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The question of making oneself available for public hire in this case has since been brought into question by the ruling in Eatbourne.
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YOUNG AND ANOTHER v SCAMPION
QUEEN'S BENCH DIVISION
[1989] RTR 95, 153 JP 321, 87 LGR 240
HEARING-DATES: 21 July 1988
21 July 1988
CATCHWORDS:
Hackney carriage -- Licence -- Area of control -- Vehicle licensed by one local authority standing and plying for hire on private street in area controlled by different local authority -- Use in public street in area of different local authority -- Whether offence proved -- Whether prosecuting local authority needing to prove relevant vehicle hackney carriage in own area -- Whether proof necessary of street to which public having access -- 'Hackney carriage' -- 'Standing' -- 'Plying for hire' -- 'Driving' -- Town Police Clauses Act 1847 ss 3, 37, 38, 45 -- Public Health Act 1875 s 171
HEADNOTE:
Section 3 of the Town Police Clauses Act 1847 [as affected by section 171 of the Public Health Act 1875 as extended] provides:
'. . . "STREET": The word "street" shall extend to and include any road, square, court, alley, and thoroughfare, or public passage, within the limits of the' [local authority's area] . . .'
Section 37 [as so affected] provides:
'[A local authority] may . . . licence to ply for hire within the' [local authority's area] 'such . . . hackney . . . carriages . . . as they think fit.'
Section 38 [as so affected] provides:
'Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the' [local authority's area] 'having thereon any numbered plate required by this . . . Act to be fixed upon a hackney carriage . . . shall be deemed to be a hackney carriage within the meaning of the Act . . .'
Section 45 [as so affected] provides:
'If the proprietor . . . of any carriage . . . permits the same to be used as a hackney carriage plying for hire within the' [local authority's area] 'without having obtained a licence as aforesaid for such carriage . . . or if any person be found driving, standing, or plying for hire with any carriage within the' [the local authority's area] 'for which such licence . . . has not been previously obtained . . . every such person so offending shall . . . be liable to a penalty . . .'
The defendants, who were drivers of vehicles licensed as hackney carriages by Birmingham Metropolitan Borough Council to ply for hire within the area of that council, were standing and plying for hire on a private street in an airport within the area of Solihull Metropolitan Borough Council. As a result of being hired when standing at the airport the defendants drove the vehicles on a public street in the Solihull area. The vehicles were not licensed as hackney carriages to ply for hire by the Solihull council and the drivers were charged with offences against section 45 of the Town Police Clauses Act 1847 as amended by standing, plying for hire and driving. The justices found that the vehicles were designed to be used as hackney carriages and were normally used as such and were, therefore, hackney carriages quoad the Solihull council, that the private street was a street for the purpose of section 38 of the Act of 1847 and that the defendants' action in drivng passengers from the airport on to public streets in Solihull constituted an offence. The defendants were convicted.
On appeal against conviction:
Held, allowing the appeal, (1) that no offence was committed under section 45 of the Act of 1847 unless the vehicle concerned was a hackney carriage within the meaning of section 38 of the Act of 1847 (p 104C-D); so that, before a prosecution under section 45 could be mounted by a local authority, the local authority had to be in a position to prove that the relevant vehicle was a hackney carriage in the local authority's own area (p 105K). (2) That section 38 defined and territorially limited the use of a hackney carriage to standing or plying for hire in any street in the area of the local authority seeking to enforce its control (p 106H); and that, in the light of section 3 of the Act of 1847, a local authority in establishing power of control under section 45 had to establish, first, that the vehicle was being used by standing or plying for hire in a street within the local authority's area and, second, that the street, for the purpose of section 38, was a street to which the public, including hackney carriage drivers, had a legal right of access (p 107E); so that it was not open to the justices to find as a fact that the private street within the airport was a street so as to justify conviction of the defendants of standing, plying for hire or driving in that street (pp 110L-111A); and that, accordingly, the case would be remitted to the justices with a direction to acquit the defendants of the charges against them (p 111K-L).
Jones v Short (1900) 69 LJQB 473, DC followed.
Birmingham and Midland Motor Omnibus Co v Thompson [1918] 2 KB 105, DC; Hawkins v Edwards [1901] 2 KB 169, DC; Vant v Cripps (1964) 62 LGR 88, DC and White v Cubitt [1930] 1 KB 443, DC distinguished.
Per curiam A vehicle's normal design or normal use in some other local authority area must be irrelevant to a local authority's control if the vehicle does not stand or ply for hire within that authority's area but only passes through it with fares taken up in some other area (pp 105L-106A). A vehicle licensed in one local authority's area and driven into any other local authority's area does not need a licence from any such other local authority into whose area the vehicle is driven (p 111E).
CASES-REF-TO:
Allen v Tunbridge (1871) LR 6 CP 481, DC;
Case v Storey (1869) LR 4 Exch 319
Curtis v Embery (1872) LR 7 Exch 369
Eastern Counties and the London and Blackwall Railway Co v Marriage (1860) 9 HLC 32, HL(E)
Hulin v Cook [1977] RTR 345, DC
Martins v Fowler [1926] AC 746, HL(E)
Nutter v Accrington Local Board of Health (1879) 4 QBD 375, CA
Robinson v Local Board for the District of Barton-Eccles, Winton and Monton (1883) 8 App Cas 798, HL(E)
Skinner v Usher (1872) LR 7 QB 423, DC.
