Thursday, 16 February 2012

Criminal Justice and Public Order Act 1994 (c. 33)


Criminal Justice and Public Order Act 1994 (c. 33)
Taxi touts
SECTION 167 Touting for hire car services. 
(1) Subject to the following provisions, it is an offence, in a public place, to solicit persons to hire vehicles to carry them as passengers.


(2) Subsection (1) above does not imply that the soliciting must refer to any particular vehicle nor is the mere display of a sign on a vehicle that the vehicle is for hire soliciting within that subsection.


(3) No offence is committed under this section where soliciting persons to hire licensed taxis is permitted by a scheme under section 10 of the [1985 c. 67.]Transport Act 1985 (schemes for shared taxis) whether or not supplemented by provision made under section 13 of that Act (modifications of the taxi code).


(4) It is a defence for the accused to show that he was soliciting for passengers for public service vehicles on behalf of the holder of a PSV operator’s licence for those vehicles whose authority he had at the time of the alleged offence.


(5) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.


(6) In this section— “public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access (whether on payment or otherwise); and “public service vehicle” and “PSV operator’s licence” have the same meaning as in Part II of the [1981 c. 14.] Public Passenger Vehicles Act 1981.


(7) In section 24(2) of the [1984 c. 60.] Police and Criminal Evidence Act 1984 
arrestable offences), after the paragraph (i) inserted by section 155 of this Act there shall be inserted the following paragraph— “(j) an offence under section 167 of the [1994 c. 33.] Criminal Justice and Public Order Act 1994 (touting for hire car 
services)

Monday, 13 February 2012

Vant v Cripps


This is one of the more celebrated cases on plying for hire.

Vant v Cripps
(1963) 62 LGR 88

Court: DC
Judgment Date: circa 1963

Considered Cogley v Sherwood [1959] 2 QB 311, [1959] 2 All ER 313, [1959] 2 WLR 781, 123 JP 377, 103 Sol Jo 433 DC circa 1959


ROAD TRAFFIC - HACKNEY AND OTHER CARRIAGES AND LONDON CABS - HACKNEY AND STAGE CARRIAGES OUTSIDE LONDON - HACKNEY CARRIAGES - UNATTENDED TAXI STANDING OUTSIDE DRIVER’S HOUSE


On November 21, 1962, a Vauxhall Victor motor car was stationary and unattended outside the dwelling house of defendants, a husband and wife. The dwelling house was situated on a main load leading out of and about three miles from the centre of Leeds, in a residential area. Fixed to the rear of the vehicle was a sign, approximately eight inches by six inches, painted in cream with printed red lettering, about two inches high, reading ‘Barry’s Taxis’ and, below that, ‘Moortown’ and a telephone number. On a corner of the house, visible to anyone passing by in the road or approaching the house from it, was an electric light fitting contained in a ‘rectangular (glass) globe’ (sic) to one side of which was affixed in dark lettering the word ‘Taxi’ and a telephone number and to the other side of which was affixed the word ‘Taxi’ only.

On November 22, the vehicle was again stationary and unattended in the driveway at the side of the house, with its rear towards the road and the sign again clearly visible from the road or to anyone approaching the house from the road. On both occasions the husband was in charge of the vehicle, which was owned by the wife, and he was at all material times in the house. Informations were preferred against the husband charging him with being unlawfully found plying for hire with the vehicle in question, contrary to Town Police Clauses Act 1847 (c 89) s 45, and with using that vehicle without there being in force in respect of its user by him a policy of insurance contrary to section 201 of the 1960 Act.

The wife was charged with permitting the husband to use the vehicle without such a policy of insurance. The policy of insurance held by the wife covered the use of the vehicle ‘for the carriage of passengers or goods in connection with the policy holder’s business but not for use for hire or reward other than private hire’ or ‘for domestic or pleasure purposes’ by either of defendants. Defendants were convicted of the offences charged. On appeal: Held dismissing the appeals, (1) the vehicle was, on the facts, plying for hire, and the husband, in that he was in charge of it, was ‘plying for hire’ with it within section 45 of the 1847 Act.

Per Lord Parker of Waddington CJ: It may be that the true view of section 45 is that the latter part of it should be read as referring to ‘any person found driving, standing or plying for hire with any carriage which is being used as a hackney carriage.’

(2) The vehicle was not at the material time being used in connection with the insured’s business (which was that of private hire proprietress), nor for social, domestic or pleasure purposes, nor, since it was plying for public hire, for private hire; accordingly, it was not covered by a policy of insurance and defendants had been rightly convicted of the charges under the 1960 Act.

What is plying for hire?.......by Alan Fleming.

I  read  with interest in the last edition of United Cabbies News the proposals of  T&PH, for allowing PH ranks. Some ten years ago when at the Club I was informed that this was going to be the case in Kingston. I informed the other trade organisations but had no response. I did take it up with the then PCO but my observations fell on  deaf ears.  I thought that your readers may wish to know what constitutes plying for hire.


What is plying for hire? That is a question that we all think we can answer, but can you? Since I first became a cab driver almost forty years ago I made it my business to understand the laws that we have to abide by. Further very early in my time as a driver I spent many hours reading all the stated cases involving plying for hire. Because I have done this many consider that I am an expert on the subject. Knowing what I do it has long been my opinion that the relevant  laws that govern both taxis and PHV are not fully understood by those, who regulate both trades. This also applies to those who make the laws and the solicitors who advise them.  Most will know that PHVs  have been licensed since 1976 under the Miscellaneous  Provisions Act. It was always said that London should not and did not need mini-cabs to be licensed as London was a special case. What ever was meant by that has always been a mystery. So now let us get on with the question of what constitutes plying for hire.


There has never been a definitive explanation for this particular part of a taxi drivers daily work. However, Butterworths legal dictionary states that the phrase is akin to waiting. Never the less we have to look at the many cases that have gone to the High Court to find the true definition. I will take you back to one of the earliest cases of unlawfully plying for hire this took place 140 years ago. The location was Harrow  Railway Station in 1871. The case in question is Clarke & Goodge v Stanford. The facts of this case are that a driver a Mr. F G Clarke took up a position on the station forecourt to await being hired. Clarke and the owner of the vehicle obviously felt they were safe as the forecourt of the station was private, but they were wrong. The driver Clarke was convicted of plying for hire and the owner Goodge convicted of owning an unlicensed hackney carriage, which both of them appealed against the conviction.


On April 29  1871 the case came before the Court of the Queens Bench in the High Court.
Lord Chief Justice Cockburn presided over the case accompanied by Mr Justice Mellor and Mr Justice Lush. The conviction was upheld. The summing up of the Lord Chief  Justice is very interesting as you  will read. This was what the LCJ had to say about the activities of F G  Clarke. The carriage was on the private forecourt of the station and was available for anyone who wished to hire his carriage, it was plying for hire.  Although the place is private property the public are entitled to travel by train, and has a right to pass over the premises of  the railway to get in or out.  Therefore if a man is standing on those premises with his carriage to take persons who are desirous of hiring said carriage, he is plying for hire.  So the essence of plying for hire is being on view to the public at the time of hiring.    Mr. Justice Mellor stated in support the following.  


It is said there is no plying  for hire as the carriage is admitted on the railway premises under certain regulations, that is it is only to carry persons who come by train. But what is the carriage there for? Though the driver makes no sign he is there to be hired by persons who arrive by train, and there is no restriction as to the persons who, arriving by train shall hire the carriage, therefore it is plying for hire.   


Now let me rephrase that comment and apply it to Leicester Square as it was at  Xmas
The cars are in Whitcomb St under certain regulations and are only to carry passengers who make a booking  at the ticket office in Leicester Sq.  But what is the car there for? Though the driver makes no sign he is there to be hired by persons who apply to the ticket office, and there is no restriction as to the persons who apply to the office to hire the car, therefore it is plying for hire


Further to this as you know there is a taxi rank in Whitcomb St outside the hotel were cabs ply for hire, by waiting to be hired. So what is the difference between the cabs on rank and the cars who wait to be hired on the opposite side of the street? The answer is obviously none at all.  So where does this leave PHVs who stand round London, and await to be hired by radio. If they are standing in a public place at the time of the hiring they must be on view to the public. Therefore they are unlawfully plying for hire.


