the taxi in her statement of 14 August;

·         Her headache may have been caused by alcohol, but she was also not a good traveller and the car journey was making her feel unwell;

·         She may have been a bit “merry” but she had not been drinking heavily that day;

·         She denied that she had fallen on the driver while climbing through the back seats and that he had put his hands up to stop her falling on him, she had not been in the back seats and had not climbed into the front.  She was leaning out of the window away from the driver with her head on her arm when he started touching her and put his hand inside her bra;

·         Although she was drinking a lot during that period, she was aware of not losing control and putting herself in a vulnerable position;  she was working as a dancer in a drinking environment and she knew the importance of keeping in control;

·         Drinking had not affected her memory, she clearly remembered him touching her body;

·         She denied slurring her words.

 

At this point in the questioning, the Committee asked the interview to be paused as they considered the Applicant’s Legal Representative to be engaging in cross examination, especially in relation to the Complainant’s drinking.  Cross examination was discouraged by the Committee.

 

The Council’s Legal Advisor confirmed that it was appropriate for the Legal Advisor to be able to thoroughly question the Complainant in view of the seriousness of the allegation, as long as the Complainant wasn’t being badgered.

 

The Applicant’s Representative apologised if she had come across as overbearing as this wasn’t her intention.  She confirmed that she was on her last question to the Complainant but had not heard her answer so the Committee enabled her to put the last question to the witness again.

 

The Applicant’s Representative then asked the Applicant to explain what had happened on the night in question.

 

Through the interpreter, the Applicant gave an account of the incident as follows:

·         He had received a call from the Operator with details of the pickup and drop off;

·         He had electric doors in his taxi and he opened the back door for the Complainant to get in;

·         The Complainant sat in the back behind the passenger seat and moved towards the centre during the journey;

·         At a point in the journey she climbed over the back seats to the front and when he saw what she was doing, he applied the brakes and she fell on top of him and he put his hands up to stop her falling on him;

·         The Complainant then moved herself away and sat in the front passenger seat;

·         He spoke to her to ask her what she was doing and she said that she wanted to sit in the front;

·         He had told her that she should have told him she wanted to move and he would have stopped the car;

·         He also told her she needed to behave properly;

·         He had taken her to the shop where she had wanted to go and she did not get out of the car when she saw that the shop was closed;

·         He took her back to where he had picked her up;

·         He denied touching her in the way she suggested.

 

In response to questioning from the Committee, he confirmed:

·         His DNA must have been found inside her bra when he put his hands out to stop her falling on him;

·         He didn’t know how that happened, he was shocked about it and he could not confirm where his hands had touched her when he slammed on the brakes;

·         He had raised his hands from the steering wheel to stop her falling on him;

·         There were headrests on the passenger and driver seats that the Complainant climbed through;

·         He did not know why the Complainant had given a different account of events, there had not been a dispute over the fare.  He had been told by other drivers that women sometimes did this to blackmail drivers;

·         The Complainant had not attempted to blackmail him.

 

In response to a question from the Committee, the Licensing Officer confirmed that there were no other records of complaint against the driver since getting his licence in 2016.

 

The Applicant’s Legal Representative continued the case of the Applicant as follows:

·         No further action had been taken by the Crime Prosecution Service;

·         Although traces of the Applicant’s DNA were found inside the Complainant’s bra, there was no information about what part of the bra this was found on and this could make a material difference;

·         The Applicant had been consistent in giving evidence and he had reported the incident to the controller immediately after it happened;

·         The CPS Lawyer had said that there were inconsistences in the Complainant’s account but there was no further information about this;

·         The Complainant accepted that she was a heavy drinker and this may influence her account of what happened;

·         The case was reviewed by a Detective Inspector who agreed with the conclusions of the CPS;

·         As no further information had been provided by the Police it was difficult for the Applicant to put forward his defence;

·         The Complainant was frank about her drinking and getting a headache because she had stopped drinking.  There was inconsistency in her evidence about whether or not she got out of the taxi when she reached the shop.  She had an alcohol problem and her experience was coloured;

·         A responsible driver would apply the brake if a passenger was climbing over the seats and the Driver was adamant that he did not intentionally touch her.

 

In summing up, the Legal Representative asked the Committee to favour the Applicant on the balance of probabilities as he was a man of good character.

 

At this point in the meeting, the Licensing Officer, Applicant, Legal Representative and Interpreter withdrew from the meeting while the committee considered the application.  They returned to hear the decision.

 

RESOLVED –

 

(1)   that the application for a renewal of a private hire driver licence be REFUSED as the Committee were not satisfied that the Applicant was a fit and proper person to hold a Private Hire Driver’s Licence and that there was reasonable cause under section 61(1)(b) of the Local Government (Miscellaneous Provisions) Act 1976 to refuse to renew his licence;

 

(2)   that no action be taken in regard to the Vehicle Licence.

 

Reasons:

The Committee noted that the case was reviewed by specialist CPS lawyers who had the view that there were inconsistencies in the Complainant’s account which made the prospect of a conviction less certain, and that the Applicant had given an account which could explain the presence of his DNA in her bra which could not be disproved on the criminal standard. This decision was queried and the case was reviewed by a Detective Inspector who agreed with the CPS, that the jury would not find the matter proved beyond reasonable doubt.

 

However, the essence of the alleged misconduct was akin to a criminal offence of sexual assault and the Committee were entitled to consider the evidence afresh on a balance of probabilities which meant a finding that something was more likely than not.   

 

This had been a very difficult case given the lack of further disclosure from the Police which the Council’s licensing officers made every effort to obtain as a result of a data protection request even though the Complainant had consented to her original statement being released.  Unfortunately, there was documentation missing that would have been helpful to both the Applicant and the Committee.

 

However, notwithstanding this, the Police saw fit to disclose the substance of the allegations to the Council having balanced the Applicant’s right to privacy and confidentiality against the public interest in protecting the public.

 

The nature of the allegation was so serious that the Council exercising its regulatory function of protecting the public could not ignore it and had to make findings of fact based on the evidence available to it.

 

The Committee heard from both the Complainant and Applicant.  The Committee noted that the Complainant was frank about her alcohol consumption around that period and that she had been drinking on the date of the alleged incident.  The Committee also noted an inconsistency in the Complainant’s evidence about whether she got out of the car upon arrival at the shop.  However, the Committee believed her account of what happened to be essentially truthful and it was more likely than not that the Applicant did sexually assault her in the manner alleged.  A persuasive factor was that the Complainant had consented to her original statement being released and was still willing to give oral evidence three years after the event.  The Committee did not believe that she fabricated the allegation.

 

The Committee were not persuaded by the Applicant’s version of events.

 

Much was made of the Complainant having consumed alcohol on the night in question but the Committee believed that this made a lone female passenger more vulnerable and did not undermine the essentials of her testimony.

 

In accordance with Council policy, where offending conduct is proved to the satisfaction of the Council, any reference to conviction is construed accordingly.  The Committee believed that the proven conduct was akin to an offence of sexual assault which was classed as a very serious sexual offence where a period of at least 15 years free of conviction was recommended under the policy.

 

The Committee could not therefore be satisfied that the Applicant was a fit and proper person to hold a Private Hire Driver’s Licence and that there was reasonable cause to refuse to renew his licence.