mancityfan wrote:
HACKNEY CARRIAGE AND PRIVATE HIRE DISCIPLINARY AND ENFORCEMENT POLICY
1. Will there be a written “charge” which will include all the details of the alleged misdemeanor?
Assuming your query refers to the draft penalty points system, a person receiving points would be informed in writing.
2.will the council interview the licence holder in accordance with the provisions of PACE 1984?
Where it would be deemed necessary to the investigation.
3.Will the provisions of the PACE 1984 be adhered to, when investigating complaints of alleged misconduct and alleged criminal offences?
Where it would be deemed necessary to the investigation.
4. How will the gravity of the alleged misdemeanor(s) be determined?
All decisions would be explained, evidenced and justified.
5.Who will determine the gravity of the alleged misdemeanor(s)?
Officers would determine the gravity of the allegation
6.Will there be sub-categories of misdemeanors?
No
7.If alleged misdemeanor(s) are committed towards the end of years 1, 2 and 3 will the penalty points be carried forward to years 4, 5 and 6?
No, I assume that you are describing the points syste? If so, there is a rrolling 12 month period.
8. Will there be a “first hearing”? If yes, please provide details; if not, why not?
Please explain to what part of the draft policy you are referring.
9.Who will act as Prosecutor?
Please explain to what part of the draft policy you are referring.
10.Who will hear the complaint?
Please explain to what part of the draft policy you are referring.
11. Who will determine the complaint?
Please explain to what part of the draft policy you are referring.
12.Who will advise the council on legal issues during the -
a. Investigation?
b. First hearing?
c. Appeal to the committee?
The Councils solicitor and/or external legal representation would advise the Council on legal issues where it would be deemed necessary to the investigation.
13. Will the “Rules of Evidence” apply? If not, why not?
Please explain to what part of the draft policy you are referring.
14. What defences will be available to the licence holder? Please provide precise details for each category of misdemeanor.
It is not for the Council to provide a defendant with their defence.
15.If a licence holder has no other alternative than to appeal to the sub-committee:-
a. What time period will he or she be given in which to lodge an appeal?
b. Will he or she be able to continue in business in the same way as under section 77 of the Local Government (Miscellaneous Provisions) Act 1976?
c. Will the council pay the Appellant’s costs?
d. Will the licence holder be entitled to free legal advice from the outset?
Please explain to what part of the draft policy you are referring.
16.Will the complainant(s) be “compellable” to attend the First/Appeal hearing, give oral evidence, and be open to cross examination? If not, why not?
No, we have no powers to make this provision.
17. Will prosecution witnesses be compellable to attend the First/Appeal hearing, give oral evidence, and be open to cross examination?
No, as above.
18.Will the investigating officer(s) be “compellable” to attend the First/Appeal hearing, give oral evidence, and be open to cross examination? If not, why not?
Not necessarily, but officers may be invited to attend to assist the committee.
19. Will the council supply the licence holder or his/her legal advisers with evidence by way of advance disclosure? If not, why not?
Can you please explain when you consider such should be provided and when?
20. What will be the Mens Rea of each alleged misdemeanor?
This will depend on the investigation, the alleged offence, and whether it is a strict liability offence or not.
21.What standard of proof will be relied upon?
Can you please explain when (i.e. at what part of the process)?
22.What are the “definitions” of the categories of each misdemeanor?
There are none.
23.What is the council’s legal basis for the imposition of such a system?
I am assuming that you are referring to the draft penalty points system? In which case it has been shown in the high court that such a system is lawful.
24.Can the council give assurances that the rules of natural justice will be observed? If assurances can be given, please provide details.
Yes, the Council would act fairly.
25.Why does the council feel it is necessary for them to perform a purely judicial function, thereby usurping the role of the courts?
I am having difficulty understanding this question - can you please explain what judicial function you consider the Council is carrying out and how the Council are usurping the role of the courts?
26. How will potential complainants be informed that such a system operates in their area?
The policy and it's appendices would be available on the Council's website.
27.Does the council fear that there will be spurious complaints? If not, why not?
No more than are received currently. Each complaint will be investigated for it's credibility and demonstrability with evidence prior to any penalty or action being taken.
28. Please provide details of the discretion that will be entrusted to an enforcement office when deciding whether or not to issue penalty points. Will there be written criteria and/or guidelines to which he or she will have to adhere? If not, why not?
All decisions would be evidenced and justified. The points system is an element of the policy and as such the need for discretion is negated in many circumstances.
29.Is the council saying that the accumulation of penalty points is “reasonable cause” for which to suspend or revoke a licence, and not the individual offences themselves? That being the case, would not the licence holder have to appeal all of the alleged “offences” to the magistrates court at first instance, in order to determine whether or not the council had reasonable cause to suspend, revoke or refuse to renew a licence?
No - at this stage it is intended to refer the matter to the Licensing committee. The Licensing committee would decide whether or not [u]there is reasonable cause to suspend/revoke a license. It would be the defendant's responsibility to determine the basis of their appeal.[/u]
30.Is there not a risk of double jeopardy? If not, why not?
No, but please explain why you think that there coulkd be in order that we can respond more fully.
31.Is there not a real likelihood of bias? If not, why not?
No, but please explain why you think officers would be biased in their investigations.It is for reasons of dispute about the justification of penalties that provision has been made for a review (appeal) by an officer independent of the process within the policy.
32.Is there not a real risk of an intermingling of functions? If not, why not?
Please advise to what part of the draft policy you are referring.
Login
Register
FAQ