During that same year of 1871 there was another case came before the courts. This was Allen V Tonbridge. The case was about a Mr. Tonbridge who owned a carriage and was allowed to stand on the property of  Cannon Street railway station.  He had permission to do this by the railway company. Tonbridge had placed his carriage a Brougham on the arrivals platform and waited for the train to arrive. The sole purpose of this was so that his carriage could be hired, which it was. However, a Met police inspector Robert Allen saw the carriage hired and Tonbridge was summoned. He was convicted of plying for hire in the magistrates court and consequently appealed against, the conviction. The appeal came before what was then known as, The Court of Common Pleas. This was where three Chief Justices sat in Judgement. Counsel for Tonbridge argued that there was no plying for hire as the station was private property.  The senior Chief Justice summed up and delivered this judgement.


Mr. Justice Willes made the following judgement.
The carriage was in the station and was intentionally exposed so as to be hired by any person.  Moreover it was proved that actual application was made to two persons who arrived by train to hire the carriage. And the decision of the magistrates court to convict must stand. As you can see the conviction was based on the fact that the carriage was on view to the public at the appropriate time. 


Mr Justice Smith in support agreed with the judgement stating the following.
I base my judgement on the case in the Queens Bench referring  to the case of  Clarke and Stanford V Allen.  This was his judgement. It was held that if a person exposes his carriage where every body passing by may be willing to hire it, that is plying for hire.


I now come to the case of White V  Cubitt 1929 LCJ Hewart presiding in the Kings Bench Division of the High Court. This little escapade occurred in the private yard at the side of The Railway Tavern public house at the junction of, Rocks lane and  Upper  Richmond  road. The owner of the vehicle rented the space in the yard from the publican to carry out his business.  Two ladies walked into the yard from the street and hired the car to go to Richmond Park  Golf Club.  The owner of the car a Mr. Charles Cubitt was seen by Sgt White  of the Met police accepting the hiring, and  Cubitt was summoned to appear in the magistrates Court, where he was convicted.  He appealed against the conviction and the case came before the High Court.


The argument put forward by his defence counsel was that he did not ply for hire in a public place as, the yard was private property. Counsel further laboured the point that the public did not have access to the yard. However the Lord Chief Justice stated the following facts.
Although the car was on private property and the public did not have access to the yard, the vehicle was plying for hire. Again his comments in summing up are very interesting for the following reasons. The Lord Chief Justice made the following Statement. The car may have been on private property but it had been placed  in such a way in the yard and with the gates to the yard wide open, it was on full view to the public. And the conviction in the lower court was upheld. Again I have to say this puts PHVs in a position of breaking the laws of plying for hire. This for the simple fact they are on view to the public at all material times.


Lets us now come  forward a few years to 1946 this is the case of Gilbert V McKay.
McKay had an office in Rupert St. with a sign over the shop window showing that cars were for hire. Several  cars belonging to McKay were standing in the street outside of  the office.
Several people were seen to enter the office for the purpose of paying for the hire of anyone of the cars, in which they were driven away. McKay was charged with being the owner of unlicensed hackney carriages. He was convicted and fined by the Magistrates court and lodged an appeal, the appeal was dismissed. The  Lord Chief Justice Lord Goddard had the following to say. In my opinion even if the cars had been standing in a private yard and could not be seen by the public, there could still have been a plying for hire if they had been appropriated for immediate hiring. The important thing here is the reference to a private yard and not on view to the public at the time of hiring. Even more important is his reference to an immediate hiring. This is what was happening in Leicester Sq. As you can see the essence of plying for hire is being on view to the public. Is this the position of the PHV or not?


We now come forward in time to 1962 to the case of Rose V  Welbeck  Welbeck motors being the first minicabs to hit the streets in London. This was brought to court by a London cab driver, Emanuel Rose. The car was standing in the street at Stratford Broadway obviously waiting to be hired. The police were summoned to the scene by Mr. Rose and the upshot was that the driver of the car was summoned to appear in court, for plying for hire.
When the case was heard the magistrates court dismissed the case so an appeal against the decision was entered. The case came before LCJ  Parker in the Queens  Bench division of the High Court. The car had Welbeck motors emblazoned on the side of the vehicle and a telephone number.  It had been argued by counsel for Welbeck motors that the advertising on and the appearance of the car  were incapable of conveying to the public an invitation that the vehicle was for hire. The following is the judgement of LCJ  Parker. 


 It is perfectly true that the inscriptions were advertising Welbeck motors and if you ring Welbeck 4440 you can have one of the vehicles that they hire, known as a minicab.  He went on to say that the inscription was saying more. What it was saying was the following. I am one of those minicabs and I am for hire, I think in that connection that the reference to minicabs is important as it is saying I am one of those vehicles and I am for hire. And referred the case back to the lower court where Welbeck motors were convicted for plying for hire. Again the conviction was due to the fact the vehicle was on view to the public.


Just a few days later the case of Vincent V Newman came before LCJ Parker the circumstances were similar. The vehicle had been stood in Addison Crescent were it was observed by a police officer and was summoned to appear before the Magistrates court, for unlawfully plying for hire. The magistrates dismissed the case and the Met police appealed.
The appeal was upheld and referred  back to the Magistrates, where the driver was convicted. Once again due to the fact that the car was standing in a public place.


I now come to the most recent case which occurred in Eastbourne in 2000. This case came before Lord Justice Pill and Mr. Justice Bell. This was in the Queens Bench division of the High Court. The case had been brought to court by Eastbourne Borough Council against two PHV drivers. They had been found on the rank of the forecourt of Eastbourne station.  And were summoned under sect.37 of the Town Police Clauses Act of 1847 of plying for hire without a licence. The magistrates dismissed the case on the grounds that the forecourt was not a public place.  Lord Justice Pill quoted the case of White V Cubitt  where a vehicle parked in a private yard was plying for hire, as it could be seen from the street. He went on to say applying the principle in White V Cubbit since a vehicle parked in the station forecourt was likely to attract custom from members of the public using the adjoining street, the defendants were plying for hire. Again we have the situation of being on view to the public.


This now brings me to the situation  in Leicester square where the theatre ticket booking office has been licensed as a Licensed PHV Operator centre. Not only has it been licensed it advertises the following by a revolving neon sign, the following message.  Need a safe journey home fully licensed private hire minicab service available here. That in itself is unlawful as it is soliciting business and is tantamount to touting, under sect 167 of the Criminal Justice and Public order Act 1994.  The cars are parked up like a taxi rank in Whitcomb street and are waiting to be hired, and are on full view to the public.  A person goes to the booking office hires a car and is taken by a marshal to the waiting car. This is a repeat of Gilbert V McKay 1946 which was judged by LCJ Goddard to be plying for hire.  


Now Westminster City councils director of transportation Martin Low states this is not plying for hire. Well I have news for Mr. Low he is 100% wrong.  For his enlightenment and for the PCO I will tell you why.  Sect 35 of the London hackney carriage act of 1831 states the following.  Every hackney carriage which shall be found  standing in any street or place, unless actually hired, shall be deemed to be plying for hire, this is what the cars were doing in Whitcomb St.  The powers that be would of course argue that the cars are not hackney carriages. Well the 1907  London Cab and Stage Carriage Act sect. (6) is laid out like this.


It Is hereby declared that for the purposes of any Act relating to hackney carriages, stage carriages, metropolitan stage carriages, or cabs,  in London, the expressions “ hackney carriage,”   “stage carriage”  “metropolitan stage carriage,”  “or Cab,” shall include any such vehicle, whether drawn or propelled by animal or mechanical power.
As you will have observed a hackney carriage is a vehicle that is not necessarily a taxi, although a  taxi is a form of hackney carriage.   What this means is that any vehicle that carries passengers is a  hackney carriage. As you all know a hackney carriage to be able to carry passengers for hire, has to be licensed under sect 6 of the Metropolitan  Public Carriage Act 1869. The offence that was being perpetrated here is that we had a situation where unlicensed hackney carriages were plying for hire.  The cars in Whitcomb St may have had a PHV licence,  however, they were  in fact unlicensed hackney carriages.  Therefore as the vehicles were unlicensed all persons who entered one of these cars were a passenger in an uninsured vehicle. And this with the approval of the police and TFL/ PCO.  


Sect  4 of the 1831 Act states that  every  carriage with two or more wheels which shall be used for the purpose of  standing or plying  for hire in any street road or public street  or road at any place within 5 miles now 12, from  the  General  Post Office  in the City of London,  whatever  may be the form or construction of such carriage,  or the number of persons which it shall be calculated to convey, shall be  deemed and taken to be a “  Hackney  Carriage” within the meaning of this act.


