Taxi Driver Online

Another illegal hire and reward case which refers back to Albert v Motor Insurers' Bureau. As most of these types of cases do. For those who are interested in what can be termed as casual friendly hire inclusive of a payment of kind or a contract of hire without a contract then this case should interest you.

DIRECTOR OF PUBLIC PROSECUTIONS v SIKONDAR

QUEEN'S BENCH DIVISION

[1993] RTR 90, 157 JP 659, [1993] Crim LR 76

HEARING-DATES: 15 May 1992

15 May 1992

Public service vehicle -- 'Hire or reward' -- Motorist with privately owned Minibus ferrying own and daughters of friends and relatives to school on regular basis -- Parents making intermittent payments to cover cost of petrol -- Whether beyond bounds of mere social kindness -- Whether motorist carrying passengers for 'hire or reward' -- Whether Minibus 'public service vehicle' -- Public Passenger Vehicles Act 1981 ss 1(1)(a)(5), 6(1), 12(1)(5), 22(1)(9), 82(1) -- Transport Act 1985 s 1(3), Sch 1 para 4 -- Road Traffic Act 1988 ss 47, 143

Section 1 of the Public Passenger Vehicles Act 1981 provides:

'(1) . . . in this Act "public service vehicle" means a motor vehicle (other than a tramcar) which -- (a) being a vehicle adapted to carry more than eight passengers, is used for carrying passengers for hire or reward . . . (5) For the purposes of this section . . . (a) a vehicle is to be treated as carrying passengers for hire or reward if payment is made for . . . the carrying of passengers, irrespective of the person to whom the payment is made . . . (c) a payment shall be treated as made for the carrying of a passenger if made in consideration of a person's being given a right to be carried, whether for one or more journeys and whether or not the right is exercised . . .'

Section 6(1) provides:

'A public service vehicle adapted to carry more than eight passengers shall not be used on a road unless . . . (c) there has been issued in respect of the vehicle a certificate . . . of a kind which by virtue of regulations is to be treated as the equivalent of a certificate of initial fitness.'

Section 12 [as amended by section 1(3) of, and paragraph 4 of Schedule 1 to, the Transport Act 1985] provides:

'(1) A public service vehicle shall not be used on a road for carrying passengers for hire or reward except under a PSV operator's licence . . . (5) . . . if a vehicle is used in contravention of subsection (1) above, the operator of the vehicle shall be liable on summary conviction to a fine . . .'

Section 22 provides:

'(1) A person -- (a) shall not drive a public service vehicle on a road unless he is licensed for the purpose under this section . . . (9) . . . a person who contravenes subsection (1)(a) . . . above shall be liable on summary conviction to a fine . . .' Section 82(1) provides:

'In this Act . . . "PSV operator's licence" means a PSV operator's licence granted under the provisions of Part 11 of this Act . . .'

Section 47 of the Road Traffic Act 1988 provides:

'(1) A person who uses on a road at anytime . . . a motor vehicle to which this section applies, and as respects which no test certificate has been issued within the appropriate period before that time, is guilty of an offence. In this section . . . the appropriate period" means a period of 12 months . . . (2) Subject to subsections (3) and (5) below, the motor vehicles to which this section applies at any time are -- (a) those first registered under the Vehicles (Excise) Act 1971 . . . not less than three years before that time . . . being . . . motor vehicles . . . which are required by regulations . . . to be submitted for a goods vehicle test. (3) As respects a vehicle being -- (a) a motor vehicle used for the carriage of passengers and with more than eight seats . . . subsection 2(a) above shall have effect as if for the period there mentioned there were substituted a period of one year.'

Section 143 [which is contained in Part VI of the Act] provides:

'(1) Subject to the provisions of this Part of this Act -- (a) a person must not use a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act . . . (2) If a person acts in contravention of subsection (1) above he is guilty of an offence . . .'

The defendant motorist, a Muslim, was stopped by the police while driving his Minibus in which he was carrying 11 schoolgirls, including two of his own daughters and one of his brother's. In a statement after caution he admitted that he had been conveying the girls to and from school for five months and that he received payment from the parents of the girls towards the cost of petrol.

