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Kingston upon Hull City Council v Wilson
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
HEARING-DATES: 29 June 1995
29 June 1995
COUNSEL:
J Sampson for the Applicants; A Neish for the Respondent
PANEL: BALCOMBE LJ, BUXTON J
JUDGMENTBY-1: BUXTON J
JUDGMENT-1:
BUXTON J: This is a prosecutor's appeal by way of case stated in respect of information heard by the Justices for the Petty Sessional Division of Kingston Upon Hull on 29 November 1994. That information laid three charges against the defendant, Mr Andrew Wilson, in respect of the private hire vehicle licence provisions to be found in Pt II of the Local Government (Miscellaneous Provisions) Act 1976. Although it will lengthen this judgment considerably, I think that it may assist, for ultimate comprehension, if I set out now, before doing anything else, the sections of the Act that have been discussed before us. Perhaps I should say, by way of general introduction, that in the court below Mr Wilson appeared in person.
It is clear that a number of matters have been ventilated before us today in connection with the construction of this Act which were not raised or not clearly raised before the Magistrates. Today Mr Wilson has had the advantage of being represented by Mr Neish, who has put a number of matters to us which clearly were not, as I say, envisaged in the court below.
The relevant parts of the Act are as follows: s 46 is the section that set out the offences with which Mr Wilson was charged that I shall detail shortly. Section 46 deals with vehicle drivers and operators licences and the relevant part is as follows:
"(1) Except as authorised by this Part of this Act
(a) no person being the proprietor of any vehicle, not being a hackney carriage or London cab 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 driver of any private hire vehicle without having a current licence under section 51 of this Act;
(c).....
(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).....
(2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence."
Section 48(1) deals with the licensing of private hire vehicles, which was referred to under s 46(1)(a), and I need do no more that recognise the existence of that section. I go on to s 48(2), which reads:
"A district council may attach to the grant of a licence under this section such conditions as they may consider reasonably necessary including, without prejudice to the generality of the foregoing provisions of this subsection, conditions requiring or prohibiting the display of signs on or from the vehicle to which the licence relates."
We were concerned briefly with the first part of that subsection.
Section 51 deals with the licensing of drivers of private hire vehicles and provides for the issue of licences to drivers. Section 55 deals with the licensing of operators of private hire vehicles and deals with the issue of licences to such operators.
Section 75(2) is a saving provision which reads as follows:
"Paragraphs (a), (b) and (c) of section 46(1) of this Act shall not apply to the use or driving of a vehicle or to the employment of a driver of a vehicle while the vehicle is used as a private hire vehicle in a controlled district if a licence issued under section 48 of this Act by the council whose area consists of or includes another controlled district is then in force for the vehicle and a driver's licence issued by such a council is then in force for the driver of the vehicle."
Section 80 is an interpretation section and contains a number of definitions important to this case:
"'operate' means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle;
'private hire vehicle' means a motor vehicle constructed or adapted to seat fewer than nine passengers, other than a hackney carriage or public service vehicle or a London cab, which is provided for hire with the services of a driver for the purpose of carrying passengers;
'hackney carriage' has the same meaning as in the Act of 1847;"
That latter Act is the Town Police Clauses Act 1847, s 38 of which reads in part:
"Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance, and every carriage standing upon any street within the prescribed distance, having thereon any numbered plate required by this or the special Act to be fixed upon a hackney carriage, or having thereon any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of this Act; and in all proceedings at law or otherwise the term 'hackney carriage' shall be significant to describe any such carriage:"
Mr Wilson was charged with three offences: an offence under s 46(1)(a) of using a private hire vehicle in a controlled district as a private hire vehicle without having a licence; under subsection (b), of driving such a vehicle in a controlled district without a licence; and under subsection (d), operating in a controlled district any vehicle as a private hire vehicle.
As to the meaning of "controlled district", I should turn back to s 80, which indicates:
"'Controlled district' means any area for which this Part of this Act is in force by virtue of a resolution passed by a district council under section 45 of this Act;"
Section 45 of the Act provides that the provisions of this Act may come into force in a particular district if the district council of that area passes a resolution to that effect.
