Taxi Driver Online

Dundee

Grievances of Dundee Taxi drivers over a variety of licensing conditions which they say, are either illegal, or inadequate could escalate into a protracted war of attrition between them and the local council.

At the heart of the matter is what they see as the lack of enforcement of private hire drivers who they claim are illegally plying for hire on the streets of Dundee and in particular outside the nightclub venue of Fat Sams. Another major grievance of the taxi drivers is what they perceive as inadequate quality control standards for new applicants wishing to enter the Taxi trade.

A third contentious issue revolves around distinguishing marks placed on local private hire vehicles that make them look like they are available for immediate hire. The taxi drivers say, the markings are skirting with the law and should be removed and replaced with markings that identify the vehicles as private hire cars.

Under current legislation namely the Civic Government Scotland act 1982 Scottish licensing authorities may make regulations prohibiting the display “in, on, or from any or all licensed Private hire vehicles of any sign, notice or other feature of a description specified in the regulations.

In order to comply with common law and before making any licensing regulation or condition that amounts to an order of prohibition, each licensing authority must consult with such bodies appearing to it to represent the local taxi and the private hire trade in their area, as the authority considers appropriate?

Under Scottish law any person who drives a vehicle in respect of which a prohibited condition is imposed by such regulations or causes or permits such a prohibition to be contravened in respect of any vehicle, is guilty of an offence.

At a recent meeting of Dundee city council taxi liaison committee, a thirteen point petition highlighting their grievances was presented by representatives of the Dundee taxi trade. The meeting was also attended by Mr Stewart Hosie MP for Dundee East, three high ranking police officers including the police cab inspector and several senior officials from the City council.

The committee meeting was prematurely halted when several members of the taxi trade came to the conclusion that officials representing both the City council and the police had a different agenda to their own and it was therefore pointless continuing with the meeting. Most, if not all taxi trade representatives left the meeting because they were of the opinion that the council were not prepared to listen to, or constructively debate the thirteen points of objection raised in their petition. Another adverse point as far as the taxi drivers were concerned was the fact that those acting on behalf of the City council and the Police produced their own report which in many ways refuted the grievances of the taxi drivers.

The meeting continued but without the pivotal members of the local taxi trade, one would assume that the prospect of any immediate compromise must now surely be in the balance?

One of the main contentious points as I previously stated is what the taxi trade see as the illegal activity of private hire car drivers picking up passengers off the street. It has been suggested that the majority of drivers participating in such activity work for the private hire firm known as the Dundee Taxi Cab company. The Dundee Taxi cab company has an office and car park adjacent to Fat Sams night club.

The private hire company has an arrangement with Fat Sams nightclub that revolves around the nightclub acting as agent of the private hire company for the purpose of directing all potential users of Taxis and private hire cars to the Dundee Taxi Cab company.

Unless where specified, nightclub patrons requiring a private hire vehicle will be subject to the nightclubs preferred choice of private hire car company that being the Dundee Taxi Cab company.

In the grand scheme of things a nightclub will normally be given a financial incentive to provide a private hire company with custom from the club, this is commonly known within the taxi trade as commission. Commission might be paid in various ways either directly by the driver to the nightclub receptionist for each individual hire, or by way of an agreed annual payment made by the private hire company itself?

An arrangement, such as the one described between the Dundee Taxi Cab Company and Fat Sams nightclub is one based on mutual agreement. It is suggested by council officials that the arrangement is an established contract between the two and that may well be the case, however in law, it is certainly not an established contract between members of the public who patronise the nightclub.

Local taxi drivers are of the opinion that every contract under current legislation must be made with the member of public making the private hire booking and a contract between a private hire company and a nightclub is totally immaterial in terms of contract law in respect of a member of the public undertaking a private hire booking.

The taxi drivers have three main concerns in this respect, they are, accusations of illegal plying for hire by cars from the Dundee Taxi cab company, which also involves them forming a taxi rank outside the nightclub and picking up members of the public who have not pre booked one of their vehicles. The lack of council enforcement in policing the situation outside Fat Sams night club and the display of markings on private hire vehicles which could suggest they are for immediate hire.

Having looked at these specific complaints I’ve drawn the following conclusion’s and addressed “some” of the points raised in the recent response from Dundee City council by virtue of their Taxi liaison group report.

SDD Circular 6/1983 is quoted extensively in this report as being an invitation for councillors to make conditions that in my opinion are outside the jurisdiction of the law. SDD Circular 6/1983 is opinion from the office of the Secretary of State which is now the Scottish Executive and serves only as opinionated guidance to councillors over a whole range of matters including section 14 of the schedule relating to Taxis and Private hire vehicles. In no way does such guidance represent the legal definition or legal standing, relating to section 14 of the Civic Government Scotland act 1982.

