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This case was cited in the Murtagh case, which can be found in the licensing category.
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East Staffordshire Borough Council v Rendall

QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

3 NOVEMBER 1995

COUNSEL:
C Kinch for the Appellant; J Galbraith-Martin for the Respondent

PANEL: SIMON-BROWN LJ, SEDLEY J

JUDGMENTBY-1: SIMON-BROWN LJ

JUDGMENT-1:
SIMON-BROWN LJ: This is a Prosecutor's appeal by way of case stated against the adjudication of the Stipendiary Magistrate for the county of Stafford, given on 23 March 1995, whereby he dismissed the Appellant's information that the Respondent:

"On 26th March 1994 did operate a private hire vehicle in a controlled district, namely Uttoxeter in the Borough of East Staffordshire, without having a current licence under Section 55 of the Local Government (Miscellaneous Provisions) Act 1976. Contrary to Section 46(1)(d) of the Local Government (Miscellaneous Provisions) Act 1976."

The facts were sensibly agreed by the parties and presented to the Magistrate in writing. I shall recite these from the Case Stated albeit expanding a little in accordance with what was apparently in the agreed statements so as to make them more readily comprehensible.

The case was concerned with two adjacent controlled districts, which I shall call respectively East Staffordshire, within which lies Uttoxeter, and Derbyshire Dales, within which lies Doveridge.

A co-accused called Jennifer McCartin was charged and convicted under s 46(1)(e)(i) of the 1976 Act, she being an operator holding a licence from East Staffordshire, her business address being given as Uttoxeter. She traded in partnership with the Respondent, Alan Rendell, as "Dovelin". (I appreciate that there are rival spellings but for the purposes of this judgment that I think will suffice.)

The Respondent holds an operator's licence from the Derbyshire Dales District Council, under s 55, his business address being in Doveridge.

Sometime before the relevant date, before that is 26 March 1994, the Respondent installed in his Doveridge premises a telephone service which enabled calls coming to the Doveridge telephone to be diverted to the telephone at Jennifer McCartin's business address in Uttoxeter.

The telephone number for Dovelin Cars was the Respondent's Derbyshire 'phone number. Mrs McCartin had a different telephone number in Uttoxeter. On the evening of 26 March 1994 a Miss Smith of Uttoxeter, by telephoning the Respondent's Doveridge number -- that, as stated being the advertised number for Dovelin Cars, the partnership -- booked from her own Uttoxeter telephone a car for a journey to be made wholly within Uttoxeter, that call having been automatically diverted to Mrs McCartin's East Staffordshire number. The hire was duly performed by Mrs McCartin's daughter Karen, a driver licensed under s 51 of the Act solely with Derbyshire Dales District Council, using a car similarly licensed by that council only.

As it happened, the Respondent was at the Uttoxeter address on the evening in question, but nothing turns on that.

The offence of which Mrs McCartin was convicted under s 46(1)(e) of the Act was that of operating an unlicensed vehicle namely, the vehicle driven by her daughter, which was licensed not in East Staffordshire but only in Derbyshire.

It is convenient at this stage to refer to the few directly relevant provisions of the 1976 Act. Section 46(1)(d) under which the information was laid provides:

"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;"

Section 55 I need not read. It is sufficient to note that it enables an operator's licence to be issued provided always that the District Council are satisfied that the applicant is a fit and proper person to hold it.

Section 80(2) provides:

"... references to a licence, in connection with a controlled district, are references to a licence issued by the council whose area consists of or includes that district, and "licensed" shall be construed accordingly."

Finally, s 80(1) which defines a number of terms within Pt II, the relevant Part, of the Act and states that:

"....unless the subject or context otherwise requires-

'operate' means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle;"

The essential effect of those various provisions was, in the context of the present case, this: that the Respondent was not entitled in East Staffordshire, a controlled district in which he had no licence, to make provision for the invitation or acceptance of bookings for private hire vehicles.

Thus the critical question arising here was whether on 26 March 1994, he was indeed in East Staffordshire making provision for the invitation or acceptance of bookings.

