Criminal convictions: staying on the right side of the law

Commercial Motor
December 26, 2018

When considering O-licence applications there are various issues that traffic commissioners (TC) take into account. TCs are tasked with acting in accordance with their overriding mission to “promote safe, fair, efficient and reliable passenger and goods transport through effective and efficient licensing and regulation of the commercial vehicle industry”.

TCs look at an applicant’s fitness to hold a licence based on road safety, fair competition and protection of the environment. In some cases, the presence of a serious criminal conviction affects the decision-making process. Some applications are afforded much more consideration and discretion before a decision is made.

An applicant’s previous criminal convictions are a primary consideration and are at the forefront of any decision-making process - especially relevant is the type of conviction. Certain offences trigger an automatic decision to refuse a licence depending on the type of licence sought.

The type of O-licence applied for - restricted or standard - requires different criteria to be considered by the TC at the application stage. Whether someone is of good repute and/or if they are fit to hold a licence are central considerations in any TC’s examination of whether or not a person can be trusted to remain compliant as an operator.

This consideration will be fundamental in influencing a TC’s decision and can have different results dependent on the type of licence sought. In the case of a standard O-licence, an application will be refused if the applicant is not of good repute.

When it comes to serious criminal convictions, a TC will conclude that an individual is not of good repute if he or she has more than one serious criminal conviction. A restricted O-licence application does not consider whether or not the applicant is of good repute.

Instead, the applicant has to have the requisite fitness to hold an O-licence and comply with its obligations. The difference here is distinct and crucial. In the case of T/2013/07 Redsky Wholesalers, the Upper Tribunal said: “We do not think that fitness is a significantly lower hurdle than the requirement to be of good repute, it is simply a different requirement.”

This means a TC can consider everything he/she thinks relevant and apply overall discretion before making a decision. This can lead to a scenario where two convictions are considered so serious they act as a mandatory bar to obtaining a standard O-licence.

But this also means that an individual’s efforts made to demonstrate proper rehabilitation can be given weight to the extent that a licence can be justifiably granted. What this means in reality is that someone who has been convicted of an offence such as the cultivation of a class-A drug or possession of firearms can, with all good consciousness, be granted an O-licence on the basis that they can demonstrate that they can be trusted to comply with the statutory requirements of such as licence.

A serious conviction is one where one of the following punitive elements of a sentence upon conviction has been imposed:
. a term of imprisonment exceeding three months;
. a fine exceeding £2,500;
. a community service order requiring unpaid work for more than 60 hours.

To put this into context, any one of those penalties could be imposed in a drink or drug driving-related offence. It does not need to be considered as serious as those associated with what one may perceive as someone who engages in more obvious criminal activity.

How then, could someone who has been convicted of a crime at the more severe end of the serious convictions spectrum be granted a restricted O-licence? The answer is that balance and proportionality should be applied.

Where one or more serious convictions are present, the matter will invariably be called to a public inquiry (PI). The TC will most likely take a view that the application should be refused unless they can be convinced otherwise at a PI.

The approach to the PI is crucial and consideration of the statutory documents relied on by TCs is extremely important. However, steps can be taken and the overall message is one of transparency and honesty.

Acceptance of past misdemeanours and demonstration of improvements made since will also be taken into account. Context is important, as is being able to demonstrate and evidence what steps have been taken to show an applicant is rehabilitated.

Being endorsed by a reputable character referee would also help. This isn’t a foolproof approach that results in an application being granted because an application is only as strong as the sum of its parts. There needs to be enough evidence across all of these areas to satisfy a TC that compliance is present and that they can trust it will remain.

By Paul Loughlin

. Paul Loughlin is a solicitor at law firm Stephensons and specialises in regulatory work and criminal motoring offences. He can be contacted on 01942 774061.

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Commercial Motor is the online presence for Commercial Motor magazine, the world’s oldest magazine dedicated to the commercial vehicle industry.

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