The nub of the complaint against Mr Wilson was that he used, drove and operated a private hire vehicle within the control district of, putting it shortly, Hull without having any of the respective licences that were required to be issued by the council of that district.
The Case Stated sets out the facts as found by the Magistrates and I must, I fear, repeat those in full. They say that when they heard the information on 29 November 1994 they found the following facts, in para 2 of the Case Stated:
"(a) At approximately 11.00am on Wednesday, 5 May, 1994, two Officers from the Hull City Council, Mr David Richard Henderson and Mr David Batty undertook an investigation into the activities of A-Team Taxis after receiving complaints from members of the taxi trade. They attended at the Francis Street Office of the respondent's taxi firm in Hull. The premises were found to be padlocked and nobody was there.
(b) Later that day the Officers searched the local residential telephone directory and found the number 804581 which was attributed to A-Team Taxis.
(c) The telephone number 804581 is the telephone number of a private address namely 4, Jipdane, Orchard park Estate in Hull.
(d) At approximately 11.20am on 5 May, 1994 Mr David Richard Henderson in the company of Mr David Batty drove to Compass Road in Hull from where Mr Henderson made a telephone call to A-Team Taxis whose number was 804581.
(e) Mr Henderson requested a taxi to take him from Compass Road to the Ennerdale Leisure Centre.
(f) The telephone was answered by a female who indicated that the taxi would be with him in less than five minutes.
(g) That Mr Batty had been parked nearby the telephone box at the bottom of Mizzen Road and had observed the phone call being made.
(h) That from 11.20am onwards a third Officer from Hull City Council, Mr David Nolan was positioned in Jipdane observing number 4, Jipdane, Orchard Park Estate.
(i) That Mr Nolan received a radio message from
Mr Batty confirming that a booking had been made, shortly after which the respondent left number 4, Jipdane, got into his car, a white Ford Sierra registration number J11 LYW and drove off.
(j) The vehicle in question was displaying a Beverley Borough Council licence plate number 18.
(k) The respondent drove his vehicle down Mizzen Road, picked up Mr Henderson and drove him to the Ennerdale Leisure Centre.
(l) Mr Henderson alighted at the Ennerdale Leisure Centre and paid his fare.
(m) That Mr Wilson is the holder of an operator's licence to operate private hire vehicles from Francis Street in the city of Hull whilst his wife Gillian Wilson holds an operator's licence, a proprietor's licence and a vehicle licence issued by the Beverley Borough Council.
(n) That he held a proprietor's licence and an operator's licence for the city of Hull between January to July, 1993, but these had lapsed prior to 5 May, 1994.
(o) That the person at 4, Jipdane, Orchard Park Estate who had answered the telephone, then rung the respondent's office in Cottingham to pass on the booking to the operator.
(p) That the operator had made a radio call to the respondent who was at 4, Jipdane to the effect that there was a request for a vehicle to take someone from Mizzen Road to the Ennerdale Leisure Centre.
(q) That the respondent responded to this request as detailed above."
At para 5 the Magistrates say as follows:
"(i) That the respondent had picked up Mr Henderson in response to a radio message received on 5 May, 1994. The Council Officer had then been taken to the Ennerdale Sports Centre in a white Ford Sierra registration number J11 LYW.
(ii) That the call was received at 4, Jipdane but that the contents of the phone call were then passed on by an unknown female at that address in a second phone call to the respondent's operating address in Cottingham.
(iii) We were of the opinion that the receipt of the first call at Jipdane did not constitute a contract for the hire of a private hire vehicle as the person who received it simply passed on the request in a second telephone call to the Cottingham office.
(iv) We were of the opinion that the contract under s 56 of the Local Government (Miscellaneous Provisions) Act was made when the phone call from Jipdane was received at the Cottingham Office.
(v) We were of the opinion having regard to all the facts of the case, included in the evidence we received, that the respondent was at all times acting lawfully under the provisions of his licences granted by virtue of s 155, s 48 and s 51 of the Act, these licences having been granted by Beverley Borough Council within whose jurisdiction his Cottingham Office falls.
