Saturday, 1 October 2016

UCG's Letter To Commissioner Hogan Howe.


The following is the draft of a letter sent to Chief Commissioner Hogan Howe from the UCG. 

Dear Commissioner Hogan Howe,

My name is Lee Osborne; I am a licensed London Taxi driver and committee member of the United Cabbies Group. 

Last week I attended a meeting with senior police officers to discuss the UCG's planned demonstration, due to take place, in Whitehall on the 21st September at 2pm.

During this meeting I asked some questions that the officers present were unable to answer; it was suggested that I write to you to seek answers and clarification.

The questions are in relation to certain sections of legislation pertaining to plying for hire and specifically whether private hire companies and their drivers are in breach of the law, by utilising instant hailing mobile phone applications to attract business.

As I'm sure you are aware, only licensed London Taxis  (Black cabs) are entitled to ply for hire, on the streets of London; this privilege is hard earned and is only achieved by completing the world famous series of examinations known as the 'knowledge of London'.

The whole process takes on average between 3-5 years to complete. Students must undertake a host of personal background checks including, enhanced DBS and driving tests; we are also required to drive an expensive purpose built Taxi that is wheelchair accessible and adapted to accommodate passengers with various needs and disabilities. Furthemore, the 'knowledge' is self funded by the student.

In the year 2000 the administration of the knowledge was passed from the Metropolitan Police to Transport for London (TfL).

In 1998 mini cabs / private hire vehicles were licensed, in London, for the first time and new legislation was passed with the introduction of the Private Hire Vehicles (London) act 1998. Since then a 2 tier system of Taxis and Private Hire vehicles has operated somewhat harmoniously.

The fundamental difference between Taxis & PH is that only Taxis are entitled to respond to street hails from members of the public and pick up passengers from designated Taxi ranks. Private hire or minicabs have always, by law, only been permitted to undertake pre-booked journeys made through a licensed operator.

Therefore, a PH driver who solicits for work by exhibiting availability or transports a passenger, without a prior booking is breaking the law by illegally plying for hire.

Metropolitan Public Carriage Act 1869, Section 7 

Penalty on use of unlicensed carriages. 
If any unlicensed hackney carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding five pounds 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 five pounds 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. 
Any hackney carriage plying for hire, and any hackney carriage found on any stand without having such distinguishing mark, or being otherwise distinguished in such manner as may for the time being be prescribed, shall be deemed to be an unlicensed carriage.
Section 45 of the Town and Police Clauses Act 1847 

provides that it is an offence for a person to stand or ply for hire without a Hackney carriage licence. Accordingly, it is an offence for any person to ply for hire with any carriage which in effect is being used as a Hackney carriage without previously having obtained the requisite licence for that purpose. 

I have studied numerous examples of historic case law where drivers have been prosecuted and subsequently convicted of plying for hire. I have listed below samples of case law that I believe prove that the law is being broken:

Ogwr Borough Council v Baker [1989] COD 489 

Eastbourne Borough Council v Stirling [2000] All ER (D) 1602

Nottingham City Council v Woodings [1994] RTR 72

Yates v Gates [1970] 2 QB 27 [1970] 1 All ER 754 

Cogley v Sherwood and Sales v Lake [1922] 1KB 553

Allen V Tunbridge [1871] LR 6 CP 481

Clarke & Goodge v Stanford [1871] LR 6 QB 357

White V  Cubitt [1930] 1 KB 443 DC

Gilbert V McKay [1946] 1 All ER 458, 44 LGR 63, 110 JP 186, 90 Sol Jo 201, 174 LT 196, 62 TLR 226 

Rose V Welbeck Motors Ltd and Another [1962] 1 WLR 1010, [1962] 2 ALL ER 801, QBD

In the majority, of the above cases, the judges' summing up is very consistent and tends to centre around specific circumstances, for example:

The vehicle being parked in view of the public in a location where the public could reasonably expect to find a vehicle for hire, such as in close proximity to a licensed Taxi rank, train station or transport hub, where the driver of the vehicle's sole purpose, of being there, is to be available for hire.

PH vehicles in London are easily identifiable as they are required by their licensing authority (TfL) to display luminous roundels in the front and rear windscreens; some private hire operators also display the company name on the rear window and roof of the vehicle.

'Quote' there is no comprehensive and authoritative definition of plying for hire. It is a question of ‘fact and agree’ in each case. 

Defining ‘plying for hire’ has always proven difficult, throughout history; in 2012 a group of 13 subject matter expert lawyers, working under the guidance of the law commissioner, unsuccessfully attempted to define ‘plying for hire’.  

However, in the cases where a prosecution has been successful the judges' summing up has been consistent with the points I have raised above.

For a number of years I have questioned TfL with regards to the legitimacy of night time venues in London that employ a booking agent, normally located outside of a venue, whose sole purpose is to take and record bookings for Private Hire vehicles, registered with a licensed operator at a specific venue. These type of operations are commonly referred to as 'satellite offices'.

Satellite offices recently came under scrutiny by the Greater London Authority (GLA) in their future proof report; the report suggested that it would require a significant increase in enforcement officers to ensure they were operating legally, it also acknowledges that satellite offices often attract illegal mini cab touts and sexual predators.

It has always been my opinion that Private Hire Vehicles waiting to be hired outside of venues are exhibiting themselves as available for hire. The circumstances are almost identical to those laid out in the case law I referred to earlier (specifically Ogwr Borough Council v Baker which is a carbon copy of the situation outside every venue in London each night.) Therefore I believe Private Hire vehicles parked and waiting to be hired are illegally plying for hire.