Annexed to the Stated Case is the print-out demonstrating the effect of the automatic diverting facility on the day in question. Without referring to it in any detail, it is perfectly plain that throughout virtually the entirety of that day the 'phone in Doveridge was diverted to the Uttoxeter office, save only for a period of some six-and-a-half hours from 2.56 to 9.24 am., and a further period of some two hours roughly between 2 and 5 pm., when it was diverted to a Vodaphone.

The Magistrate, having considered a number of authorities and addressed himself to the not altogether easy questions raised in this case with evident care and thoughtfulness, reached the conclusion that in setting up the telephonic device in Doveridge to deflect calls to another telephone, namely that in Uttoxeter, the Respondent thereby made provision in Derbyshire for the invitation or acceptance of bookings, and accordingly decided that he made no such provision in East Staffordshire.

He regarded the position as just the same as if there had been a deflected or rerouted call going to the respondent's stationary car at an airport car park, awaiting an inbound customer, a situation which he regarded as falling outside the scope of criminal enforcement under the statute.

The questions posed for the opinion of this Court are stated thus:

"1. Whether for the purposes of Section 46(1)(d)of the Local Government (Miscellaneous Provisions) Act 1976

(i) a person is to be taken as operating a vehicle in a controlled district if he

(a) arranges for telephone calls for bookings to be diverted to and answered at an address in that controlled district and

(b) arranges for a vehicle stationed at that address to fulfil a private hire booking in the controlled district,

(ii) the Magistrate was correct to find that there was no operating of a private hire vehicle in the controlled district of East Staffordshire on 26th March 1994."

The Appellant authority upon this appeal contends that whatever may be the true view of the position in Derbyshire Dales, irrespective that is of whether the Respondent was to be regarded as making provision for the invitation or acceptance of bookings for private hire vehicles there, he was certainly to be regarded as making such provision in East Staffordshire and, accordingly, was acting contrary to law.

The ultimate question undoubtedly reduces to this: whether the Respondent by switching the telephone to Uttoxeter had thereby made provision for acceptance of bookings in Uttoxeter.

As the authorities clearly show, the time question is not where the act of accepting any particular booking or bookings take place but where the provision is made.

The Appellant council contended that by publishing his Derbyshire number and then, certainly on the day in question, switching virtually all calls from that number to the East Staffordshire number, the Respondent, albeit he may well on any view have made provision in Derbyshire for the invitation of bookings, also made provision in East Staffordshire for the acceptance of those bookings.

The contrary argument, skilfully advanced by Mr Galbraith-Martin on behalf of the Respondent, is in line with the Magistrate's finding here that all the provision made within the meaning of s 80(1) was made in Derbyshire and that it was merely to have effect in East Staffordshire.

He points to various provisions of the 1976 Act which undoubtedly allow various trans-boundary activity, for example, permitting hire cars when engaged in fulfilling a booking to cross boundaries between districts (see s 75(1)(a) and s 75(2)). And he points also to this court's decision in Windsor and Maidenhead Royal Borough Council v Khan [1994] RTR 87, where Mr Justice McCullough, giving the leading judgment, observed that there was no corresponding provision for operators licences because, as he said:

"This is not necessary because of the restrictive meaning given to the word 'operate' in the Act."

He further draws our attention to s 57(2)(b)(ii), though, for my part, I do not derive any help from that. Nor am I assisted by his reference to Adur District Council v Fry, an unreported decision of this court on 7 April 1995, a case where, on any view, the authority were attempting, unsuccessfully in the event, to depart from the literal meaning of s 80(1).

Windsor and Maidenhead Royal Borough Council v Khan also seemed to me in the end to provide little assistance. Essentially all that it decided was that by advertising a private hire vehicle business outside the permitted district no offence was committed. All that the advertisement does is to inform the public as to where provision has been made - in that case, at a single office which was properly licensed in Slough.

A little more help is to be gained from the unreported decision of this court in Kingston Upon Hull City Council v Wilson of 29 June 1995, the facts of which I need not relate. Addressing himself to s 46(1)(d), Mr Justice Buxton, in the leading judgment, having referred to Windsor v Khan said this:

"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."