It seems quite obvious that a pedicab is a form of hackney carriage as it  has 3  wheels, and is propelled by mechanical power, that being the pedals.   Further as  they wait to be hired they  are plying for hire. The Pedicab comes within the scope and definition  of a hackney carriage. Any hackney carriage that takes passengers for hire has to comply with the Metropolitan Conditions of fitness (MCF)  This is covered by the  1934  London Cab Order, Statutory Instrument 1634. Therefore as Pedicabs  do not comply with the MCF  they cannot wait to be hired.  As I have said earlier the essence of plying for hire is being on view to the public at the time of hiring.
Further as has been stated in many cases if the vehicle is waiting to be hired, it is plying for hire.


So as you will observe the brain dead at TFL/ T&PH  do not know what they are doing, or do they?  For hear we have a group of people who do not  know the laws that they are charged with enforcing. The phrase, “Not  Fit  For Purpose” comes to mind.

Saturday, 11 February 2012

Rose v Welbeck Motors Ltd and Another.

This is the iconic case, that sets the standard for illegally plying for hire and advertising signage on private hire vehicles.

Rose v Welbeck Motors Ltd and Another.

CRIMINAL; Road Traffic

QUEEN’S BENCH DIVISION
LORD PARKER CJ, WINN AND BRABIN JJ
30, 31 MAY 1962

Rood Traffic – Hackney carriage – Metroplitan police area – “Plying for hire” – Mini-cab parked in bus stand-by – Advertisements and telephone number on vehicle – Radio aerial on roof providing two-way communication – Metropolitan Public Carriage Act, 1869 (32 & 33 Vict c 115), s 7.

On 29 September 1961, at 12.45 pm the appellant, a taxi-driver, found a mini-cab parked in a bus stand-by where buses turn round. It was a bright red Renault Dauphine, with various advertisements on the sides and various inscriptions, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”. There was also a telephone number along the roof, and there was a radio aerial on the roof providing a two-way short-wave communication.

A bus later wished to pull in from a nearby road and the mini-cab moved out of the bus stand and stopped about ten yards from where it had been. A police officer asked the driver of the mini-cab why he was waiting there, and received the reply that he was waiting for any jobs that came up in the area, and that he had been there fifty minutes. He made it plain that he was to be informed of jobs over the radio.

At about 1.30 pm, the mini-cab drove off, but later came back and parked quite close to the corner from which it had driven away. The owners and the driver of the mini-cab were charged with plying an unlicensed hackney carriage for hire, contrary to s 7 of the Metropolitan Public Carriage Act, 1869a. The justices upheld a submission that there was no case to answer and dismissed the informations. On appeal by the appellant,

Held – The distinctive appearance of the vehicle, its colour, its inscriptions and its equipment in the form of radio communication, coupled with the place where it was on view and its conduct during the relevant period, made a prima facie case that the vehicle conveyed an invitation to the public to use it, and, as it was on view to the public, there was a case to answer that the mini-cab was plying for hire; accordingly the proceedings would be remitted with a direction to the justices to continue the hearing.

Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood ([1959] 2 All ER 313) applied.

Alker v Woodward (16 February 1962, “The Times”, 17 February 1962) followed.

Appeal allowed.

Notes
As to the meaning of plying for hire, see 33 Halsbury’s Laws (3rd Edn) 801, para 1372; and for cases on the subject, see 42 Digest 853–856, 77–94.
For the Metropolitan Public Carriage Act, 1869, s 7, see 24 Halsbury’s Statutes (2nd Edn) 871.

Cases referred to in judgment

Alker v Woodward (16 February 1962), “The Times”, 17 February 1962.
Allen v Tunbridge (1871), LR 6 CP 481, 40 LJMC 197, 24 LT 796, sub nom Allen v Trowbridge, 35 JP 695, 42 Digest 853, 78.
Cogley v Sherwood, Car Hire Group (Skyport) Ltd v Sherwood, Howe v Kavanaugh, Car Hire Group (Skyport) Ltd v Kavanaugh, [1959] 2 All ER 313, [1959] 2 QB 311, 123 JP 377, [1959] 2 WLR 781, 3rd Digest Supp.
Foinett v Clarke (1877), 41 JP 359, 42 Digest 854, 80.
Gilbert v McKay [1946] 1 All ER 458, 174 LT 196, 110 JP 186, 2nd Digest Supp.

Case Stated.

This was a Case Stated by justices for the county of Essex in respect of their adjudication as a magistrates’ court sitting at Stratford, on 8 November, 1961. On 13 October 1961, the appellant, Emmanuel Rose, preferred informations against the respondents charging that (i) the first respondents, Welbeck Motors Ltd being the owners of an unlicensed hackney carriage which plied for hire at the junction of Forest Road and Beacontree Avenue, E 17, on 29 September 1961, contrary to s 7 of the Metropolitan Public Carriage Act, 1869, and (ii) that the second respondent, Frederick Stanley Jones, being the driver of the vehicle unlawfully plied for hire at the junction of Forest Road and Beacontree Avenue, E.17, on 29 September 1961, contrary to s 7 of the Act of 1869. The following facts are summarised from the evidence.

At about 12.45 pm on 29 September 1961, the appellant, a licensed metropolitan taxi-driver, was driving his cab near the junction of Beacontree Avenue and Forest Road, Walthamstow, when he saw a mini-cab parked in the bus stand-by where buses turn round. The mini-cab was a bright red Renault Dauphine with various advertisements and inscriptions on it, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”, and the telephone number “Welbeck 4440” along the roof. In addition, there was a radio aerial on the roof providing a two-way short-wave communication.

The second respondent was sitting behind the wheel. A conversation between the appellant and the second respondent took place, as a result of which the appellant called the police. Some time later a bus wanted to pull in from Forest Road and the mini-cab pulled out from the bus stand and stopped on the corner of Beacontree Avenue about ten yards from where it had been before. At about 1.15 pm a police officer arrived and asked the second respondent if he was a taxi, to which the latter replied in the negative.

The second respondent was then asked why he was waiting there, to which he replied: “I am waiting for any jobs that come up in this area”. There were no passengers in the mini-cab at the time. The police officer pointed out to the second respondent that he was unlawfully plying for hire, to which the second respondent replied, “I have been here fifty minutes waiting for a job”.

He also said that his control had told him he could stand where he liked provided he did not cause an obstruction, and made it clear that he was to be informed of “jobs” over the radio. At about 1.30 pm, the mini-cab drove away, and, according to the appellant, it came back again and parked quite close to the corner from which it had driven away.

The respondents submitted that there was no case to answer. It was contended by the appellant that (a) for a vehicle to ply for hire, there must be a solicitation of the public or invitation to the public to hire the vehicle by the driver or person in control of the vehicle which might be either express or implied; (b) the vehicle must be exhibited to the public as a vehicle which was available802 for hire, and readily available for hire, although it need not be capable of being booked from the driver; (c) on the facts, the vehicle was readily available for hire, and by its character and appearance invited the public to use it or the services provided by the first respondents; (d) the description of the vehicle as a “Welbeck Motors Mini-cab” together with the telephone number from which presumably it could be hired constituted a solicitation or invitation to the public to hire it, (e) the vehicle was exhibited to the public by being parked in a public place for at least fifty minutes and, accordingly, all the elements of a plying for hire were present and a prima facie case was made out.

It was contended by the respondents that (i) there was no evidence of solicitation or invitation to the public; (ii) there was nothing stating that the vehicle was for hire; (iii) the vehicle must be exhibited with an open offer to the public to use that vehicle, and there was no evidence of that, and (iv) the driver was just sitting waiting for directions by radio.

The justices dismissed the informations without calling on the respondents to answer the case, and the appellant now appealed.

The direction and case mentioned below were cited in argument in addition to those in the judgmentb.
________________________________________
b Ie, Practice Note [1962] 1 All ER 448, White v Cubitt, [1930] 1 KB 443
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
Neil Lawson QC and J M Williams for the appellant.
Malcolm Morris QC and John K Wood for the respondents.

