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IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION (DIVISIONAL COURT) CO/1348/83

Royal Courts of Justice.

Tuesday, 3rd July, 1984.

Before:

LORD JUSTICE WATKINS

and

MR. JUSTICE McCULLOUGH

Crown Office List

MILTON KEYNES BOROUGH COUNCIL

v

PAUL BARRY

(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36/38, Whitefriars Street, London EC4Y 8BJ. Telephone Number: 01-583 7635. Shorthand Writers to the Court.)

MR. S. HOCKMAN {instructed by Sharpe, Pritchard & Co., London WC2, Agents for Mr. G.M. Pettigrew of Milton Keynes) appeared on behalf of the appellant.

MR. M. SELFE (instructed by Messrs. Pictons & Co., Milton Keynes) appeared on behalf of the Respondent.

JUDGEMENT (As approved by Judge)

© Crown Copyright


LORD JUSTICE WATKINS:

This is an appeal by case stated from the justices of the County of Buckingham acting for the Petty Sessional Division of Milton Keynes, in respect of a decision they made as a Magistrates' Court sitting at Fenny Stratford, Milton Keynes.

On the 20th June 1983 an information was preferred by the appellants against the respondent that he, on the 7th May, 1983, at Bletchley, Milton Keynes, did ply for hire with a certain Hackney carriage for which a licence to ply for hire had not previously been obtained contrary to section 45 of the Town Police Clauses Act 1847.

The hearing took place on the 12th October 1983. The justices found these facts. At about 6.45 p.m. on the 7th May 1983 the respondent was the driver of a red Vauxhall private hire vehicle.

Somewhere upon the front doors the words "Quick Cars" were displayed. He stopped the car close to an appointed Hackney carriage stand situated at South Terrace, Bletchley.

It was not parked on the Hackney carriage stand itself.

The respondent had very shortly before delivered passengers to the bus station adjacent to the Hackney carriage stand. Instead of moving away after his passengers had alighted, the respondent remained there, used his car radio to inform his controller that he was clear and awaited further instructions from his employers.

Approximately two minutes later a couple of people approached the respondent and asked to be taken to a destination which the justices do not identify.

The respondent told them that he could not do that but he informed his controller, a fellow employee, via his two-way radio, of the request of these two people. The controller told the respondent that he could undertake the journey.

The new passengers entered the respondent's car and were driven to their destination.

Inquiries were set on foot as to the lawfulness of the respondent’s conduct. Questions were asked of the controller and an examination made of his records.

No written record was found of the conversation authorising the new journey because, so he maintained, the controller did not make a note of it.

There was, in other words, no docket, as it is called, evidencing that conversation and order of authorisation.

A taxi driver who happened to be near the respondent at the relevant time in his cab gave evidence to the justices, about the way in which he said the respondent, behaved. The justices rejected that evidence and preferred the respondent's version of events.

They also found that the respondent, as is common ground, was not licensed to ply for hire.

In the case they include a short statement of the evidence which was heard by them.

It came from Mr. Twomey, the taxi driver I have already mentioned and a Mr. Hillsdon, the appellants' Vehicle Licensing Officer who interviewed the controller and the respondent himself who told the justices that after the couple of people had approached him and asked to be taken to a certain destination, he told them that he
could not take them there without a prior booking. It was only after that that he got in touch with the controller with the consequences I have described.

The controller, Mr. Charlie, also gave evidence and explained why it was that he had not made a record of the conversation which both he and the respondent said took place.

The justices were addressed by advocates for both the appellants and the respondent. It was submitted on the appellants' behalf that regardless of what effect the transaction between the respondent and the two people who approached him
could have had, the situation of the respondent beforehand and his reason for being in that situation were sufficient to justify them in coming to the conclusion that the respondent at the material time was plying for hire. A contrary submission was made on behalf of the respondent.

The justices were referred to Cogley v. Sherwood, (1959) 2 Q.B. 311. At page 325 Lord Parker C.J. said: In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for hire that the vehicle in question should be on view, that the owner or driver should expressly or impliedly invite the public to use it, and that the member of the public should be able to use that vehicle if he wanted to. Looked at in that way, it would matter not that the driver said:

“Before you hire my vehicle, you must take a ticket at the office”, aliter, if he said: “You cannot have my vehicle but if you go to the office you will be able to get a vehicle, not necessarily mine”. There are however some cases which point to a different conclusion. For my part, however, I find it unnecessary to go into them".
It cannot therefore be said in respect if the material incident I , so far as it went immediately prior to the respondent being approached by the two people, that the minds of the justices were not directed to the law as explained by Lord Parker.

There has been, in the course of the hearing of this appeal, considerable argument directed to the effect, or possible effect, of two people upon the issue as to whether or not it could be said that the respondent was plying for hire. Unfortunately, the justices were not similarly addressed. They were therefore not instructed on the possible legal consequence which arose from that circumstance.

I decline to express any opinion upon it solely because I have reached a conclusion which makes it unnecessary for me to do so. One of the three questions is: 3(a) It is claimed that the finding of fact that the respondent had not been plying for hire cannot be supported by the evidence and (b) Whether on the remaining findings of fact the respondent was guilty of an offence under Section 45 of the Town Police Clauses Act 1847 of plying for hire with a Hackney carriage for which a licence to ply for hire had not previously been obtained.

