22 February 1993 Queen's Bench Division
NOTTINGHAM CITY COUNCIL -v- WOODINGS
Rose LJ and Waller J
Hackney carriage - Licence - Plying for hire - Car with 'Fon-A-Car' sign parked in city centre while driver visiting lavatory - On returning to car driver when approached stating free to take passengers - Whether 'plying for hire with any carriage' - Town Police Clauses Act 1847 ss 37,45 - Public Health Act 1875 s 171
Section 37 of the Town Police Clauses Act 1847 [as affected by section 171 of the Public Health Act 1875 as extended] provides:
"[A local authority] may... license to ply for hire within the [local authority's area] such... hackney... carriages... as they think fit."
Section 45 [as so affected] provides:
"If the proprietor... of any carriage permits the same to be used as a hackney carriage plying for hire within the [local authority's area] without having obtained a licence as aforesaid for such carriage... or if any person be found driving, standing, or plying for hire with any carriage within the [local authority's area] for which such licence... has not been previously obtained... every such person so offending shall... be liable to a penalty..."
The defendant was the driver of a minicab, licensed as a private hire vehicle but not as a hackney carriage, which had signs on its side reading 'Fon-A-Car'. He parked the vehicle in a city centre while he visited adjacent lavatories. On returning to the vehicle he was approached by two plain clothes police officers, one of whom asked him if he was free, to which he replied he was. The officer then asked if the defendant could take them to a certain place and how much it would cost. The police officers entered the car and disclosed who they were. The defendant was convicted by justices of plying for hire with the vehicle without there being a licence permitting plying for hire under section 37 of the Town Police Clauses Act 1847, contrary to section 45 of the Act. On appeal by the defendant, the Crown Court found that, though the defendant had been prepared to accept the officers as a fare, he had merely been taking advantage of an opportunity and not 'plying for hire' within the meaning of the Act of 1847.
On appeal by the prosecutor:
Held, allowing the appeal, that whether a vehicle was itself plying for hire was not determinative of whether or not the driver was 'plying for hire with any carriage' for the purposes of the offence under section 45 of the Town Police Clauses Act 1847 (p 78J); but that, if a car was exhibited as a taxi and the driver was sitting in it, those were highly material circumstances in considering that issue (p 78G-H); and that when the defendant parked the marked car in the street for the purpose of going into the toilet he was not plying for hire, nor was he plying for hire when he was returning to the car, but, when, having sat in the driver's seat, he told prospective passengers that he was free to carry them, the defendant was plying for hire, bearing in mind where the car was and what it looked like (p 78D-E).
Cases referred to in the judgment:
Cavill -v- Amos [1900] 16 TLR 156, DC
Cogley -v- Sherwood [1959] 2 QB 311; [1959] 2 WLR 781; [1959] 2 All ER 313, DC
Rose -v- Welbeck Motors Ltd [1962] 1 WLR 1010; [1962] 2 All .
ER 801, DC
Sales -v- Lake [1922] 1 KB 553
Vant -v- Cripps [1964] 62 LGR 88, DC
Case stated by the Crown Court at Nottingham
1) On 30 September 1991 an information was preferred on behalf of Nottingham City Council, the prosecutor, against Mark Woodings, the defendant, that he, being the driver of a Nissan Bluebird private hire vehicle registration number C254 PVV on 16 August 1991 plied for hire with the vehicle on Lower Parliament Street, in the City of Nottingham, a licence permitting the vehicle to be used for plying for hire not having previously been obtained under section 37 of the Town Police Clauses Act 1847, contrary to section 45 of that Act.
2) On 13 January 1992 City of Nottingham Justices sitting at Guildhall Magistrates' Court heard the information and found the information proved.
3) An appeal against the decision of the justices was made by the defendant to the Crown Court sitting at Nottingham, which appeal was heard on 20 March 1992.
4) The Crown Court found the following facts. (a) At 8.20pm on Friday 16 August 1991, the defendant was, on Lower Parliament Street in the City of Nottingham, sitting in the driver's seat of his minicab which was a Nissan Bluebird motor car registration number C254 PVV. (b) The motor car was recognisable as a minicab by signs on the side of the car reading 'Fon-A-Car'. The car had been parked in that position for only a few minutes while the defendant visited the toilets of an adjacent public house. (c) On returning to his car the defendant was, within 10-15 seconds, approached by two plain clothes police officers. One officer asked of the defendant: "Are you free?" The defendant: "Yes." The officer: "Can you take us to Arnold?" The defendant: "Whereabouts?" The officer: "Main Road. How much is it going to be?" The defendant: "Depends on where you are going." (d) The police officers then entered the vehicle and disclosed their identities. After administering the caution and being asked if he realised it was an offence for a private hire vehicle driver to offer or accept an offer for his vehicle for immediate hire the defendant replied: "Yes." When asked if he agreed he had committed this offence the defendant replied he had no other choice. (e) At all material times the defendant was the holder of a hackney carriage driver's licence issued by Nottingham City Council. At all material times the Nissan Bluebird motor car, C254 PVV, was a licensed private hire vehicle
licensed in the name of one Smith, by Nottingham City Council. At no time was the car in question licensed as a hackney carriage within the meaning of section 37 of the Act of 1847.