The defendant was charged with offences of using or driving a public service vehicle on a road, contrary to sections 12 and 22 of the Public Passenger Vehicles Act 1981, and related offences. At the trial the justices found that the defendant took his daughters and the other girls, daughters of friends or relations, to school rather than use public transport because of his religious beliefs, that he never demanded payment but the girls' parents paid him petrol money intermittently, usually £1.50 or £2.00, and that, although he made regular journeys, he did not do so when his daughters were ill.

The justices, having been referred to the decision of the House of Lords, and especially to the test laid down by Lord Donovan, in Albert v Motor Insurers' Bureau [1972] RTR 230, 238H, concluded that they were not satisfied that payment had been made to the defendant in consideration of a right to be carried, within section 1(5)(c) of the Act of 1981, and that his conveying of the girls did not go beyond the bounds of mere social kindness. They therefore dismissed the charges.

On appeal by the prosecutor:

Held, allowing the appeal, that section 1(5)(c) of the Public Passenger Vehicles Act 1981 was not to be taken as defining the only circumstances in which a vehicle was used for carrying passengers for hire or reward (p 96K); that the construction of 'hire or reward' in Albert v Motor Insurers' Bureau [1972] RTR 230 and Motor Insurers' Bureau v Meanen [1971] 2 All ER 1372 was to be applied to that expression in section 1 of the Act of 1981, so that it was unnecessary in the present case for the prosecution to establish a legally enforceable agreement (p 96K-L); that, on the evidence, there was plainly a systematic carrying of passengers for reward which went beyond the bounds of mere social kindness; that, had the justices properly directed themselves on the law, they were bound to conclude that the defendant came within the test in Albert v Motor Insurers' Bureau [1972] RTR 230, 238H, so that he was driving a public service vehicle within the meaning of section 1 of the Act of 1981 (pp 97K-98A); that, therefore, they should have reached the conclusion that all the offences charged had been committed, and, accordingly, the case would be remitted to them with a direction to convict (p 98A).

Albert v Motor Insurers' Bureau [1972] RTR 230, HL(E) and Motor Insurers' Bureau v Meanen [1971] 2 All ER 1372, HL(Sc) applied.

INTRODUCTION:
Case stated by Birmingham Justices

1 On 9 May 1990 informations were preferred on behalf of the prosecutor, the Director of Public Prosecutions, against the defendant, Mohammed Sikondar, that (i) on 13 December 1989 in the city of Birmingham, he did drive on a road a public service vehicle being used for carrying passengers for hire or reward without being the holder of a public service vehicle driver's licence, contrary to section 22(9) of the Public Passenger Vehicles Act 1981; (ii) on 13 December 1989 in the city of Birmingham being the operator of a public service vehicle he did use the vehicle on a road other than under a PSV operator's licence, contrary to section 12(5) of the Public Passenger Vehicles Act 1981; (iii) on 13 December 1989 in the city of Birmingham he did unlawfully use a public service vehicle on a road there, called Pershore Road, Birmingham, there not being in force in relation to the user of the said vehicle such a policy of insurance or such a security in respect of third-party risks, as complied with the requirements of Part VI of the Road Traffic Act 1988, contrary to section 143 of the Road Traffic Act 1988; (iv) on 13 December 1989 in the city of Birmingham he did use on a road a motor vehicle, namely, a Minibus to which section 47 of the Road Traffic Act 1988 applied, and as respects which no test certificate had been issued within the period of 12 months prior to 13 December 1989, contrary to section 47(2)(3)(a) of the Road Traffic Act 1988; and (v) on 13 December 1989 in the city of Birmingham, being the operator of a public service vehicle adapted to carry more than eight passengers, he did use the vehicle on a road without a certificate of initial fitness, contrary to section 6 of the Public Passenger Vehicles Act 1981.

2 The justices heard the informations on 4 January 1991. All prosecution evidence was agreed in statement form and submitted to the court under section 9 of the Criminal Justice Act 1967. The justices further heard from the defendant and his five witnesses.

