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Aylesbury Vale District Council v Call a Cab Limited
Aylesbury Magistrates’ Court (DJ Pattinson) 8th March 2013
A prosecution of a taxi company has failed for reasons which will amount to a wake-up call for taxi licensing authorities across the country. 24 years to the day after adopting the private hire licensing regime, Aylesbury Vale District Council's prosecution of a local operator was dismissed because of alleged procedural failures in the adoption process.
The Council prosecuted Call a Cab Limited for operating without a licence under section 46(1)(d) of the Local Government (Miscellaneous Provisions) Act 1976, together with its director for aiding and abetting the commission of the offence. The company claimed that it was not an operator but an intermediary, acting as a taxi management service, finding operators to meet the customer's journey requirements rather than accepting the booking itself. According to the Council, even if this was true, it did not change the company's status as an operator, given the definition of an operator in section 80 of the Act as someone making provision in the course of business for the invitation or acceptance of bookings for a private hire vehicle. Furthermore, said the Council, not all customers would have been aware that they were dealing with an intermediary rather than a taxi operator.
However, the company argued that it was an essential element of the offence under section 46(1)(d) that the operation occurred in a controlled district, defined in section 80 as an area for which the Act was in force by virtue of a resolution passed by a district council. The Council produced a resolution passed 24 years earlier on 8th March 1989, but the company argued that upon construction it did not amount to a proper resolution for the purposes of the Act.
The company had another string to its bow. Following the House of Lords judgment in Boddington v British Transport Police [1999] 2 AC 143 it argued that it was entitled to show on balance of probabilities that the resolution was procedurally invalid. Section 45(3) provides that no resolution should be made unless the Council has placed a statutory notice of intention to adopt in a local newspaper and has served the same on parishes and parish meetings in its area. In the case of Aylesbury Vale there are 85 parishes and 27 parish meetings. While it was accepted that newspaper advertisements had been placed, the company did not accept that notices had been duly sent, let alone received. It argued that non-receipt by one parish was sufficient to vitiate the resolution.
The Council had the difficulty that it had long since destroyed its correspondence files and so could not bring evidence that the notices were sent.
The company, on the other hand, had researched Buckinghamshire County Council archives and discovered the parish records for 12 of the parishes, whose detailed minutes did not demonstrate receipt of any such notice, even though the minutes apparently recorded all manner of information from the trivial to the important. The Council argued that an absence of note in 12 sets of minutes out of 85 parishes did not amount to proof that the notices had not been received at all. The company argued that if a random sample of 12 had no record of receipt, and the records were (as they appeared to be) a complete account, then given that the Council itself had no evidence that the notices were sent, the conclusion on balance must be that they were not.
The Council also argued that, since the case of R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354, the Courts have not treated every procedural lapse as nullifying the administrative act in question. However, the company pointed to the words of Lord Woolf MR in that case, namely that one has to focus on what Parliament considered should be the result of non-compliance. In the case of the Local Government (Miscellaneous Provisions) Act 1976, section 45(3) amounted to a prohibition on passing a resolution unless the procedural requirements had been met.
District Judge Pattinson accepted the company's arguments and therefore did not find it necessary to rule on the other procedural and substantive points arising in the case. He dismissed the prosecution and made a Defendant's costs order in favour of the company.
Philip Kolvin QC acted for Call a Cab Limited.
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"Even those who live on another planet, if there are such people, would have condemned this action before it started"
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