5) It was contended by the prosecutor that the defendant's replies to the questions of the police officer when combined with the signs on the sides of the car, the defendant's presence in the car, and the car's presence in Nottingham City centre on a Friday evening amounted to plying for hire within the Act of 1847.
6) It was contended by the defendant that he had done nothing to invite custom. He conceded that he intended to undertake the journey to Arnold for reward but that in doing so he was merely in breach of his contract with his control company to whom members of the public requiring a car must first apply. It was contended by the defendant that whatever he ultimately agreed to do, he had not, before agreeing, been plying for hire. The defendant contended that he had parked the motor car adjacent to the public house on 'dropping off' passengers from a previous fare. The defendant contended that the motor car was present in Nottingham City centre because that was where the previous fare terminated and because he wished to use the lavatories in the public house. He contended that he would not expect at 8.20pm on a Friday evening at that part of Lower Parliament Street, Nottingham, to be approached by prospective passengers. The defendant did not concede that he intended to undertake the journey on or for a reward. He contended that he only answered the questions put by the police officer and that she entered the vehicle without his invitation to do so. The defendant contended that if the police officer had asked the defendant to take her to Arnold for reward then he would have declined to do so. He contended that he would have advised her to go to a 'taxi place'. He further contended that the signs on the side of the motor car were present due to the policy of his company.
7) The Crown Court were referred to the following cases:
Rose -v- Welbeck Motors Ltd [1962] 1 WLR 1010, DC
Cogley -v- Sherwood [1959] 2 QB 311, DC
Not placed before the justices or the Crown Court but now relied on by the prosecutor was:
Vant -v- Cripps [1964] 62 LGR 88
The Crown Court were of the opinion that the defendant was prepared to take the officers to their destination and that the defendant had done nothing to indicate an unwillingness to take the fare. The court were, however, unable to be sure the defendant was deliberately stopped where he was for the purpose of plying for hire. The court found the defendant was only taking advantage of an opportunity which arose. All the circumstances did not amount to a plying for hire within the meaning of the Act of 1847.
[The Crown Court, accordingly, allowed the defendant's appeal.]
[The prosecutor appealed.]
The question for the opinion of the court was whether the driver of a marked minicab whose vehicle was not a licensed hackney carriage was plying for hire, within the meaning of the Town Police Clauses Act 1847, if he, without more, was approached by a member of the public and then entered into and/or concluded negotiations for the hire of the vehicle.
Clive Lewis for the prosecutor.
The defendant in person.
Rose LJ This is an appeal by way of case stated by Nottingham City Council, the prosecutor against a decision of the Crown Court at Nottingham who allowed an appeal by the defendant against his conviction by Nottingham City Justices. The offence of which he had been convicted was that, being the driver of a private hire vehicle, he had on 16 August 1991 plied for hire with that vehicle on Lower Parliament Street, Nottingham, without there being a licence permitting plying for hire under section 37 of the Town Police Clauses Act 1847, that conduct being contrary to section 45 of that Act.
On 13 January 1992, the justices found that information proved. The Crown Court allowed the appeal on 20 March 1992.
The facts found by the Crown Court, as appear from the case stated, are these. At 8.20 on the evening of 16 August 1991 the defendant was sitting in the driver's seat of a motor car, recognisable as a minicab by signs on the side of the car reading 'Fon-A-Car'. That car had been parked in that position for a few minutes while the defendant went to the nearby toilets. When he returned, within 10 to 15 seconds he was approached by two plain clothes police officers, one of whom said:
'Are you free?'
The defendant replied:
'Yes.'
The officer said:
'Can you take us to Arnold?'
The defendant said:
'Whereabouts?'
The officer said:
'Main Road. How much is it going to be?'
The defendant said:
'Depends on where you are going.'
The Crown Court found that the officers then got in the car and disclosed who they were. They cautioned the defendant and asked if he realised that it was an offence for a private hire vehicle driver to offer or accept an offer for his vehicle for immediate hire. The defendant said:
'Yes.'
