Newman v Vincent and Another
QUEEN'S BENCH DIVISION
LORD PARKER CJ, WINN AND BRABIN JJ
31 MAY 1962
Road Traffic – Hackney carriage – Metropolitan police area – “Plying for hire” – Mini-cab – Advertisements and telephone number on vehicle – Radio aerial on roof providing two-way communication – Notice reading “Mini-cab booking” on sun vizor – Metropolitan Public Carriage Act, 1869 (32 & 33 Vict c 115), s 7.
For twenty minutes between 5.30 pm and 5.50 pm on 29 June 1961, a mini-cab was stationary in a road with the driver at the steering wheel. The mini-cab was a Renault Dauphine of distinctive appearance, having various advertisement on its 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. Further, there was a sun vizor on the vehicle, twelve inches by six inches, which had on its underside the words “Mini-cab booking”. The sun vizor was down at the material time so that any member of the public when passing could read these words. When approached by a taxi-driver, the driver of the mini-cab said that he had been told to sit there by his firm. Whilst the two men were waiting for the police, two members of the public came up and asked if either vehicle was for hire. In answer to the appellant police constable the driver of the mini-cab said “I am just waiting”.
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 magistrate upheld a submission that there was no case to answer, and dismissed the informations. On appeal by the appellant,
Held – The evidence of the mini-cab's appearance and conduct was such that there was a prima facie case of the vehicle plying for hire in the sense of being on view to the public and inviting the public to use it, and accordingly there was a case to answer and the proceedings would be remitted with a direction to continue the hearing.
Appeal allowed.
Notes
Case referred to in judgment
Rose v Welbeck Motors Ltd, ante, p 801.
Case Stated
This was a Case Stated by a metropolitan stipendiary magistrate sitting as a magistrates' court at Marylebone on 23 October 1961. On 1 September 1961, the appellant, Barrie Newman, a police constable of the Metropolitan Police Force, preferred an information against the first respondent, Derek Francis Vincent, charging that, between 5.30 pm and 5.50 pm on 29 June 1961, at Addison Crescent, London, W.14, he, being the driver of a hackney carriage was found plying for hire, such carriage not being licensed to ply for hire in the limits of the metropolitan police district, contrary to s 7 of the Metropolitan Public Carriage Act, 1869.
On the same day the appellant preferred an information against the second respondents, Welbeck Motors (Mini-cabs) Ltd charging that, on the same date and between the same times, they, being the owners of the hackney carriage, were found plying for hire, such carriage not being licensed to ply for hire within the limits of the metropolitan police district, contrary to s 7 of the Act of 1869. The following facts were found: At about 5.15 pm on 29 June 1961, a Renault motor car, owned by the second respondents, was parked in Addison Crescent, Kensignton, W.14, with the first respondent sitting in the driving seat.
The vehicle was not licensed to ply for hire within the Metropolitan Public Carriage Acts. On the sun vizor of the car a notice was attached, measuring twelve inches by six inches, reading “Mini-cab booking”. This notice was on the underside of the sun vizor, though detachable, enabling any passer-by to read its contents through the windscreen when the vizor was pulled down. Throughout the material period on 29 June 1961, the vizor was pulled down with the notice attached and visible.
Insider the car was a taxi-meter under the front left glove rack, which was not visible to passers-by. At about 5.15 pm, a taxi-driver saw the vehicle parked in Addison Crescent, and stopped and spoke to the first respondent, said that he had reason to believe that the first respondent was plying for hire, and asked him to wait until the police came.
The first respondent replied, “I've been told to sit here by my firm and so far as I know I am doing nothing wrong”. While they were waiting for the police, two members of the public came up and asked them if either of them was for hire, to which they both replied that they were waiting for the police, whereupon these two persons went away.
One of them was given a card by the first respondent, but the first respondent said nothing on giving the card, and no evidence was called as to what was written on it. At about 5.40 pm, the appellant went to Addison Crescent and saw the mini-cab with the first respondent sitting in the driving seat and talking to the taxi-driver.
