Taxi Driver Online

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

I take it that you Mr T, have dealings with your LA.

Is it going to be that much different dealing with Westminster in either guise, House of Commons Transort Committee and Law Commission?

I will admit and agree the stakes are higher.

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Chris The Fish

http://www.youtube.com/watch?v=Gdlyi5mc ... re=related

The thing is Chris that people should look back over the recent chain of events. and follow the pattern.... Equality Act.... private hire in.... then private hire out ... big donation by a London private hire company to the Conservative Party.... at the same time the Ministry of transport is contacting the Law Commission a long time before the select committee.... then the Equality Act is passed......but.... immediately councils across the country and organisations are pulling it apart,,,, many sections under review.. then we have the select committee... with London private hire operators popping up out the woodwork.... and then the Law Commission....... and if I am not wrong the senior person/ judge was involved in the Berwick case......... people across the table have already made up their minds....... but what do I know......

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

I have had dealings with my LA for many years .. and have encouraged drivers from other areas to do the same..... to the point of bringing them to our meetings to show they can work...... if the Law Commission presents a report that is unacceptable and that will lead to a nationwide fight..... it would have to be watched to see how they would intend to make it law...... and that is where your local MPs will start to work

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

So is there a conspiracy?

Certainly there could be. Equally there may not be.

Having a Judge involved who is as a result of a previous case, well read on Taxi Law, legislative and precedent, may be advantageous - or not of course.

Two things are certain - first it's going to happen - second we ALL need representation to get our side across, it's our only chance.

Or should we just roll over and take what's coming?

(you posted before I finished so I will continue to answer that as well)

My understanding is (and I may be wrong) is that the LC can't make Law - that is for Parliament. They can and do take the existing law (legislative and precedent) and tidy and consolidate it, Parliament then ratify. That's fine, that's what they do, but if the Transport Select Committee is minded to make NEW LAW then the work of the LC is already redundant.

I have said previously and often, your MP's and any Peers of the Realm (because things can still be amended in the Lords) you have access to need to be encouraged to back your/our point of view. They will give an ear in a "Surgery" to an individual. They will pay attention to a representation of many.

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Chris The Fish

http://www.youtube.com/watch?v=Gdlyi5mc ... re=related

basically correct..... not enough to argue about..... but to take on a battle at national level you need to respond quickly... and nationally.... and the time between now and then should be spent building a national connecting framework.... by e-mail.....

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

By email is a bit hit and miss.

ALL the trade groups, the Unions, the National Associations, the non-affiliated local loose groups, the individuals and even those in London who have the delusion that it will not affect them, all need to be involved. So a forum (in the old sense) is needed and the modern age the FORUM (in the new sense) is a good start, and, from what I have seen, this (TDO) forum could well be the best place to start.

That is not to say that the leaderships of the Unions and Associations should not be having face to face meetings and hammering out a way ahead as well.

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Chris The Fish

http://www.youtube.com/watch?v=Gdlyi5mc ... re=related

An open forum is not a good idea...... I hope you appreciate this... loose lips sink ships

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

I have watched many a programme on the 'Yesterday' channel about Hitler and never has it been mentioned once that he was a cab driver or cabbie's representative.

You learn something everyday!!!

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Kind regards,

Brummie Cabbie.

Type a message, post your news,
Disagree with other members' views;
But please, do have some decorum,
When debating on the TDO Forum.

Last time, in the early to mid 1980's the cab trade engaged a lobbying company and acquired a couple of friends in the Palace of Westminster; both in the Lords, as I remember.

Today we have, . . . . ?

_________________
Kind regards,

Brummie Cabbie.

Type a message, post your news,
Disagree with other members' views;
But please, do have some decorum,
When debating on the TDO Forum.

Are you saying that in a group of ten taxi drivers at least one will be schizophrenic?

_________________
Kind regards,

Brummie Cabbie.

Type a message, post your news,
Disagree with other members' views;
But please, do have some decorum,
When debating on the TDO Forum.

Brummie: On the basis of this Forum, about 80% will be Paranoid as well!