The Crown Court found that at all material times the defendant held a hackney carriage driver's licence issued by the prosecutor and that the car was a licensed private hire vehicle licensed by the prosecutor in the name of someone called Smith. The court found that the car had never been licensed as a hackney carriage within the meaning of section 37 of the Act of 1847.
The Crown Court were referred to a number of authorities, to which I shall come in a moment. The court expressed their opinion that the defendant was prepared to take the officers to their destination and had done nothing to indicate an unwillingness to take the fare, but, said:
'We were, however, unable to be sure the defendant was deliberately stopped where he was for the purpose of plying for hire. We found the defendant was only taking advantage of an opportunity which arose. All the circumstances did not amount to a plying for hire within the meaning of the Act.'
The question posed for the opinion of the court is:
'Does the driver of a marked minicab whose vehicle is not a licensed hackney carriage ply for hire, within the meaning of the Town Police Clauses Act 1847, if he, without more, is approached by a member of the public and then enters into and/or concludes negotiations for the hire of the vehicle?'
On behalf of the prosecutor, Mr Lewis draws attention to the statutory provision, namely section 45, which makes it an offence-
'...if any person be found driving, standing or plying for hire with any carriage...' -
without the relevant licence. He has helpfully drawn the court's attention to a number of authorities to which it will be convenient to refer chronologically. The first is Cavill -v- Amos [1900] 16 TLR 156, a decision of the Divisional Court consisting of Channell and Bucknill JJ in relation to section 45. It was a case in which, as appears from the brief report, passengers arriving at Harwich were solicited as they came off the pier. There was a group of nine. There were no hackney carriages on the stand licensed to carry more than five. The appellant indicated that he had an appropriate vehicle at his stables. Five climbed into the appellant's licensed carriage and were taken to the stables. The other four went on foot. The horse was then transferred to the wagonette to which the driver had referred and that was unlicensed. The whole party embarked in the wagonette and away they went. Channell J said, at p 157, that there was no evidence on which the justices could find a plying for hire:
'In ordinary cases, in order that there should be a plying for hire, the carriage itself should be exhibited.'
He went on to say that it might be possible to ply for hire with a carriage, without exhibiting it, by going about touting for customers but, in this particular case, the touting had been done for the licensed carriage, not for the customers in the first instance to embark upon the unlicensed wagonette. That case was referred to in Sales -v- Lake [1922] 1 KB 553, in which Lord Trevethin CJ gave the first judgment. That being a case involving the Metropolitan Public Carriage Act 1869, he said, at pp 557-558:
'In my judgment a carriage cannot accurately be said to ply for hire unless two conditions are satisfied. (1) There must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them, and (2) the owner or person in control who is engaged in or authorises the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers.'
In that case the soliciting of passengers had been done before the charabanc involved embarked upon its journey. The magistrate found that when, in the course of its journey, it stopped in Grosvenor Gardens:
'...no member of the public could have obtained a seat in the vehicle for that journey who had not previously booked his ticket elsewhere. That is to say the process of soliciting was then over and the driver was merely receiving passengers who had already booked their seats. On this ground alone in my judgment the magistrate was right in refusing to convict.'
Lord Trevethin CJ went on, at p 558:
'... on the findings of the learned magistrate there is no evidence that this charabanc was every plying for hire...'
He went on to refer to Cavill -v- Amos [1900] 16 TLR 156 and to say, by reference to the observations of Channell J which I have already quoted, at pp 559-560:
'I agree with those remarks and in my judgment they show that Cavill -v- Amos was a stronger case. For in that case the defendant owned the wagonette at the time he was soliciting passengers, yet because the soliciting was not connected with, or to repeat the expression I used before, "appropriated to" the wagonette, it was held that the defendant was not plying for hire with the wagonette.'
In Cogley -v- Sherwood [1959] 2 QB 311, which was again a case involving the Metropolitan Public Carriage Act 1869, and an alleged offence under section 7 which relates to the plying for hire of 'any unlicensed hackney or stage carriage', Lord Parker CJ said, at p 324:
'...the first thing that strikes one is that the Act is dealing with carriages plying for hire, not with persons carrying on the business of letting out carriages. It is the carriage that must ply for hire, and, though a human agency must clearly be involved, the Act is directing one's attention to the carriage under consideration and posing the question: is it plying for hire?'
Lord Parker CJ said, at pp 325-326:
'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.'
He goes on to say, at p 326, that, in that particular case, the cars in question were not exhibited:
'... the only cars that were on view were at one terminal, and to any ordinary member of the public they did not appear to be for hire; they appeared merely to be ordinary private cars with private chauffeurs.'