In my opinion the views expressed in SDD Circular 6/1983 in respect of section 14 of the 1982 act cannot possibly have any effect on the terms of the statutory provisions at present in force namely section 14 and in particular subsections “one” and “two” of that section.

Subsection (1) of Section 14 places a prohibition on any “word, sign, notice, mark, illumination, or “other feature” which may suggest a vehicle is available for hire as a taxi”.

Subsection (2) “only” allows such markings on a licensed vehicle “other” than a “taxi”, that “defines” it as a licensed “private hire car”. Allowing private hire cars to display any signage that invites the public to “hire them” or “think” they can be hired “immediately” as a “taxi”, is in my opinion, a contravention of the legislation.

Section 14 subsection (1) of the Civic Government Scotland act 1982, describes the prohibitions on advertising that are mandatory on every council to ensure that vehicles which are not Taxis, do not display any “word, sign, notice, mark, illumination or other feature which may suggest the vehicle is available for hire as a taxi”.

Subsection (2) provides that subsection (1) above does not apply in relation to any license plate or “other thing” issued by the licensing authority for the purpose of “indicating” that the vehicle to which it relates is a “private hire car”, or in relation to any sign required by virtue of section 21 of the vehicles Excise act 1971.

Subsection (3) provides that any person who –

(a) drives a vehicle in respect of which of which subsection (1) is contravened: or
(b) causes or knowingly permits that subsection to be contravened in respect of any vehicle,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding £200.

There is no ambiguity in section 14 it describes what can and cannot be displayed on any vehicle including “private hire cars” and in particular subsection (2) makes it quite clear that a council may only allow such markings on a “private hire car” that indicates the vehicle is a “private hire car” and nothing more.

The legislation also makes it clear that such markings may include a “license plate” or “other thing”, issued by the licensing authority, for the purpose of “indicating” that the vehicle, to which it relates, is a “private hire car”.

“Emphasis” in this subsection of the legislation should concentrate on the words, “for the purpose of indicating that the vehicle to which it relates is a private hire car”.

Subsection (2) restricts a licensing authority to “only allowing” such markings that allow “private hire cars” to be “recognised as such” and not as taxis.

The Dundee Taxi trade is no doubt of the opinion that any marking on a private hire car other than a license plate or notice displayed in or on the vehicle which advises the public that the vehicle is a private hire car and not a “licensed taxi” is the only form of mark or notice allowed by law.

Allowing telephone numbers on private hire vehicles of the size and type of those displayed on Taxis and other forms of signage such as illuminated roof signs, which incidentally are not displayed on Dundee Private hire cars, does in my opinion go beyond the scope of the legislation.

No doubt the local taxi trade is also of the opinion that should the local council desire private hire cars to display certain markings then those markings should comply with current legislation and indeed the spirit of the legislation which only allows distinguishing marks of a nature that “define” such vehicles as being “private hire cars”.

Failing to comply with the law on signage under section (14) subsections (1) and (2) could render all other decisions ultra vires. Unlawful decisions taken under subsection (2) will without doubt fall under the prohibitions in subsection (1) which states,

Section 14 subsection (1) Subject to subsection (2) “there shall not be displayed on or in any private hire” car any “word”, “sign”, “notice”, “mark”, “illumination”, or “other feature” which may suggest the vehicle is available “for hire” as a “taxi”.

I believe displaying a telephone number on a private hire car of the type and size attributed to licensed taxis and any other such markings either in or on a private hire vehicle that makes the public believe that is it something it is not, is a contravention of subsection (1) regardless of the catch all wording in the subsection relating to “or other feature”.

The words “or other feature” provide a wide jurisdiction of what “cannot” be displayed “in or on” a private hire car and I am of the opinion that regardless of the definitive wording in subsection (1), the words, “or other feature” give the section such a broad meaning that a court of law would no doubt conclude that any condition or regulation that did not specifically relate to subsection (2) in respect of a licensing authority being allowed to issue a license plate or other distinguishing mark for the purpose of “only” indicating that the vehicle to which it relates is a private hire car, would be unlawful.

Therefore If I was speaking on behalf of the local taxi trade I would most certainly request that any and all current conditions relating to private hire signage and markings be reconsidered and reapplied within the strict interpretation of the relevant sections as laid down in the Civic Government Scotland act 1982.

Section 20, of the CGSA 1982 relates to Types of vehicles. It says,

S 20 Regulations relating to taxis and private hire cars and their drivers.