_________________
Don't dream it ~ Be it.

Case No: CO/5268/2010

Neutral Citation Number: [2010] EWHC 2430 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT



Hand Down Manchester Civil Justice Centre

Date: 8th October 2010



Before :



LORD JUSTICE MUNBY

MR JUSTICE LANGSTAFF

- - - - - - - - - - - - - - - - - - - - -

Between :





STOCKTON-ON-TEES BOROUGH COUNCIL

Appellant



- and -





(1) ALAN FIDLER

(2) HABIB HUSSAIN

(3) GHOLAMREZA KESHAVARZ ZAMANIAN





Respondents





- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -



Ms E Joan Smith (instructed by Jonathan Nertney, Stockton-on-Tees Borough Council) for the
Appellant

Mr Jonathan Rodger (instructed by Nicholson & Morgan) for the First, Second and Third
Respondents



Hearing date: 8 July 2010

- - - - - - - - - - - - - - - - - - - - -

Judgment


Lord Justice Munby :

1. What is a hackney carriage? What is the meaning of the aphorism „a hackney carriage
is always a hackney carriage once it has been licensed.? Is a vehicle licensed as a
hackney carriage by local authority A a hackney carriage while on the road in the area
of local authority B (specifically, on the facts of the present case, is a vehicle licensed
as a hackney carriage by Berwick-upon-Tweed Borough Council a hackney carriage
while on the road in the area of Stockton-on-Tees Borough Council)? Does a vehicle
licensed as a hackney carriage by local authority A require to be licensed as a private
hire vehicle by local authority B if used for private hire in the area of local authority B
(specifically, on the facts of the present case, does a vehicle licensed as a hackney
carriage by Berwick-upon-Tweed Borough Council require to be licensed as a private
hire vehicle by Stockton-on-Tees Borough Council if used for private hire in the area
of Stockton-on-Tees Borough Council)? What is the meaning of the phrase “hackney
carriage” when used in the definition of “private hire vehicle” in section 80(1) of the
Local Government (Miscellaneous Provisions) Act 1976?

2. These questions are not merely of technical interest to lawyers; the answers are
potentially of great significance not only to the Appellant and the Respondents in this
appeal but, more generally, as some of the materials we have been referred to show, to
the taxi trade, to local authorities up and down the country and, indeed, to the public
at large.

3. It is convenient to start with two things. The first is to do with terminology. There are
a number of expressions in popular or technical usage: words such as taxi, cab,
hackney carriage, private hire vehicle, used either alone or in combination with other
words. And from an earlier era, familiar to any reader of Sherlock Holmes, there is the
growler, a colloquial expression for a four-wheeled cab. As a matter of ordinary
language, some of these expressions relate to the type of conveyance in which the
passenger sits. Thus cab (whether on its own or as in Hansom cab, mini-cab, London
cab, Black cab or cab-rank) is an abbreviation of cabriolet, a type of two-wheeled
carriage introduced to this country from France in 1823. Others relate to the motive
power (hackney refers not to the eponymous area of London but to a horse of middle
size and quality) or to the inventor (J A Hansom, the inventor of the eponymous cab,
patented in 1834) or to the mode of operation (as in private hire vehicle) or to the
mechanism of charging (taxi is an abbreviation of taximeter, from the French taxe,
tariff) or even to the characteristics of the vehicle (as in growler, something that
growls – in this context, apparently, a reference to the noise of the cab.s wheels on the
streets of Victorian London).

4. In law, however, there are only two relevant types. As a matter of law all such
vehicles are either “hackney carriages” or “private hire vehicles”. (The Transport Act
1980 and the Transport Act 1985 use the expression “taxi” and some legislation
relating to London, including the London Cab Act 1896, the London Cab and Stage
Carriage Act 1907 and the London Cab Act 1968, uses the expression “cab”, but in
each case the expression is so defined as to take one back to the statutory definitions
of “hackney carriage”.) I shall return in due course to consider the statutory
definitions of “hackney carriage” and “private hire vehicle”.

