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Several distinct facts stand out in your case and that of Thain v Darlington BC.
Thain like yourself was prosecuted under section 46 of the 1847 TPCA.
That section reads as follows,
S 46 of the Town Police Clauses Act 1847: "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...."
When the Thain case went before the magistrate’s court they found that he wasn’t plying for hire at the time he was seen picking up his daughter and that he drove the vehicle for personal use therefore section 46 did not apply.
The council contended that the driver's intention at the time is immaterial: if he is driving a licensed taxi and has no licence to do so he commits an offence under section 46.
In their “stated case” for the appeal court the magistrates stated the following.
"During the preparation of this case we have considered again the case of Yates v Gates and received further guidance upon that judgment, and are now of the opinion that in accordance with the decision in Yates v Gates, if a vehicle is licensed as a hackney carriage and at the material time bears the appearance of a hackney carriage, the driver of the vehicle must be the holder of a hackney carriage driver's licence."
So the magistrates had a change of mind over their previous decision but perhaps that highlight the ambiguity in the wording of section 46?
Before we move on to Yates v Gates it is worth noting the dissimilarities in your case and that of Thain. Thain was displaying his for hire sign, which you weren’t, furthermore Thain admitted to using his vehicle for pleasure, where you said you were road testing the vehicle for the purpose of general maintenance.
The second point is stronger than the first but you still have to contend with the fact that the law has so far deemed anyone wishing to drive a licensed hackney carriage vehicle must hold a current hackney carriage drivers license, except under the exemptions in respect of authorised testing, which can be found in the 1988 road traffic act.
Yates v Gates is the bedrock of the case law surrounding your circumstances of driving a licensed hackney carriage without the appropriate license.
In the case of Thain, Yates v Gates was the authority to which the court relied on for their reasoning. The judges gave their reasoning as follows.
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Yates v Gates [1972] QB 27, [1970] 1 All ER 754 is a decision of this court. In his judgment the Lord Chief Justice, Lord Parker, at P31.H says:
"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 defendant was not driving the vehicle for hire, therefore he did not require a license,"
He then says that the Justices in that case dismissed the information on that basis. After referring to s 46 he said:
"Pausing there, it is undoubtedly true that the defendant 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 section 38 of the Town Police Clauses Act, 1847, 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."
He then says, and these are the important words:
"In my judgment section 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 section 46."
The Court allowed the prosecutors appeal.
With that very clear statement of principle it is not surprising, in my judgment, that the Justices were (when they reconsidered the case) decided that they had got it wrong. In my judgment they had. This offence is committed whenever a licensed taxi is driven by someone who is not licensed to do so, irrespective of his intention at the material time.
The question which the Justices posed for our consideration is whether in law a person who is not the holder of a Hackney carriage driver's licence may drive his own motor vehicle for a private purpose, if that motor vehicle is licensed as a Hackney carriage, and on the face of it bears the appearance of a Hackney carriage. I would answer that question, "no".
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If you look at the bare facts you would assume and rightly so that you don’t have much of a defence against these two judgments. However, Yates v Gates dates back to 1972 and since then we have had legislation amending section 46 for the purpose of authorised testing of hackney carriages, which states a hackney carriage driver’s license is not needed for the authorised testing of a licensed hackney carriage vehicle. In that respect you are going to have to convince the court that you fit into the category of what amounts to an authorised person.
You will have to look at the council conditions relating to your license and any bylaws relating to maintenance of vehicles under section 47 of the LGMPA 1976.
47 Licensing of hackney carriages (1) A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary.
Section 50 of the LGMPA 1976 provides under Provisions as to proprietors (1) Without prejudice to the provisions of section 68 of this Act, the proprietor of any hackney carriage or of any private hire vehicle licensed by a district council shall present such hackney carriage or private hire vehicle for inspection and testing by or on behalf of the council within such period and at such place within the area of the council as they may by notice reasonably require:
One might suggest hat this provision apart from stating the obvious also dictates that the proprietor has to maintain the hackney carriage to a standard that requires it to pass a council road worthy test at any given time and in order to do that the vehicle has to be regularly maintained.