(vi) We were of the opinion the prosecution had not proved their case beyond reasonable doubt and therefore the informations were dismissed."
Various questions are stated for the opinion of this Court, which I will return to at the end of this judgment.
The basic ground upon which the prosecutor appeals is that no magistrates' court, reasonably regarding the facts they had found, could have failed to have convicted Mr Wilson on all three of the summonses which were brought against him. As I have already said, the investigation of that question has broadened out before us into investigating a significant number of legal matters which may not have been ventilated in the court below. It may be convenient if I go, in turn, through the three summonses that were brought against Mr Wilson to see whether, in the light of the facts found by the magistrate and properly applying the law, those convictions should have been recorded on those summonses.
I take, first, the summonses under s 46(1)(a), which complained that he, being a proprietor of a vehicle number J11 LYW, used the vehicle in Kingston Upon Hull, the "controlled district" in the meaning of the Local Government (Miscellaneous Provision) Act, without having a current licence under s 48 of that Act, that is to say a "user's" licence.
This charge, in the complaint that is made against it now by Mr Neish, (I think this point was not taken below) turns on a short point in relation to the construction of s 46(1)(a). In the court below evidence was adduced that the licence that had been granted by the Beverley Borough Council, that is to say a different authority from the Hull Council, in respect of this vehicle, had, in fact, been a hackney carriage licence. Mr Neish's short point here is that the vehicle in question was indeed a hackney carriage in respect of which a vehicle licence was in force and therefore s 46(1)(a) did not apply. He has other points, but I should say that is the principal point.
In support of the argument that that is a complete answer to the charge under s 46(1)(a) Mr Neish takes us to the case in this Court of Britian v ABC (Camberley) Ltd [1981] RTR 395 I can briefly summarise the relevant facts from the headnote of that report. The defendants operated a vehicle which was licensed as a hackney carriage in District A They received a request in District A to go and collect a person at a railway station in District B They had no licence, from the authorities in District B, as a hackney carriage and no private hire licence under s 48 of the Act or any operator's licence under s 55 of the Local Government (Miscellaneous Provisions) Act 1976. They sent the vehicle to the railway station but did not attempt to ply for hire, but simply picked the person up at the station. They were charged with contravening s 46(1)(a), by using or permitting the use of a vehicle "as a private hire vehicle without having... a current licence" for it. The defence was that they had a hackney carriage licence, which sufficed because the vehicle was a hackney carriage in respect of which a vehicle licence was in force. That contention was upheld by this Court. Mr Justice Webster, at page 402, said this:
"...I conclude without hesitation that being a hackney carriage licensed to ply for hire in that district, and not being in breach of that licence at that time and place, it was, for the purpose of section 46(1)(a), to be treated as a hackney carriage in respect of which a vehicle licence was in force, so that no offence under that section would have been made out."
Lord Justice Ormrod agreed with that view at page 404G
"Giving [Section 46(1)(a) its] ordinary meaning, it is clearly shown that this particular vehicle is and was a hackney carriage in respect of which a vehicle licence under the Act of 1847 was in force. I see no justification for reading in words in section 46(1)(a) to restrict that meaning of the phrase 'hackney carriage in respect of which a vehicle licence is in force' to 'a vehicle in respect of which a hackney carriage licence is in force granted by the Rushmoor council'."
That, of course, is a decision of this Court on the construction of s 46(1)(a) and it is a decision that I am bound to follow unless I am plainly and clearly persuaded that it was wrong, and I am very far from being in that state of mind.
It is important, I think, to note that this Court not only accepted that the phrase "hackney carriage in respect of which a vehicle licence is in force" was not limited to a licence in respect of the area in which the alleged offence took place, but also did not limit the consideration of the licence to the person to whom the licence might have been granted. The Court emphasised that the question was the nature of the vehicle in respect of which the licence existed. That seems to me to be exactly this case. I am satisfied that on that ground it would not be possible, on the assumption that there was here a hackney carriage licence issued by Beverley Borough Council, to convict Mr Wilson of the charge under s 46(1)(a) of this Act. As I say, Mr Neish mentioned other points, but I do not think it is necessary to go further but to say that under s 46(1)(a) the Magistrates were right to acquit on that summons.