5. The other preliminary matter has to do with what might be called the geography of
regulation. There are separate regulatory regimes for London, for Plymouth (which I


mention for the sake of completeness though it is not otherwise relevant) and for the
rest of England and Wales. „London. for this purpose means “the metropolitan police
district and the City of London”: see the definitions in section 2 of the Metropolitan
Public Carriage Act 1869 and section 36 of the Private Hire Vehicles (London) Act
1998.

6. The definition of “metropolitan police district” has changed from time to time. It is
currently defined in section 76 of the London Government Act 1963, as amended by
section 323 of the Greater London Authority Act 1999. As originally defined by the
1963 Act, it included for present purposes (see sections 1, 2 and 76 and Schedule 1)
the thirty-two London Boroughs, but not the City of London and the Inner and Middle
Temples, together with certain specified parishes, urban districts and boroughs in
Essex, Hertfordshire and Surrey. This definition remained unchanged until 2000,
when it was amended by section 323 of the 1999 Act to mean “Greater London,
excluding the City of London, the Inner Temple and the Middle Temple.” It is to be
noted that, prior to 2000, the area of the metropolitan police district was never
coterminous with the areas of either the London County Council or the Greater
London Council (abolished by the Local Government Act 1985) or, indeed, with
Greater London. In particular, it may be noted, from 1965 until 2000, the
Metropolitan Police were responsible for areas outside the Greater London boundary.
Only with the introduction in 2000 of the Greater London Authority, pursuant to the
1999 Act, did the area of the metropolitan police district for the first time become
coterminous with Greater London and with the area of Greater London.s governing
body. (I ignore for present purpose, as not bearing on the point, the fact that the City
of London, the Inner Temple and the Middle Temple are parts of Greater London as
defined in section 2 of the 1963 Act but are not within the metropolitan police district
as defined in section 76.)

7. Regulation of hackney carriages in London dates back to the seventeenth century. It
suffices to note that the relevant legislation currently in force starts with the London
Hackney Carriage Act 1831; for present purposes the most relevant statute is the
Metropolitan Public Carriage Act 1869. From 1850 responsibility for the licensing of
hackney carriages in London was vested in the Commissioners of Police of the
Metropolis: see section 2 of the London Hackney Carriages Act 1850. (Until 1855
there were two Commissioners of the Metropolitan Police; since then the post has
always been held by a single Commissioner.) In 2000, with the establishment of the
Greater London Authority and Transport for London, responsibility was transferred to
Transport for London: see section 253 of and Schedule 20 to the 1999 Act.

8. Regulation of hackney carriages outside London dates back to the Town Police
Clauses Act 1847. Supplemented so far as is material for present purposes by the
Local Government (Miscellaneous Provisions) Act 1976, it remains the principal
regulatory statute. The 1847 Act was originally an „adoptive Act. but by section 15 of
the Transport Act 1985 is now applied to the whole of England and Wales “outside
the area to which the [1869 Act] applies”, that is, outside „London. as defined in
section 2 of the 1869 Act.

9. Private hire vehicles were first regulated, outside London, by the Local Government
(Miscellaneous Provisions) Act 1976 and, within London, by the Private Hire
Vehicles (London) Act 1998.


10. The present case does not relate to London, so it concerns the inter-relationship
between the 1847 Act and the 1976 Act.

11. I return to the 1847 Act. I need not describe its provisions in any detail. Section 37
provides for the licensing by local authorities of “hackney carriages” and section 46
for the licensing of hackney carriage drivers. But what is a „hackney carriage.? It is
defined for the purposes of the 1847 Act as follows (section 38):

“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… Provided always, that no stage coach used for the
purpose of standing or plying for passengers to be carried for
hire at separate fares, and duly licensed for that purpose, and
having thereon the proper numbered plates required by law to
be placed on such stage coaches, shall be deemed to be a
hackney carriage within the meaning of this Act.”

“Street” is defined in section 3. The “prescribed distance” is defined in section 37. It
now means (see Button on Taxis, ed 3, 2009, paragraph 8.1, for the convoluted
legislative history) the area of the local authority which has granted the hackney
carriage licence.

12. There is much learning, in particular, on what is meant by the words “standing”,
“plying for hire” and “street” which there is no need for me to refer to, save to draw
attention to the decision of the Divisional Court in Young v Scampion [1989] RTR 95,
a case to which I must return in due course.