(1) Notwithstanding paragraph 5(2) of Schedule 1 to this Act, the Secretary of State may by regulations provide that licensing authorities shall, in relation to taxi, private hire car, taxi drivers' or private hire car drivers' licences, impose such conditions or classes of conditions as may be prescribed in the regulations and shall not impose such other conditions or classes of conditions as may be so prescribed.

(2) The Secretary of State may by regulations made by statutory instrument prescribe types, sizes and designs of vehicles for the purposes of section 10(4) of this Act and, in doing so, may prescribe different types, sizes or designs of vehicles in respect of different areas.

(3) Regulations under subsection (1) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

The council is allowed to license car hire vehicles for both public hire and private hire.

By virtue of section (14) of the CGSA 1982 councils have a mandatory obligation to distinguish between both types of licensing activity, however, as well as licensing purpose built wheelchair accessible vehicles Dundee council also license saloon type vehicles as both Private hire cars and Taxis.

The only distinguishing features between these two types of licensing modes is that private hire cars do not require a mandatory illuminated roof sign and the colour of the license plate is different to that of a licensed Taxi? It would appear that all other markings are virtually the same on both saloon types of vehicles.

The local taxi trade is of the opinion that the absence of a roof sign is no deterrent for the general public to believe that a private hire car is not a taxi or available for immediate hire when the vehicle in question displays in large letters the telephone number of a private hire firm.

It is understood that the taxi trade in Dundee wish to bring more clarity to the identification process of private hire cars by proposing that private hire Cars only display information on them that provides the travelling public with the visible knowledge that the vehicle is a private hire vehicle and not for public hire.

No doubt the local taxi trade prefer a similar solution to private hire signage as is applied by many local authorities in England and Wales.

In many cases councils in England and Wales have opted for a condition that requires a notice or sign to be placed on a private hire vehicle indicating that the vehicle and driver are not insured for immediate public hire and that every hire must be pre booked.

Probably the main contentious issue in this dispute is the activity of illegal plying for hire by licensed private hire cars and touting for custom by way of loitering.

The practice of illegal plying for hire by licensed private hire cars in Dundee is believed to be widespread and grossly under estimated by the local council.

In the opinion of many local taxi drivers, enforcement of such illegal activity is far from adequate and they cite the poor detection and prosecution rate of those given the task of carrying out such enforcement as clear evidence for their reasoning.

Many taxi drivers are of the opinion that Dundee City council are deliberately keeping the public oblivious to the extent of the unlawful activity of illegal plying for hire, by many of those in the private hire sector. Taxi drivers say the true extent of councillor’s complacency will only manifest itself when a fatality, harm, or injury befalls a member of the public and only then will they be held accountable.

In the recent taxi liaison committee report those officers who were a party to its compilation placed great store in the fact that the Dundee Taxi Cab company has a contract with Fat Sams Nightclub. They also stated that the contract is to supply transport to nightclub customers and that bookings are made through a third party namely a representative of the Nightclub.

The Nightclub is adjacent to the premises of the Dundee Taxi Cab company and in the opinion of those who compiled the report it would appear that by default they imply that the contract between the two allows the activity of illegal plying for hire by private hire cars operated by the “Dundee Taxi Cab company” to go unchecked.

Perhaps someone should point out to the authors of this “report” that regardless of what facility is made available to patrons of any establishment including a nightclub, supermarket, sporting venue or other similar entity, that it does not amount to a contract of hire between patrons using such facilities?

A contract of hire only exists when a member of the public makes a physical booking whether by mobile telephone, public telephone or via a free phone installed in the premises of a nightclub.

A nightclub or any other type of public or private establishment cannot have a contractual binding agreement, implied or otherwise with “any member of the public” collectively, to supply a “private hire car service” on their behalf.

For Dundee licensing department to infer that a mutual agreement based on financial remuneration between a private hire car company and a nightclub amounts to a contract between them and the public is a gross misrepresentation of the facts.

The patrons of this nightclub are under no obligation to use any telephone system made available to them, free or otherwise, or indeed use the services of a member of the nightclub in order to book a taxicab whether it be a private hire car or otherwise? The nightclub does not have a contractual agreement with any member of the public patronising this nightclub and therefore the comments of the licensing officer in inferring that they do are grossly misleading. The only contractual agreement that might possibly legally exist is a contract between the private hire company and the nightclub in respect of facilitating a free telephone but under no circumstance does a tripartite contract exist between the private hire company, the nightclub, and the public.

