Taxi Driver Online

Defences and mitigation

There are defences present in the LG(MP)A 1976, s 75 which should be considered. Section 75 provides that the LG(MP)A 1976 does not apply to:
(i) a vehicle used for bringing passengers or goods within a controlled district in pursuance of a contract for the hire of the vehicle made outside the district provided the vehicle is not made available for hire within the district;
(ii) a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days;
(iii) a vehicle while it is being used in connection with a funeral;
(iv) a vehicle used wholly or mainly, by a person carrying on the business of a funeral director, for the purpose of funerals;
(v) a vehicle while it is being used in connection with a wedding.
The defence under the LG(MP)A 1976, s 75(1)(a) was considered by the Divisional Court in Braintree District Council v Howard1. The facts were that a defendant's applications for the renewal of licences to operate a private hire business and to drive private hire vehicles were not renewed by the district council. The defendant then operated his business from a caravan located outside the controlled district where he received calls via his wife operating at an address within the controlled district. The defendant was charged with offences contravening the LG(MP)A 1976, ss 46, 48 and 51 but contended that only ss 56 and 75(1)(a) were of application.

The defendant argued that he was running a lawful business outside the controlled district, as bookings were not confirmed within that district, all bookings were not accepted until consultation took place with the defendant who operated outside the controlled district and so he did not require licences to operate. The Divisional Court held that s 56 did not apply to these circumstances as it applied to contracts for licensed vehicles. They further held that s 75(1)(a) could not apply to the picking up of passengers by unlicensed vehicles within that controlled district as s 75(1)(a) was intended to deal with vehicles which brought passengers into a controlled district.

The defence under LG(MP)A 1976, s 75(1)(b) which provides that nothing in Part II of the Act shall apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days was considered by the Divisional Court in the decision of Pitts v Lewis2. The facts of the case were that a contract existed between the vehicle proprietor defendant and a club for the supply of vehicle services, if required, 24 hours a day, seven days a week, all year. This contract had been in existence for over 10 years and the drivers were well aware of the contract resulting in the vehicle being returned to the proprietor's premises when not used in the performance of the contract. The passengers, at the time of the vehicle being stopped, were customers from the concerned club and though these customers paid for the hire of the vehicle, the defendant believed it was being used to carry members of the club's staff at its own expense. The Magistrates' Court acquitted the defendant on the basis that any operation by the drivers without the vehicle proprietor's consent was outside the terms of the contract and so the defendant did not knowingly commit the offence.

The Divisional Court ruled that for s 75 to be operative, there must not only be a contract for hire for a minimum of seven days but such a contract must relate to a particular identified vehicle. It was held that the fact that the vehicle was being used in a particular manner different to the belief of the proprietor was not relevant. In the circumstances, he had therefore knowingly permitted the vehicle operation resulting in the case being remitted to the magistrates with a direction to convict. The narrowness of the interpretation of s 75(1)(b) should be noted whenever reliance is being sought upon it.

Further consideration of the LG(MP)A 1976, s 75(1) took place by the Divisional Court in Crawley Borough Council v Ovenden3, where the defendant driver was engaged by the local education authority to drive children from their homes to school and back. Such an engagement took place despite the absence of a written agreement but had subsisted for a period of time. The council brought prosecutions under the LG(MP)A 1976, s 46 and the justices found on the facts that a contract could be implied from the dealings between the driver and the local education authority and that irrespective of there being no minimum period for the contract to run and that the original vehicle had been replaced, s 75(1) could still be relied on by the defendant driver.

The council successfully appealed the case by way of case stated to the Divisional Court following Pitts v Lewis and the necessity of a defendant relying on the LG(MP)A 1976, s 75(1) to show an agreed minimum period of a contract of seven days. The court also doubted that there was a contractual vehicle in the arrangement between the defendant driver and the local education authority. It should also be noted that the Divisional Court in Leeds City Council v Azam and Fazi4 ruled that the LG(MP)A 1976, s 75(1)(b) does not apply to a contract for the supply of a service.

1 [1993] RTR 193.
2 (1988) 153 JP 220, [1989] RTR 71n.
3 (1991) 156 JP 877, [1992] RTR 60, DC.
4 (1988) 153 JP 157, [1989] RTR 66.
[6.15]–[6.20]

Specific defences to s 46(1)(a)–(c) are to be found in s 75(2), (2A) and (3). Hence s 46(a)–(c) does not apply to the use or driving of a vehicle or employment of a driver of a vehicle when the vehicle is being used as a private hire vehicle in a controlled district issued under s 48 by the council whose area includes another controlled district which is 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.

Under s 75(2A), a vehicle which is being used as a taxi or private hire vehicle which has a current licence issued under the Civic Government (Scotland) Act 1982, s 10 for its use as a private hire car and the driver holds a current driver's licence under the Civic Government (Scotland) Act 1982, s 13 then s 46(1)(a)–(c) is not applicable.
The burden of establishing these defences lies on the defendant to the civil standard, ie on the balance of probabilities1, which follows the general principle laid down in the MCA 1980, s 10 and the decision of Islington London Borough v Panico2.
1 Leeds City Council v Azam and Fazi (1988) 153 JP 157, [1989] RTR 66.
2 [1973] 3 All ER 485, [1973] 1 WLR 1166.
[6.21]

Consideration of the LG(MP)A 1976, s 46(1)(e) offence1 was recently undertaken by the Divisional Court in St Albans District Council v Taylor2. The respondent was licensed under the LG(MP)A 1976, s 55 as a private hire vehicle operator. As a consequence of being unexpectedly short on staff on two occasions he arranged for his wife to carry out the pre-existing bookings.

She had no private hire driver's licence and used vehicles which were unlicensed. On the respondent's instructions, she made no charge and accepted no tip. The justices acquitted the operator resulting in the council's appeal. The Divisional Court considered the definition of 'operate' and 'private hire vehicle' to be found in the LG(MP)A 1976, s 80 in making their decision and Hodgson J viewed the definition of 'operate' in s 80 to be poorly drafted and to sit extremely uncomfortably with s 46(1)(e).

The court concluded that the payment of money was not necessary to constitute a hiring for if a hirer can fairly be said to have derived commercial benefit from the transaction, then a hiring may take place. Clearly the operator was attempting to protect the goodwill of his business rather than let down his customers or transfer their custom to a competitor, but this was insufficient to lead to an acquittal. As a consequence, the case was remitted back to the magistrates' court with a direction to convict but reference was made that the penalty imposed should be substantially mitigated as a result of the facts of this case.

The collection of a passenger within a controlled district in pursuance of a contract made for hire outside the area of the local authority that had issued the vehicle licence does not constitute 'operating' for the purposes of s 46(1)(d)3.

1 See para [6.13].
2 (1991) 156 JP 120.
3 Britain v ABC Cabs (Camberley) Ltd [1981] RTR 395.