13. Thus, the definition of “hackney carriage” outside London. A similar definition of
“hackney carriage” in relation to London is provided in section 4 of the 1869 Act:

“any carriage for the conveyance of passengers which plies for
hire within the limits of this Act, and is neither a stage carriage
nor a tramcar.”

Section 4 defines “stage carriage” as meaning:

“any carriage for the conveyance of passengers which plies for
hire in any public street, road, or place within the limits of this
Act, and in which the passengers or any of them are charged to
pay separate and distinct or at the rate of separate and distinct
fares for their respective places or seats therein.”

Section 2 defines the “limits of this Act” as being, as we have seen:

“the metropolitan police district, and the city of London.”


14. The 1847 Act creates two criminal offences which I need to refer to. Section 47
makes it a criminal offence for anyone to drive a hackney carriage, or for the
proprietor of any hackney carriage to employ anyone to drive a hackney carriage, who
is not licensed as a hackney carriage driver under section 46. Section 45 makes it a
criminal offence to ply for hire without a hackney carriage licence. Specifically, a
criminal offence is committed:

“If the proprietor or part 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 with any carriage 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”.

15. I go next to the 1976 Act. Again, I need not describe its provisions in any great detail.
The 1976 Act is an „adoptive Act., section 45(2) providing that if the 1847 Act is in
force in the area of a district council, the council may resolve that the provisions of
the relevant Part of the 1976 Act are to apply to the relevant area (“relevant area”
being defined in relation to a council as meaning, if the 1847 Act is in force
throughout the area of the council, that area, and, if the 1847 Act is in force for part
only of the area of the council, that part of that area). It is to be noted that “district
council” means (see sections 1 and 2 of the Local Government Act 1972) the council
for one of the local government areas known as districts into which “England
(exclusive of Greater London and the Isles of Scilly)” is divided. It is common ground
that the 1976 Act has been adopted by Stockton-on-Tees Borough Council.

16. Section 48 of the 1976 Act provides for the licensing by local authorities of “private
hire vehicles”, section 51 for the licensing of drivers of private hire vehicles and
section 55 for the licensing of persons to operate private hire vehicles (“operate”, for
this purpose, being defined in section 80(1) as meaning “in the course of business to
make provision for the invitation or acceptance of bookings for a private hire
vehicle”). It is well-established that all three licences must be issued by the same local
authority: section 80(2) as explained in Dittah v Birmingham City Council, Choudhry
v Brmingham City Council [1993] RTR 356 and Shanks v North Tyneside Borough
Council [2001] EWHC 533 (Admin), [2001] All ER (D) 344 (June).

17. A “private hire vehicle” is defined for the purposes of the 1976 Act as follows
(section 80(1)):

“private hire vehicle” means a motor vehicle constructed or
adapted to seat fewer than nine passengers, other than a
hackney carriage or public service vehicle or a London cab or
tramcar, which is provided for hire with the services of a driver
for the purpose of carrying passengers”.

The words “or a London Cab” were inserted by section 139(2) and Schedule 7,
paragraph 17, of the Transport Act 1985. Section 80(1) provides that “hackney
carriage” has the same meaning as in the 1847 Act and, by words also inserted by the


1985 Act, that “London cab” means a vehicle which is a hackney carriage within the
meaning of the 1869 Act.

18. Section 46 of the 1976 Act creates various criminal offences:

“(1) Except as authorised by this Part of this Act –

(a) no person being the proprietor of any vehicle, not
being a hackney carriage or London cab in respect of which a
vehicle licence is in force, shall use or permit the same to be
used in a controlled district as a private hire vehicle without
having for such a vehicle a current licence under section 48 of
this Act;

(b) no person shall in a controlled district act as driver of
any private hire vehicle without having a current licence under
section 51 of this Act;

(c) no person being the proprietor of a private hire vehicle
licensed under this Part of this Act shall employ as the driver
thereof for the purpose of any hiring any person who does not
have a current licence under the said section 51;

(d) no person shall in a controlled district operate any
vehicle as a private hire vehicle without having a current
licence under section 55 of this Act;

(e) no person licensed under the said section 55 shall in a
controlled district operate any vehicle as a private hire vehicle –

(i) if for the vehicle a current licence under the said
section 48 is not in force; or

(ii) if the driver does not have a current licence under the
said section 51.