TfL, as the regulator, have always maintained that in the opinion of their in-house legal team, satellite offices and specifically the vehicles parked in view of the public, whose sole purpose of being there is to be available for hire, is not in breach of legislation and illegally plying for hire.

I have asked, on many occasions, for TfL to provide me with a copy of the written legal opinion they have on this matter and to detail exactly why they believe these vehicles and their drivers are not breaking the law. To this date no such opinion or detail has been provided by TfL or their legal team.

Furthermore, my requests for TfL to undertake a test purchase, or test case on this matter, have always been rebutted.

My question to you, as commissioner of the Metropolitan Police Service, is whose decision is it to arrest a driver suspected of illegally plying for hire? 

As far as I am aware, all of the case law I have provided is still current and has not been superseded or changed, therefore, unless you know of any other reason why this legislation is not upheld, I would like to know why the Metropolitan Police do not make arrests for this criminal activity?

Arrests for ‘plying for hire’ in the circumstances I have described are made on a regular basis in other major UK cities, particularly in Birmingham, where a traffic Police officer, I follow on Twitter, regularly tweets details of arrests made on Private Hire drivers for ‘plying for hire’.

The officers I spoke with last week appeared to be unaware of the laws pertaining to ‘plying for hire’. Can you please advise me whether training on Hackney carriage and Private Hire law is still provided to Police officers of all ranks? Would you also be able to provide me with, or direct me to any literature that is provided to officers on this matter?

I am aware that the Metropolitan Police have a "cab enforcement unit" that is dedicated to policing Taxis and Private Hire drivers and that unit is funded in part by TfL, can you assure me that the Metropolitan Police policy on plying for hire is not based on or influenced by TfL's legal opinion? 

It appears that the ‘plying for hire’ laws are either being deliberately ignored, by your officers or there has been a failure in the training given, resulting in your officers not understanding or enforcing the law. Please could you let me know which is correct.

In recent years, we have witnessed the birth of Private Hire booking apps such as Uber; these apps have the facility to display live availability of vehicles that can be electronically hailed by using a smart phone.

I believe displaying available vehicles live, on a smart phone, is akin to ‘plying for hire’ and as a direct consequence of this, many Uber and PH drivers are encouraged to wait outside busy transport hubs like: train and bus stations, airports, theatres, night venues and restaurants, with the sole purpose of being virtually hailed through the booking app, on the drivers’ mobile phones. I'm sure you don't need me to remind you of the security risk this also poses, especially in the present climate where the current UK threat level, for international terrorism, is severe, meaning an attack is highly likely.

I believe that this method, of securing a passenger booking, mimics the traditional street hail that is the sole reserve of licensed Taxi drivers for which they must be qualified, by way of completing the knowledge of London, to accept an instant hail!

I firmly believe that the circumstances in which prosecutions have been brought against drivers, for ‘plying for hire’ are replicated in the examples if have given, i.e, soliciting for fares in a location where the public can expect to find a vehicle for hire. The vehicle itself is exhibiting as being available for hire due to the fact that prospective passengers can see the location, of available vehicles, on their mobile phone or tablet.

The vehicles are easily identifiable, as a private hire vehicle, due to the fact that every licensed Private hire vehicle in London is required, by law, to display a luminous roundel in the front and rear windscreen.

A Recent TfL consultation paper (2015) identified this problem and proposed to introduce measures to prevent this continuing. It is apparent from the proposal that TfL agree this is a threat to public safety as they recommended the following proposal.

8. Operators must not show Vehicles being available for immediate hire, either visibly or virtually via an app

A number of consultees have suggested that, whether through an app or through physical street ranking, some operators are creating the impression of vehicles being available for immediate hire. This is increasing the risk of unnauthorised vehicle/driver "touting" and other illegal activity.

Operators with a physical base for their drivers (e.g. a local minicab office) could still have vehicles at the premises awaiting a booked journey.

Proposal

We propose to amend the PHV Regulations to require operators to ensure that private hire vehicles are not visibly shown to be available for immediate hire, whether physically (e.g. signage or otherwise on the street) or via an app, or other means.

Therefore it is my opinion that the evidence I have provided is sufficient to prove that the law is being broken and the Metropolitan Police and TfL are not enforcing the legislation surrounding ‘illegal plying’ for hire.

A recent high court judgement in Toronto (the supreme court of Ontario) tried a case against Uber and found that the driver (by admission of Uber) is taking the booking in the vehicle and we know that the App is ubiquitous across their global platform, therefore it is reasonable to extend the findings of a Commonwealth court to the UK. The court uncovered that the platform processes bookings in California which is in breach of the "Private Hire Vehicles (London) Act 1998" as it clearly states that the booking must be taken in the licensing area (in this case London) and that the driver is not permitted to accept the booking directly.

This demonstrates either the booking is being taken in California illegally or by the driver in his vehicle illegally.

Licensed Taxi drivers have provided a professional service to London and it's visitors for over 360 years; we are fiercely proud of our reputation for being the best Taxi service on the planet; however, the livelihoods of 25,000 Taxi drivers, their families and associated businesses are under serious threat. I believe it is reasonable to expect the Metropolitan Police and our regulator TfL to fully investigate my allegations and provide me with a legal explanation as to why my trade is not receiving the protection, from law breakers, that any other business or individual can expect.

I would like to conclude by asking you to undertake a test case based on the information I have supplied. I truly believe that the only way we can ascertain whether satellite offices and Private hire booking apps are functioning legally is for our judiciary system to decide.

I would welcome the opportunity to meet, with you, at your earliest convenience, to discuss this further as it is a serious and tangible threat to public safety.

Thank you for your time. I look forward to hearing from you.

Yours sincerely,

Lee Osborne.

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