The purpose of such a contract or what might loosely be called a mutual arrangement is for the private hire company to obtain custom from the nightclub and the nightclub in turn to benefit from financial remuneration given by the private hire company for the occasional custom of nightclub patrons.

No contract exists between the nightclub patrons and the private hire company, either before or after they enter the nightclub or when they leave? The only time a contract will exist in law is under the circumstance were a member of the public makes a physical request for the service of a private hire vehicle.

The local taxi trade might therefore consider asking those officers who wrote this report to retract and amend their previous statement in order that it represents the correct legal interpretation placed on the actualities surrounding the contractual arrangements made between a “member of the public”, the “private hire company” namely The Dundee Taxi Cab Company and the “nightclub” concerned that being Fat Sams.

The report in question highlights the fact “that it would be a clear breach of the terms of Section 23 of the 1982 Act if patrons of other establishments apart from Fat Sam's sought to make use of the private hire vehicles parked there”.

Once again those officers who wrote this taxi liaison report are manifestly misinformed.

It is considered a breach of section 23 if any member of the public avails themselves of any vehicle other than a licensed Taxi that has not been pre-booked, including a private hire car that might happen to be sat outside Fat Sams nightclub regardless of whether or not Fat Sams has a contract with any particular private hire firm or indeed has a free telephone installed which connects its premises to that of a private hire company.

The licensing officer and police have no way of knowing which members of the public have booked a private hire vehicle and which members have not? To suggest that every person alighting from Fat Sams nightclub has pre booked a private hire vehicle is absolutely ludicrous.

It should be pointed out that officers from the council are not at liberty to make such assumptions as they do not have first hand knowledge of the activities taking place outside this particular night club or any other place of entertainment for that matter.

The report suggests that council officers rely on information of illegal private hire activity solely from one source, that being the police but the police have far more important matters to consider other than private hire and taxi drivers picking up customers from the street. It is therefore a gross injustice to ones intelligence for councillors to expect reasonable minded people to be taken in by their excuses for their lack of enforcement and their tacit approval given to the illegal activity that takes place outside Fat Sams nightclub by virtue of the fact that they consider every private hire car that takes up passengers from the vicinity of Fat Sams nightclub has been pre booked.

In the majority of cases, patrons leaving Fat Sams nightclub will be hoping to instantly find a public hire vehicle known as a “Taxi”, if none are available then it is conceivable to think that they will more than likely seek other methods of transportation, including the immediate hiring of private hire cars parked outside Fat Sams. That is the reality of the situation and not as described by officers, in the Taxi liaison committee report.

Officers have also convinced themselves that private hire cars parked outside Fat Sams are doing so in circumstances which are perfectly legal? Perhaps if these officers understood the law relating to touting and illegal plying for hire then they might not lightly dismiss the activity which they have already described is taking place?

The law in Scotland in respect of illegal plying for hire and touting is in its infancy and very few of these types of cases have come before the courts. However, English law is littered with such cases and there is no reason not to believe that the Scottish courts would not uphold the case law already established in English law.

If we consider sections 21 and 23 of the 1982 act “licensing and regulation of taxis and private hire cars” and section 55 of Part 4 of the act relating to “Touting” which is found under “Offences, Powers of Constables, etc”, it is quite obvious that many of the activities taking place outside Fat Sam’s nightclub by private hire cars, is illegal.

I am under no illusion that if a person in a “public place” solicits persons to hire his or her vehicle to carry them as passengers, the driver is guilty of an offence.

For these purposes, “public place” includes any highway and any other premises or place to which at the material time the public has or is permitted to have access, whether on “payment or otherwise”.

“In ordinary cases of plying for hire and touting, in order that there should be a plying for hire, the conveyance itself should be exhibited. However, a man might possibly ply for hire with a conveyance without exhibiting it, simply by going about touting or soliciting for customers.”

The authors of the Taxi Liaison committee report have stated that private hire cars are parked outside Fat Sams nightclub, therefore it goes without saying that they are duly exhibited. Whether or not they are parked there for legitimate reasons is another matter?

It would be prudent to look at the act in question and consider the primary purpose of the prohibiting sections of the act? I have no doubt that anyone of sound mind when reading these sections will realise that the act is intended to regulate or prevent anyone from illegally plying for hire or touting for hire with an unlicensed taxi.

One definition of plying for hire is defined as such,

"'plying for hire' means soliciting custom without any previous contract”.

Whether a car is illegally plying for hire is essentially a question of fact which to a great extent has to be decided by the application of the rules of commonsense. It is suggested that in circumstances relating to Fat Sam’s nightclub private hire cars are systematically maintaining an unofficial stand for cars in the street and that these cars are being used and left outside the nightclub and indeed the adjacent car park of the “Dundee Taxi Cab Company” to be hired in exactly the same way as licensed public hire taxicabs are hired when they drive up and stand on an ordinary Taxi stand in the street.