31 May 1962. The following judgments were delivered.

LORD PARKER CJ stated the facts and continued: The sole question for this court is whether the prosecution raised a case which required an answer. In order to decide that, it is necessary to consider first the essential elements that the prosecution would have to prove, and then go on to ascertain on the facts given in evidence whether those elements were prima facie proved. The prosecution was for an offence contrary to s 7 of the Metropolitan Public Carriage Act, 1869. Section 4 of that Act provides, so far as it is material:

“In this Act ‘stage carriage’ shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act … ”

Section 7 provides:

“If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding £5 for every day during which such unlicensed carriage plies. And if any unlicensed hackney carriage is found on any stand within the limits of this Act, the owner of such carriage shall be liable to a penalty not exceeding £5 for each time it is so found. The driver also shall in every such case be liable to a like penalty unless he proves that he was ignorant of the fact of the carriage being an unlicensed carriage … ”

In the recent case of Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood, etc, what is sometimes referred to as the “airport case”, this court had to consider that section of the Act, and, in the course of doing so, reviewed a number of the earlier cases. The court there emphasised that the approach to the matter was to ask oneself the question whether the vehicle itself was plying for hire as opposed to the case of a man going to the owner of a car hire establishment and hiring one of his cars. That was the question posed in the earlier cases, a particular illustration of it being in Allen v Tunbridge, where Montague Smith J said ((1871), LR 6 CP at p 485) in reference to a previous case (Clarke v Stanford, (1871), LR 6 QB 357).

“It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage.”

Again, in Cogley’s case, this court held that it was essential before one could say that a vehicle was plying for hire, first, that it should be exhibited, be on view to the public, and secondly, that it should, while on view, expressly or impliedly solicit custom in the sense of inviting the public to use it. The fact that if those conditions are proved a ticket had to be obtained from an office or a booking made other than through the driver was immaterial.

It is, I think, right to say that a further possible question, namely, what was to be the result if the obtaining of a ticket or a booking involved a vehicle other than that on view, was left open. Reference, however, was made to Gilbert v McKay, and in the argument to Foinett v Clarke, which cases suggest that, at any rate in certain circumstances, that fact would not of itself prevent a finding that the vehicle in question was plying for hire.

That the vehicle in the present case was on exhibition in the sense that it was on view to the public is undoubted. The real question, as it seems to me, is whether a prima facie case was made out that the vehicle was impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend on the exact circumstances, and I certainly do not intend anything that I say in this judgment to apply to any facts other than those in this case.

What were those facts? As I have already said, one starts with the fact that this vehicle was of a distinctive appearance, its colour, its inscriptions, its equiplment in the form of radio communication, and its type. Secondly, and this is equally important, it stood with the driver at the steering wheel for some fifty minutes in a public place on public view and at a place where buses made a turn round, in other words, at a place where many members of the public would be getting off the buses and where many members of the public would forgather to board the buses. Moreover, when requested to leave, the driver drove away only to return immediately to almost the same place.

It has been urged by counsel for the respondents, that the inscriptions and appearance of this vehicle were incapable of conveying an invitation to the public: “I am for hire”. It is said that the vehicle was merely advertising the owners of the vehicle and was not saying in the way I put it: “I am for hire”. It is perfectly true, of course, that the inscriptions were advertising the owners, Welbeck Motors Ltd and also saying, “and if you ring up Welbeck 4440 you can have one of the vehicles that they hire known as mini-cab”.

In my judgment, however, the inscriptions on, and appearance of, the vehicle, coupled with the place where it was on view and its conduct during the relevant period, was saying more than that. It was saying: “Not only do I”, if I may personify the vehicle, “recommend you to Welbeck Motors Ltd where you can hire a mini-cab, but, further, I am one of those mini-cabs and I am for hire”. I think in that connexion that the reference to mini-cabs is important.

A cab does convey the notion of a vehicle plying for hire. It may be that “taxi” is the more common word today, but “cab” as an abbreviation of “taxi-cab” is well known to everybody, and the legislation covering this matter is dealt with by the London Cab Order, 1934. Suppose it had been exhibited to the public with the word “taxi” on it or “Welbeck Motors Ltd Taxi proprietors”, it seems to me perfectly clear that such a vehicle would be conveying to the public not only “I am one of those vehicles”, but “I am as a taxi or as a cab available and for hire”. Indeed, this court has really gone so far as that already in Alker v Woodwardc where a vehicle was found at Liverpool bearing the inscription “Radio Taxis”, and the telephone number, “North 3071”.

It is true that there was the added fact that it was said to be standing at a licensed hackney carriage stand, but there was no physical lay-out of the stand which could be identified and the court attached no importance to that consideration, the only importance being that it was standing in a public place, and outside an hotel at half-past twelve at night. In that case the learned recorder of the Crown Court at Liverpool had upheld the submission of no case, and this court sent the case back for the hearing to be continued.
________________________________________
c “The Times”, 17 February 1962. In that case the court (Lord Parker CJ Ashworth and Fenton Atkinson JJ) held that a licensed hackney carriage driver in a car displaying a card including the words “Radio Taxis, North 3071” standing at or near a hackney carriage stand was plying for hire
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
In my judgment, there is no real difference between the expression “taxi” and “cab” and, in the circumstances of this case, it seems to me that any tribunal would be bound to hold that this vehicle in the particular circumstances of this case was exhibiting itself as a vehicle for hire. In my judgment, therefore, this case ought to be remitted to the justices with the direction that there was a case to answer and to continue the hearing of the case. I deliberately refrain from saying what, in my judgment, might amount to a defence. I would only say that it must not be taken that what I am reported to have said towards the end of my judgment in the newspaper report of Alker v Woodward is correct in fact or in lawd.
________________________________________
d Lord Parker CJ was reported to have said: “The evidence was that the defendant had said: ‘i’m waiting for a call’, and it was said that the defendant’s firm were known to operate, like mini-cabs, by radio. That, if believed, was a good defence, but the recorder need not have believed it. He should therefore have heard the evidence … ”
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WINN J. I agree, and would add only one very short point of my own, because all that I would wish to have said has been said so lucidly already by Lord Parker CJ. It seems to me that the essence of this case is what interpretation must be put on the appearance and the behaviour of the vehicle in the circumstances established prima facie by the evidence.

As I understood counsel for the respondents’ most helpful and lucid presentation of his case, he would be constrained to accept the fact that it makes no difference in law whether the vehicle was to be taken to be saying: “I am here available for you to step into and hire me as a cab”, or whether it must be taken to say: “I am here available to be hired by you conditional on my owner’s approval and ordering me to take you where you want to go”.

His case is that neither of those representations or invitations or offers can properly be spelled out on the evidence as it stood when the case was stopped. As I see the matter, leaving aside any possible technicality about whether goods displayed in a shop window are offered for sale, such goods when so displayed at least amount to an invitation to open negotiations for the purchase of those goods, and, where only one item of the kind is displayed, an invitation to negotiate for the purchase of that article assuming it to be of a rare kind or rare in the relevant circumstances.

I think that, at the very lowest, the evidence given discloses behaviour and appearance on the part of this vehicle which amounted to an invitation, “Get in touch one way or another with my owner and see whether he is willing for me to take you as a vehicle which you are hiring”. For the reasons I have added, and for all those Lord Parker CJ has given, I agree.

BRABIN J. I agree with what has been said and have nothing to add.

Appeal allowed: Case remitted.

Solicitors: Wegg-Prosser & Co (for the appellant); Amery-Parkes & Co (for the respondents).

Monday, 6 February 2012

Eastbourne v Stirling

If it wasn't for Eastbourne Borough council's failure to adopt Section 76 of the public health act 1925 we might never have had the analogy of the soliciting prostitute within the confines of a house? Nor would the Watford case have been prosecuted under the Eastbourne judgement, in fact there is every likelihood that the Watford case might have replaced Eastbourne as being the most significant plying for hire judgment for some considerable time.


In the case of Eastbourne it was observed that the whole of the proceedings would have been unnecessary if the Eastbourne Borough Council had adopted s. 76 of the Public Health Act 1925 (as it had in fact been at liberty to do at any time). Statutory powers in respect of these matters are made applicable to cars "standing or plying for hire at any railway station or on any railway premises within such areas, as if the railway station or railway premises were a stand for hackney carriages on a street".


Pill LJ commented:


Litigation in the High Court can be avoided in cases concerned with unlicensed private hire vehicles plying for hire from taxi stands on railway premises if an authority adopts s 76 of the Public Health Act 1925. That section provides: ‘In any area within which the provisions of the Town Police Clauses Act 1847 with respect to hackney carriages are in force, those provisions and any bylaws of the local authority with respect to hackney carriages shall be as fully applicable in all respects to hackney carriages standing or plying for hire at any railway station or railway premises within such area, as if such railway station or railway premises were a stand for hackney carriages on a street.’
...........................................................


