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LEEDS CITY COUNCIL v AZAM AND ANOTHER

QUEEN'S BENCH DIVISION

[1989] RTR 66, [1989] Imm AR 157

HEARING-DATES: 4 July 1988

4 July 1988

Hackney carriage -- Private hire vehicle -- Exemption from hackney carriage licensing provisions -- Standard of proof -- Whether on balance of probabilities -- Whether onus on defendant -- 'Private hire vehicle' -- Local Government (Miscellaneous Provisions) Act 1976 ss 46(1)(b)(e)(2), 75(1)(b)80 -- Magistrates' Courts Act 1980 s 101

HEADNOTE:
Section 46 [in Part II] of the Local Government (Miscellaneous Provisions) Act 1976 provides:

'(1) . . . (b) no person shall . . . act as driver of any private hire vehicle without having a current licence under . . . this Act . . . (e) no person . . . shall . . . operate any vehicle as a private hire vehicle -- (i) if for the vehicle a current licence . . . is not in force; or (ii) if the driver does not have a current licence . . . (2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.'

Section 75(1) [also in Part II] provides:

'Nothing in this Part of this Act shall . . . (b) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days . . .'

Section 80(1) provides:

'. . . "private hire vehicle" means a motor vehicle constructed or adapted to seat . . . passengers . . . which is provided for hire with the services of a driver for the purpose of carrying passengers . . .'

Section 101 of the Magistrates' Courts Act 1980 provides:

'Where the defendant to an information . . . relies for his defence on any . . . exemption . . . the burden of proving the . . . exemption . . . shall be on him . . .'

Where a defendant is charged under section 46 in Part II of the Local Government (Miscellaneous Provisions) Act 1976 with an offence relating to a private hire vehicle, the burden of establishing that, under section 75(1)(b), Part II of the Act of 1976 does not apply lies on the defendant, in accordance with section 101 of the Magistrates' Courts Act 1980; the defendant's burden is to be discharged on the balance of probabilities (p 70E).

Where, therefore, the defendants were charged with offences under section 46(1) and (2) in Part II of the Act of 1976 of respectively operating and driving a private hire vehicle, and the justices found that a contract of hire of the vehicle provided that the period of hire would be determined by the customers's wishes and was not set at any minimum time, and they, therefore, concluded that the contract fell within section 75(1)(b) and dismissed the informations, and the prosecutor appealed:

Held, allowing the appeal, that the burden of proof on the defendants had not been discharged, for the contract as found did not respond to the words of section 75(1)(b) so that the justices erred in dismissing the informations (p 70F) and the case would be remitted to the justices with a direction to convict (p 70K-L).

Pitts v Lewis (Note) [1989] RTR 71, DC considered.

INTRODUCTION:
Case stated by West Yorkshire Justices sitting at Leeds

1 On 17 August 1987 informations were preferred by the prosecutor, an officer of Leeds City Council, against the defendants that (a) the defendant Azam on 22 March 1987 in a controlled district in accordance with Part II of the Local Government (Miscellaneous Provisions) Act 1976, being a person licensed under section 55 of the Act, did knowingly operate a private hire vehicle when she knew the driver, the defendant Fazi did not have a current driver's licence under section 51 of that Act, contrary to section 46(1)(e)(ii) and 46(2) of the Act of 1976; (b) the defendant Azam in the same controlled district did knowingly operate a private hire vehicle when she knew the vehicle did not have a licence under section 48 of the Act, contrary to section 46(1)(e)(i) and 46(2) of the Act of 1976; (c) the defendant Fazi did knowingly act as driver of a private hire vehicle without a current driver's licence under section 51 of the Act, contrary to section 46(1)(b) and 46(2) of the Act of 1976.

