Professor Roy Light analyses the issues around the burden of proof in ‘fit and proper person’ taxi licensing applications and appeals.
Standard of proof
The standard of proof in taxi licence applications and appeals is to the civil standard which is on ‘the balance of probabilities’.  This means a finding that something is more likely than not. It is a lower standard than the criminal standard which is ‘beyond reasonable doubt’; where a tribunal has to be sure that something is the case rather than that it probably is the case.
This distinction may have important implications in ‘fit and proper person’ decisions; as a person found not guilty of a criminal offence to the criminal standard of proof may still on the balance of probabilities be found not to be a fit and proper person on the civil test of balance of probabilities.
The civil standard of proof applies to all fit and proper person hearings whether it be an application or on appeal; and whether it be for a new licence, a renewal or review. Can the same be said about the burden of proof?
Burden of proof
The party with the burden of proof must produce evidence to support its case and must persuade the tribunal to find in its favour. The party without the burden of proof may also, of course, produce evidence and seek to persuade the tribunal to find in its favour, but it is for the party with the burden of proof to prove its case. If it fails to do so, its application/appeal will fail.
The burden of proof is on the party that is bringing the matter before the tribunal; unless the burden has been shifted by case law or legislation. Thus in licensing the party making an application or bringing an appeal generally shoulders the burden of proof.
Applications before licensing committees
Applications before licensing committees differ from civil or criminal cases and are essentially administrative decisions; perhaps best described as quasi-judicial. Instead of the usual three parties – claimant, defendant and judge – there are only two – licence holder and council. Where the matter goes before the licensing committee the council then splits into the evidence giver (usually the licensing officer) and the licensing committee as the decision maker.
By s.59(1) (hackneys) and s.51(1) (private hire vehicles) Local Government (Miscellaneous Provisions) Act 1976 (the Act) a district council shall not grant a licence to drive a hackney carriage/private hire vehicle: unless they are satisfied that the applicant is a fit and proper person to hold a driver’s licence …
‘Satisfied’ means that on the balance of probabilities the council considers the applicant to be a fit and proper person to hold a driver’s licence. In other words, it is more likely than not that that the person is fit and proper to hold a driver’s licence. The wording of the section makes it clear that the burden of proof is on the applicant to satisfy the council that they are a fit and proper person to hold a driver’s licence.  If the applicant fails to discharge this burden and so satisfy the council the application will be refused.
Renewals, suspensions and revocations
By s.61(1) of the Act a district council may suspend or revoke or (on application therefor under section 46 of the Act of 1847 or section 51 of this Act, as the case may be) refuse to renew the licence of a driver of a hackney carriage or private hire vehicle on any of the following grounds:
a) that he has since the grant of the licence—
(i) been convicted of an offence involving dishonesty, indecency or violence; or
(ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act; or
(aa) that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty; or
(b) any other reasonable cause.
The possibility of refusal to renew, suspension or revocation will only arise where matters have been raised under s.61 which bring into question whether the licence holder is no longer considered to be a fit and proper person to hold a driver’s licence. A licensing committee will then have to decide, on the balance of probabilities, whether the licence holder is no longer a fit and proper person.
Muck It,  which essentially concerned the same issue arising under the Goods Vehicles (Licensing of Operators) Act 1995, made it clear that under such provisions the committee must be satisfied of the grounds for suspension, revocation or refusal to renew; it is not for the licence holder to satisfy the committee to the contrary (para.69).
The committee will be presented with the facts on which they are asked to consider whether the licence holder remains a fit and proper person. They will then have to exercise their judgement based on those facts to make their decision. The burden is not on the licence holder to prove that he/she is a fit and proper person but on the committee to exercise its judgement on the facts before them.
If an application for a new licence is refused on the basis of failure to meet the fit and proper person criterion and an appeal against the decision is heard in the magistrates’ court the burden of proof remains with the applicant/appellant.
However, in appeals to the magistrates’ court against a refusal to renew or a suspension/revocation it has of late sometimes been claimed by appellants that the burden of proof in such appeals is on the respondent council. This argument is based on the decision in Kaivanpor 2015. Here the court held that on an appeal against a revocation the burden of proof was on the council. The magistrates’ court was held to be wrong to have placed the burden of proof on the taxi driver to show that he was a fit and proper person when considering an appeal against the revocation of his licence for ‘any other reasonable cause’ under s.61(1)(b) of the Act.
The court was persuaded to prefer the decision in Muck It which put the burden on the council to that in Canterbury City Council v Ali  EWHC 2360 (Admin) where the court held the burden to be on the appellant. Interestingly, one of the ‘limitations and deficiencies’ attributed in Kaivanpor to Canterbury was that only one party was represented – the same applied in Kaivanpor.
The general view is that Kaivanpor was wrongly decided on three grounds. First, its decision was based on Muck It but the court failed to distinguish between the first instance decision considered in Muck It and an appeal decision. Secondly, the decision was reached per incuriam – the court failed to consider a relevant statutory provision or precedent – here, the leading case of Hope and Glory  seems not to have been cited to the court. The decision in Hope & Glory puts the burden of proof on the appellant.
Thirdly, only one party appeared in Kaivanpor, thus falling foul of the Lord Chief Justice’s practice direction that a decision where only one party attended the hearing may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of this Direction, that indication must take the form of an express statement to that effect. In respect of judgments delivered before the date of this Direction that indication must be present in or clearly deducible from the language used in the judgment.  There is no such express statement in Kaivanpor.
In an application for a new licence the burden of proof is on the applicant to satisfy the committee on the balance of probabilities that he/she is a fit and proper person to hold a hackney carriage or private hire vehicle driver’s licence. This remains the case in an appeal to the magistrates’ court. For applications concerning an already licensed driver the burden is not on the driver to prove that he/she is a fit and proper person but on the committee to exercise its judgement in deciding whether the driver remains a fit and proper person.
In an appeal by a licensed driver to the magistrates’ court the better view is that the burden of proof is on the appellant (the licensed driver) to show that the committee decision appealed against was wrong and that they remain a fit and proper person.
 R v Maidstone Crown Court ex p Olsen  COD 496
 R v Maidstone Crown Court ex p Olsen  COD 496; McCool v Rushcliffe BC  3 All ER 889
 RE Muck It Ltd v Merritt & Ors v The Secretary of State for Transport  EWCA Civ 1124
 R (oao Hope and Glory Public House Limited) v Westminster Magistrates’ Court  EWCA Civ 31.
 Practice Direction on the Citation of Authorities, The Lord Chief Justice of England and Wales, 9 April 2001.