(2) If any person knowingly contravenes the provisions of
this section, he shall be guilty of an offence.”

Again, the words “or London cab” in sub-section (1) were inserted by the 1985 Act.
“Controlled district” means (see section 80(1)) the area of the local authority in
question.

19. Against this framework the relevant facts are shortly stated. In the small hours of 28
March 2009, authorised officers of Stockton-on-Tees Borough Council saw two
vehicles standing in what was described as a line of taxis parked in Tower Street Car
Park in Stockton-on-Tees. The driver of one, KP03 YDH, was the second respondent,
Mr Hussain. The driver of the other, KG51 XZE, was the third respondent, Mr
Zamanian. Both vehicles were being operated (I use the word in its general rather than
its statutory sense) by the first respondent, Mr Fidler, trading as Tees Valley Cabs.
Both vehicles were licensed by Berwick-upon-Tweed Borough Council as hackney
carriages under section 37 of the 1847 Act, and Mr Hussain and Mr Zamanian were


each licensed by Berwick-upon-Tweed Borough Council as drivers of hackney
carriages under section 46 of the 1847 Act. But, although Mr Fidler held an operator.s
licence granted under section 55 of the 1976 Act by Stockton-on-Tees Borough
Council, neither of the vehicles and neither of the drivers was licensed by Stockton-
on-Tees Borough Council, whether under the 1847 Act or the 1976 Act.

20. Mr Hussain and Mr Zamanian were each charged with unlawfully standing for hire
without the necessary licence contrary to section 45 of the 1847 Act. Mr Fidler was
charged with four offences, two in relation to Mr Hussain and the same two in relation
to Mr Zamanian. He was charged, first, with knowingly operating a vehicle as a
private hire vehicle when the vehicle did not have a current private hire licence issued
by Stockton-on-Tees Borough Council, contrary to section 46(1)(e)(i) of the 1976
Act, and, second, with knowingly operating a vehicle as a private hire vehicle when
the driver did not have a current private hire driver.s licence issued by Stockton-on-
Tees Borough Council, contrary to section 46(1)(e)(ii) of the 1976 Act.

21. The informations were dated 25 September 2009 and all three respondents appeared
before Deputy District Judge (Magistrates. Court) Mary Hayes, sitting as a
Magistrates. Court at Teeside on 26 January 2010, when she dealt with an application
for a pre-trial ruling on a point of law. In the Case which she subsequently stated for
the opinion of the High Court, she described the issue as being “whether it was
unlawful to act as alleged in Stockton when the acts were within the terms of licences
issued by a different local authority.” The Case records that the prosecution relied in
particular upon Shanks v North Tyneside Borough Council [2001] EWHC 533
(Admin) and what the Deputy District Judge refers to as the broader policy
considerations set out both in that case and in Newcastle City Council v Berwick-
upon-Tweed Borough Council [2008] EWHC 2369 (Admin). The defence relied
principally upon the decision in the latter case. In paragraph 10 of the Case, the
Deputy District Judge expressed the opinion that the previous decisions contain dicta
which it seems difficult to reconcile and to that extent the law is unclear, adding that
she could not but give weight to the recent Newcastle case. She concluded:

“In view of the statement relating to lawfulness and prosecution
in the Newcastle case I felt bound to hold that the prosecution
could not establish that the acts alleged were unlawful and so
dismissed all the charges.”

22. The Deputy District Judge raised the following two questions for consideration by
the High Court:

“1 Is an offence committed under section 46(1)(e) of the
Local Government (Miscellaneous Provisions) Act 1976 when
a hackney carriage is operated on journeys booked and wholly
contained within the area of one licensing authority when the
relevant licence has been issued by a different licensing
authority?

2 Is it an offence under section 45 of the Town Police
clauses Act 1847 (as amended) for a hackney carriage licensed
in one area to stand or ply for hire in another area where no


licence has been issued to the driver or the vehicle by the
licensing authority in that area?”