The assistance which I, for my part, derive from that formulation is the recognition, no doubt implicit in s 80(1) itself, that there could well be provision for invitation of bookings in one place and for acceptance in another which, as the argument developed before us, is essentially the position that the Appellant authority are contending for here.

Before stating my conclusion, I should say a word about the consequences of the rival constructions of s 80(1) with regard to the operation of mobile car telephones.

Mr Galbraith-Martin was constrained to accept that if his contended for construction be right, then a one man minicab operator would not need an operator's licence at all. He could simply advertise and drive around, seeking and accepting business using his car telephone. If, however, the Appellants are right, then on the face of it, it may be difficult to allow for the very situation that the Magistrate here envisaged, the intermittent use of a mobile car 'phone by a licensed operator fulfilling a booking. It may well be that the full ramifications of our decision in the present case will need to be worked through in other cases. For my part, however, I have reached the clear conclusion that the Appellants' argument is to be preferred.

It seems to me quite impossible on a common sense approach to the provisions here in question to regard the Respondent as having done other than to make provision for the acceptance of bookings in Uttoxeter, ie, in the East Staffordshire Control district where he had no licence.

Certainly, on the day in question, and it appears to have been by no means an isolated day, he had made the clearest possible arrangements to ensure that those who sought to make bookings would be put through to Uttoxeter for such bookings to be accepted. In this case, whatever may be the position with regard to the ordinary use of mobile telephones, there was, in my judgment, substantial provision made, a clear and effective arrangement whereby bookings could be accepted in East Staffordshire.

It follows that I for my part would answer the questions raised for our opinion as to (i)(a) "Yes", as to (i)(b) "That it does not properly arise for determination upon this appeal" and as to (ii) "No".

In my judgment, therefore, the Magistrate's conclusion was incorrect and I would allow this appeal.

JUDGMENTBY-2: SEDLEY J

JUDGMENT-2:

SEDLEY J: I agree. Section 46(1)(d) of the Local Government (Miscellaneous Provisions) Act 1976 was expanded to incorporate the definition in s 80(1) and thus reads:

"(1) Except as authorised by this Part of this Act-

(d) no person shall in a controlled district make provision for the invitation or acceptance of booking for any vehicle as a private hire vehicle without having a current licence under section 55 of this Act."

This provision undoubtedly requires, as Mr Galbraith-Martin has submitted, that in order to constitute an offence it is necessary for the material provision to have been made in a controlled district in which the defendant has no s 55 licence. It is not enough that provision has been made for the consequent invitation or acceptance of bookings to take place in such a district.

In my view, by publicising his Derbyshire Dales telephone number and then switching calls from there to East Staffordshire, where he had arranged for them to be answered, the Respondent did two things: he made provision in Derbyshire Dales for the invitation of bookings and he also made provision in East Staffordshire for the acceptance of bookings. To conclude that this was so requires no strained or expanded meaning of the statutory language, and it respects its somewhat mysterious syntax.

It is quite true that modern technology may not fit easily into the statutory provisions. In 1976, mobile 'phones as well as the automatic switching of calls were unknown, at least to ordinary telephone users.

Mr Galbraith-Martin may be right that this construction of s 46(1)(d) at least in some cases will criminalise licensed drivers either directly or by diversion of calls to take bookings on their mobile 'phones while they are in a controlled district other than their own. But Mr Kinch may equally be right that Mr Galbraith-Martin's construction would allow a driver with a carphone to operate freely anywhere in the country, provided he had acquired and installed a carphone in an area such a London which enjoys no statutory licensing regime.

One cannot therefore reason from consequences to the correct construction, and I agree with my Lord that for better or for worse the common sense answer to the question posed by s 46(1)(d) on the facts of the present case is that the Respondent was guilty of an offence.

Accordingly, I too would answer question (i)(a) in the affirmative. It is unnecessary to answer question (i)(b), and I would answer question (ii) in the negative.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Sharpe Pritchard, agents for East Staffordshire Borough Council; Betesh Partnership, Manchester
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