Mr Nicholas Hall (instructed by Eastbourne Borough Council Legal Services Dept) appeared for the Appellant


Mr James King-Smith (instructed by Mayo & Perkins, eastborne, BN21 4RP) appeared for the Respondents


- - - - - - - - - - - - - - - - - - - - -
Judgement
As Approved by the Court


LORD JUSTICE PILL:


1. This is a prosecutor’s appeal against a decision of Mr Kevin John Gladwell, acting stipendiary magistrate for the County of East Sussex, sitting at Eastbourne on 7 February 2000. The magistrate dismissed informations against Mr Charles William Stirling and Mr Robert John Morley alleging that each of them, being the driver of a private hire vehicle was found plying for hire with the vehicle on the west forecourt of Eastbourne railway station without a licence to ply for hire having previously been obtained under section 37 of the Town Police Clauses Act 1847 (“the 1847 Act”), contrary to section 45 of the Act. Mr Stirling is alleged to have infringed on 28 May 1999 and Mr Morley on 29 May 1999.


2. It is conceded that the respondents were not licensed as required by the 1847 Act. The issue is whether the respondents were “plying for hire in any street” within the meaning of that expression in section 38 of the 1847 Act. The section provides that “every wheeled carriage ... used in standing or plying for hire in any street ... shall be deemed to be a hackney carriage within the meaning of this Act”. The west forecourt of Eastbourne railway station is shown on an agreed plan on which is marked the position of the taxi rank where the respondents were observed.


3. On each occasion, Mr Douglas Lindsay, an environmental health officer, approached a vehicle in that position. On 28 May, he asked Mr Stirling if he had a fare and Mr Stirling replied that he did not and where did Mr Lindsay want to go. On 29 May he asked Mr Morley if he had a booking and when, Mr Morley gave a negative answer, told Mr Morley that he was plying for hire. Having referred to the authorities, the learned magistrate concluded that “the prosecution had not shown that the west forecourt at Eastbourne railway station is a ‘street’ for the purposes of this prosecution and therefore the application of no case to answer must succeed”. It is not disputed that the west forecourt is owned by Railtrack and is therefore private property.


4. Two questions are posed for the opinion of the High Court, the first being procedural:


(a) Was the Court correct as a matter of law to exclude the proposed evidence of Bryan Thomas from the Prosecutor’s case?


(b) Was the Court correct as a matter of law to uphold the submission of no case to answer by the Defendants on the basis that the Prosecutor had not proved that the public had a right of access to the West Forecourt of Eastbourne Railway Station, and/or that the West Forecourt was not a “street” within the meaning of the Town Police Clauses Act 1847?


5. The procedural question can be dealt with briefly. The proposed evidence of Mr Thomas was that on two occasions in November 1999, about six months after the alleged offences, he observed a number of pedestrians approaching and entering taxis on the rank on the west forecourt from the nearby public streets. The magistrate refused to admit Mr Thomas’s evidence because “it was too far removed by time to be considered reliable as to usage by the public on the days in question, 28 and 29 May 1999”. That was a conclusion which the magistrate was in my view entitled to reach in the circumstances and his decision cannot be impugned on that ground.


6. That conclusion is of very limited value to the respondents, however, because Mr King-Smith rightly concedes that the Court is entitled to draw inferences from the agreed plan as to the likelihood of pedestrians approaching the taxi rank on the west forecourt not only from the railway premises but from the adjoining streets. The west forecourt of Eastbourne station, which is in fact a terminus, is adjacent to Terminus Road which no doubt takes its name from the railway premises. The road has terraced development on both frontages and two public houses and a bank can be observed close to the west forecourt. A market and an enterprise centre are also shown nearby. The immediate area is at least partly commercial. While on private land, the taxi rank is very close to the public highway. Indeed one end of the taxi rank is extremely close to, if not on, the boundary between the forecourt and the public highway. There is no barrier and nothing on the ground to signify the boundary between the private property and the public highway. The inference must in my judgment be drawn, on the facts of this case, that a substantial part of the demand for taxis positioned at the rank will come from pedestrians approaching from the public highway as distinct from the railway premises. Vehicles positioned on the rank will present an obvious attraction to people on the public highway.


7. For the respondents, Mr King-Smith submits that for ground to be a street, within the meaning of section 38, the public must have a right of access to it. They have no right of access to the forecourt, which is private property. For the appellant, Mr Hall submits that there is a plying in a street when vehicles are positioned, albeit on private land, in order to draw custom from the public on the adjoining public highway. Both sides rely on the judgment of Auld J, with which Mann LJ agreed, in Young v Scampion [1989] RTR 95. Mr King-Smith submits that it establishes the first of the above principles; Mr Hall submits that it acknowledges the second, though distinguishing it on the facts.


8. In Young, the unlicensed vehicles were plying for hire at Airport Way, Birmingham International Airport. It was an unenclosed road on land owned by the Airport Authority and subject to its bylaws. It led to the front of the airport. The Authority effectively controlled the public’s use of the airport land. There was a barrier at the point where the road joined the public highway but it was drawn across the road only on Christmas Day and was normally devoid of anything to indicate its presence or significance. There was no perceptible change in the carriageway or road surface, no restriction on vehicular traffic and no checks on any vehicles going into the airport.


9. Auld J referred to Curtis v Embery (1872) LR 4 Exch 369 (Court of Exchequer) and Jones v Short (1900) 69 LJ QB 473 (Queen’s Bench Divisional Court), on which Mr King-Smith relies. Those cases were concerned with land adjoining a railway station and whether it was a street within section 3 of the 1847 Act. Both cases were cases stated for the opinion of the Court. In Curtis, Bramwell B stated, at p 371, that he was of the opinion “that the road spoken of must be a road over which the public have rights”. Cleasby B agreed stating that “it appears that the railway company are entitled to prevent [the piece of land] being used by any person, and actually do prevent its being so used by all other persons: the use of it by the appellant [the carriage owner] is a special privilege granted to him. I can only say that these facts do not make the place a ‘road’ in any sense within the Act.”


10. The same conclusion was reached in Jones. It was sought to distinguish Curtis on the basis that there was a public right of footway going along the edge of the piece of ground which was private property. Channell J stated that it was clear “that a piece of private ground does not come within that definition [the definition of ‘street’ in section 3 of the 1847 Act] merely because a public footway passes along it”. Bucknill J agreed. In Jones, the emphasis was upon the meaning of “street” in section 3 of the 1847 Act, where the word is defined as extending to and including “any road, square, court, alley and thoroughfare or public passage”. The effect of the expression “plying for hire” in this context was not addressed.


11. Curtis was cited in White v Cubitt [1930] 1 KB 443 on which Mr Hall relies. The issue was whether a driver who plied for hire upon a piece of private ground adjoining the public highway was plying for hire “in any public street, road, or place” within the meaning of that expression in section 4 of the Metropolitan Public Carriage Act 1869. The piece of ground belonged to a public house adjoining the public highway. It was level with the public street but marked off from it by a line of stone sets not raised above the street level. Curtis was relied on by counsel in White to support the proposition that the ground was not public because the public had no access to it except by permission of the owner. Lord Hewart CJ stated at page 449: “It is not denied that the locus referred to was a place. But it is said that it was not a public place within the meaning of this particular definition. ... . The justices came to the conclusion that the vehicle was not in any public street, road or place ... .”


12. Lord Hewart continued:


“The attention of the Court has been very properly directed to certain cases which are thought to have some bearing upon the matter here in question. It has not been necessary to refer to the series of cases involving controversies that may be thought to be of a somewhat artificial kind as to the meaning of the expression ‘plying for hire’. But various cases have been cited for the purpose of illustrating the proposition that this particular place was not a public place within the meaning of this Act, though at the same time it is freely admitted that there is no case directly in point. The question is not concluded by authority, and we approach it as if it were a tabula rasa.


It seems to me that much light is thrown upon the matter by the observations of Avory J in the case of Birmingham and Midland Motor Omnibus Co v Thompson [1918] 2 KB 105. In that case he used these pregnant words: ‘I should like to add that if it were necessary to discuss the question whether these omnibuses were under the circumstances plying for hire in a street I should have liked further time to consider it. I am not satisfied that it has been decided in any previous case that under such circumstances as those of the present — namely, the gate of the yard being open, placards and notices directing the public to the yard, and the omnibuses being visible from the street — these omnibuses might not properly be said to be plying for hire in a street, but it is not necessary to decide that, and I postpone the expression of any opinion upon it. (Page 113)’ In the same case Atkin J, now Lord Atkin, said: ‘There is one matter that I should like to refer to, though I express no opinion upon it namely, whether, if this case had to be sent back for decision upon the question, it would not have been open to the magistrates to find that the appellants there were permitting their omnibus to be used for plying for hire in a street. In this case the magistrates have found the contrary. I only desire to say that in another case it appears to me that upon similar facts it might be possible for the magistrates to come to a difference conclusion.’ (Page 114).