INTRODUCTION:
Case stated by Solihull Justices
1 On 30 July 1987 four informations were laid by the prosecutor John Scampion, Town Clerk on behalf of Solihull Metropolitan Borough Council against each of the defendants, Derek Allan Young and Robert Graham Allen, that (a) on 26 February 1987 the defendant Young was found standing a hackney carriage, in Airport Way outside the terminal building, Birmingham International Airport in the parish of Bickenhill, in the county of West Midlands within the area of the metropolitan borough of Solihull for which carriage a licence to ply for hire had not been previously obtained from the prosecutor, contrary to section 45 of the Town Police Clauses Act 1847 as amended by Schedule 3 to the Criminal Justice Act 1967 and sections 39 and 46 of the Schedule 3 to the Criminal Justice Act 1982; (b) on 26 February 1987 the defendant Young was found plying for hire with a hackney carriage in Airport Way outside the terminal building, Birmingham International Airport in the parish of Bickenhill, in the county of West Midlands within the area of the metropolitan borough of Solihull for which carriage a licence to ply for hire had not been previously obtained from the prosecutor, contrary to section 45 of the Town Police Clauses Act 1847 as amended by Schedule 3 to the Criminal Justice Act 1967 and sections 39 and 46 of and Schedule 3 to the Criminal Justice Act 1967 and sections 39 and 46 of the Schedule 3 to the Criminal Justice Act 1982; (c) on 27 February 1987 the defendant Young was found driving a hackney carriage in Airport Way outside the terminal building, Birmingham International Airport in the parish of Bickenhill in the county of the West Midlands within the area of the metropolitan borough of Solihull for which carriage a licence to ply for hire had not previously been obtained from the prosecutor, contrary to section 45 of the Town Police Clauses Act 1847 as amended by Schedule 3 to the Criminal Justice Act 1967 and sections 39 and 46 of and Schedule 3 to the Criminal Justice Act 1982; (d) on 26 February 1987 the defendant Young was found driving a hackney carriage in Church Hill Road, Solihull in the county of West Midlands within the area of the metropolitan borough of Solihull for which carriage a licence to ply for hire had not previously been obtained from the prosecutor, contrary to section 45 of the Town Police Clauses Act 1847 as amended by Schedule 3 to the Criminal Justice Act 1967 and sections 39 and 46 of and Schedule 3 to the Criminal Justice Act 1982; [informations (e), (f), (g) and (h) similarly charged the defendant Allen with offences of standing, plying for hire, and driving in Airport Way and Cranmore Boulevard, Shirley, respectively on 2 March 1987].
2 The justices heard the informations on 4 November 1987 and found the following facts. Offences on 26 February 1987: (a) On 26 February 1987 the defendant Young was the driver of an Austin FX4 vehicle a purpose built taxi, commonly known as a 'black cab' which was at the front of the taxi rank on Airport Way, Birmingham International Airport. This vehicle was standing with its meter light on, plying for hire and displayed a Birmingham licence plate, number 436. (b) Mr Peter Perkins was asked by the defendant Young if he wanted a taxi to which he replied that he did. (c) Mr Peter Perkins was then driven, at his request, to Solihull Library via Church Hill Road, Solihull where he paid the fare on the meter of £4.10. (d) The defendant was licensed under section 37 of the Town Police Clauses Act 1847 to ply for hire by Birmingham Metropolitan Borough Council. He was not licensed to ply for hire by the prosecutor. Offences on 2 March 1987: (a) On 2 March 1987 the defendant Allen, was the driver of an Austin FX4 vehicle, a purpose built taxi, commonly known as a 'black cab' on Airport Way, Birmingham International Airport. His hackney carriage was standing at the top of the taxi rank with its light on indicating it was plying for hire and displayed a Birmingham licence plate, number 158. (b) Miss Lorna Ogg came out of the 'Arrivals' exit at the Airport, got into the defendant Allen's vehicle and at her request was driven to Cranmore Boulevard, Solihull. (c) On her arrival there she was asked for and paid the fare of £8.50. (d) The defendant Allen was licensed by Birmingham Metropolitan Borough Council to ply for hire under section 37 of the Town Police Clauses Act 1847. He was not licensed by the prosecutor to ply for hire.
General (a) It was agreed by the parties that (1) Church Hill Road and Cranmore Boulevard were 'streets' within the meaning of section 3 of the Town Police Clauses Act 1847, (2) Church Hill Road and Cranmore Boulevard were within the boundary of the prosecutor, and (3) the licensing authority for hackney carriages driven on Church Hill Road and Cranmore Boulevard was the prosecutor; (b) Airport Way, Birmingham International Airport was within Solihull Metropolitan Borough; (c) the licensing authority for hackney carriages in the Solihull Metropolitan Borough was the prosecutor; (d) Airport Way was an unenclosed road leading to the front of the airport; there was a barrier at the point where the road ran on to the land owned by Birmingham International Airport plc; that barrier was only drawn across the road on Christmas Day; the barrier itself was devoid of anything to indicate its presence or significance; there was no perceptible change in the carriageway or road surface and no restriction on vehicular traffic; there were no checks on any vehicles going into the airport; (e) as a result of trade agreements the airport authority had given leave to members of the Birmingham and Solihull Hackney Carriage Associations and members of the Transport and General Workers' Union to ply for hire at the taxi rank at the airport set out by the airport authority; occasionally private hire vehicles had been asked to leave; (f) both Birmingham Metropolitan Borough Council and the prosecutor licensed only FX4 type vehicles as hackney carriages.
3 It was contended by the prosecutor that: (1) section 45 of the Town Police Clauses Act 1847 created two different classes of offence: (A) offences by proprietors or part-proprietors of hackney carriages who plied for hire without a licence within the local authority's area; (B) offences by any person found driving, standing, or plying for hire with any carriage without a licence within the local authority's area. (2) Section 38 of the Act of 1847 was a deeming section and deemed a hackney carriage to be, inter alia, a wheeled carriage used in standing or plying for hire in any street; if as a matter of fact the vehicle in question was designed and operated as a hackney carriage there was no need to look to the deeming section which had to be intended to deem certain vehicles to be hackney carriages which would not otherwise lie within the ambit of the Act. (3) Alternatively section 38 deemed a hackney carriage to be, inter alia, '. . . every carriage standing upon any street within the [local authority's area], having thereon any numbered plate required by this or the special Act to be fixed upon a hackney carriage, or having thereon any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of this Act . . .' In the present case the vehicles were both plated hackney carriages. (4) The prosecutor's further contentions that all four charges against each defendant could found proper convictions upon the evidence and upon the law were as follows. (A) It was open to the justices as a matter of fact to find the FX4 carriages purpose built as hackney carriages were also hackney carriages in law. (B) It was open to the justices as a matter of fact to find that the roads within Birmingham International Airport were 'streets' for the purpose of the Act of 1847 and that a more 'public' place was difficult to envisage. (C) It was not necessary for the prosecution to prove that the plying for hire/standing/driving took place on a 'street' for three reasons: (i) both carriages were displaying plates and therefore were deemed by section 38 to be hackney carriages; (ii) if the contention in (i) were wrong, then the justices were entitled to convict as a matter of fact without regard to section 38 because the section was a deeming section and not a definition section; and (iii) section 45 was disjunctive in effect, and the second part of the section referred to 'any carriage'; accordingly, there was no need to consider the words 'hackney carriage' and the word 'street'. (D) A number of cases were cited to the justices in which the word 'street' had been interpreted; these were, with the exception of Birmingham and Midland Omnibus Co v Thompson [1918] 2 KB 105 and Curtis v Embury (1872) LR 7 Exch 369, distinguishable because: (i) they were decided under different statutes; (ii) the reasoning behind the cases which decided that roads within railway premises were not streets/public places was that the railway companies had an element of control over hackney carriages plying for hire on their premises. (E) Birmingham and Midland Omnibus Co v Thompson [1918] 2 KB 105 could be distinguished because it was entirely different on its facts; however, significantly, all three members of the court, Darling, Avory and Atkin JJ, left open the question of whether as a matter of fact the justices would be entitled to find that plying for hire had taken place in a street; that view was applied by Lord Hewart CJ in White v Cubitt [1930] 1 KB 443; furthermore, Curtis v Embery (1872) LR 7 Exch 369 had never been followed. (6) The charges, which related to driving the carriage in each case outside the airport precincts, could found a proper conviction against each defendant because that was what the section said on its plain wording.