We have been referred also to Clarke v. Stanford (1871) Q.B. 357, Foinett v. Clark (1877) 41 J.P. 359 and to Rose v. Welbeck Motors Ltd. and Another (1962) 1 W.L.R.1010.

It is abundantly clear from those cases that the question of what is meant by plying for hire has occupied the courts from time to time for well over a century .

Decisions go back to the days when broughams and landaus were used. What is meant by plying for hire is, for taxi drivers who are licensed to operate to take part in a taxi service, of great importance. It is well-known that no one can in any neighbourhood ply for hire unless he, or his employer, or both are licensed to do so.

As has been said already this respondent was not licensed and neither was his employer.

The appellants, the local authority, are properly concerned to ensure that only licence holders operate taxi businesses. temptation, no doubt, to those who do not have a licence and who are employed by private car hire firms, to take as passengers, people who have not previously arranged or agreed with the owner of the car to be carried; in other words, to behave as though they were licensed and accordingly to pick up passengers when and where the opportunity arises upon the streets.

Mr. Hockman contends that no reasonable bench of justices' could have come to the conclusion, which this bench did, namely, that in the circumstances as they found them to be including the respondent being at rest before the two people approached him, there was in fact and in law no plying for hire.

If this court comes to the conclusion that these justices could not be said to have acted as a reasonable bench with regard to the facts and the proper inferences which should be drawn from them, then he says we should interfere, set aside the judgment of the justices and remit the case to those justices with a direction to convict.

The question is therefore: Can it be said that no reasonable bench of justices could draw the inferences-which these justices obviously did? That inference obviously was that the respondent was in the position adjacent to the Hackney carriage rank for a wholly innocent purpose and was entitled to be there for that purpose without it being found that he was plying for hire – the innocent purpose being that he was awaiting instructions from his employers as to where he should proceed from the place where he had dropped off passengers.

In coming to my conclusion, I ignore altogether, of course, the evidence which the justices rejected; that is to say the evidence of the taxi driver which was clearly hostile to the respondent. Nevertheless I fail to understand how any reasonable bench of justices could have avoided inferring from the circumstances as found that the respondent, in remaining where he was, adjacent to the Hackney carriage rank, was there in the hope and expectation that be would be able, within a relatively short period of time, to attract custom to himself and avail himself of it as and when presented.

It was not known nor could it have been by anyone just how long he would have to wait for further instructions from his employers.

It may have been two or three minutes. It may have been quarter of an hour or a good deal longer than that. Presumably, therefore, the respondent would have remained where he was for whatever period of time elapsed between his arrival at the bus station and further instructions coming from his employers.

It cannot have been without his contemplation, in my judgment, that during that time, he being in the position he was and bearing all the hallmarks upon his cab of a person who was employed for the purpose of carrying passengers, that he would be approached or was likely to be approached by people who wished to avail themselves of the services of a taxi.

Taking all those considerations into account and looking squarely at them, I do not comprehend how any reasonable bench of justices could have avoided coming to the conclusion that this respondent was plying for hire. In coming to the conclusion which they did then it seems to me failed to see what was staring them in the face, namely, a less than innocent sojourn by this respondent in his position adjacent to the Hackney carriage rank.

Accordingly I would allow this appeal, set aside the judgment of the justices, and remit the case to them with a direction to convict this respondent.

MR. JUSTICE McCULLOUGH: I agree.

On the facts found a strong prima facie case was raised that Mr. Berry was parked where he was with the intention that members of the public would see his vehicle and, in particular, its sign saying "Quick Cars", and would approach him in the belief that his vehicle was available for immediate hire.

Within one or two minutes that is exactly what happened. A couple approached him and after a brief radio call to his controller a contract of hire was entered into. By the time the couple approached him the driver had already told the controller that he had completed his previous engagement. Nevertheless he remained, waiting for his next engagement. 'How long would he have stayed had the couple not approached so soon?

The inference is that he would have remained until, as would be likely early on a Saturday evening, someone passing through the bus station wanted to hire his taxi. I see nothing in the evidence to rebut, the strong presumption that he was intending to exhibit his vehicle to potential hirers as a vehicle which might there and then be hired.

In my judgment, therefore, conviction was inevitable.

I decline to answer questions 1 and 2 in the case.

Question 1 is in general terms and not capable of a simple answer of yes or no.

Plying for hire is largely a matter of fact and degree.

Each case depends on its own facts. Similarly I decline to answer Question 2. It is not necessary to do so. It to is posed in general terms. I can visualise cases in which it might be held that a contract is made in such circumstances led, on its own, to a finding that the vehicle was plying for hire in the period of the conversations. I can visualise other circumstances in which such a conclusion could not properly be drawn. In any event, the argument addressed to us by Mr. Hockman on this question was not addressed to the court below. I too would send this case back to the justices with a direction to convict.

MR. HOCKMAN: Would you allow the appellant's costs from central funds?

LORD JUSTICE WATKINS: It must follow must it not?

MR. SELFE: If the application is for costs from central funds then obviously, I have nothing to say about that. The respondent in this case is legally aided.

LORD JUSTICE WATKINS: There is no point in doing anything about that. Have your costs from central funds.

MR. SELFE: So far as the respondent's costs are concerned, it is of course open to the court to order that they be paid out of central funds, notwithstanding the outcome or to order lega1 aid taxation.

LORD JUSTICE WATKINS:

Legal aid taxation

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin


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