23. As the Deputy District Judge pointed out, and as I should emphasise, every activity of
which the prosecution was here making complaint had taken place within the area of
the one licensing authority – Stockton-on-Tees Borough Council. We are not
concerned with, and I therefore say nothing about, cases such as those where the
journey starts in one area and finishes in another or where the vehicle is booked in one
area but the journey takes place in another.

24. The appeal came on for hearing before us at Leeds on 8 July 2010. The appellant,
Stockton-on-Tees Borough Council, was represented by Ms E Joan Smith, the
respondents, Mr Fidler Mr Hussain and Mr Zamanian, by Mr Jonathan Rodger. I am
grateful to each of them for their written and oral submissions, as also for the further
written submissions in relation to the „London cab. issue (see below) which at our
invitation they submitted following the hearing. At the end of the hearing we
announced that we would reserve our judgments, which we now hand down.

25. It is convenient at this point, and before turning to the submissions from counsel, to
consider the most relevant of the various authorities to which we were referred.

26. So far as concerns a hackney carriage within the meaning of the 1847 Act, the origin
of the aphorism „a hackney carriage is always a hackney carriage once it has been
licensed. (see Button, paragraph 13.93) is to be found in two cases to which we were
taken. In Hawkins v Edwards [1901] 2 KB 169, the proprietor of a hackney carriage
was prosecuted for failing to display the plate correctly. A licensed hackney carriage
had been sent, driven by a man who was not a licensed hackney carriage driver, and
with the plate obscured, to pick up the passenger from his home and take him to a
railway station. The defence, that at the time the vehicle was not acting as a hackney
carriage, was therefore not a hackney carriage, and therefore he did not need to
display the plate, was rejected by the Divisional Court. Lord Alverstone CJ, with
whom Lawrance J agreed, said this (page 173):

“I think the right view is that 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 of the Town Police Clauses Act, 1847, 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.”

27. The other case is Yates v Gates [1970] 2 QB 27, another decision of the Divisional
Court. The defendant was charged under section 47 of the 1847 Act with driving a
hackney carriage without having a hackney carriage driver licence. The argument that
no offence had been committed, because although passengers were carried, the taxi
sign had not been illuminated and there had been no plying for hire, was rejected by
the Divisional Court. Lord Parker CJ, with whom Ashworth and Talbot JJ agreed, said
this (page 32):


“it is undoubtedly true that the defendant did not have the
necessary licence, and that the vehicle in question was itself
licensed to ply for hire. The justices, however, took the view
that unless the vehicle was plying for hire it would not be a
hackney carriage the driver of which would require a licence.
That, of course, envisages that a vehicle licensed as a hackney
carriage as defined in section 38 of the Town Police Clauses
Act, 1847, must change its character from moment to moment;
when it is not plying for hire it is not a hackney carriage, and
when it is plying for hire it is a hackney carriage.

In my judgment section 46 is perfectly plain. No person shall
drive any vehicle which is licensed as a hackney carriage,
whatever it may be doing at the particular moment, unless he
himself has a licence as required by section 46. Support for this
view may be found in Hawkins v. Edwards [1901] 2 K.B. 169,
where the argument which apparently found favour with the
justices in this case was not acceded to in the Divisional Court.

In my view the case should go back to the justices with a
direction to convict”.

28. Now both those cases concerned vehicles, licensed as hackney carriages, being used
within the area of the authority which had licensed them. Neither concerned the status
of such a vehicle while being used outside its own licensing area and in a place where
it was not licensed. That issue (which is of course the issue with which we are
concerned here) has been explored in a number of more recent cases which also
consider the inter-relationship between the 1847 Act and the 1976 Act.

29. The first case is Britain v ABC Cabs (Camberley) Ltd [1981] RTR 395, where a
vehicle licensed as a hackney carriage by the Borough of Surrey Heath to ply for hire
within the former urban district of Frimley and Camberley picked up a passenger at
Farnborough railway station in the borough of Rushmoor. The vehicle was not
licensed by Rushmoor under either Act. The owner of the vehicle was charged with
an offence under section 46(1)(a) of the 1976 Act. The Divisional Court (Ormrod LJ
and Webster J) dismissed an appeal by the prosecutor against the dismissal of the
information by the Justices.