2 The justices heard the informations on 5 November 1987 and found the following facts. (A) The defendant Fazi on the date of the alleged offence, 22 March 1987, was not the holder of a private hire driver's licence. (B) The defendant Fazi at 12.55 pm that day was seen by police officers driving a car in a 'controlled district' as defined in section 80(1) of the Local Government (Miscellaneous Provisions) Act 1976. (C) An advertisement was displayed on the windscreen of the car for 'Central Cars.' The words 'contract hire' appeared on the advertisement in smaller lettering. The vehicle was not displaying a private hire plate. A two-way radio was installed in the car and the call-sign '30' had been allocated to the driver. (D) The defendant Fazi was employed by the defendant Azam as a trainee driver and as such was only used on contract work, in that he was only used to carry passengers who, either themselves or through a third party, had entered into a contract for hire of a vehicle for a period of not less than seven days, being the period stipulated in section 75(1)(b) of the Act. The contracts concerned were the sort described in paragraph 2(G) below. Only if proved to be suitable would the defendant Fazi be employed to drive a vehicle, not being a hackney carriage, provided for him by his employer for the purpose of carrying passengers, otherwise than under a contract for hire. (E) The vehicle in question was owned by the defendant Azam, a joint proprietor with her husband of Central Cars, who paid the defendant Fazi £50 a week in wages plus use of the car for personal travel. (F) Had the defendant Fazi been employed as a private hire driver for passengers on individual hirings, he would have paid the defendant Azam rent for the vehicle and would have retained any fares he received. (G) A contract had been in existence for between 15 and 16 months between the defendant Azam and two night-clubs in the city, for the conveyance of staff between their places of employment and homes, one of which, was at 43 Bexley Terrace, Leeds, in which street the car had been stopped by police at a time when the defendant Fazi was acting in the course of his employment. The period of hire under the above contract would be determined by the customers' wishes and was not set at any minimum period of time. (H) An inspection of the register at the Central Cars office at Midgley Terrace, Leeds 6, revealed that no distinction had been made between entries for private hire work and those for contract work, as defined above. (I) The register revealed that between the 16 and 21 March 1987 the car using the call sign '30' had attended a number of calls. (J) If the car was on contract work, the passenger would hand a docket to the driver instead of payment in cash and an account would be submitted by the defendant Azam on a monthly basis. (K) At the material time, the defendant, Fazi was acting in the course of his employment by the defendant Azam and, when in Bexley Terrace, was using the vehicle under a contract of hire.

3 It was contended by the prosecutor that -- (a) for the purpose of section 75(1)(b), the particular vehicle had to be used exclusively under a contract for hire for a period of not less than seven days; (b) if a vehicle was used exclusively under a single continuous contract providing for a hire period in excess of seven days, the fact that the usage was intermittent did not impose a requirement for a private hire licence; (c) under the provisions of section 56 a wireless operator had to register all calls.

4 It was contended by the defendants that -- (a) the burden was on the prosecutor to prove the case beyond reasonable doubt; (b) two-way radios were installed in all cars operated by the defendant Azam; that did not indicate private hire use; even if engaged on contract work, a radio was necessary to report an emergency in or outside the car; (c) there was no indication from the register kept by Central Cars that the defendant Fazi was engaged on private hire work.

5 The justices accepted the contention of the defendants that the burden was on the prosecutor to prove the case beyond reasonable doubt. The justices were of the opinion that when the defendant Fazi was stopped by the police officers he was not acting as driver of a private hire vehicle, but was engaged on contract work. Consequently the defendant Azam was not operating a private hire vehicle at the material time. The justices did not consider the existence of two-way radio in the vehicle to be an indication of private hire use, at that time. They were further of the opinion that the contents of the register kept by Central Cars did not indicate that the defendant Fazi was engaged on private hire work at the material time. Accordingly they dismissed the three informations.

The prosecutor appealed.

The questions for the opinion of the court were whether the justices (i) were correct in law in concluding that a vehicle driven in pursuance of a contract of the sort described in paragraph 2(G) came within section 75(1)(b) of the Act of 1976; (ii) were correct in law in drawing a distinction between a private hiire vehicle and a vehicle used pursuant to a contract as described in paragraph 2(G) above; (iii) as their finding as to section 75(1)(b) was on the basis of a reasonable doubt, whether that section applied to the criminal provisions of section 46 of the Act; and (iv) if the answer to (iii) was in the affirmative, whether the burden of proof in relation thereto lay on the prosecution or whether the saving contained therein constituted a proviso or exemption within the meaning of section 101 of the Magistrates' Courts Act 1980.

COUNSEL:
Roger McCarthy for the prosecutor;

Neither defendant appeared or was represented.

PANEL: MANN LJ and HENRY J

JUDGMENTBY-1: Mann LJ

JUDGMENT-1:
Mann LJ There is before the court an appeal by way of case stated. The case is stated by West Yorkshire Justices sitting at Leeds on 5 November 1987. The prosecutor is Leeds City Council. The defendants are Pauline Azam and Patrizio Piero Augusto Fazi. Neither defendant appears or is represented.

The prosecutor's interest in the matter arises because the local authority have adopted within their area those provisions of Part II of the Local Government (Miscellaneous Provisions) Act 1976 dealing with private hire vehicles.

Before attending to the facts of the particular case, it is important to have a comprehension of what those provisions are. Section 46 provides, under the shoulder note

'Vehicle drivers' and operators' licences':

'(1) Except as authorised by this Part of this Act -- (a) no person being the proprietor of any vehicle, not being a hackney carriage in respect of which a vehicle licence is in force, shall use or permit the same to be used in a controlled district as a private hire vehicle without having for such a vehicle a current licence under section 48 of this Act; (b) no person shall in a controlled district act as a driver of any private hire vehicle without having a current licence under section 51 of this Act; (c) no person being the proprietor of a private hire vehicle licensed under this Part of this Act shall employ as the driver thereof for the purpose of any hiring any person who does not have a current licence under the said section 51; (d) no person shall in a controlled district operate any vehicle as a private hire vehicle without having a current licence under section 55 of this Act; (e) no person licensed under the said section 55 shall in a controlled district operate any vehicle as a private hire vehicle -- (i) if for the vehicle a current licence under the said section 48 is not in force; or (ii) if the driver does not have a current licence under the said section 51.(2). If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.'