The next alleged offence is under s 46(1)(b):
"no person shall in a controlled district act as driver of any private hire vehicle without having a current licence under section 51 of this Act;"
On the facts as found by the Magistrates it is, in my judgment, impossible to reach any conclusion other than that Mr Wilson did indeed drive this vehicle. I will come shortly to the question of whether he had a driver's licence.
The first ground upon which Mr Neish argues that Mr Wilson should not have been convicted is that the vehicle in question was not a private hire vehicle and it was not found by the Magistrates that it had been. The Magistrates do not recite in terms that this vehicle was a private hire vehicle, but in order to elucidate this question we turn back to the definition of "private hire vehicle" and scrutinise it in the light of the facts found by the Magistrates:
"'private hire vehicle' means a motor vehicle constructed or adapted to seat fewer than nine passengers......"
In this case the Magistrates found the vehicle was a white Ford Sierra and nobody in this case has suggested that the court cannot take judicial notice that that vehicle is constructed to seat fewer than nine passengers. Then, the vehicle has to be one other than a "hackney carriage" (I will refer to that phrase) or a "public service vehicle" or a "London cab" (there is no suggestion that this vehicle was a public service vehicle or a London cab)
"...which is provided for hire with the services of a driver for the purpose of carrying passengers;"
The facts as found by the Magistrates are beyond peradventure. This vehicle had been provided for hire with the service of a driver for the purpose of carrying passengers, and that was a transaction that they found had been established by their findings as to the negotiations with the council officials and, indeed, the taking of one of those officials on the journey that was sought. The only ground upon which it could be argued that, nonetheless, the vehicle that Mr Wilson drove was not a private hire vehicle, is that it was a hackney carriage. Mr Neish argues that this vehicle was a hackney carriage because it had been licensed as a hackney carriage in the Borough of Beverley, as I have indicated previously. That amounts to saying that once the vehicle is licensed anywhere as a hackney carriage, that precludes the application, in respect of that vehicle, of any part of s 46 of this Act anywhere else in the country. Thus, if Mr Wilson had driven his vehicle in other respects not in conformity with s 46 in Truro or Newcastle Upon Tyne, the fact that it had been licensed in Beverley as a hackney carriage would preclude the application, by any local authority, of s 46(2).
Mr Neish fairly concedes that this point was not taken in the ABC Cabs case. The court in that case was concerned with the construction of the more composite phrase "being a hackney carriage" in respect of which a vehicle licence is in force, and indeed in the ABC Cabs case there was a further charge under s 46(1)(b) of the Act which was disposed of under quite different grounds from those which I have already indicated that the court dealt with under s 46(1)(a). That step would not have been necessary if Mr Neish was right in saying that the possession of a hackney carriage licence makes a vehicle a hackney carriage for all purposes and for all time. It is true, as Mr Neish argued, that the court in the ABC Cars case may have assumed or might have assumed that "hackney carriage" is, as it were, a condition that applies to any vehicle wheresoever it is and in whatsoever circumstances. But the court in that case was not addressing that point and, for my part, I cannot accept that this Act intends it to be the case that in every case where a hackney carriage vehicle licence exists it follows thereafter that the vehicle so licensed cannot be susceptible to the rules applying to private hire vehicles.
First of all, as my Lord pointed out in argument, s 46(1)(a) speaks of a vehicle "not being a hackney carriage in respect of which a vehicle licence was in force" and goes on to prohibit the use of such a vehicle as a private hire vehicle. If it is right that such a licence automatically prevents the vehicle being a private hire vehicle that provision would make no sense. Secondly, and more generally, if one looks at the definition of "hackney carriage" in the Town Police Clauses Act 1847, which I have already read, it seems to me clear that that definition at least starts by looking at the function that the vehicle is performing and not at its nature, construction or inherent identity. If that is so it cannot, in my view, be the case that simply to license a vehicle as a hackney carriage thereby makes that vehicle a hackney carriage for all time, even if it is functioning as a private hire vehicle. In my judgement, therefore, it is not enough that a hackney carriage licence exists to establish that this vehicle was a hackney carriage so that term is used in the definition of a "private hire vehicle" in s 80 of the 1976 Act.