4 It was contended by the defendants that it was not an offence to ply with an unlicensed cab in a place which is not a street. A street did not include a roadway to a station owned by a railway company or other private property. Birmingham Airport was private property and Airport Way was not a street within the Act. For an offence under section 45, it was necessary to look at section 38 where what was deemed to be a hackney carriage was set out. This required looking at the definition of street in section 3 which, as interpreted by the courts, and which cases have not been overruled, was not to include private property. The situation was analogous to the railway station cases. The defendants Young and Allen had not been standing in any street and, therefore, they were not in hackney carriages that required a licence. That that approach was correct was supported by the necessity for the passing of section 76 of the Public Health Act 1925. A similar situation had arisen regarding airports and the British Airports Authority which had subsequently been covered by section 12 of the Airports Authority Act 1965 and those cases involving legislation affecting London were distinguishable, as were those of Marks v Ford (1880) 45 JP 157 and Birmingham and Midland Omnibus Co v Thompson [1918] 2 KB 105. As no particular vehicle type was laid down in the Town Police Clauses Act 1847 as being a hackney carriage, it could not be said that any particular vehicle by its shape or design must necessarily be a hackney carriage. For those purposes the vehicles driven by the defendants Young and Allen were unlicensed vehicles. In respect of that offence alleged to have occurred in what was unarguably a public roadway, it was never intended by the legislature that there be an offence of this nature. That would mean that cross border hirings also committed an offence and legislation had always invisaged vehicles being able to cross borders, see section 66 of the Local Government (Miscellaneous Provisions) Act 1976 for example.
5 The justices were referred to the following cases:
Case v Storey (1869) LR 4 Exch 319
Clark & Goodge v Stanford (1871) LR 6 QB 357
Allen v Tunbridge (1871) LR 6 CP 481
Skinner v Usher (1872) LR 7 QB 423
Curtis v Embery (1872) LR 7 Exch 369
Bateson v Oddy (1874) 38 JP 598
Foinett v Clark (1877) 41 JP 359
Marks v Ford (1880) 45 JP 157
Jones v Short (1900) 69 LJQB 473
Hawkins v Edwards [1901] 2 KB 169
Birmingham and Midland Omnibus Co v Thompson [1918] 2 KB 105
White v Cubitt [1930] 1 KB 443
Hulin v Cook [1977] RTR 345
and to the following statutory provisions: section 76 of the Public Health Act 1925; section 66 of the Local Government (Miscellaneous Provisions) Act 1976; and sections 3, 38 and 45 of the Town Police Clauses Act 1847
6 Despite the apparent clear language of the Act the justices felt constrained by Jones v Short (1900) 69 LJQB 473 to interpret the words 'any carriage' in section 45 of the Town Police Clauses Act 1847, as meaning 'any hackney carriage.'
7 The justices were of the opinion that the vehicles in question were designed to be used as hackney carriages and were normally used as such. Therefore, following Hawkins v Edwards [1901] 2 KB 169 the justices concluded that the defendants were guilty of the offences.
8 As it was argued that this approach might be incorrect, the justices went on to consider whether the vehicles should be deemed by section 38 to be hackney carriages as they were standing in a 'street', namely Airport Way. They were of the opinion that the whole of Airport Way was a 'street' within the meaning of section 3 of the Act of 1847 because (i) there was no physical restriction to vehicular or pedestrian access; (ii) there was no perceptible change in the road surface; and (iii) there were no signs to indicate that there was intended to be any restriction, legally or otherwise.
9 The justices were of the opinion that the informations which related to the driving of the carriage, in each case outside the airport precincts, namely, in Church Hill Road and Cranmore Boulevard could properly found a conviction against each defendant having regard to the ordinary and plain meaning of the words used in the statute.
11 The justices accordingly found the defendants guilty in respect of all informations and they were conditionally discharged for 12 months in respect of each offence.
The defendants appealed.
The questions for the opinion of the court were whether (1) the words 'any carriage' in section 45 meant 'any hackney carriage;' (2) it was sufficient to found a conviction pursuant to section 45 for the court to be satisfied that the vehicle in question was designed as and or normally used as a hackney carriage; (3) if it was necessary for the court to be satisfied that the plying for hire or standing or driving occurred on a 'street' to found a conviction under section 45 of the Town Police Clauses Act 1847, the justices were correct in finding that the road, known as Airport Way, was a 'street;' and (4) it was an offence for a person to drive a carriage in an area for which he was not licensed, when the fare was accepted in circumstances which were not illegal.
COUNSEL:
Robert Carnwath QC and Robin Campbell for the defendants;
RMK Gray QC and PM Storey for the prosecutor.
PANEL: MANN LJ and AULD J
JUDGMENTBY-1: Auld J
JUDGMENT-1:
Auld J These are two appeals by the defendants Derek Allan Young and Robert Graham Allen respectively by way of case stated from the Solihull Justices arising out of the justices' separate convictions of the defendants of four offences under section 45 of the Town Police Clauses Act 1847, as amended by Schedule 3 to the Criminal Justice Act 1967, and sections 39 and 46 of, and Schedule 3 to the Criminal Justice Act 1982. The appeals concern the alleged standing, plying for hire, and driving by the defendants of taxi cabs within the area of the prosecutor, the Solihull Metropolitan Borough Council ('the Solihull Council'), for which no hackney carriage licences to ply for hire had been issued by it under the Act of 1847.