30. The argument of the prosecutor, as summarised by Webster J (at page 401), was that
the vehicle was not a hackney carriage in respect of which a relevant licence was in
force, in that no licence had been issued by Rushmoor and the licence issued by
Surrey Heath was not a relevant licence for the purposes of section 46(1)(a) .
Rejecting that contention, Webster J said this (page 404):

“for the purposes of section 46(1)(a) the vehicle at the time and
place in question was to be regarded as what in fact it was,
namely, a hackney carriage in respect of which a vehicle
licence is in force. In my judgment therefore no offence was
made out under section 46(1)(a) and the justices rightly
dismissed that information.”


Ormrod LJ agreed:

“the only question is whether the justices were right in holding
that no offence had been committed under section 46(1)(a),
because the vehicle in question was „a hackney carriage in
respect of which a vehicle licence is in force.. As Webster J has
said, when one looks at section 80(1) and the definitions of
„hackney carriage. and „vehicle licence., it is perfectly clear it
means, in relation to a hackney carriage, a licence under
sections 37 to 45 of the Act of 1847.

Giving those words their ordinary meaning, it is clearly shown
that this particular vehicle is and was a hackney carriage in
respect of which a vehicle licence under the Act of 1847 was in
force. I see no justification for reading in words into section
46(1)(a) to restrict that meaning of the phrase „hackney carriage
in respect of which a vehicle licence is in force. to „a vehicle in
respect of which a hackney carriage licence is in force granted
by the Rushmoor council..”

31. In Young v Scampion [1989] RTR 95, a vehicle licensed as a hackney carriage by
Birmingham Metropolitan Borough Council was plying for hire on a private street
within the area of Solihull Metropolitan Borough Council. The vehicle was not
licensed by Solihull under either Act. The driver of the vehicle was charged with an
offence under section 45 of the 1847 Act. In the course of his judgment, Auld J, with
whom Mann LJ agreed, accepted the submission of the defendant.s counsel that (page
105):

“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.”

32. In Kingston Upon Hull City Council v Wilson (1985) Times, 25 July, a vehicle
licensed as a hackney carriage by Beverley Borough Council was being used – I put
the matter very generally – for private hire in Kingston Upon Hull. It was not licensed
there under either Act. The defendant was charged with offences under sections
46(1)(a), 46(1)(b) and 46(1)(d) of the 1976 Act. The Justices acquitted on all three
charges. Following and applying Britain v ABC Cabs (Camberley) Ltd [1981] RTR
395, the Divisional Court (Balcombe LJ and Buxton J) held that the Justices had been
right to acquit on the charge under section 46(1)(a). In contrast, the Divisional Court
held that the defendant could properly have been convicted under section 46(1)(b)
where, it will be recalled, the critical words, to be distinguished from the words “not
being a hackney carriage” in section 46(1)(a), are “private hire vehicle.” Explaining
why, Buxton J, with whom Balcombe LJ agreed, said this (Transcript page 13):

“The only ground upon which it could be argued that … the
vehicle that Mr Wilson drove was not a private hire vehicle, is
that it was a hackney carriage. Mr Neish argues that this vehicle
was a hackney carriage because it had been licensed as a
hackney carriage in the Borough of Beverley … That amounts
to saying that once the vehicle is licensed anywhere as a


hackney carriage, that precludes the application, in respect of
that vehicle, of any part of section 46 of this Act anywhere else
in the country. Thus, if Mr Wilson had driven his vehicle in
other respects not in conformity with section 46 in Truro or
Newcastle Upon Tyne, the fact that it had been licensed in
Beverley as a hackney carriage would preclude the application,
by any local authority, of section 46(2).

Mr Neish fairly concedes that this point was not taken in the
ABC Cabs case. The court in that case was concerned with the
construction of the more composite phrase “being a hackney
carriage” in respect of which a vehicle licence is in force …”

33. He went on (Transcript page 15):

“I cannot accept that this Act intends it to be the case that in
every case where a hackney carriage vehicle licence exists it
follows thereafter that the vehicle so licensed cannot be
susceptible to the rules applying to private hire vehicles.