In conjunction with section 50 we have section 68 which relates to the Fitness of hackney carriages and private hire vehicles. Above all else section 68 presupposes that a license vehicle must be in sound mechanical condition at all times, therefore placing an emphasis on the proprietor to maintain the vehicle to such a high standard of mechanical fitness for the purpose of carrying the general public as fare paying passengers. This cannot be done unless the vehicle undergoes regular stringent mechanical tests under working conditions. Therefore legislation and also council licensing conditions place a heavy burden on a proprietor to maintain their licensed vehicle to a high standard. It would therefore be inconceivable to think that every person who is competent to carry out such maintenance should not do so unless they held a hackney carriage drivers license.
Section 68 Fitness of hackney carriages and private hire vehicles.
Any authorised officer of the council in question or any constable shall have power at all reasonable times to inspect and test, for the purpose of ascertaining its fitness, any hackney carriage or private hire vehicle licensed by a district council, or any taximeter affixed to such a vehicle, and if he is not satisfied as to the fitness of the hackney carriage or private hire vehicle or as to the accuracy of its taximeter he may by notice in writing require the proprietor of the hackney carriage or private hire vehicle to make it or its taximeter available for further inspection and testing at such reasonable time and place as may be specified in the notice and suspend the vehicle licence until such time as such authorised officer or constable is so satisfied:
Provided that, if the authorised officer or constable is not so satisfied before the expiration of a period of two months, the said licence shall, by virtue of this section, be deemed to have been revoked and subsections (2) and (3) of section 60 of this Act shall apply with any necessary modifications.
The Yates case in 1972 came up with the proposition that a hackney carriage is always a hackney carriage and therefore can only be driven by a licensed hackney carriage driver. However the 1988 road traffic act made certain provisions which negated that judgment. In fact the 1988 road traffic act made certain amendments in respect of 46 which if interpreted on a wider basis might possibly be extended to persons who carry out regular maintenance of licensed hackney carriage vehicles. I’m not saying that will be the case but if presented with both the Rupert Cope DfT letter of 2000 and the Ministers letter to Bryan Roland in the same year then you may have a powerful argument to support your case in respect that you were road testing your vehicle for the purpose of ongoing maintenance?
There is no doubt that events have overtaken the 1972 case of Yates but the problem you have is convincing a court of law that under current legislation and licensing conditions your obligation to maintain your vehicle to a standard fit for public purpose, extends to you the meaning of authorised persons to carry out such maintenance, under the road traffic act of 1988? Also the relevant section in the 1985 act which states.
2 The Town Police Clauses Act 1847
3 Section 46 of the Town Police Clauses Act 1847 (drivers not to act without first obtaining a licence) shall not apply to a person driving a hackney carriage licensed under that Act for the purpose of or in connection with--
(a) any "test" of the mechanical condition or fitness of the hackney carriage or its equipment carried out for the purposes of [section 45 of the Road Traffic Act 1988] (tests of satisfactory condition of vehicles other than goods vehicles) ***or for the purposes of any requirements with respect to such condition or fitness imposed by or under any other enactment;*** or
(b) any test of that person's competence to drive a hackney carriage carried out for the purposes of any application made by him for a licence to drive a hackney carriage.
You will have to write immediately to both David Farmer and the Minister in order to get a fresh interpretation of the DfT letter of 2000 and confirmation that for the purpose of maintaining a licensed hackney carriage vehicle the person road testing the vehicle should be exempt from holding a hackney carriage drivers licence.
The plying for hire charge is going nowhere so I wouldn’t worry about that.
Get yourself a solicitor and direct him to what’s been said on TDO and take it from there.
Regards
JD
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Copyright notice © The contents of this post are copyright of JD and are not to be reproduced outside of TDO without written permission.
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