The convictions arise out of sample prosecutions undertaken by the Solihull Council. The questions of principle that they pose are of great general importance to taxi proprietors, drivers, and local authorities throughout the country as to the extent to which taxis may operate as such when outside the area of the local authority for which they have been licensed. In these two cases the defendants' taxis were licensed to ply for hire within the area of Birmingham Metropolitan Borough Council ('the Birmingham Council'), but not within the area of Solihull Council, and the defendants were found plying for hire and driving them within the area of the Solihull Council.
The defendants were not deliberately flouting the licensing control of hackney carriages by the Solihull Council. They believed, for reasons that go to the heart of these appeals, that they did not require Solihull licences in addition to their Birmingham licences.
The problem arises in this way. Birmingham taxi drivers may, in the ordinary course of their day's work, pick up a fare in Birmingham for Birmingham International Airport. Once at the airport they will naturally look for a return fare by placing themselves on the airport taxi rank. However, the airport is not within the area of Birmingham Council, for which they are licensed, but is within the area of Solihull Council for which many Birmingham taxi drivers are not licensed.
The facts are common to both appeals. Each defendant was the driver of a purpose-built taxi, commonly known as a 'black cab,' for which, as I have said, a hackney carriage licence had been issued by the Birmingham Council, but not by the Solihull Council. Each defendant was seen in his cab at the front of the taxi rank at Birmingham International Airport on a road known as 'Airport Way.'
According to the case stated by the justices, which is illustrated by photographs and an ordnance survey plan included with our papers, Airport Way is an unenclosed road on land owned by the airport authority and subject to its own byelaws. The authority thus effectively controlled the public's use of the airport land. In particular, by its byelaws, it prohibited the plying for hire by taxis within the airport area unless authorised by the airport director or the Solihull Council, and it controlled the places from which taxis so authorised were permitted to ply for hire.
Airport Way led, as a continuation of the public highway, to the front of the airport. There was a barrier at the point where the road entered the land of the airport authority. This barrier was only drawn down on Christmas Day. There was also a sign just before the barrier indicating that no parking was allowed within the airport except in authorised areas. The boundary at that point, was otherwise imperceptible. As the photographs show, the carriageway, road surface, and markings did not change, and there was no restriction on the entry of traffic. Airport Way continued right up to the airport terminal building, and on the left-hand side of it at that point there was a taxi rank.
Each defendant's vehicle was seen standing with its meter light on, plying for hire, and displaying a Birmingham licence plate. Each collected a passenger and drove him or her to an address in Solihull. Each was charged with, and convicted or, four offences, to which I shall refer in more detail in a moment, arising out of this use of his taxi.
First, I shall set out the statutuory provisions under which the Solihull Council instituted the prosecutions.
The Town Police Clauses Act 1847 established a code of licensing control for hackney carriages which was originally only applicable to towns where it was incorporated in a local ('special') Act. By section 171 of the Public Health Act 1875, as extended, the code has been given general application to boroughs and urban districts. The code is to be found in sections 37 to 68 of the Act of 1847 under the heading,
'Hackney carriages'
and the explanatory words,
'And with respect to hackney carriages, be it enacted as follows.'
The scheme is that, under section 37 of the Act, a local authority may license 'to ply for hire' within its area such number of 'hackney coaches or carriages' as it thinks fit. The term 'hackney carriage' is, like the Act of 1847, more suited to the 19th century than today. Parliament has not attempted, by amending legislation, to reflect the changes in road vehicles that have occurred in the intervening 140 years. Section 38 of the Act gives the following guidance as to the meaning of the term, under the heading,
'What vehicles to be deemed hackney carriages:'
'Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance, and every carriage standing upon any street within the prescribed distance, having thereon any numbered plate required by this or the special Act to be fixed upon a hackney carriage, or having thereon any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of this Act; and in all proceedings at law or otherwise the term "hackney carriage" shall be sufficient to describe any such carriage . . .'
By section 171 of the Public Health Act 1875, the words 'prescribed distance' means the area of the borough or district, in this case the area of Solihull Council.
Section 38 appears, on first reading, to create two categories of vehicles to be deemed as hackney carriages: first a vehicle
'used in standing or plying for hire in any street within the [borough]',
and second, any vehicle
'standing upon street within the [borough], having thereon any numbered plate required by this . . . Act to be fixed upon a hackney carriage, or . . . any plate resembling or intended to resemble any such plate . . .'
The second category is in part repetitive in that it refers to a vehicle standing in any street within the borough and in part circular in that it refers to the exhibition of a numbered licence plate required to be exhibited on a hackney carriage. Whatever the effect of the second limb, it can only refer to a vehicle bearing a numbered licence plate required by the local authority for the area in question, in this case, Solihull. As it is common ground that the defendants' vehicles had only Birmingham licence plates, only the first limb of section 38 falls to be considered.
For the purpose of these appeals the important words in that first limb are 'used in standing or plying for hire in any street within the [borough].'
The word 'street' is defined in section 3 of the Act of 1847 as extending to and including
'any road, square, court, alley, and thoroughfare, or public passage, within the limits of' the local authority area.
The defendants contend that these words form part of the definition of a hackney carriage and that, unless the vehicle in question stands or plies for hire in a street within a particular local authority area, it does not require to be licensed by that local authority. They contend that the word 'street' means a street over which the public has a right of passage, and thus did not include Airport Way.
Solihull Council says that section 38 is a deeming provision, not an all-embracing definition of a hackney carriage, and that if, as a matter of fact, a vehicle is designed and/or normally used as a hackney carriage, it comes within the licensing control of whatever authority in whose area it may be. By way of alternative, Solihull Council says that, if section 38 does provide a comprehensive definition of the term 'hackney carriage,' the word 'street' in it should not be qualified so as to mean only a 'public street,' that is, one over which the public have a legal right of access, and Solihull Council says that the justices were entitled to find that Airport Way was a street for this purpose.
Section 45 of the Act of 1847 provides, so far as material, as follows:
'If the proprietor . . . of any carriage . . . permits the same to be used as a hackney carriage plying for hire within the prescribed distance without having obtained a licence as aforesaid for such carriage . . . or if any person be found driving, standing, or plying for hire . . . within the prescribed distance for which such licence as aforesaid has not been previously obtained, or without having the number of such carriage corresponding with the number of the licence openly displayed on such carriage, every such person so offending shall for every such offence be liable to a penalty . . .'
It should be noted that this provision creates two different categories of offence: first that of a proprietor of a carriage who permits it to be used as a hackney carriage plying for hire within a local authority's area without a licence from that authority; and, second, that of a person found driving, standing or plying for hire with any carriage within the local authority's area without a licence from that authority.
