Indiscriminate lifelong cab driver ban is anti-constitutional, judge rules

A former cab driver permanently barred from working behind the wheel because of a 2018 prostitution-related conviction has won a constitutional case against the state.

In its ruling, the court called on lawmakers to overhaul the rules that shut him out for life from holding a cab driving licence.

In a judgment handed down on Monday, Judge Rachel Montebello found that the regulations governing the licence of light passenger vehicles had breached Carmel Schembri’s right to private life under the European Convention of Human Rights.

The court ordered that the necessary legislative amendments be made so that Transport Malta must weigh up each applicant’s personal circumstances rather than turning them away automatically. It directed that a copy of the judgment be sent to the Speaker of the House once it becomes final.

A door closed for good

Schembri was issued a driver’s tag in May 2016 and went on to work as a driver with Bolt. However, when the permit came up for renewal in 2021, Transport Malta turned him down.

The reason was a conviction from November 2018. The man had admitted to living off the earnings of prostitution, allowing premises to be used for prostitution, and using three massage parlours, in St Paul's Bay, Ħamrun and Luqa, for purposes other than those they were licensed for.

He was handed a 14-month prison term, suspended for four years, and fined €1,500.

Under Regulation 9 of the Light Passenger Vehicle Services Regulations, those offences mean a person can never be considered of “good repute and good conduct”, however much time passes, and however fully they have turned their life around.

Schembri appealed to the Administrative Review Tribunal, but it dismissed his case in April 2022.

The tribunal said the law “ties the hands” of the authority and left no room for discretion, however sympathetic the applicant’s situation might be.

Schembri had argued that the unfairness was starker still when set against the Conduct Certificates Ordinance. Under that law, a conviction eventually drops off a person’s conduct certificate after a set period, in recognition that people deserve a second chance. Yet no matter how many years go by, he said, he can never again hold a driver’s permit.

‘The world fell on me’

Schembri said the decision had upended his life. He had cooperated with the police during the criminal investigation, believed he had put his past behind him, and had invested tens of thousands of euros into a new car to work with Bolt.

“I felt the world fall on me,” he told the court. He explained that his 23-year-old daughter has a disability and cannot work, and that he is the one who supports her. He now works as a delivery man, earning about €300 a week.

His wife said in an affidavit that he had become “like a different person”.

State points to abuse by drivers

The State Advocate argued that the rule was simply a “fit and proper” test. In the past, it said, some drivers had abused passengers in their care, including children.

Someone convicted of prostitution-related offences, which are classified among sexual offences, could not be considered suitable to carry passengers, especially minors.

The court said that the ban did serve a legitimate aim, namely public safety. It agreed that the authority was right to want drivers who carry lone passengers to be people the public can trust.

But it held that a ban “so extreme” was neither necessary in a democratic society nor proportionate. The judge pointed out that the regulation is not equally strict with every serious offender.

Someone jailed for an offence involving violence against another person is barred only for a set period after release, calculated on the length of the sentence.

That period is three months for sentences of six months to two years, and a quarter of the sentence for longer terms. After that, they can be deemed of good repute again.

No such way back exists for prostitution offences. The court said this distinction between crimes, “all of them serious”, did not appear to be objectively justified.

A person convicted decades ago, who has never again crossed the law, stays “branded for life”, even where the offence had nothing to do with carrying passengers.

Meanwhile, a violent offender may in time be trusted to carry passengers “without risk”.

A preventive measure aimed at a danger that is “merely speculative”, the judge wrote, cannot meet a pressing social need unless the reality and degree of the risk are established through a personalised examination.

Otherwise, she said, it amounts to arbitrary interference in a person’s private life, and a lack of proportionality between protecting public safety and a man’s interest in earning a living from the work he had always done.

The authority, the court said, should be able to consider factors such as how much time has passed since the conviction, the nature of the sentence, any later offending, and the degree of rehabilitation. Any such decision must also be open to review by an independent body.

Modest compensation

The court turned down Schembri’s claim for lost earnings. It reasoned that, even if the discretionary assessment was in place, there was no guarantee his application would have been approved. It awarded him €2,000 in moral damages.

His separate complaint under Article 32 of the Constitution was thrown out, as that article cannot be enforced on its own. Costs were borne by the State Advocate.

Lawyer Jurgen Micallef appeared for Schembri. Lawyer James d’Agostino appeared for the State Advocate’s Office.