It seems to me that those observations made with reference to the circumstances of that case are applicable a fortiori to the circumstances of the present case. Here the whole scheme and purpose of the arrangements which have, not without ingenuity, been made, were to enable this motor vehicle to ply for hire by attracting the public through being manifestly exhibited near the edge of the highway at a place to which the public were invited, to which the public had resort, and around which there was no sort of barrier, physical or other, to prevent the ingress and egress of the public.


In my opinion this place was as public as it could be, and was selected for the purpose of the respondent precisely because it was as public as it could be. Upon the materials, I think, there was no evidence to justify the justices in coming to the conclusion that for the purposes of this section, and with reference to the mischief against which this section is directed, this was not a public place.”


That approach to the question was not considered in Curtis or Jones.


(The “arrangements” which Lord Hewart appears to have had in mind were that the respondent had an arrangement with the owner of the public house by which he could position his motor car “in full view of the public highway”.)


13. I do not consider that any distinction can be drawn on the basis that Lord Hewart made reference to a “public place” rather than to a “public street” which is also in the relevant definition. He relied upon the dicta of Avory J and Atkin J both of whom referred to a “street”.


14. In Young, Auld J drew attention, at page 110F, to the fact that in White “the vehicles, although on private land, were located where they were in order to draw custom from the general public in the adjoining public street”. That appears to have been the principle extracted by Auld J from White. Auld J continued:


“In Curtis v Embery (1872) LR 7 Exch 369 and Jones v Short (1900) 69 LJ QB 473 the railway cases, the carriages were parked on railway land to draw custom from those members of the public using the railway, that is people on the railway company’s private property. Both the carriages and the behaviour of the railway travellers using them were, when on that land, subject to the control of the railway company.


Here, the defendants were parked on the Airport Authority’s private property in order to draw custom from those using the airport. They were not soliciting custom from those using the public streets of Solihull, and whilst there, were physically separated from such general custom more completely than were the vehicles in the railway cases or those relied upon by the Solihull Council. Whilst there, they and their potential customers were subject to the control of the Airport Authority as expressed in the bylaws and as exercisable by it as owner of the land.


The various matters relied upon by the justices in paragraphs 8 and 9 of the case stated going to the lack of any physical restriction or sign of change at the boundary between the public highway and the start of Airport Way are no more relevant than the lack of physical divide between the road and hackney carriage stand in the railway cases. The principle applied in those cases, with which, as I have said, I agree, is that land is not a ‘street’ for the purpose of section 38 unless the public, including taxi drivers in their taxis, have a legal right of access to it. The fact that the public, including taxi drivers, in fact resort to a particular location in large numbers, as they do to modern railway stations, airports and hotel entrances, and the like, cannot of itself make such a location a street for this purpose.


15. Thus Auld J did not reject the principle in White, as he stated it, but distinguished the case on the basis that the physical separation from the public highway at Birmingham Airport required that a distinction be made. I respectfully agree with that distinction.


16 Mr King-Smith submits that the decision in White was reached per incuriam. The effect of Curtis and of Jones was not understood. It was not open to the Divisional Court in White to hold that the ground was a public place because a place can be public for present purposes only if the public have a right of access to it. Since the public have no right of access to the west forecourt at Eastbourne station, taxis at the rank are not “plying for hire in any street”.


17. I am unable to dismiss White in that way and neither in my view did Auld J in Young. Auld J appears to me to have to accepted the principle that vehicles positioned “in order to draw custom from the general public in the adjoining public street” can be “plying for hire in any street”, within the meaning of section 38. I have to say that if Auld J indeed accepted the White principle, as he stated it, I do have difficulty with the concluding sentences in the passage cited from his judgment, where a definition is stated by reference to section 38 without mentioning the principle. I agree with the actual decision in Young because the taxi rank was well away from the public road and likely to attract only pedestrians using the airport.


18. I would apply the White principle in this case. The taxi rank is situated immediately adjacent to a public street in what is plainly a busy part of Eastbourne where many commercial premises are situated and pedestrian traffic will be high. A vehicle on the rank is plainly likely to attract custom from members of the public using the adjoining street in a busy part of the town. The respondents were plying for hire in a street within the meaning of section 38.


19. As a matter of language, I have no difficulty in construing the expression “plying for hire in any street” as covering a situation in which the vehicle is in a prominent position just off the street and the public are in numbers on the street. The same point arose in the context of the Street Offences Act 1959 in Smith v Hughes [1960] 2 All ER 859 where this Court considered whether a prostitute who solicits men in a street from the balcony of a house or from behind closed or open ground floor or first floor windows of a house adjoining the street commits the offence of soliciting “in a street or public place” contrary to section 1(1) of that Act. Lord Parker stated, at p 861B:


“Observe that it does not say there specifically that the person who is doing the soliciting must be in the street. Equally it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone. I think that the magistrate came to a correct conclusion in each case, and that these appeals should be dismissed.”


20. That the services offered in that case were different from those in the present case needs no underlining but the reasoning of Lord Parker applies in the present context. The driver is plying for hire in the street if his vehicle is positioned in circumstances such that the offer of services is “projected to and addressed to” members of the public in the street.


21. I only add that this litigation in the High Court could have been avoided because the case is concerned with railway premises. Had the appellant Council adopted section 76 of the Public Health Act 1925, as it is conceded they could have done, proceedings could have been taken against the respondents under that section. Subject to exceptions, section 76 provides:


“In any area within which the provisions of the Town Police Clauses Act 1847 with respect to hackney carriages are in force, those provisions and any bylaws of the local authority with respect to hackney carriages shall be as fully applicable in all respects to hackney carriages standing or plying for hire at any railway station or railway premises within such area, as if such railway station or railway premises were a stand for hackney carriages on a street.”


22. I would allow the appeal.


MR JUSTICE BELL:


I agree.
*******************


MR JUSTICE BELL: Lord Justice Pill apologises for not being here, he is presiding over a division of the Court of Appeal (Criminal Division) in Cardiff. Unless there is anything further to be said about the judgment which you have seen in draft, Lord Justice Pill has asked me to hand down his judgment with which I agree and that I formally do.
So far as any ancillary matters are concerned, all but one I can deal with on my own provided the parties consent to that. Do you agree that I deal with any other matters on my own? If not the matter would go over until Lord Justice Pill and I were available to sit together.
MR JUDGE: My Lord, I appear for the appellants, Eastbourne Council, and certainly on their behalf I would agree to your Lordship dealing with ancillary matters.
MR JUSTICE BELL: Mr Thomas?
MR THOMAS: I also agree, my Lord.
MR JUSTICE BELL: What other matters are there to be dealt with then?
MR THOMAS: Perhaps logically the first thing to do would be an application by me on behalf of the respondents for a certificate from this court of a point of law so that they may appeal to the House of Lords.
MR JUSTICE BELL: That is the one thing I cannot deal with on my own. What I suggest is that you make the application in writing, which it is possible to do.
MR THOMAS: My Lord, yes.
MR JUSTICE BELL: Presumably you will report back to Mr King-Smith.
MR THOMAS: I certainly will, my Lord, yes.
MR JUSTICE BELL: It will have to be done promptly but if he makes the application in writing and addresses it for the attention of Lord Justice Pill it seems to me there is no reason why it should not be dealt with on the papers.
MR THOMAS: Indeed. I am grateful for that, my Lord.
MR JUSTICE BELL: You may have it already but of course you have to actually specify in precise terms the point which you apply to have certified.
MR JUDGE: My Lord, the appellant's would apply for this matter to be remitted to the magistrates for a re-hearing. I would also invite your Lordship to consider an inter-parties order for costs in this matter.
MR JUSTICE BELL: Let us deal with that first. Is there any objection to that Mr Thomas?
MR THOMAS: My Lord, yes, I would object to that. May I just indicate the basis upon which I do so? The decision itself at the penultimate paragraph, paragraph 21.
MR JUSTICE BELL: The case stated or the judgment?
MR THOMAS: My Lord the judgment. Is your Lordship dealing with the question of costs now?
MR JUSTICE BELL: No, I am dealing with the question of remission first of all.
MR THOMAS: I am sorry, I misunderstood what your Lordship was dealing with. The point I wish to make is in relation to costs rather than remission.
MR JUSTICE BELL: Is there anything you have to say concerning remission?
MR THOMAS: My Lord, no, only that the remission may be more safely put back to await the outcome of the application for a certificate of a point of law. If that application is unsuccessful of course then it may be remitted. If it is successful then an application at least could be made for leave to appeal to the House of Lords and in the event that that was successful an appeal would proceed and in those circumstances it may be better, in my submission, to remit it after that decision - if at all.
MR JUSTICE BELL: I must say I had it in my mind that - it is easy to mistake one case for another when one is doing a series in the Divisional Court - the prosecutor was not asking for remission in this case it was more a question of actually deciding the technical point.
MR JUDGE: I have taken over this case this morning and I have a note from counsel and it does refer to asking that this matter be returned to the Magistrates Court for a rehearing.
MR JUSTICE BELL: Let us just look at the dates of the actual offences.
MR JUDGE: As I understand it, my Lord, we will we are dealing with 28th and 29th May 1999.
MR JUSTICE BELL: Yes. What is the maximum penalty for these offences. It was one offence each, was it not?
MR THOMAS: My Lord my understanding is it is a fine at level four.
MR JUSTICE BELL: What is level four.
MR THOMAS: I think, and here I am not absolutely certain, it is £2,000, being the maximum. I understand.
MR JUSTICE BELL: I do not see any useful purpose in a further hearing. It was a test case for the kind of situation which prevailed in respect of each respondent.
What about costs?
MR JUDGE: My Lord, I would invite your Lordship to consider an inter-parties costs order in the sum of £1,799 to be taxed.
MR JUSTICE BELL: Is that in relation to the appeal or does that cover both matters?
MR JUDGE: If your Lordship will bear with me, as I have just taken over the case. It relates to the application fee, the brief fee for the substantive hearing in the magistrates.
MR JUSTICE BELL: Before this court or the magistrates?
MR JUDGE: I think it must be before your Lordships, looking at the breakdown, and also the solicitors' preparation in respect of that hearing and my fee for today.
MR JUSTICE BELL: What was the position of the costs below?
MR THOMAS: My Lord, the costs below were ordered against the appellant, the defendants in the Magistrates Court being successful on the application of no case to answer the costs were awarded against the prosecutor.
MR JUSTICE BELL: It seems to me you are asking for -- are you asking for costs below as well as here then?
MR JUDGE: I am only instructed to ask for this sum in relation to this hearing.
MR JUSTICE BELL: Yes. Let us deal with costs below then. It seems to me I ought to quash the order for costs against the prosecuting counsel below.
MR JUDGE: I am obliged.
MR JUSTICE BELL: Is there any answer to the costs of the appeal Mr Thomas?
MR THOMAS: My Lord, there is an answer to it, although I have to acknowledge that the appellants were successful, and the answer lies in paragraph 21 of the judgment which I referred to a little earlier. If your Lordship looks at paragraph 21 which is at the bottom of the penultimate page where Lord Justice Pill says:
"I only add that this litigation in the High Court could have been avoided because the case is concerned with railway premises. Had the appellant Council adopted section 76 of the Public Health Act 1925 [namely a different act], as it is conceded they could have done, proceedings could have been taken against the respondents under that section. Subject to exceptions, section 76 provides:
'In any area within which the provisions of the Town Police Clauses Act 1847 with respect to hackney carriages are in force, those provisions and any bylaws of the local authority with respect to hackney carriages shall be as fully applicable in all respects to hackney carriages standing or plying for hire at any railway station or railway premises within such area, as if such railway station or railway premises were a stand for hackney carriages on a street.'"
The short point is that it is up to the prosecutor to decide the proper section under which to bring the prosecution. This issue as to whether a street on railway premises was a street for the purposes of the Town Police Clauses Act could have been altogether avoided had the prosecution been brought under that section. I understand it to have been conceded----
MR JUSTICE BELL: I do not think it is a question of the section. What they have to do is actually adopt the provision, that they could have done and as I recall the argument could still do but had not done, even if they have done it now, by the time of these alleged offences.
MR THOMAS: My Lord, that is correct, that is my understanding. It was not done in this case is the point. On that basis the High Court proceedings could have been avoided and when it comes to deciding who is responsible for avoiding it the answer is that the prosecutor ought to have had this in mind and on that basis it would, in my submission, be unfair to make an inter-parties costs order on this appeal, even where the appellant has been successful.
MR JUSTICE BELL: Yes. I propose to make an order that the respondents to the appeal pay the appellant's costs. Although it is true that had the appellant counsel adopted section 76 of the Public Health Act 1925, as it is accepted they could have done, and indeed as they could still do, the point which arose on this appeal would never have arisen. Nevertheless that provision not having been adopted the point did arise, it was a discrete point to be adjudged by this court on this appeal. As it happens the Borough Council won on that point and the respondents lost and I can see no good reason why the respondents, whom in any event I take to be representatives of a taxi firm or business in Eastbourne, should not pay the Borough Council's costs which would otherwise come out of taxpayers' money.
MR JUDGE: I am obliged.

Saturday, 4 February 2012

Hunt V Morgan...

A taxicab driver commits no offence under the Act of 1853 by refusing to stop when hailed and can only be required to accept anyone who chooses to hire him when his cab is on a rank or in certain circumstances is stationary in a street.


This particular case highlights the need to see things through to a positive conclusion, not giving up at the first hurdle. The Taxi driver was found guilty by a magistrate and lost an appeal to Quarter Sessions where the fine was doubled. Undeterred, he appealed to the  Divisional Court  where the appeal was upheld and a precedent was set. 


Hunt v Morgan 

CRIMINAL; Road Traffic 

KING’S BENCH DIVISION 
LORD GODDARD CJ, HILBERY AND BIRKETT JJ 
23 NOVEMBER, 1 DECEMBER 1948 

Hackney Carriage – Taxicab – Metropolitan police district – “Plying for hire” – Obligation to accept fare while travelling along street – London Hackney Carriage Act, 1853 (c 33), ss 7, 17(2). 

By the London Hackney Carriage Act, 1853, s 7: “The driver of every hackney carriage which shall ply for hire at any place within the limits of this Act shall (unless such driver have a reasonable excuse, to be allowed by the justice before whom the matter shall be brought in question), drive such hackney carriage to any place to which he shall be required by the hirer thereof to drive the same not exceeding six miles from the place where the same shall have been hired … ” and by s 17(2): “Every driver of a hackney carriage who shall refuse to drive such carriage to any place within the limits of this Act … to which he shall be required to drive any person hiring or intending to hire such carriage” shall be guilty of an offence. 


On 8 July 1947, the appellant, a taxicab driver, was driving along a London street with the flag of the taximeter in the “For hire” position when he was hailed by a person wishing to hire the taxicab. The appellant, without reasonable excuse, refused to stop and accept the fare. 

Held – A taxicab driver commits no offence under the Act of 1853 by refusing to stop when hailed and can only be required to accept anyone who chooses to hire him when his cab is on a rank or in certain circumstances is stationary in a street, and, therefore, the appellant was not liable to conviction under s 17(2). 

Case Stated by County of London Quarter Sessions. 

The appellant was convicted by a metropolitan magistrate sitting at Bow Street Magistrate’s Court of unlawfully refusing to drive a motor hackney carriage to a place within the limits of the London Hackney Carriage Act, 1853, not exceeding six miles, to which he was required to drive by a person intending to hire such carriage, contrary to s 17(2) of the London Hackney Carriage Act, 1853, and was fined 10s. 

The appellant was driving a taxicab in Victoria Street, London, SW. The taxicab was not already hired and the flag of the taximeter was in the “For hire” position and not covered. A person was standing on a road “island” in Victoria Street, and, as the appellant’s taxicab approached the “island,” this person made clear signals and shouted to indicate that he desired to hire the taxicab. The appellant saw the person and realised that he wished to hire the taxicab, but did not stop on the ground that, in his view, the person was under the influence of drink. 

The appellant passed the “island,” heard the person calling out “I will report you,” and still did not stop. The intending passenger was not drunk or under the influence of drink. Quarter sessions dismissed an appeal by the appellant against the magistrates’ decision and increased the fine to £1. The appellant now appealed to the Divisional Court who allowed the appeal and quashed the conviction. 

Collard and Borders for the appellant. 
Cassels for the respondent. 

1 December 1948. The following judgment was delivered. 

LORD GODDARD CJ read the following judgment of the court. The appellant in this case was convicted before a metropolitan magistrate “for that he at Victoria Street, Westminster, being the driver of a motor hackney carriage did unlawfully refuse to drive the said carriage to a place within the limits of the London Hackney Carriage Act, 1853, not exceeding six miles, to which he was required to drive by a person intending to hire such carriage, contrary to s 17(2) of the London Hackney Carriage Act, 1853.” 