It is now common ground between the parties that, though the second limb of the provision refers only to 'any carriage,' it means any carriage used as a hackney carriage. For reasons that I shall give later in this judgment I too am of the view that both limbs of section 45 apply only to hackney carriages.
It should be noted that section 45 does not itself restrict the offence to circumstances where the driving, standing or plying for hire takes place in a street, public or otherwise. That restriction is only to be found in the description of a hackney carriage contained in section 38.
Each defendant was convicted of the following offences, three offences, respectively of standing, plying for hire, and driving a hackney carriage at Airport Way at Birmingham International Airport, and one offence of driving in a street in Solihull, all in the area of Solihull Council for which no licence to ply for hire had been obtained.
Before the justices it was contended by Solihull Council that each defendant had committed the first three offences charged when collecting passengers from the taxi rank at the airport because, whilst there, he was standing, plying for hire, and driving a hackney carriage within the Solihull area without a Solihull licence.
The defendants contended that they had committed none of these three offences because Airport Way, where the taxi rank was, was not a 'street' and that, as a hackney carriage was defined in section 38 of the Act as a 'carriage . . . used in standing or plying for hire in any street within the [borough],' their taxis were not hackney carriages quoad Solihull Council. There was also the fourth charge of driving on a public street in Solihull when conveying a passenger from the airport to his or her destination. Solihull Council included this charge in order to test the position if it failed to obtain convictions on the first three charges, on the basis that if Airport Way, where the defendants had stood and plied for hire, was not a street for the purpose of section 38, their taxis were nevertheless hackney carriages when they emerged from the airport on to the public streets of Solihull, although not standing or plying for hire in those streets.
The defendants' case on the fourth charge was that, if they were entitled to an acquittal on the first three charges, they could not be convicted of the fourth, because driving in a local authority area a vehicle which was not a hackney carriage quoad that authority because it was not standing or plying for hire in a street in its area, was not an offence under section 45.
The justices, in their case stated, found as follows:
(1) They were bound by authority to regard both limbs of section 45 as referring only to hackney carriages.
(2) The defendants' vehicles were designed to be used as hackney carriages, and were normally used as such and, by implication, that they were, therefore, hackney carriages quoad the Solihull Council even if the correct view was that they had not been standing or plying for hire 'in any street' in Solihull.
(3) Even if their second finding was incorrect and Solihull Council had to establish that the defendants' vehicles were hackney carriages within the terms of section 38 as carriages 'used in standing or plying for hire in any street' within the Solihull area, the whole of Airport Way was a street for that purpose, because: (i) there was no physical restriction to vehicular or pedestrian access; (ii) there was no perceptible change in the road surface; (iii) there were no signs to indicate that there was intended to be any restriction, legal or otherwise; and (iv) the presence of the barrier was of no significance because it was used for that purpose only once a year.
(4) The action of the defendants in driving their airport passengers on to the public streets of Solihull constituted an offence 'having regard to the ordinary and plain meaning of the words used in the statute.'
I turn now to the questions posed by the justices and the issues canvassed in argument on the appeals.
Whether the licensing control of the Act of 1847 is limited to hackney carriages.
The first question posed by the justices is whether the words 'any carriage' in the second limb of section 45 meant 'any hackney carriage.' They felt constrained by Jones v Short (1900) 69 LJQB 473, to hold that they did. The Solihull Council has not persisted with the argument that it addressed to the justices that it was not necessary in a prosecution under the second limb of section 45 to prove that the vehicles in question were hackney carriages. On authority, and on the plain intention of the legislation and construction of the section, there can be no doubt that the words 'any carriage' in the second limb was a reference to the formula used in the first limb, 'any carriage . . . used as a hackney carriage.'
Section 45 forms part of the group of sections in the Act under the heading that I have mentioned 'Hackney carriages' and the explanatory words 'And with respect to hackney carriages, be it enacted as follows.' This heading and these words are a useful indicator of the subject matter of the following provisions. See, for example, Eastern Counties and the London and Blackwall Railway Companies v Marriage (1860) 9 HLC 32, 41 per Channell B; and Martins v Fowler [1926] AC 746. The plain scheme of section 45 is that the first limb is concerned with the proprietor of a hackney carriage and the second limb with its driver. If authority is required for that proposition it is to be found in Jones v Short (1900) LJ QB 473, 475, per Channell J; and in Vant v Cripps (1964) 62 LGR 88, 93 per Lord Parker of Waddington CJ. Accordingly, in my view, no offence is committed under either limb of section 45 unless the vehicle is a hackney carriage within the meaning of the Act.
Whether section 38 provides an exhaustive definition of the term 'hackney carriage' for the purpose of a prosecution under section 45.
The second question for our decision is whether the justices were entitled to find, as they did, that the defendants' vehicles were hackney carriages, and thus subject to the control in section 45, because they were designed and/or normally used as hackney carriages or whether they should have been constrained by section 38 only so to find if the vehicles were 'used in standing or plying for hire in any street' within the Solihull area.
It should be noted that this deeming or definition section, section 38, refers only to standing or plying for hire in a street in a local authority area, unlike section 45 which, in its second limb, creates three separate offences of driving, standing, or plying for hire anywhere in that area, whether or not it is a street. With that distinction in mind, this second question can be put in another way, namely, is a vehicle which is used as a hackney carriage because it stands or plies for hire in a street in one local authority area by virtue of that fact used as a hackney carriage in another local authority area into which it is driven but in which it does not stand or ply for hire in any street?
Counsel on behalf of Solihull Council has cited to us a number of authorities in support of its contentions that the justices were entitled to find that the defendants' taxi cabs were hackney carriages independently of section 38. He submitted that section 38 was not an all-embracing definition of the term 'hackney carriage,' but merely a deeming provision. He argued that, in the absence of authority, the justices were entitled to find as a fact, and untrammelled by a deeming provision, that the defendants' vehicles were 'hackney carriages.' In so submitting, he was relying upon the well known principle of construction that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning; see, for example, Nutter v Accrington Local Board of Health (1879) 4 QBD 375, 384; and Robinson v Local Board for the District of Barton-Eccles, Winton and Monton (1883) 8 App Cas 798, 801.
In the context of this legislation counsel for Solihull Council relied on Hawkins v Edwards [1901] 2 KB 169 for the proposition,
'once a hackney carriage, always a hackney carriage.'