3 The justices found that (a) Police Constable Field and Woman Police Constable Handford stopped the defendant at 8.45 am on 13 December 1989 in Pershore Road, Birmingham, whilst he was driving his privately owned motor vehicle; (b) the defendant was carrying 11 schoolgirls in the vehicle and in statement after caution admitted that he had received payments of petrol money for the conveyance of eight of the 11 girls and that he had been ferrying them to and from school since July 1989; (c) the defendant owned a vehicle of that size because he had a large extended family of some 20 children; (d) the defendant was a Muslim and preferred to take his two daughters to Selly Park Girls School in his van rather than use public transport because it was too far for his daughters to travel on their own and because of the family's religious beliefs; (e) the defendant had one brother, who was also a Muslim, who lived close by and the defendant had been asked by him to take his daughter to the same school for the same reasons; (f) also living locally within a few streets of each other were other relations and childhood friends from the same village and again they asked the defendant if he could take their daughters to the same school again for the same reason; (g) the payments made were never demanded by the defendant nor were they insisted on; (h) the brother, friends and relations offered various amounts of money usually £1.50 to £2.00 to offset the cost of petrol; (i) the amounts were paid at irregular times and venues on an ad hoc basis and on occasions no money was paid at all; and (j) the defendant on the occasions that his daughters were ill and therefore unable to attend school would not make a journey at all, thus leaving the other girls who were usually taken to school to fend for themselves, and no one had a right to telephone the defendant in those circumstances.

4 The court's attention was drawn to section 1(5)(a)(b)(c) of the Public Passenger Vehicles Act 1981 in respect of the question of hire or reward and the court was also asked to consider Albert v Motor Insurers' Bureau [1972] RTR 230, HL(E).

5 The justices were of the opinion that the burden placed on the prosecutor had not been discharged on the facts of the particular case in respect of the defendant's conduct when applied to section 1(5)(c). They were not satisfied that payment was made in consideration of a right to be carried. Although regular journeys were undertaken and ad hoc payments made, none of that suggested to the justices that the defendant had to make those journeys nor had he to provide the service. In fact he did not do so when his children were ill, thus leaving the other children to make their own way to school. The justices were satisfied that the defendant did not seek to provide a service nor secure any payment for the journeys undertaken and that arrangements overall 'did not go beyond the bounds of mere social kindness': Albert v Motor Insurers' Bureau. Accordingly the justices found the case not proved.

The prosecutor appealed.

The question for the opinion of the court was: whether, in construing the expression 'hire or reward' contained in section 1(1)(a) and section 1(5)(a) of the Public Passenger Vehicles Act 1981, it was sufficient for the prosecutor merely to prove in the case of a vehicle adapted to carry more than eight passengers that payment had been made to the driver by or on behalf of a passenger being carried in the vehicle, or it was necessary for the prosecutor to prove in addition that the passenger was a party to a legally enforceable agreement -- section 1(5)(c).

COUNSEL:
Roger DH Smith QC for the prosecutor; The defendant did not appear and was not represented.

PANEL: WATKINS LJ, MAY J

JUDGMENTBY-1: WATKINS LJ

JUDGMENT-1:
WATKINS LJ: This is the judgment of the court. This is an appeal by case stating Birmingham Justices in respect of their adjudication at Birming- ham Magistrates' Court.

The justices had before them five informations which alleged that the defendant, Mohammed Sikondar, on 13 December 1989, in the city of Birmingham: (i) drove on a road a public service vehicle being used for carrying passengers for hire or reward without being the holder of a public service vehicle driver's licence, contrary to section 22(9) of the Public Passenger Vehicles Act 1981; (ii) being the operator of a public service vehicle, used that vehicle on a road other than under a public service vehicle operator's licence, contrary to section 12(5) of the Act of 1981; (iii) unlawfully used a public service vehicle on a road called Pershore Road, Birmingham, when there was not in force in relation to the user of that vehicle such a policy of insurance or other security in respect of third party risks, as complied with the requirement of Part IV of the Road Traffic Act 1988, contrary to section 143 of that Act; (iv) used on a road a motor vehicle, namely a Minibus, to which section 47 of the Act of 1988 applied and in respect of which no test certificate had been issued within the period of 12 months prior to 13 December 1989, contrary to section 47(2)(3)(a) of the Road Traffic Act 1988; and (v) being the operator of a public service vehicle adapted to carry more than eight passengers used that vehicle on a road without a certificate of initial fitness, contrary to section 6 of the Public Passenger Vehicles Act 1981.

