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Yates v Gates
TRANSPORT; Road
QUEEN’S BENCH DIVISION
LORD PARKER CJ, ASHWORTH AND TALBOT JJ
22 JANUARY 1970
Road traffic – Hackney carriage – Carriage of person with consent of hirer – Express consent – Town Police Clauses Act 1847, S 59.
Road traffic – Hackney carriage – Licence – Driver – Driver must have have licence whether or not hackney carriage plying for hire – Town Police Clauses Act 1847, s 46.
On the true construction of s 59a of the Town Police Clauses Act 1847, the driver of a hackney carriage which is hired may not carry any other person without the express consent of the hirer which must be positive, evidenced by some words or actions, and cannot be implied by mere acquiescence (see p 756 a and g, post).
On the true construction of s 46b of the Town Police Clauses Act 1847, a person driving a vehicle licensed as a hackney carriage must have a licence whether or not it is plying for hire at any particular moment (see p 756 f and g, post).
Hawkins v Edwards [1901] 2 KB 169 followed.
Case referred to in judgment:
Hawkins v Edwards [1901] 2 KB 169, 70 LJKB 597, 84 LT 532, 65 JP 423, 45 Digest (Repl) 161, 657.
Case stated
This was an appeal by way of case stated from a decision of the Essex justices sitting at Harlow on 10 June 1969 dismissing two out of three informations preferred by Neil Yates, the appellant, against the respondent, Alfred Gates, a taxi driver, for offences contrary to the Town Police Clauses Act 1847. The facts are set out in the judgment of Lord Parker CJ.
J Lloyd-Eley for the appellant.
The respondent did not appear and was not represented.
22 January 1970. The following judgments were delivered.
LORD PARKER CJ. This is an appeal by way of case stated from a decision of justices for the county of Essex sitting at Harlow, who dismissed two out of three informations preferred by the appellant against the respondent, a taxi driver, for offences contrary to the Town Police Clauses Act 1847. I should say that the court has received a request from the respondent to adjourn this hearing for a fortnight in order to take legal advice. The court refused to accede to that application, bearing in mind that this case stated had been settled as long ago as 2 September 1969, and that in any event throughout these proceedings in the magistrates’ court, the respondent had taken no interest in the matter and failed to appear.
The first of these informations charged that at Church Leys, Harlow, the respondent being the driver of a certain hackney carriage which was hired by Gordon Frederick Smith, permitted a certain person whose name is unknown to be carried in the hackney carriage during the hire without the express consent of Mr Smith, contrary to s 59 of the Town Police Clauses Act 1847.
The short facts on that information were that the vehicle in question with the ‘For hire’ sign illuminated was stationary outside premises known as 211 Church Leys; Mr Smith and a Miss Edwards approached the vehicle, and, as they did so the respondent with a woman and child came out of the house and went towards the vehicle. Mr Smith asked the respondent if the vehicle was for hire; the respondent said, ‘Where do you want to go?’ Mr Smith said, ‘To the Stow’. The respondent said that he would take Mr Smith and Miss Edwards first and then take the woman and child to their destination. Thereupon all five got into the vehicle. Section 59 of the Act is in thee terms:
‘Any proprietor or driver of any such hackney carriage which is hired who permits or suffers any person to be carried in or upon or about such hackney carriage during such hire, without the express consent of the person hiring the same, shall be liable to a penalty not exceeding twenty shillings.’
I should add that Mr Smith and Miss Edwards were in fact employees of the Harlow Urban District Council, and what took place was observed by two other employees; in other words this was quite clearly a trap to see if the respondent was complying with the law.
The question was whether in the circumstances it could be said that Mr Smith had given his express consent to the woman and child being carried in the vehicle. The magistrates expressed their opinion thus:
‘The four Council employees were then at 11.46 a.m. or thereabouts for the purpose of trapping the Respondent and Smith’s role was to act as agent provocateur. He knew before entering the vehicle that the Respondent proposed to carry the woman and child therein in addition to Smith and Miss Edwards, and by entering the vehicle with that knowledge without objection or comment he expressed his consent.’
The question on that which is left to the court is: ‘Can consent be expressed by755 actions without words; if so, were Mr Smith’s actions capable in law of amounting to express consent?’ In my judgment express consent in this provision, whatever it may mean elsewhere, means positive consent, not an acquiescence in the form of an implied consent. It envisages that a driver of a taxi cab should ask the hirer whether he objects to somebody else being carried. Of course, if he says ‘I have no objection’, there is the express consent. It may be also, in answer to the first question raised by the justices, that action might amount to consent, in that he might nod his head in answer to the question, but mere acquiescence, as I have said, would not in my judgment amount to express consent within the Act.
The second information charged the respondent that on the same day he drove a hackney carriage which was duly licensed to ply for hire not having obtained a licence to act as such driver. The justices took the view that since on the occasion in question the sign ‘For hire’ was not illuminated, and in the circumstances that the respondent was not driving the vehicle for hire, therefore he did not require a licence, and dismissed the information. In regard to that, s 46 of the Act in question provides:
‘No person shall act as driver of any hackney carriage licensed in pursuance of this or the special Act to ply for hire … without first obtaining a licence from the commissioners … ’
Section 47 provides the penalty: ‘If any person acts as such driver as aforesaid without having obtained such licence … ’ he shall be guilty of an offence.
Pausing there, it is undoubtedly true that the respondent did not have the necessary licence, and that the vehicle in question was itself licensed to ply for hire. The justices, however, took the view that unless the vehicle was plying for hire it would not be a hackney carriage the driver of which would require a licence. That, of course, envisages that a vehicle licensed as a hackney carriage as defined in s 38 of the 1847 Act must change its character from moment to moment; when it is not plying for hire it is not a hackney carriage, and when it is plying for hire it is a hackney carriage.
In my judgment s 46 is perfectly plain. No person shall drive any vehicle which is licensed as a hackney carriage, whatever it may be doing at the particular moment unless he himself has a licence as required by s 46. Support for this view may be found in Hawkins v Edwards, where the argument which apparently found favour with the justices in this case was not acceded to in the Divisional Court.
In my view the case should go back to the justices with a direction to convict on both these informations.
ASHWORTH J. I agree.
TALBOT J. I agree.
Appeal allowed. Case remitted.
Solicitors: Town Clerk, Harlow (for the appellant);
Jacqueline Charles Barrister.
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