That case concerned an appeal to the Divisional Court by way of case stated from a conviction of the justices for breach of a by-law made under the Act of 1847 requiring every proprietor of a hackney carriage to display its licence number while it was standing, plying or being driven for hire. The facts were that a proprietor, in response to an order, sent a carriage, with the licence number plate concealed, from his private yard to the house of the person who had given the order, and the carriage then took that person along the public streets to the railway station. The appellant contended that he was wrongly convicted of failing to display the licence number because the carriage at the material time was not, in the words of section 38, 'standing or plying for hire in any street' or 'standing upon any street' displaying the required number plate. The court upheld the conviction, Lord Alverstone CJ observing, at p 172:
'The general purview of the by-law is to protect the public: the object is to provide for a proper supervision of carriages which are licensed to stand or ply for hire as hackney carriages. I think that if a man elects to have the privilege of keeping a carriage which is licensed, he elects to devote that carriage to the services indicated in the by-law. The words of the by-law, "while such carriage may stand, ply, or be driven for hire," . . . are merely meant to indicate a period during which the hackney carriage is a thing which must have its number shewn, and we ought not to accede to the argument . . . that the by-law only applies whilst the carriage is actually standing, plying, or being driven for hire . . . the carriage is licensed for a period, and if used during that period in standing or plying for hire the number must be shewn for the whole period. The language of s 38 . . . means, I think, that every wheeled carriage which is in fact from time to time used in standing or plying for hire is to be deemed to be a hackney carriage for the whole of the period during which it is so from time to time used, and the language of the section does not limit the period to the time during which the carriage is in fact used for standing or plying for hire in a street.'
It should be noted first that that case was concerned only with the status of the vehicle in the area for which it was licensed as a hackney carriage and in which it was required by by-law to carry a fixed plate bearing its licence number. It did not concern, as this case does, the status of such a vehicle outside its own licensing area where it was not licensed and not required to carry such a fixed plate, and where there is no evidence that it had stood or plied for hire in any street over which the public had a legal right of standing or passage. As counsel for the defendants in this case put it, a Birmingham licensed taxi does not lose its character as a Birmingham taxi when it enters Solihull, but it does not thereby become, in addition, a Solihull taxi.
Second, Hawkins v Edwards [1901] 2 KB 169 concerned a breach of a by-law which, by its very nature of requiring a fixed licence number plate, imposed a continuing obligation during the period of the licence and within the area to which it applied. It was a continuing obligation, not because of the design of the vehicle, but because it was used from time to time during the currency of the licence for plying for hire, within the area for which the licence was issued, and was thus within section 38. In the cases the subject of these appeals the alleged obligation was not to drive, stand or ply for hire a vehicle 'used in standing or plying for hire in any street' in the Solihull area, and there is no evidence that either vehicle was so used. In considering this question it is important to remember that in every case the use of the vehicle in question is that in the area of the local authority seeking to enforce its licensing control. Before that authority can mount a prosecution under section 45 it must be in a position to prove that the taxi in question is a hackney carriage in its own area. The need for such local control arises out of the local use of a vehicle, in the words of section 38,
'whatever may be its form or construction'
as a hackney carriage, or in today's language, as a taxi.
A vehicle's design or normal use in some other local authority area must be irrelevant to a local authority's control if the vehicle does not stand or ply for hire within its area, but only passes through it with fares taken up in some other area. If that were not the case, no taxi driver could pick up a fare in one area and convey him to any other area unless he was licensed there; and if on a long journey and passing through several local areas of control, he would require a licence for each area through which he passes. The absurdity of such an interpretation is reflected in a comparatively recent provision introduced in the Local Government (Miscellaneous Provisions) Act 1976, which consolidated a number of provisions found in a number of local Acts concerning the control of hackney carriages and private hire vehicles, and provided for their adoption by local authorities in whose areas the Act of 1847 was already in force. Section 75(1)(a) referring to its provisions, that is to say the provisions in the Act of 1976, not those of the Act of 1847, set out the following saving:
'Nothing in this Part of this Act shall -- (a) apply to 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 if the vehicle is not made available for hire within the district.'
In my view, it would be absurd for there to be a saving for vehicles coming into a controlled area from another area applicable to supplemental provisions gathered together in the Act of 1976 if the basic provisions in the Act of 1847 applied to vehicles across local authority boundaries whether or not they stand or ply for hire outside the area for which they are licensed. In addition, if a wider meaning of the term 'hackney carriage' than that set out in section 38 were to be allowed for, what could it be? The term has its origin in the word 'hackney' which, well before the enactment of the Act of 1847, was applied to a medium-sized horse let out for hire. It appears to have been that functional description which led, at least by 1831, to it being joined with the word 'carriage' as a term for a horse-drawn vehicle standing or publicly plying for hire (see the Shorter Oxford English Dictionary, 3rd edition). The horse-drawn carriage has given way to the taxicab, which itself has evolved over recent years, ranging in design from the London black cab to ordinary saloon cars distinguishable as taxis only by their licence plates. It follows that the only constant and sensible definition of a hackney carriage within the meaning of the Act of 1847 is by reference to its use, not its design.
In my view, the legislature, in section 38, has defined and territorially limited that use to standing or plying for hire in any street in the area of the borough seeking to enforce its control. As I shall show, when I have referred to the next question, my view on the role of section 38 is well supported by two authorities, namely, Curtis v Embery (1872) LR 7 Exch 369, a decision of the Court of Exchequer, and Jones v Short (1900) 69 LJQB 473, to which I have already referred, a decision of the Divisional Court. These authorities establish that section 38 is definitive. The decision in Curtis v Embery, where the court consisted of Bramwell and Cleasby BB, is at least of strong persuasive authority. Jones v Short, where the court consisted of Channell and Bucknill JJ, is binding on this court.
If section 38 provides an exhaustive definition of 'hackney carriage' for the purpose of a prosecution under section 45, what is meant by the word 'street' in section 38?
The third question is whether, if, by reason of section 38 a carriage is only subject to the control of section 45 in a particular local authority area, what is meant by the word 'street' as used in section 38? Is its meaning limited to a street to which the public have a legal right of access, or will any street, public or private, do?