The justices heard the informations on 4 January 1991. The prosecution evidence was agreed in statement form and submitted to the court under section 9 of the Criminal Justice Act 1967. The defendant and five witnesses on his behalf gave evidence

The justices found that Police Constable Field and Woman Police Constable Handford stopped the defendant at 8.45 am on 13 December 1989 in Pershore Road whilst driving his privately owned motor vehicle. He was carrying 11 schoolgirls in the vehicle. In a statement after caution he admitted that he had received payments of petrol money for taking eight of the 11 girls and that he had been ferrying them to and from school since July 1989.

The defendant owns a vehicle of that size because he has a large extended family of about 20 children. He is a Muslim and preferred to take his two daughters to Selly Park Girls School in his van rather than use public transport because it was too far for his daughters to travel on their own and because of the family's religious beliefs.

The defendant has a brother who is also a Muslim. He lives close by and the defendant had been asked by him to take his daughter to the same school for the same reasons. Also living locally within a few streets of each other were other relations and childhood friends from the same village. They too asked the defendant if he could take their daughters to the same school also for the same reasons.

The payments made to the defendant were never demanded by him. He did not insist on them being made. His brother, friends and relations offered various amounts of money, usually £1.50 to £2.00, to offset the cost of petrol. These amounts were paid at irregular times and venues on an ad hoc basis and on occasions no money was paid at all.

The defendant, on the occasions when his daughters were ill and therefore unable to attend school, would not make a journey at all, thus leaving the other girls who were usually taken to school to fend for themselves. No one had a right to telephone the defendant in these circumstances.

The attention of the justices was drawn to section 1(5)(a)(b)(c) of the Public Passenger Vehicles Act 1981 in relation to the question of hire or reward and they were asked to consider Albert v Motor Insurers' Bureau [1972] RTR 230.

They were of the opinion that the burden placed on the prosecutor had not been discharged on the evidence in respect of the defendant's conduct when applied to section 1(5)(c). They were not satisfied that payment was made in consideration of a right to be carried. Although regular journeys were undertaken and ad hoc payments made, none of this suggested to them that the defendant had to make those journeys nor had he to provide a service. In fact, the justices stated, the defendant did not make the journey when his own children were ill. On those occasions they had to make their own way to school. They further stated that they were satisfied that the defendant did not seek to provide a service nor secure any payment for the journeys undertaken and that arrangements 'did not go beyond the bounds of mere social kindness.'

That is a quotation from the opinion of Lord Donovan in Albert v Motor Insurers' Bureau [1972] RTR 230, 238H.

Accordingly they found that the case against the defendant had not been proved. So they dismissed the informations.

The question they ask of the court is:

'whether, in construing the expression "hire or reward" contained in section 1(1)(a) and section 1(5)(a) of the Public Passenger Vehicles Act 1981, it was sufficient for the prosecution merely to prove in the case of a vehicle adapted to carry more than eight passengers that payment had been made to the driver by or on behalf of a passenger being carried in the vehicle, or it was necessary for the prosecution to prove in addition that the passenger was a party to a legally enforceable agreement -- section 1(5)(c).'

Section 1 of the Act of 1981, as relevant, states:

'Definition of "public service vehicle." (1) Subject to the provisions of this section, in this Act "public service vehicle" means a motor vehicle (other than a tramcar) which -- (a) being a vehicle adapted to carry more than eight passengers, is used for carrying passengers for hire or reward . . . (5) For the purposes of this section and Schedule 1 to this Act -- (a) a vehicle is to be treated as carrying passengers for hire or reward if payment is made for, or for matters which include, the carrying of passengers, irrespective of the person to whom the payment is made and, in the case of a transaction effected by or on behalf of a member of any association of persons (whether incorporated or not) on the one hand and the association or another member thereof on the other hand, notwithstanding any rule of law as to such transactions; (b) a payment made for the carrying of a passenger shall be treated as a fare notwithstanding that it is made in consideration of other matters in addition to the journey and irrespective of the person by or to whom it is made; (c) a payment shall be treated as made for the carrying of a passenger if made in consideration of a person's being given a right to be carried, whether for one or more journeys and whether or not the right is exercised.'