Various tests have at one time and another been laid down to decide whether or not a vehicle is plying for hire.

Channell J said in Cavill v Amos (64 JP 309, at p 310):

"In ordinary cases, in order that there should be a plying for hire the carriage itself should be exhibited.’ It is quite possible that there can be a plying for hire where it is not exhibited, but where it is being exhibited it is a most important fact. ‘I was further of the opinion that, if the cars had been concealed in a private yard or garage, the result would be the same provided that the cars were ready to be appropriated to an immediate hiring."

It would appear that those compiling this taxi Liaison report have placed their own interpretation on the meaning of the relevant sections mentioned in the act, namely sections 21, 23, and 55 but there is no justification for them to conclude that what is taking place outside of Fat Sams is within the law.

The proper course would be to start with the words of the relevant sections in the Act of 1982, those being sections 21, 23, 55, and to construe them before seeing whether there are any sections binding on councillors which constrain them from putting a different construction and interpretation on those words?

It is quite clear from the act that it is the Taxi that must ply for hire and that the licensed driver is in charge of the Taxi, at all material times that he or she is driving the vehicle. Therefore when standing and plying for hire the taxi is the vehicle that is licensed to do so and the driver is the agency who allows its operation.

In all three sections namely 21, 23 and 55 the Act is directing one’s attention to the conveyance under consideration and posing the question:

“is it plying for hire”?

The Act is prima facie dealing with a particular conveyance whose owner or driver invites the public to be conveyed in it.

In all cases of illegal plying for hire or touting, “the conveyance is to be at the disposal of any one member of the public who may think fit to hire it? We should be left in no doubt that the purpose of private hire cars ranked up outside Fat Sam’s nightclub is for the purpose of being exhibited for public use and placed at the disposal of the public. There is no legal reason why a private hire car should exhibit itself for public use under circumstances where the public gather in great numbers other than to obtain custom from the street.

In Clarke v Stanford ((1871), LR 6 QB 357), Cockburn CJ said:

“But where a person has a carriage ready for the conveyance of passengers, in a place frequented by the public, he is plying for hire, although the place is private property.”

We should ask ourselves which part of the 1982 act allows unlicensed vehicles to exhibit themselves in great numbers outside a public venue without making any sign or movement to secure the whereabouts or try to make contact with any member of the public who may have had cause to hire them as private hire cars. Should we also consider that in the absence of any such physical movement and the length of time that these vehicles have been reported as standing stationary that it is perhaps perfectly clear that they are forming an illegal taxi rank for the purpose of obtaining custom from the street?

As previously stated it is illegal for any vehicle to be hired in exactly the same way as a licensed public hire taxicab and by virtue of these vehicles forming an illegal taxi rank in a licensed area covered by the act of 1982, they are committing an offence.

Whether or not the police see fit to move these vehicles on is of no importance, very few police officers are aware of the law relating to illegal plying for hire and I’m sure the local taxi trade would conclude that the activity of illegal plying for hire is of such a low priority to the police that they totally disregard it as being an offence?

The reports authors are under the impression that the car park of Dundee Taxi Cab Company is a safe haven in respect of illegal plying for hire, but that is not the case. The courts in England and Wales have deemed on more than one occasion and is now established law, that a vehicle positioned on private land in order to draw custom from the general public in an adjoining public street could be plying for hire in the public street within the meaning of section 38 of the Town Police Clauses Act 1847.

Applying that principle to the situation where a vehicle is parked in an open private car park and who can just as likely attract custom from members of the public using the adjoining street then it would be plying for hire from the street within the meaning of section 38 and in my opinion the same would apply under the act of 1982.

As a matter of established fact the courts had no difficulty in construing the expression “plying for hire in any street” as covering a situation in which the vehicle was in a prominent position just off the street and the public were in numbers on the street.

It therefore follows that a driver would be plying for hire in the street if his vehicle was positioned in circumstances such that the offer of services were “projected to and addressed to” members of the public in the street.

There is no doubt that the Dundee Taxi trade would say the points raised in this article rank high on their list of grievances and that the taxi licensing committee should consider each point in light of the legal definitions highlighted in this article.

Urgent dialogue is needed to clarify the legal situation appertaining to all the points I’ve raised but it should be noted that if no remedy is forthcoming then the Dundee Taxi trade might have no other option but to seek satisfaction to their grievances through the courts.

JD

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