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In light of the thought provoking judgement in Gladen concerning the exclusion of Hackney carriage drivers from section 46 and 55 of the 1976 act it might be time to investigate opportunities in respect of mobile phones for booking purposes.
In the Gladen case Justice Collins commented, "it is only surprising that it has not been expressly decided in the 28 years that this has been in force". "We have now decided it, rightly or wrongly".
I suppose we have to ask ourselves in those twenty eight years mentioned by Justice Collins how many previous prosecutions may have been influenced by the supposition that sections 55 and 46 did indeed apply to hackney carriage drivers?
There are several cases adding greater foundation to the Gladen judgment, including that of London Computer cabs. This case determined that a central agency supplying jobs to hackney drivers in different licensed areas of London did not amount to aiding and abetting plying for hire because the cabs in question accepted the contract in their own licensed area.
There is also the Windsor case where it was deemed that advertising for custom in any area in the country did not amount to making provision for the invitation or acceptance of bookings for private hire vehicles".
Britain v ABC cabs of Camberley, confirmed that where a hackney carriage in respect of which a vehicle licence is in force and is used to collect a passenger in a controlled district outside the area of the local authority that had issued the vehicle licence, no offence was committed.
The case of Murtagh and Carter (T/A Rubery Rednal Cars) v Bromsgrove District Council brought severe criticism of the 1976 LGMPA from Kennedy LJ who said, "the facts of this case make it clear that in fairness to private hire operators the provisions of this statute should be reconsidered by the legislature as a matter of some urgency".
In 1999 it is absurd that a licensed operator who operates in the area of one district council in a large conurbation commits a criminal offence if he installs a small sub-office, or perhaps even a dedicated telephone line, in an area controlled by an adjoining district council because he thereby makes provision for the invitation of bookings in the second area. To keep within the law he must then obtain a whole series of fresh licences, an operator's licence, drivers' licences and vehicle licences, for the second area. This cannot be what Parliament originally envisaged. As the cost of licences varies, we understand, from one district to another, it is not easy to see precisely how the problems should be resolved, but clearly if operators, their drivers and their cars are properly licensed in respect of one area which is responsible for overseeing their activities, they should not have to be re-licensed elsewhere. "The problem is to some extent the result of improved technology since the statute was passed, but the law needs to reflect the current state of technology and not be 23 years behind it".
In the case of Adur DC v Fry, Adur council prosecuted Mr Fry who had a private hire business in Hove, for taking a P/H booking, which started and finished outside his licensed area. The section in question was again 46 of the LGMPA and in particular 46.1.e. Adur was of the opinion that by taking a booking from a person in an area other than where the vehicle operated and then driving that person entirely in the Adur area, Mr Fry was committing an offence. The court didn't see it that way and acquitted Mr Fry.
The case of Dittah v Birmingham City Council confirmed the law in respect that a Private hire operator can only use private hire vehicles and drivers that are licensed in the same area as the operator.
The positives to come out of all this case law is the establishment of the definition of "Private hire" and what constitutes the operating of Private hire vehicles.
Under section 80 of the 1976 LGMPA titled Interpretations of part 2 the word "operate" means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle. And "operator's licence" means a licence under section 55 of the 1976 LGMPA.
Therefore the case law in respect of operating private hire vehicles is now well established and we all know that it means making provision for the hiring of a private hire vehicle. The private hire provision can only be legally satisfied if all three licensing elements are in place in the area where the accepted hire takes place. Namely Operator, driver and vehicle license.
A spanner was thrown into the works when it was decided in Gladen that Hackney carriages are not private hire vehicles and therefore not subject to the legislation applying to private hire operators.
We all know that once a hackney carriage driver leaves his licensed area he cannot ply for hire.
In the case of computer cabs ltd it was contended by the DPP that the offence of plying for hire was committed by accepting a job from a centralised booking agency for a hire undertaken in an area other than where the driver was licensed.
We must not lose sight of the fact that at this particular time London did not have the private hire legislation it has today. The case was dismissed but it established the relationship between a central booking agency and a hackney carriage driver who is not licensed in the area where the accepted hire took place. The court was not asked to rule on whether or not the driver accepting the hire could have done so legitimately if he was actually driving or sat in the area where the hire was booked. The facts of this case are that the driver was in his own licensed area when he took the booking and as such he was not plying for hire in the area where the job was booked. Failure to convict on that first count of plying for hire meant the second count of aiding and abetting by the Central booking agency did not apply.