The appellant asked the first respondent: “What are you doing?”, to which the first respondent replied: “I am just waiting”. The appellant also asked the first respondent what he would do if someone applied to him about hiring the mini-cab, and the first respondent said that he would tell them to book with his firm and would not take a booking for a fare himself.
When the appellant pointed out the offence to the first respondent, he replied, “I can't say anything”, and when told he would be reported for the offence, he replied, “I only started on Monday”. At 3.45 pm on 14 August 1961, a police officer saw the secretary of the second respondents at their offices who confirmed that the mini-cab was owned by them.
It was contended on behalf of both respondents that there was no case to answer in that the more presence of the notice on the sun vizor was no more plying for hire than the presence of the vehicle in the street. It was contended on behalf of the appellant that the mini-cab was clearly being exhibited for hire to all passers-by within the authorities of Gilbert v McKay b and Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwoodc.
b [1946] 1 All ER 458c [1959] 2 All ER 313; [1959] 2 QB 311
The learned magistrate was of opinion that the display of the notice on the sun vizor was not an indication to passers-by that the mini-cab was then available for hire by them, neither was the fact that the mini-cab was stationary in Addison Crescent such an indication, and that there was no other evidence called by the prosecution to show that the first respondent was plying for the hire of the mini-cab at the time and place, and he dismissed both informations. The appellant now appealed.
Paul Wrightson for the appellant.
Malcolm Morris QC and J A S Toogood for the respondents.
31 May 1962. The following judgments were delivered.
LORD PARKER CJ.
This is an appeal by way of Case Stated from a decision of one of Her Majesty's metropolitan magistrates sitting at Marylebone, who upheld a submission of no case and dismissed a prosecution brought by the appellant against the respondents, Welbeck Motors (Mini-cabs), Ltd and one of their drivers, Derek Francis Vincent, for an offence contrary to s 7 of the Metropolitan Public Carriage Act, 1869,d.
d Section 7, so far as material, 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 … “
The facts here are different from the facts in the previous case, and are as follows. For some twenty minutes between 5.30 and 5.50 pm on 29 June 1961, a mini-cab was found stationary at Addison Crescent with the first respondent at the steering wheel. Although it is not stated so in this case, it is recognised that the vehicle in question was a vehicle as described in the previous casee in which this court has given judgment.
Additionally to the facts regarding the vehicle's appearance as described in the previous case there was on this car a sun vizor twelve inches by six inches which had underneath the words “Minicab booking”. That sun vizor was down at the material time so that any member of the public passing by could read those words “Mini-cab booking”. When approached the driver of the vehicle said: “I've been told to sit here by my firm and so far as I know I'm doing nothing wrong”.
The other important difference compared with the previous case was that when the taxi-driver approached the driver of the mini-cab and they were talking and waiting for the police, two members of the public came up and asked if either of them, that is, either the taxi-cab or the mini-cab, were for hire.
[His Lordship stated the opinion of the magistrate as hereinbefore set out (see p 807, letter h, ante) and continued:] It is quite true that in some respects this is a weaker case than that of Rose v Welbeck Motors Ltd, in which we have just given judgment, because the period of time here was twenty minutes, and, although it was on a public street, it was not a bus turn-round and may well have given the appearance of waiting outside a private house.
On the other hand, it has the exceptional feature of the sun vizor but, more important to my mind, the evidence that its appearance and conduct was such that two members of the public came up and asked if it was for hire. For my part, I find it quite impossible in those circumstances to say that there was not a prima facie case of the vehicle plying for hire in the sense of being on view to the public and inviting the public to use it.
Rose v Welbeck Motors Ltd p 801,
For those reasons I would send this Case back to the learned magistrate with a direction to continue the hearing.
WINN J.
I agree.
BRABIN J.
I agree.
Appeal allowed: Case remitted.
Solicitors: Solicitor, Metropolitan Police (for the appellant); Amery-Parkes & Co (for the respondents).
N P Metcalfe Esq Barrister.
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