The question which the justices had to decide relating to each of the informations was whether the defendant was driving a 'public service vehicle' as defined in section 1 of the Act of 1981. They decided that this had not been established for the reasons which we have indicated.

Mr Smith, who appeared before us on behalf of the prosecutor, submits (a) that the justices applied the wrong legal test, or (b) that, if they applied the correct test, their factual conclusion was perverse.

As we have said the justices considered Albert v Motor Insurers' Bureau [1972] RTR 230. In that case a dock worker regularly carried fellow dock workers to and from work in his car when they were working in the same dock as himself. It was a regular and understood arrangement that they should pay him something in cash or kind. An accident occurred in which the plaintiff's husband, a fellow dock worker who was a passenger in the car in pursuance of the arrangement, was killed. The dock worker driver failed to satisfy a judgment which she obtained for damages and costs and the plaintiff brought an action against the Motor Insurers' Bureau claiming the full amount of the damages and costs by virtue of their agreement with the Minister of Transport. The question was whether the driver had been bound to insure against passenger liability on the basis that his car had been

'a vehicle in which passengers are carried for hire or reward' within the proviso to section 203(4) of the Road Traffic Act 1960. The trial judge held that 'hire or reward' connoted a reward payable under a legally binding contract and that no contractual relationship had been intended to result from the arrangement between the driver and his fellow dock workers. The Court of Appeal affirmed his decision.

The House of Lords allowed the plaintiff's appeal. The majority held that

'a vehicle in which passengers are carried for hire or reward'

meant a vehicle used for the systematic carrying of passengers for reward not necessarily on a contractual basis, going beyond the bounds of mere social kindness and amounting to a business activity, and that on the facts found by the trial judge the vehicle had been so used. Lord Donovan said, at p 238H:

'The test which I favour, namely: has there been a systematic carrying of passengers for reward which goes beyond the bounds of mere social kindness? -- which I may call for short the "business test" -- is in line I think with the reasoning of the judges of the First Division in Meanen, 1971 SLT 264 (who all attach importance to the features of duration and regularity) and with Lord Denning MR's view in Connell [1969] 2 QB 494, 503-504 that the existence of a binding contract is too narrow a test. Of course, if the "business test" is applied one will normally find a contract. But not necessarily so.'

In discussing the facts of that case Lord Donovan referred to drivers of buses, taxis or hire cars and then said, at p 238E:

'They, as I have said, carry passengers as part of a business, and it may sound a little grandiose to describe Quirk's passenger-carrying activities as a business. But when it is recalled that for eight years he regularly carried passengers to and from work for a reward in cash or in kind which he expected to receive and they expected to pay, is there in the last analysis anything different in what he did from what a taxi-driver would do, except the informality of the arrangement, the size of the reward and the fact that Quirk did it part-time?'

Motor Insurers Bureau v Meanen [1971] 2 All ER 1372, referred to by Lord Donovan, came on appeal to the House of Lords and their decision is reported in a note. The leading opinion is given by Lord Donovan in which he adhered to the construction of section 203(4) of the Road Traffic Act 1960 which he had propounded in Albert v Motor Insurers' Bureau [1972] RTR 230. He set out at length the facts found by the Lord Ordinary and he held that, applying that construction to the facts, it fitted. We do not rehearse the facts in full, but we observe that they include, at p 1374f-g:

'The arrangement for transport was completely informal without any binding obligation, without any definite terms and without the van driver taking any definite steps in regard to the carrying out of any such indefinite terms.'

Features of the facts which Lord Donovan highlighted were, at p 1347h:

'The long standing and regular arrangement for the carriage of passengers; the use of a minibus fitted with seats for 11 passengers; the arrangement (albeit informal) among the regular passengers to pay for the cost of the petrol; these features add up to and justify the conclusion that McKale was engaged part-time in carrying passengers under an arrangement which went beyond mere social kindness. It had the flavour of business about it.'