If I had been looking at this question without the benefit of authority, I would have had little difficulty in concluding that what Parliament intended to refer to here was a public street in the sense of a street where the carriage was entitled as of right to ply for hire (subject to the licensing provisions of the Act of 1847) and where the public were entitled as of right to go. I say that, not only because of the clear purpose of the legislation to which I have referred, but also because of the definition of the word 'street' in section 3, the interpretation section, of the Act of 1847. As I have already noted, it provides that the words 'shall extend to and include any road, square, court, alley, and thoroughfare, or public passage within' the borough (my emphasis). In my view, the qualification of the word 'passage' with the word 'public' was clearly not intended to distinguish between it and the other listed locations. It cannot have been intended that plying for hire on public or private streets and roads etc qualified for control, whereas plying for hire in private passages did not. The introduction of the qualifying word 'public' for the word 'passage' is, in my view, a clear indication that the public nature of the place, obvious in the other locations listed, but not so obvious in the case of a passage, should be underlined.
My view is supported by authority. Curtis v Embery (1872) LR 7 Exch 369 and Jones v Short, to which I have just referred, show that section 38 is not to be regarded as a mere deeming provision but as a definition, and that a local authority, to establish its power of control under section 45, must establish first, that the vehicle was being used in standing or plying for hire in a street within its area, and second, that the street in question was a street to which the public, including hackney carriage drivers, had a legal right of access.
Curtis v Embery (1872) LR 7 Exch 369 concerned the prosecution of a hackney carriage proprietor under the first limb of section 45 of the Act of 1847. There a railway company allowed a piece of its land between its railway station and the public road to be used by private carriages and, by Curtis alone, for standing his carriages there for the purpose of plying for hire. The land in question was metalled, and was only separated from the road by a gutter. The court allowed Curtis's appeal against conviction on the ground that the land was not a street, as defined in section 3, and as used in section 38 of the Act of 1847, because it was not a part of the street or road over which the public had a right of passage. The court thus took the view that for there to be a conviction under section 45 the vehicle in question first had to come within the words of section 38, and, second, that the street in question had to be one over which the public had a right of passage. The court appears to have reached this conclusion in reliance upon its own interpretation of the statute and upon two authorities decided under different legislation in which a carriage was 'deemed' to be a hackney carriage by reference to its activity 'in any public street or road' (my emphasis) and where the offence was described by reference to its activity 'in any street or place;' see Case v Storey (1869) LR 4 Exch 319 and Skinner v Usher (1872) LR7 QB 423. They are thus cases where the court treated a provision comparable to section 38 of the Act of 1847, in that it was couched as a deeming provision, as governing the scope of control. It is true that that so-called deeming provision in those cases expressly qualified the word 'street' by the word 'public,' unlike section 38 of the Act of 1847. However, it is clear that the judges in those cases were strongly influenced by the need for public control of hackney carriages when plying for hire in places to which the public had a right of access, as distinct from private locations to which the public had no legal right of access and where control was subject to interference by conditions imposed by the private landowner.
That broad consideration was certainly foremost in the minds of Bramwell and Cleasby BB in Curtis v Embery (1872) LR 7 Exch 369 in their consideration of the control imposed by the Act of 1847 and in their construction of the unqualified word 'street' in sections 3 and 38 of that Act. Bramwell B said, at p 371:
'The reason of this legislation is to protect the public who employ carriages plying for hire, where there is nothing to control the condition of the carriages and the conduct of the driver but his own discretion. But there was no intention to protect them where the carriages and drivers are subject to the management of responsible persons, within whose private premises they stand to carry on their business . . . It is said, however, that the place where this carriage was plying for hire was a road. But I think it was not a road nor any part of a road. A road as used in the Act of Parliament must manifestly mean a public road, a road which the public have a right to use for passage. This is so with all the places mentioned. They are all places of passage, and are all meant to be public . . . and [I] am of opinion that the road spoken of must be a road over which the public have rights . . .'
Cleasby B also made plain that he understood the word 'street' in the statute as meaning a street over which the public had a right of passage.
He said, at p 372:
'The word "street" is dealt with in the interpretation clause of the Act of Parliament as extending to and including "any road, square, court, alley, and thoroughfare, or public passage," and it is said that this is a road. I think it is not. I will not attempt to define the definition in the interpretation clause; nor indeed do I know that I could define what a road is. But I will consider the facts to see if the place in question is within the meaning of the words as there used . . . The only passage which aids the contention that this is a road, is that which says it is used as an approach to the station. Now it is not contended that if this piece of land were inclosed it would be a road. But it appears that the railway company are entitled to prevent its being used by any person, and actually do prevent its being so used by all other persons; the use of it by the appellant is a special privilege granted to him. I can only say that these facts do not make the place a "road" in any sense within the Act.'
Curtis v Embery (1872) LR 7 Exch 369 was followed, as I have said, by the Divisional Court in Jones v Short (1900) 69 LJQB 473, a prosecution of a driver of a hackney carriage this time under the second limb of section 45 of the Act of 1847. Here too the court regarded the words of section 3 as definitive. That is, it took the view that there could be no conviction under section 45 unless the vehicle in question satisfied that definition, and that the word 'street' in it meant a street over which the public had a legal right to go.
The facts of the case were similar to those in Curtis v Embery (1872) LR 7 Exch 369 save that the driver whose conviction was under consideration was one of several permitted to use the cab stand in question. The stand was owned and provided by the railway company on a piece of ground, formerly a private road, but then metalled and paved like an ordinary street. It adjoined and ran parallel to the arrival platform of the company's passenger station, and was the side approach to the station. The only right of way over the ground on which the cab stand was located was a public right of footway which ran along one side of it and on which the carriages did not stand.
The Divisional Court upheld the justices' acquittal of the driver on the basis that I have summarised, declining the prosecutor's invitation to distinguish Curtis v Embery (1872) LR 7 Exch 369 because of the presence of the public right of footway across the cab stand. Channell J opened his judgment in favour of the driver by saying, (1900) 69 LJQB 473, 475:
'The question of chief difficulty in the case has already been decided in Curtis v Embery, where it was held that "street" in section 3 of the Town Police Clauses Act, 1847, means a public and not a private street, and therefore that it was no offence under section 45 to permit a carriage to be used as a hackney carriage plying for hire upon a private street.' So far as I am aware, neither of these authorities has been overruled, though the reasoning in them was doubted by Avory J in Birmingham and Midland Motor Omnibus Co v Thompson [1918] 2 KB 105, 112-113, when considering the extension of the control of hackney carriages in the Act of 1847 to omnibuses as defined in the Town Police Clauses Act 1889. However, the court was there considering a definition of 'omnibus' which included, not only a hackney carriage within the meaning of the Act of 1847 but also the inclusive definition in section 3 of the Act of 1889,
'. . . every omnibus . . . stage coach and other carriage plying or standing for hire by or used to carry passengers at separate fares to, from, or in any part of the prescribed distance . . .'