Lord Parker CJ said, at p 327:
'... "plying for hire" must have the same meaning whether applied to stage carriages or hackney carriages.'
The court quashed the conviction in that case. Donovan J, at p 329, expressed the same view that the expression 'ply for hire' connoted some exhibition of the vehicle to potential hirers as a vehicle which may be hired. Salmon J said, at p 331:
'But for authority, I should have thought that a vehicle plies for hire if the person in control
of the vehicle exhibits the vehicle and makes a present open offer to the public, an offer which can be accepted, for example, by the member of the public stepping into the vehicle.'
He goes on to say, at pp 331-332:
'Although authority precludes a finding that the making of a present open offer is a necessary part of "plying for hire", I do not feel compelled by any authority to find that a vehicle plies for hire unless it is exhibited.'
In Rose -v- Welbeck Motors Ltd [1962] 1 WLR 1010, a case concerned with the plying for hire of a hackney or stage carriage under section 7 of the Act of 1869, it was held that, as the vehicle in that case had been exhibited to the public and it had been established prima facie that it was impliedly inviting the public, it was prima facie exhibiting itself as a vehicle plying for hire and the justices had therefore been wrong in dismissing the information.
Lord Parker CJ referred, at p 1014, to Cogley -v- Sherwood [1959] 2 QB 311 and followed that case in relation to the need for a vehicle to be exhibited when the charge was of the vehicle plying for hire. Winn J likewise said, at p 1016:
'... 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 be saying: "I am here available to be hired by you conditional upon my owner's approval and his ordering me to take you where you want to go."
In Vant -v- Cripps [1964] 62 LGR 88 the court was concerned with section 45 of the Act of 1847. The justices found that a vehicle with a taxi sign on, standing under an electric sign on a house, could do no other than cause a member of the public to assume that the vehicle was available in the business for hire without a previous contract being made. The Divisional Court held that the person in charge of that vehicle at the material time had been rightly convicted of plying for hire.
In the light of those authorities, Mr Lewis submits that a person plies for hire within section 45 of the Act of 1847 if, with his vehicle, he is available for hire by a member of the public. In the present case, the defendant had in a public street a car recognisable as a minicab available for hire, and when he, the defendant, sitting in the driving seat, was asked if he was free, he indicated that he was and that he was prepared, for reward, to take the prospective passengers.
Mr Lewis's alternative submission is that the defendant in the present case was soliciting custom expressly or impliedly, by having a car identifiable, as I have indicated, available in the street and if, on the authorities, it is necessary for a car to be exhibited, then this car was exhibited.
In my judgment, when the defendant parked the marked car in the street, for the purpose of going into the toilet, he was not plying for hire, and when he came out of the toilet, he was not plying for hire. But when, having sat in the driver's seat, he told the prospective passengers that he was free to carry them, at that stage he was, bearing in mind where the car was and what the car looked like, plying for hire.
It may be that, in approaching this matter, the Crown Court to some extent confused the question of whether the car was standing in the street with the question of whether the defendant was plying for hire with the carriage. No doubt, as I have said, when he parked the marked vehicle so that it was merely standing in the street, he was not committing an offence. But it seems to me that plying for hire sufficient to constitute the offence took place when, sitting in the car, he answered the question in the way which I have indicated.
For my part, I accept Mr Lewis's submission that it is not a necessary ingredient of this offence under section 45, as distinct from an offence under section 7 of the Metropolitan Public Carriage Act 1869, for the car to be exhibited. Clearly, if a car is exhibited as a taxi and the driver is sitting in it, those are highly material circumstances when one comes to consider the question of whether he is plying for hire with a carriage. But it does not seem to me that it is a necessary ingredient in this offence that the vehicle should be exhibited in the way which was a necessary requirement in Cogley -v- Sherwood [1959] 2 QB 311 and Rose -v- Welbeck Motors Ltd [1962] 1 WLR 1010. The vehicle must, of course, be with the accused driver because that is what section 45 requires. No doubt, that will normally mean it is somewhere very near, but whether or not the vehicle is itself plying for hire within Cogley -v- Sherwood and Rose -v- Welbeck Motors Ltd is not, in my view, determinative of whether or not the driver is plying for hire with a carriage.
Accordingly, it follows that, for my part, I would allow the prosecutor's appeal and answer the question posed in the affirmative.
Waller J: I entirely agree.
Appeal allowed. Crown Court's question answered in the affirmative. No further order
Solicitors for the prosecutor: Anthony Austin, Nottingham
Reported by Miss Clare Noon, Barrister
Do you want the two cases which settled the NO insurance if caught plying!!
singh v solihull
telforrd v ahmed
Login
Register
FAQ