It may have had severe repercussions on the private hire industry if the verdict had gone in favour of the DPP. As it stands the connection of plying for hire from a radio booking has been somewhat muted by the verdict of this particular case.
Advertising ones services in any part of the country was established in the case of Windsor and Maidenhead Royal Borough Council v Khan. The facts are that advertising ones services does not amount to operating private hire vehicles.
Another issue of cross border hiring is that of executing a private hire booking in an area where none of the licenses apply and remaining in that area for the duration of the hire. This was the subject of a court case brought by Adur DC against a Mr Fry of Hove and as I have previously mentioned the case was dismissed.
We therefore have a situation where Private hire operators who operate private hire vehicle and drivers can advertise their services anywhere in the country, obtain bookings from anywhere in the country and drivers need never return to their own licensed area.
For hackney carriages, where an agent or a centralised booking agency is concerned in respect of an authority where you are not licensed as a hackney carriage driver, the one potential thorn in your side is the ruling in the 1995 case of Kingston upon Hull v Wilson. The redirection of private hire calls from one authority to another whether by automated device or human interaction was established as unlawful in both this case and that of East Staffordshire Borough Council v Rendall 1995.
Where as Rendall used an automated telephone facility to redirect bookings from one area to another Wilson manually passed on the booking to a P/H operator in another licensing area, who then relayed the job to a hackney carriage driver licensed in that same area. If either of these operators had used a local rate number prefixed with 0845 or national rate number prefixed with 0870 a free phone number of 0800 or even a mobile number, all terminating in their own area then the they could not have been prosecuted.
As Justice Kennedy rightly said, way back in 1999 "the problem lies in the legislation appertaining to private hire operators" but what has been done since Justice Kennedy highlighted this fact? "Absolutely nothing".
I have always been a proponent for modern Taxi legislation because I am of the opinion that we can't live in the past. It may suit some to live in the days of the horse and cart but I'm afraid that doesn't apply to me. Technology changes with time and so do attitudes and perceptions, therefore we can't be held back by legislation that hinders progress.
Technology is advancing at a faster rate of knots than at any other period in our industrial History therefore I have no reservations in exposing the flaws in current Taxi legislation. If I can heighten the debate by highlighting the inconsistencies in this outdated legislation then at least I am raising an awareness of the situation.
The 1995 case of Wilson, as I have already stated is a potential thorn in the side of booking agents in other authorities taking bookings for hackney carriage drivers licensed in another area and even to a Central agency. The way to circumvent that problem if indeed there is a problem is by way of having one of the national or local rate numbers I have mentioned originating back to the area you are licensed. Mobile phones are a phenomenon that nobody has yet got to grips with because lets face it you could be anywhere in the country and accept a booking on a mobile phone and who is to know where you are? The absurdity of the current legislation is manifestly obvious in relation to both the 1847 and 1976 acts and the need for change is well past its sell by date.
The ruling in Gladen has informed us that private hire legislation does not apply to hackney carriages unless it is specific to hackney carriages. Apart from London not being the subject of Private hire legislation, in the case of Computer cabs the prosecution was brought under hackney carriage legislation of "plying for hire". We might ask ourselves, if the practice complained of in the computer cab case still goes on then why has a case not been instigated under London Private hire legislation? Does, or should, the same principal not apply to hackney carriages outside of London?
There is also the issue of the sub contract, I am informed by one London radio-company that the PCO have told them there is no problem with subcontract work and they would not prosecute that activity. In theory outside of London a subcontracted booking from one area to another is unlawful, as was determined in the Bromsgrove case of which Kennedy LJ was so critical.
London as we know has new Private hire legislation, which the PCO informs me, does not apply to hackney carriages. The ruling of Gladen basically states the same but I keep being drawn back to the case of Kingston upon hull v Wilson. I think one more ruling in respect of private hire operators is needed to bury the spectre of Wilson before we can finally say that section 46 of the 1976 Local Government miscellaneous provisions act really does not apply to hackney carriages. Perhaps then we can all use our vehicle and mobile phone as our office?
Regards
JD
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