The latter definition, it will be noted, did not restrict the plying or standing for hire to any street within the prescribed distance.
The restriction of the control of the Act of 1847 to vehicles standing or plying for hire on public property has been recognised by Parliament in that in 1925 it specifically extended that control to railway premises; see section 76 of the Public Health Act 1925; and Hulin v Cook [1977] RTR 345.
Whether the justices were entitled to find as a fact that Airport Way was a 'street' for the purposes of section 38.
As to the justices' finding that Airport Way was a street, counsel for Solihull Council contended that they were entitled so to find as a matter of fact, and that Curtis v Embery (1872) LR 7 Exch 369 and Jones v Short (1900) 69 LJQB 473 were very different cases on the facts. He relied, in particular, on the approach of Cleasby B in Curtis v Embery who expressly considered the facts to see whether the railway hackney carriage stand in question could be described as a street for the purpose of the Act. However, it is clear from his judgment, and that of Bramwell B, with which he expressly agreed, that the test applied by the court was whether the piece of land in question was one to which the public had any right to use for passage. The Divisional Court in Jones v Short, as I have indicated, applied the same test.
However, counsel for Solihull Council cited a number of authorities in support of his argument that a place to which the public in fact had resort, though to which they had no legal right of access, could be a street for the purpose of section 38. He relied on the obiter expressions of opinion by Avory and Atkin JJ in Birmingham and Midland Motor Omnibus Co v Thompson [1918] 2 KB 105, to which I have referred, that vehicles standing in a privately owned yard, but open to the public street and with placards and notices directing the public to the yard, might well be considered on the facts to constitute plying for hire in a street. However, as I have already indicated, the provision under consideration there concerned in part the inclusive definition of an omnibus under the Town Police Clauses Act 1889, which definition did not contain the qualifying words 'in a street.'
This obiter reasoning in the Birmingham and Midland Omnibus case was applied by the Divisional Court in White v Cubitt [1930] 1 KB 443. There, the owner and driver of a car plied for hire from a privately owned piece of ground which adjoined the public street, but was marked off from it by a line of stone sets level with the street. The public had no right of access over it, though they were permitted to go on to it for the purpose of hiring the car or to gain access to an adjoining public house in the same ownership. The question was whether the piece of ground was a 'public street, road or place' within the definition of the expression 'stage carriage' in section 4 of the Metropolitan Public Carriage Act 1869. The Divisional Court held that it was because, although the vehicle stood on private ground, the object was to attract custom from the public using the street adjoining it. Lord Hewart CJ, after referring with approval to the words of Avory and Atkin JJ in the Birmingham and Midland Omnibus case [1918] 2 KB 105, said at p 450:
'. . . the whole scheme and purpose of the arrangements which have, not without ingenuity, been made, were to enable this motor vehicle to ply for hire by attracting the public through being manifestly exhibited near the edge of the highway at a place to which the public were invited, to which the public had resort, and around which there was no sort of barrier, physical or other, to prevent the ingress or egress of the public. In my opinion this place was as public as it could be, and was selected for the purpose of the respondent precisely because it was as public as it could be . . . there was no evidence to justify the justices in coming to the conclusion that for the purposes of this section, and with reference to the mischief against which this section is directed, this was not a public place.'
Similar reasoning was adopted by the Divisional Court in Vant v Cripps (1964) 62 LGR 88 to which I have referred, a case under the Act of 1847, though there the prosecution case was clearer because the vehicle, bearing a sign indicating that it was a taxi, was parked in the public road outside its owner's house, and on the corner of the house there was also an electrically lit sign saying 'Taxi.'
However, these cases are clearly distinguishable on the facts from Curtis v Embery (1872) LR 7 Exch 369 and Jones v Short (1900) 69 LJQB 473 and from the facts giving rise to these appeals. In the Birmingham and Midland Omnibus case [1918] 2 KB 105 and in White v Cubitt [1930] 1 KB 443 the vehicles, although on private land, were located where they were in order to draw custom from the general public in the adjoining public street. In Curtis v Embery (1872) LR 7 Exch 369 and Jones v Short (1900) 69 LJQB 473 the railway cases, the carriages were parked on railway land to draw custom from those members of the public using the railway, that is people on the railway company's private property. Both the carriages and the behaviour of the railway travellers using them were, when on that land, subject to the control of the railway company.
Here, the defendants were parked on the Airport Authority's private property in order to draw custom from those using the airport. They were not soliciting custom from those using the public streets of Solihull, and whilst there, were physically separated from such general custom more completely than were the vehicles in the railway cases or those relied upon by the Solihull Council. Whilst there, they and their potential customers were subject to the control of the Airport Authority as expressed in its byelaws and as exercisable by it as owner of the land.
The various matters relied upon by the justices in paragraphs 8 and 9 of the case stated going to the lack of any physical restriction or sign of change at the boundary between the public highway and the start of Airport Way are no more relevant than the lack of physical divide between the road and hackney carriage stand in the railway cases. The principle applied in those cases, with which, as I have said, I agree, is that land is not a 'street' for the purpose of section 38 unless the public, including taxi drivers in their taxis, have a legal right of access to it. The fact that the public, including taxi drivers, in fact resort to a particular location in large numbers, as they do to modern railway stations, airports and hotel entrances, and the like, cannot of itself make such a location a street for this purpose.
For these reasons I am of the view that it was not open to the justices to find as a fact that Airport Way was a street so as to justify conviction of the defendants of standing, plying for hire or driving in Airport Way. Put shortly, the Solihull Council should not have succeeded because it could not show that the defendants' taxis were Solihull taxis. The position would have been different if there had been evidence that, on the occasion of the alleged offences, the defendants had stood or plied for hire on the public streets of Solihull, or perhaps that they had done so habitually or normally. Then the justices would have been entitled to convict notwithstanding that Airport Way was not itself a street since section 45 does not stipulate that the offending conduct must be in a street.
Whether, if the defendants did not need a licence at the airport, they committed an offence when they drove out of the airport on to the public streets of Solihull.
As to the fourth question, as I have said, Solihull Council only included the fourth charge in each case to test the position if it failed to obtain a conviction on the first three charges, that is, if it failed to prove that the defendants' taxis were 'hackney carriages' quoad Solihull Council. As it has failed to do that, the mere driving by th
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