I am, therefore, quite satisfied that it was made out before the Magistrates that this was a private hire vehicle.
The second ground upon which Mr Neish attacks the conviction under s 46(1)(b) is to draw attention to s 75(2), which I have already read. This section does not apply to the driving of a vehicle when a driver's licence, issued by the council of another controlled district, is in force for the driver of that vehicle. I do not accept that any finding was made by the Magistrates that Mr Wilson had a driver's licence. Indeed, they hold in para 2 (n) that he had held a driver's licence for the city of Hull between January and July 1993 but that this had lapsed prior to 5 May 1994. As to the issue of a licence by any other body, although the Magistrates found that his wife held operator's, proprietor's and vehicle licences issued by the Beverley Borough Council, there was no such finding in respect of Mr Wilson.
True it is that in para 5(v) of the Magistrates' Statement of Opinion, which I have already read, there is reference to the provisions of his, that is to say Mr Wilson's, licences. For my part, however, I would not regard that as dispositive. The Magistrates appear, I have to say, to have been mistaken in mentioning his licences in the course of findings. They were not directed to this particular point. It was therefore not made out that Mr Wilson had a driver's licence as required under s 75(2). For those reasons I am satisfied that, on the facts as found by them, and despite the contentions raised by Mr Neish, a reasonable bench of magistrates, reasonably regarding the facts as found by them and the law as found by this court, would have recorded a conviction under s 46(1)(b).
I pass to s 46(1)(d), which deals with the operation of a private hire vehicle. I have already gone to the definition "operate" in s 80 of the Act. "...to make provision for the invitation or acceptance of bookings for a private hire vehicle" That is a very wide definition. I am careful to eschew, as this Court in its judgment in the case of Windsor and Maidenhead Royal Borough Council v Khan was careful to eschew, any attempt to introduce the complications or, indeed, even the simpler parts of the law of contract into this matter. It is simply a question of asking, in common sense terms, whether there has been provision made in the controlled district for invitation or acceptance of bookings.
I have no doubt that, on the primary facts that the Magistrates found, they should have concluded that there had been such an operation on the part of Mr Wilson in the controlled district, that is to say at his home address at 4 Jipdane, Orchard Park Estate in Hull. That was the telephone number advertised for the taxi firm, A-Team Taxis. That in itself might not have been enough because, as Mr Neish pointed out, it is possible that a telephone number had been left in the book after the business had closed down. Here however it patently had not. When the expected customer rang the number he was told by the person who replied that the taxi would be with him in less than five minutes. I leave out an account of what may or may not have been the coincidence that that taxi, when it arrived, was driven by Mr Wilson, who emerged from the address at 4 Jipdane in order to get into his vehicle and pick up the customer. It is sought to be said and, indeed, is said that the person who answered the phone at 4 Jipdane had then rung the office in Cottingham who had relayed the message and the order to Mr Wilson. Even accepting that was so, it is still the case that invitations to make bookings were offered from 4 Jipdane and the booking was accepted in the ordinary meaning of the word by the lady who said that the taxi would be there in less than five minutes. Whether or not that was a contract, it seems to me, is not the point. The point, in ordinary language, is that anybody saying to the gentlemen who telephoned 4 Jipdane, "Did the lady who answered the phone accept your booking?" the answer would have been, unequivocally, "yes".
In my judgement, therefore, the Magistrates should have found that Mr Wilson had operated the vehicle from that address.
In seeking to contend that nonetheless no convictions should have been recorded Mr Neish takes the point, first of all, about a private hire vehicle, which I have already dealt with. He, however, accepts rightly that s 75(2) does not extend to this offence because in its terms it is not intended to apply to the operating offence for the reasons, if I may say so, very clearly set out by Mr Justice McCullough in the Windsor and Maidenhead Royal Borough Council v Khan, which I do not need to expand on.
