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Illegal Plying for hire, section 45 1847 act

York City Council v Thornton

Queen's Bench Division (Crown Office List)

HEARING-DATES: 12 July 1994

12 July 1994

COUNSEL:
D McGonigal for the Appellant; the Respondent did not appear and was not represented

PANEL: Rose LJ, Smith J

JUDGMENTBY-1: ROSE LJ

JUDGMENT-1:
ROSE LJ: This is an appeal by way of case stated by the prosecuting local authority, York City Council. The prosecution was brought for contravening s 45 of the Town Police Clauses Act 1847. The Defendant was acquitted. Counsel on his behalf has indicated to the Court in a written reply to the Appellant's submissions that the Defendant accepts the construction of the word 'standing' for which the Appellant contends. In consequence, the Respondent has not appeared before this Court today.

The Court is indebted to Mr McGonigal who, on behalf of the Appellant, has submitted an illuminating skeleton argument which is the product of considerable research. He has advanced oral submissions before this Court in support of the Appellant's contention which relate to the construction of the statute.

Before turning to those, it is necessary to briefly set out the facts as found by the Justices. They were that on 12 February 1993 the Defendant was driving a Mazda motor car bearing private hire plates. That vehicle was parked in Kings Staith, York, where there is apparently a nightclub. Kings Staith is not a designated taxi rank. On the motor car were displayed 'A Team' taxi stickers. The vehicle was not a licensed Hackney carriage.

The Defendant driver was approached by persons who turned out to be officers concerned with the enforcement of the legislation, to which I will shortly come. The Defendant accepted a suggestion by them that he should drive them to Aberford House in Lowther Street, York. He did so and was paid.

The question was whether or not in those circumstances the Defendant could properly be characterised as 'standing for hire' in accordance with s 45 of the Town Police Clauses Act 1847 under which he was prosecuted. The material part of that section creates an offence:

".....if any Person be found driving, standing or plying for Hire with any Carriage within the prescribed Distance, for which such Licence as aforesaid has not been previously obtained....."

The submission made on behalf of the Defendant was that there was no case to answer. That submission was accepted by the Justices in reliance on the terms of s 7 of the Metropolitan Public Carriage Act 1889 to which they were referred. That section creates an offence:

"If any unlicensed Hackney.....carriage plies for hire.....and if any unlicensed Hackney carriage is found on any stand within the limits of this Act....."

The Justices were persuaded that, having regard to that section, what the Defendant was doing in the present case did not amount to an offence under the section with which he was charged. It is to be noted at once that s 7, upon which the defence and the Justices relied, does not contain the word 'standing'. It might be thought, therefore, that it is not the most helpful guide to the construction of that word in a different Act. That Act, as I have already indicated, is the 1847 Act.

Mr McGonigal's submission is that the Justices confused the word 'standing' with the word 'stands' and that there is no justification whatever in that statute, or indeed elsewhere, for limiting the word 'standing' to circumstances in which an unlicensed vehicle is at a stand.

A number of sections of the 1847 Act support the submission that the Act draws a clear distinction between the words 'stand' and 'standing' and imposes no limitation on the word 'standing' such as the Justices found to be the case.

Section 28 of the Act refers to 'standing for hire'. The implication of that section is that standing can occur at places other than stands because there are excepted from the provisions of that s Hackney carriages and animals which are standing for hire in a place appointed.

Section 38 of the Act similarly draws an implicit distinction. Section 53 refers in terms to a driver of a Hackney carriage standing at any of the stands for Hackney carriages, the inevitable inference being that Hackney carriages are capable of standing at a place other than a Hackney carriage stand. Mr McGonigal submits that there is nothing in the earlier legislation, in particular the Hackney Carriage Act 1831, to impose a restricted meaning on the word 'standing'. It is to be noted that s 35 of the 1831 Act was the subject of consideration in Eldridge v British Airports Authority [1970] 2 All ER 92, [1970] 2 WLR 968 where the Divisional Court, presided over by Lord Parker CJ, said in relation to s 35, which creates an offence in relation to vehicles found standing in any street, that 'standing' meant something akin to waiting or parking, not merely being stationary. That construction, as it seems to me, is entirely consistent with the construction which Mr McGonigal suggests should be placed upon the word where it appears in the 1845 Act.

For my part, I have no hesitation in concluding that the submissions advanced by Mr McGonigal are correct and that the decision of the Justices was wrong. For my part, I would answer the questions posed for the opinion of the High Court (first, is the offence of 'standing for hire' under s 45 of the Town Police Clauses Act 1847 limited to cases where the vehicle is on a Hackney carriage stand and, secondly, does the word 'standing' accordingly mean standing at a Hackney carriage stand and not merely standing in the street) in the negative. For my part, I would allow this appeal.

JUDGMENTBY-2: SMITH J

JUDGMENT-2:
SMITH J: I agree.

DISPOSITION:
Appeal allowed

SOLICITORS:
Head of Legal Services, York City Council