The appellant appealed to the appeal committee of the quarter sessions for the County of London who dismissed the appeal and increased the fine imposed by the learned magistrate, but subject to a Case stated for the opinion of this court. The facts were that at 1 am on 8 July 1947, the appellant was hailed by a person desiring to hire the cab at the corner of Victoria Street and Vauxhall Bridge Road. The appellant refused to stop and accept the fare, and the reason which he subsequently gave was that in his opinion the person hailing him was under the influence of drink. 

Both the learned magistrate and the appeal committee found that this opinion, if it was held by the appellant, was both inaccurate and unreasonable, from which it follows that he had no reasonable ground for refusing the fare if he was bound in law to drive him.

The question raised is whether a cruising taxicab driver is bound to accept anyone who hails him. It is obviously one of general importance, not only to cab drivers, but also to the members of the public, and it seems never to have been the subject of a decision. 

There is, no doubt, a widely held belief that a cabman, whether on the rank or not, is bound to accept a fare unless he has a reasonable excuse for refusing, and a full examination of the statutes relating to hackney carriages in London is necessary to decide whether this belief, which, at any rate, accords with the opinion both of the learned magistrate and the appeal committee, is well-founded. 

The first Act dealing with hackney carriages in London to which it is necessary to refer is the London Hackney Carriage Act, 1831, an Act to amend the laws relating to hackney carriages and other conveyances. By s 34 of that Act it was provided that: 

"the driver of every hackney carriage which shall be let for hire at any place within the distance of five miles from the General Post Office 1065… shall be obliged and compellable, if required by any person hiring such hackney carriage (unless such driver shall have a reasonable excuse to be allowed by the justices … ) to drive such hackney carriage to any place to which he shall be so required to drive the same within the distance of five miles” 

That Act repealed a very large number of old statutes which dealt with hackney carriages and coaches in London as well as other means of transport. In that Act no reference is made to standing places or, as they are commonly called, cab ranks. A reference to contemporary literature will, however, show that unofficial cab ranks did exist in London at that time, as it may be remembered that Mr Pickwick, on 13 May 1827, set out for the Golden Cross in a cab which was the first one on the rank at St Martins-le-Grand in order to get the coach for Rochester, but we have not been able to find any Act regulating or setting up cab ranks before the London Hackney Carriages Act, 1843. 

Section 29 of that Act provided that it shall be lawful for the Commissioners of Police to appoint standings for hackney carriages at such places as they shall think convenient within the Metropolitan Police District and to make regulations concerning them, and s 33 provided that: 

"every driver of a hackney carriage who shall ply for hire elsewhere than at some standing or place appointed for that purpose, or who by loitering … shall cause any obstruction in … any public street … shall for every such offence forfeit [a fine].” 

It may be observed that in this Act, as in another Act dealing with the subject, it seems as though to stand and to ply for hire are used as interchangeable terms meaning the same thing. For instance, in s 31 of the 1843 Act, it is provided that nothing in the Act shall authorise any cab (which expression, for brevity, we shall use throughout to describe a hackney carriage) to stand or ply for hire opposite to the General Post Office in St Martins-le-Grand, where obviously from the reference in Pickwick there used to be a rank. 

Section 33, it will be seen from the reference above, forbids a cabman to ply for hire otherwise than at a standing, so clearly for the purpose of the Act the word “ply” does not connote motion, as in common parlance it often does if one speaks of a vehicle or ferry boat plying between certain points. 

We now turn to the London Hackney Carriage Act, 1853, under which the appellant was summoned. By s 7, it is provided: 

“The driver of every [cab] which shall ply for hire at any place within the limits of this Act shall (unless such driver have a reasonable excuse, to be allowed by the justice before whom the matter shall be brought in question) drive such [cab] to any place to which he shall be required by the hirer thereof to drive the same, not exceeding six miles … ” 

and by s 17(2) it is provided that the driver of a cab who shall commit any of the offences therein specified shall be liable to a penalty, one of such offences being thus described: 

“Every driver of a [cab] who shall refuse to drive [it] to any place within the limits of this Act, not exceeding six miles, to which he shall be required to drive any person hiring or intending to hire such carriage … ” 

One must, however, turn back to s 7, to which we have just referred, the section which imposes the duty on the driver and provides him with the defence of a reasonable excuse. The real question in this case is: What do the words in s 7, “which shall ply for hire at any place within the limits of this Act,” mean? Have they got the popular meaning which would certainly include a cab driving down a street with the flag up on which the words 

“For hire” appear, or must they be confined to the cabman on the rank? In our opinion, 1066with one exception which we will mention hereafter, it is only the cabman on the rank who is obliged to accept a fare. The plying for hire referred to in s 7, which is the material section, must, we think, be so confined. It refers to the driver of every cab which shall ply for hire at any place within the limits of the Act and that must, in our opinion, refer to a place appointed for the standing of hackney carriages under the Act of 1843, which is to be read together with and as part of the Act of 1853. “Place” must mean a definite point, just as the same word later in the section clearly refers to a definite destination to which the driver is required to go. It cannot mean “anywhere in a street.” 

This view is reinforced by the fact that it is actually made an offence for a cab driver to ply for hire elsewhere than at one of those places. No doubt, the cabman who has set down a fare and is proceeding to one of those places can accept a fare if he is hailed, and it could not, we think, be held, unless he was soliciting fares as he drove along the street, that he was committing an offence against s 33 of the Act of 1843. 

That it is the standing cab and not the moving cab that must accept a fare seems to be shown also by s 35 of the Act of 1831. As we have already said, that Act contained no provision with regard to cab ranks or standing places, but it does provide that: 

“Every [cab] … found standing in any street or place … shall, unless actually hired, be deemed to be plying for hire, although such [cab] shall not be on any standing or place usually appropriated for the purpose of [cabs] standing or plying for hire … ” 

The onus of proving that he was actually hired at the time of his refusal is laid on the driver. This section is unrepealed, and it would, therefore, appear that, if a cab is standing in the street, having, for instance, just set down a passenger, the driver is bound to accept as a fare any person who desires to be driven, provided that person so informs the driver while he is still stationary and not engaged. At any rate, it seems to us clear that a cab driver commits no offence under the Act of 1853 by refusing to stop when hailed, and that he can only be required to accept anyone who chooses to hire him when he is actually on a rank or is stationary in a street. 

It may not be inappropriate to hope that this matter will receive the attention of the appropriate authority which, in relation to cabs, is the Home Secretary. Conditions in 1948 are very different from what they were in 1853, when taxicabs were unknown. At present, every taxicab which is not actually hired must be driven with the flag of the taximeter in the upward position, and the words “For hire” appear on it. Modern taxicabs are now fitted with devices illuminated at night which show on the front of the roof the words “Taxi” or “For hire,” and the public may well believe that in those circumstances it is open to them to demand to be driven in any cab which is not actually conveying a passenger. 

It is evident that in the middle of the last century when all cabs were horse-drawn, the legislature desired to discourage the crawling cab, which might easily cause obstruction in the street, for the horse would naturally be allowed to proceed at a walking pace if the cab was not actually hired. Therefore, it may well have seemed to the legislature in those days that it was desirable so far as possible to ensure that the hiring of cabs should take place at recognised ranks and not casually in the streets. 

Under modern conditions, the cruising taxicab is one of the commonest sights in London streets. We have, however, to deal with the law as it stands and must see that the existing statutes are not strained so as to make a man guilty of an offence unless the words of the section clearly apply to his case. A full consideration of those sections shows that the expression “Like the cabman on the rank,” so often applied with regard to people bound to accept employment if offered, for instance, members of the Bar, is well-founded. It is also1067 to be remembered that there are no fewer than six Acts on the statute book dealing with cabs in London, Acts of 1831, 1843, 1850, 1853, 1869 and 1907. 

Some of the sections in these numerous statutes are obsolete. Many are obscure, as may be seen from the judgment of this court in Goodman v Serle, and others, as this case shows, are out of date. It is, therefore, not surprising that cab drivers, the police, and magistrates, to say nothing of the general public, have difficulty in ascertaining the law on this subject and make mistakes about it. It would seem that an Act consolidating and amending, and, if possible, simplifying, the law with regard to cabs, is very desirable. The appeal is allowed with costs here and before the appeal committee. 

Appeal allowed with costs. 

Solicitors: Seifert, Sedley & Co (for the appellant); Solicitor for the Metropolitan Police (for the respondent).

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