There then follow elaborate provisions in relation to the licensing of private hire vehicles, the transfer of licences, the licensing of drivers of private hire vehicles, and other matters of detail.

What is a private hire vehicle? The answer to that question is returned by section 80(1) which provides:

'In this Part of this Act, unless the subject or context otherwise requires . . . "private hire vehicle" means a motor vehicle constructed or adapted to seat fewer than eight passengers, other than a hackney carriage or public service vehicle, which is provided for hire with the services of a driver for the purpose of carrying passengers . . .'

That is a very wide definition.

Section 75, which has a shoulder note

'Saving for certain vehicles etc,'

provides:

'(1) Nothing in this Part of this Act shall . . . (b) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days . . .'

The reference to

'hire of the vehicle for a period of not less than seven days'

is to be observed.

In this case, the prosecutor had, on 17 August 1987, preferred informations against both defendants. There were three of them: first, that the defendant Azam, on 22 March 1987, in a controlled district in accordance with Part II of the Local Government (Miscellaneous Provisions) Act 1976, being a person licensed under section 55 of the Act, did knowingly operate a private hire vehicle when she knew the driver, the defendant Fazi, did not have a current driver's licence under section 51 of that Act; the second was that the defendant Azam, in the same controlled district, did knowingly operate a private hire vehicle when she knew the vehicle did not have a licence under section 48 of the Act; the third was that the defendant Fazi did knowingly act as driver of a private hire vehicle without a current driver's licence under section 51 of the Act.

The justices found that there were not the requisite licences. However, the three informations were dismissed on the basis of section 75(1)(b) which I have read. The contract to which the justices had regard they found to be in the following terms:

'A contract had been in existence for between 15 and 16 months between the defendant Azam and two night-clubs in the city, for the conveyance of staff between their places of employment and homes, one of which was at 43 Bexley Terrace, Leeds, in which street the car had been stopped by police at a time when the defendant Fazi was acting in the course of his employment. The period of hire under the above contract would be determined by the customer's wishes and was not set at any minimum period of time.'

That last sentence is to be observed.

I have no doubt that the establishment of the inapplicability of Part II of the Act, by reason of section 75(1)(b), is a task falling to the defendant. It is, in my view, plainly an exemption provision, and thus within section 101 of the Magistrates' Courts Act 1980. The burden of establishing the exemption is, of course, a burden discharged on the balance of probabilities.

I find it quite impossible to say that the burden has been discharged in this case because the contract, as found by the justices, simply does not respond to the words of section 75(1)(b). That being so, I think the justices were wrong in dismissing the informations as they did.

Turning to the questions which they pose for the opinion of the court, they are as follows:

'(i) Were we correct in law in concluding that a vehicle driven in pursuance of a contract of the sort described in paragraph 2(G)' --

which I have read --

'comes within section 75(1)(b) of the Act?'

The answer to that question is "No".

Question (ii) is an alternative way of posing question (i) and does not require an answer. Question (iii) is in these terms:

'As our finding as to section 75(1)(b) was on the basis of a reasonable doubt, does that section apply to the criminal provisions of section 46 of the Act?'

I confess that I, for my part, had some difficulty in appreciating the inwardness of that question. I do not think it requires an answer.

Finally, they inquire:

'If the answer to (iii) is in the affirmative, does this burden of proof in relation thereto lie on the prosecution, or does the saving contained therein constitute a proviso or exemption within the meaning of section 101 of the Magistrates' Courts Act 1980?'

I would wish to disentangle question (iv) from question (iii), simply to say that the burden of establishing the applicability of section 75(1)(b) falls upon the defendant. I would so answer the questions, and remit the matter to the justices with a direction to convict.

I am happy to say that the conclusion I reached seems to me to be consonant with the decision of this court in Pitts v Lewis [1989] RTR 71 of 16 May 1988; see in particular p 73K.

JUDGMENTBY-2: Henry J

JUDGMENT-2:
Henry J I agree.

DISPOSITION:
Appeal allowed. Questions in case stated answered as to (1), No; as to (2) and (3), neither requires an answer; as to (4) separated from (3), 'The burden of establishing the applicability of section 75(1)(b) falls upon the defendant.' Application by prosecutor for costs refused. Adjudication of West Yorkshire Justices set aside. Case remitted to the justices with a direction to convict the defendants on the informations

SOLICITORS:
Alastair Furniss, Leeds City Council