It is to be observed that section 1(1)(a) of the Public Passenger Vehicles Act 1981 uses words which are, except in syntactical arrangement, the same as those in section 203(4) of the Road Traffic Act 1960 considered in Albert v Motor Insurers' Bureau [1972] RTR 230. Section 1 additionally has the provisions of subsection (5), including those in paragraph (c) which clearly influenced the justices' decision. Mr Smith submits that section 1(5)(c) does not exclusively limit the meaning of 'hire or reward' in subsection (1)(a) to arrangements amounting to a binding contract. He submits that the arrangements undertaken by the defendant in this case are clearly of a kind which were intended to be within the section taken as a whole.

We express no view whether section 1(5)(c) taken alone is to be construed as referring to a binding contractual arrangement. What, in our judgment, is clear is that that sub-subsection is not to be taken as defining the only circumstances in which a vehicle is used for carrying passengers for hire or reward. In our judgment, the construction of 'hire or reward' in Albert v Motor Insurer Bureau [1972] RTR 230 and Motor Insurers' Bureau v Meanen 2 All ER 1372 is to be applied to that expression in section 1 of the Public Passenger Vehicles Act 1981, so that it was not necessary in this case for the prosecutor to establish a legally enforceable agreement. It follows that the second part of the justices' question in the case before us is to be answered no. We have sufficiently answered the more complex alternative in the first part of their question in the course of this judgment.

The justices place in the forefront of their reasons for their decision that they were not satisfied

'that payment to the defendant was made in consideration of a right to be carried.' They themselves underline these last words. They say that, although regular journeys were undertaken and ad hoc payments made, none of this suggested that the defendant had to make these journeys nor had he to provide this service. These findings taken with the form of the question which they ask for the opinion of the court, to which we have already referred, show that they were adopting a construction of the section which required the prosecutor to establish a legally enforceable agreement.

The justices additionally state that they were satisfied that the defendant 'did not seek to provide a service nor secure any payment for the journeys undertaken and that arrangements overall "did not go beyond the bounds of mere social kindness".'

This is a direct reference to part, but not all, of the test laid down by Lord Donovan in Albert v Motor Insurers' Bureau [1972] RTR 230, 238H. It might be suggested that here the justices were applying the right legal test and that their decision is a question of fact. But we do not consider that such an argument would be correct. It is clear that the main basis for their decision was the incorrect construction of the section to which we have referred and the finding of fact by reference to Albert's case is vitiated by that error. The part of Lord Donovan's test to which they do not refer is the

'systematic carrying of passengers for reward.'

Their finding that the defendant

'did not . . . secure any payment for the journeys' is inconsistent with their findings that

'the brother, friends and relations offered various amounts of money usually £1.50 -- £2.00 to offset the cost of petrol'

and can only be understood against their erroneous understanding that the prosecution had to prove a legally enforceable agreement.

The uncontested written evidence before the justices included answers by the defendant to a questionnaire to the effect that of the 11 passengers whom he had carried on the day in question only eight of them paid; that his weekly charge for ferrying each child to and from school was 'petrol money, £2 each week'; and that the parents of the children paid him in cash. There was also a statement from Ahauket Ali that his daughter travelled to and from school in the defendant's Minibus; that he paid the driver £1.50 per week; and that he had been paying for this service since September 1989. The statement was dated 13 December 1989.

We are told that the evidence was that the defendant had been taking children to and from school in this way for five months from July to December 1989. We were further told that there are some 60 other summonses of a similar nature in the Birmingham district alone awaiting a decision in this case.

Mr Smith submits that, had the justices properly directed themselves on the law, they were bound to conclude that the defendant came within Lord Donovan's test so that he was driving a public service vehicle within section 1 of the Public Passenger Vehicles Act 1981. This was, he submits, plainly a systematic carrying of passengers for reward which went beyond the bounds of mere social kindness. The facts, he submits, are quite close to those in Motor Insurers' Bureau v Meanen [1971] 2 All ER 1372 and the feature which Lord Donovan identified in Meanen's case as justifying the conclusion in that case are all present in this one. We agree with these submissions.

It follows that the justices misdirected themselves in law and that, had they directed themselves correctly, they must in our view have reached the conclusion that all the offences charged had been committed. That being so, we shall remit the case to them with a direction to convict.

DISPOSITION:
Appeal allowed. Case remitted to the justices with a direction to convict

SOLICITORS:
Crown Prosecution Service, Birmingham