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As promised I have dug this case out.
This case is interesting for those who find themselves confronted with circumstances similar to what we have here. I might add, that we have probably all experienced drunken passengers who give misleading or incorrect details of destination. Even passengers who have no intention of paying the fare, will in many cases lead you up the garden path and give the excuse for non payment as the fact you took the wrong route etc. This is another reason why CCTV would be a valuable asset in confirming the facts.
on previous occasions I've highlighted the fact that we all enter into a contract when we undertake a fare. I have no need to explain what that contract is because we are all aware of how it works. This case although it concerns making off without payment also revolves around the contract between passenger and driver and in effect should hold an interest for everyone on TDO.
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Troughton v The Metropolitan Police
Queen's Bench Divisional Court (Crown Office List)
[1987] Crim LR 138, CO/1019/86,
HEARING-DATES: 14 October 1986
14 October 1986
COUNSEL:
R Marshall-Andrews for the Appellant; M Bowyer for the Respondent
PANEL: Watkins LJ, Mann, Nolan JJ
JUDGMENTBY-1: WATKINS LJ
JUDGMENT-1:
WATKINS LJ: This is an appeal by way of case stated against a decision by His Honour Judge Clark and two justices sitting at the Inner London Crown Court.
The history of this extremely complicated and, one hopes, never to be repeated affair is broadly speaking this. On 5th October 1984 the appellant was convicted at Highbury Corner Magistrates' Court of the offence of making off without paying a taxi fare, contrary to section 3 of the Theft Act 1978.
The offence was alleged by the information to have taken place at Upper Street in North London. The taxi driver was a man known as Douglas Charles Hollett. The prosecution, before the hearing took place when the justices convicted the appellant of this offence, had been in two if not more minds as to whether the prosecution should proceed. Eventually, as is obvious from the fact that the hearing did occur with the result I have already mentioned, the prosecution did proceed with the charge and upon conviction of it the appellant was conditionally discharged for 12 months and ordered to pay £3.60 compensation and £50 towards the prosecution's costs.
The appellant was aggrieved at the conviction. He appealed to the Inner London Crown Court. The appeal was dealt with, as was necessary, by way of a re-hearing. That was on 11th January 1985.
The whole of the evidence at the disposal of the prosecution, which consisted of the taxi driver and a police officer, and that of the appellant was heard. At the conclusion of the hearing that court dismissed the appellant's appeal. From that decision the stated case, after amendment, found its way to this court.
I should interpose at this juncture of the judgment an observation or two about the attitude of the prosecution after the conviction of the appellant by the justices and before the hearing at the Crown Court. We are told by learned counsel who is here today, and who has no responsibility -- I wish to emphasise -- for anything which has happened previously, that the prosecution at one time or another during the period between the hearing in the magistrates' court and that in the Crown Court were minded not to oppose the appeal.
Fresh solicitors seem to have come into the matter. They took a different view. Counsel was instructed and a full-blown hearing took place at the Crown Court with issues of fact and law hotly disputed. The findings of fact made by the Crown Court I do not intend to rehearse in any detail. It is sufficient to say that they really amount in summary form to this.
The journey which the taxi driver agreed to make was to take the appellant from the place where he picked him up to the appellant's home, which is somewhere in Highbury. The appellant had had a great deal to drink. He was not altogether coherent. He had not, for example, told the taxi driver at the commencement of the journey his address so it became necessary at some point or another for the taxi driver to get fresh instructions from his passenger as to where eventually he would be taken and dropped off.
Before the taxi driver could obtain fresh directions, which he stopped to obtain somewhere near Highbury Corner, the appellant accused him of making an unnecessary diversion, the effect of which was to lengthen the journey and obviously to increase the price eventually to be paid by the appellant.
The argument which ensued over that was not resolved, neither did the taxi driver get the further instructions which were necessary so that he would sensibly continue the journey to its proper end. The taxi driver having come to the conclusion that he could get no sense out of the appellant sought to see if somebody else could assist in that regard.
He drove the appellant to the nearest police station. When they were there a number of things happened, the evidence concerning which is not altogether clear. The Crown Court left unresolved, for example, the conflicting evidence as to whether or not at some stage or another the appellant left the police station in order to go to the taxi and steal money from the taxi driver's pouch.
There was also some difficulty in resolving the allegation made by the appellant that he had tendered money to the taxi driver at the police station. The arguments before the Crown Court included submissions as to what the contract between the appellant and the taxi driver had been; as to whether there had been frustration of the contract or a breach of it and so forth. There was also reference to such authority as was available to counsel and the court at that time about the offence of making off and what could constitute it.
There are cases decided in this court in the relatively recent past, in one of which I gave judgment namely R v Brooks and Brooks 76 Cr App Rep 66, [1983] Crim LR 188, decided in October 1982, which would have shed some light on this matter but not necessarily have determined it. Neither that case nor another of which I am aware was referred to in either of the courts below.
What is the situation here as to the attitude of the prosecution? We are told by learned counsel that the prosecution do not want to contest this appeal. They are content that the appellant should succeed in having the appeal allowed. The basis apparently on which it is agreed between prosecution and learned counsel for the appellant for allowing the appeal is that the journey had not been completed, and the consequence of that was a breach of contract by the taxi driver. Instead of resolving the argument about further instructions during the course of the journey, he broke away from the route which would have carried the appellant home in order to go to the police station. The taxi driver therefore being in breach of contract in that way was not in a position lawfully to demand at any time thereafter, having regard to the facts as found, the fare from the appellant. Accordingly for that reason, among others, the appellant was never in a situation in which it could be said that he was bound to pay or even tender the money for the journey to the taxi driver. It cannot therefore be contended that he made off without paying the fare contrary to the Theft Act 1978, s 3. That is how the argument runs.
The question which this court is asked to answer and which is said to arise out of that argument is contained among the questions which appear at the conclusion of the stated case. We are asked a number of questions. The first of them is whether the contract was frustrated. We have no hesitation in saying that this is not a case of frustration of a contract.
We are asked to say whether the taxi driver's act in driving to the police station was proper in the sense that it was lawful. The answer to that would appear to be, so it seems to me, that the question of lawfulness really does not arise save in relation to the contract. The effect which the taxi driver's act had, in my judgment, was to place him in breach of contract.
The Crown Court also ask us whether they were right in holding that the appellant was or became at any time, one assume they mean, upon the facts liable to pay the fare for the journey.
For the reasons which have been advanced by learned counsel for the appellant, it seems to me to be right to answer that question by saying that the appellant had not become liable to pay the fare to the taxi driver because, as I have indicated, the taxi driver was in breach of the contract between them.
There is a further question which I will not attempt to answer. It goes to the failure of the learned judge and the justices to resolve the dispute about the so-called theft of money from the driver's cab. That does not seem to me to assist in disposing of this appeal. It is unnecessary I think to answer it in the light of the answer I would give to the question which I have immediately before dealt with.
For those reasons I would allow this appeal.
JUDGMENTBY-2: MANN J
JUDGMENT-2:
MANN J: I agree.
JUDGMENTBY-3: NOLAN J
JUDGMENT-3:
NOLAN J: I too agree.
DISPOSITION:
Appeal allowed
SOLICITORS:
Macfarlanes; the Crown Prosecution Service
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