GMB Branch secretary wrote:
JD thank you for post, currently believe there may well cases in the pipeline and therefore sub judicee.
However how about this one, PHV vehicle stationary in West End awaiting BOOKED passenger.Approached by 2 people who request transport to A Driver states its illegal, hes already booked, hands over card of his company advising them to call, but says under no circumstances can he do job he is pre booked.2 people then produce warrant cards arrest driver stating handing over of company card equates to touting.
Very interesting, if the circumstances are as you say they are, which I have no reason to doubt then obviously there is every possibility the driver wasn't plying for hire. I would have thought the major consideration in touting would have to be the degree of proactive activity in which the touting takes place.
In my opinion the activity of Touting would suggest some form of advertising for the service you are offering and that the offer of the service must come from the person doing the touting.
In the circumstance presented here the driver might not appear to be touting, in fact he was sat waiting for a radio job and not engaged in the activity of physically approaching members of the public offering his sevices as a taxi? His offer of the card was merely to assist the two gentlemen wanting a private hire vehicle and might not amount to what could be described as "proactive" soliciting or "touting".
However if the driver said to the gentlemen, "phone this number" and "I'll be able to pick you up", then that might be a different kettle of fish?
The charge however is touting and not plying for hire and there are cases in respect of plying for hire that have been successfully prosecuted when a vehicle has been stationary and doing nothing more than being in a public place. There are also cases where under the same circumstances prosecutions have failed.
There is case law that states a stationary "private hire vehicle" is not "plying for hire" and there is also case law that's states under certain circumstances it is an offence.
We also have to consider the intention behind the act of handing over the card itself, in other words what was the mental reasoning of the driver in giving the card to the gentlemen concerned? I don't know what conversation took place but the result in this case will probably turn on what the driver actually said to the officers? The driver has one very good point in his favour and that is he had already told the two gentlemen that
"he wasn't available for hire". This is very important and it will have a major effect on how the court views the drivers state of mind at the time he was asked "if he was for hire".
If the driver merely said, "if you want a private hire vehicle then here is a card were you can obtain one", then that might be permissible? Both Taxi and private hire firms around the country shove cards through letterboxes practically every day of the week so if touting had such a broad remit then surely that activity would come very close to the interpretation of touting? However the law does state "touting must take place in a public place" so there is a huge difference in mailing cards through a letterbox and being in a public place?
There is also a recognised element that touting presumes a member of the public must be approachd in order for the driver and vehicle to be offered for use. In this case the driver did not approach the two officers it was they who approached him. So the vital first element of the charge of touting is missing. However I have to say, a court might consider that the driver and vehicle were in such a public place that the mere exhibition of the vehicle could constitute touting?
You are no doubt aware of the Dec 2005 Heathrow case where the London hackney driver Briann Scott was banned because of his alleged touting activities. He had a conviction for touting overturned in the court of appeal.
A statutory instrument in 2003 amended the relevant act so it also included hire car services.
167.—(1) Subject to the following provisions, it is an offence, in a public place, to solicit persons to hire vehicles to carry them as passengers.
(2) Subsection (1) above does not imply that the soliciting must refer to any particular vehicle nor is the mere display of a sign on a vehicle that the vehicle is for hire soliciting within that subsection.
(3) No offence is committed under this section where soliciting persons to hire licensed taxis is permitted by a scheme under section 10 of the [1985 c. 67.] Transport Act 1985 (schemes for shared taxis) whether or not supplemented by provision made under section 13 of that Act (modifications of the taxi code).
(4) It is a defence for the accused to show that he was soliciting for passengers for public service vehicles on behalf of the holder of a PSV operator's licence for those vehicles whose authority he had at the time of the alleged offence.
(5) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) In this section—
"public place" includes any highway and any other premises or place to which at the material time the public have or are permitted to have access (whether on payment or otherwise); and
"public service vehicle" and "PSV operator's licence" have the same meaning as in Part II of the [1981 c. 14.] Public Passenger Vehicles Act 1981.
(7) In section 24(2) of the [1984 c. 60.] Police and Criminal Evidence Act 1984 (arrestable offences), after the paragraph (i) inserted by section 155 of this Act there shall be inserted the following paragraph—
" (j) an offence under section 167 of the [1994 c. 33.] Criminal Justice and Public Order Act 1994 (touting for hire car services)."
It would appear to me that touting is also a form of soliciting and in this particular case I think it all depends on what was said to the officers. In the case of Eastbourne drivers were convicted of plying for hire just because they were sat in a public place and were deemed to be soliciting.
My advice for any private hire driver sat in a public place waiting for a radio job would be to place in the windscreen a small notice saying "not available for public hire". It might help them get around situations similar to the one you have presented here.
Regards
JD
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