Mr Neish also argues that, nonetheless, Mr Wilson did have an operator's licence. Of course, he had a licence to operate private hire vehicles from Francis Street, in the city of Hull, as the Magistrates found. I do not accept, however, that that is an answer to this charge. First of all, it is clear that the condition imposed by the local authority was to operate vehicles from Francis Street and not from 4 Jipdane. I do not accept that operating a vehicle in breach of a condition of the licence is a sufficient defence to a charge under s 46(d). Further, and this may be the same point, the section says:
"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;"
That must, in common sense, mean without having a licence that currently applies to that operation, and clearly, on the findings of the Magistrates, Mr Wilson's Francis Street licence did not. Therefore the charge under s 46(1)(b) was made out.
The questions for the opinion of the High Court are as follows:
"(i) were we correct in law, on the proper construction of Section 46(1)(a) and Section 80(1) of the Local Government (Miscellaneous Provision) Act, 1976 in dismissing the case against Andrew Wilson that being the proprietor of a vehicle did not knowingly use the vehicle as a private hire vehicle in a controlled district without having a current licence under Section 48 of the said Act."
I would answer the question "Yes".
"(ii) Were we were correct in holding from the evidence that Andrew Wilson did not accept a booking for his vehicle (as a private hire vehicle) at 4, Jipdane, Hull on the 5th day of May, 1994."
I do not propose to answer that question because I think it is incorrectly formulated. The view I hold on those matters is clear from my judgment.
"(iii) Were we correct in law that, on the proper construction of s 46(1)(d) and s 80(1) of the Local Government (Miscellaneous Provisions) Act, 1976 in holding that Andrew Wilson did not knowingly operate a private hire vehicle on the 5th day of May, 1994 within a controlled district without a licence under s 55 of the said Act."
I would answer "no".
"(iv) Were we correct in law on the proper construction of s 46(1)(b) and s 80(1) of the Local Government (Miscellaneous Provisions) Act, 1976 in holding that Andrew Wilson did not knowingly act as a driver of a private hire vehicle on the 5th day of May, 1994 within a controlled district without a licence under s 51 of the said Act."
I would answer "No".
A question, however, arises as to how the matter should be resolved. Towards the end of his argument Mr Neish drew our attention to the fact that it was nowhere below proved, on behalf of the local authority, that a resolution has, in fact, been passed under s 45 of the Act, applying that Act to the district of the city of Hull. Therefore, the fact at the basis of all this law that this is a controlled district was never proved. Mr Sampson, who has dealt with this matter very fairly on behalf of the prosecutor, accepted that it was incumbent upon the local authority to prove (no doubt as a formal matter, but it was not done) that the Act had been applied to the Hull district and therefore the necessary precondition of all these offences, that Mr Wilson was acting in a controlled district, had not been made out.
I see no answer to this objection. It may be regarded as a technical, and even unattractive, point but it is properly taken. That means that there would be no point in remitting this case to the Magistrates because even if it were remitted there would be a fatal gap in the evidence that was before them on the first occasion, which could not now be filled: as I put to Mr Sampson in argument, and he properly accepted, if Mr Wilson had been represented below, and that representative had properly waited until the end of the prosecution case and then submitted there was no case to answer because of this defect in the prosecution evidence, it would have been extremely difficult for the prosecutor to argue that he should be allowed to reopen his case.
For that reason, therefore, I would not remit this case to the Magistrates. There is another point of this same type, I should say, where Mr Neish argued that it had not been established below that Mr Wilson had committed any of these offences "knowingly", as s 46(2) requires. I am bound to say that the force of that point is less clear but it is not necessary to pursue the matter in view of the conclusions that I have reached about the failure to prove that this Act had been applied to the area of the Council of the City of Hull. For those reasons, therefore, I would answer the Magistrates' questions in the form that I have indicated, but I would not remit the case to them.
JUDGMENTBY-2: BALCOMBE LJ
JUDGMENT-2:
BALCOMBE LJ: I agree. The only order we make is to answer the questions number (i) "yes", number (ii) no answer, number (iii) "no", and number (iv) "no" and we make no other order, subject to any other application made to us, but no other substantive order.
DISPOSITION:
Judgment accordingly
SOLICITORS:
Hull City Council; Max Gold & Co, Hull
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