First of all, as my Lord pointed out in argument, section
46(1)(a) speaks of a vehicle “not being a hackney carriage in
respect of which a vehicle licence was in force” and goes on to
prohibit the use of such a vehicle as a private hire vehicle. If it
is right that such a licence automatically prevents the vehicle
being a private hire vehicle that provision would make no
sense. Secondly, and more generally, if one looks at the
definition of “hackney carriage” in the Town Police Clauses
Act 1847, … it seems to me clear that that definition at least
starts by looking at the function that the vehicle is performing
and not at its nature, construction or inherent identity. If that is
so it cannot, in my view, be the case that simply to license a
vehicle as a hackney carriage thereby makes that vehicle a
hackney carriage for all time, even if it is functioning as a
private hire vehicle. In my judgement, therefore, it is not
enough that a hackney carriage licence exists to establish that
this vehicle was a hackney carriage so that term is used in the
definition of a “private hire vehicle” in section 80 of the 1976
Act.

I am, therefore, quite satisfied that it was made out before the
Magistrates that this was a private hire vehicle.”

34. The Divisional Court likewise held that the defendant could properly have been
convicted under section 46(1)(d), adopting the same approach (Transcript page 19) in
relation to the „private hire vehicle. point as it had under section 46(1)(b).

35. In Benson v Boyce [1997] RTR 226, the Divisional Court was not concerned with a
vehicle which was a hackney carriage. But in the course of giving his judgment,
Mance J, with whom Kennedy LJ agreed, considered what Buxton J had said in
Wilson in relation to section 46(1)(b). Mance J commented (page 236):


“The essence of the court.s reasoning was that the mere
existence of a hackney carriage licence in respect of a vehicle
was not sufficient to “make … that vehicle a hackney carriage
for all time, even if it is functioning as a private hire vehicle”.
The court.s judgment does not mention, and it seems probable
that the court was not referred to, the decisions in Hawkins v
Edwards and Yates v Gates. But even in the light of those
authorities, I see no difficulty about the court.s conclusion
under sections 46(1)(b) and 80(1) in a case where there is
nothing more than a hackney carriage licence – as was, so far
as appears, the position in Kingston upon Hull District Council
v Wilson. The characteristic use of standing or plying for hire in
a street, which is the hallmark of a hackney carriage, is not
achieved by simply obtaining a licence for such use. I say
nothing, however, about the extent to which it is consistent to
ignore such considerations when applying the exception
relating to hackney carriages in section 46(1)(a). Nor do I feel it
necessary to go further into the extent to which the exclusions
relating to hackney carriages in sections 46(1)(a) and 80(1) can
apply to vehicles, if there are such, operated as private hire
vehicles in one controlled area but as hackney carriages in
another … Neither the issues before us, nor the information and
submissions which we have had, make this an appropriate case
to consider such matters. There is no suggestion in the present
case that the relevant vehicle was a hackney carriage
anywhere”.

36. In Brentwood Borough Council v Gladen [2004] EWHC 2500 (Admin), [2005] RTR
152, a vehicles licensed as a hackney carriage by Brentwood Borough Council was
used in Brentwood for private hire. The defendant was charged under section 46(1)(d)
but acquitted by the District Judge. The prosecutor.s appeal was dismissed by the
Divisional Court. Explaining why, Collins J, with whom Silber J agreed, said this
(paragraphs [30]-[31]):

“[30] … It seems to me apparent that s.80 excludes hackney
carriages from s.46(1)(d) . I say that because, without going in
detail over ground that I have already covered, “operate” relates
to business in relation to bookings for a private hire vehicle. An
“operator.s licence” means a licence under s.55 , and a “private
hire vehicle” is defined as meaning a vehicle other than a
hackney carriage. Thus, that, coupled with the provisions of
ss.55 and 56 … , seem to me to make it apparent that
Parliament has recognised that different regimes apply to
hackney carriages and to private hire vehicles, and that it is not
necessary for a licensed hackney carriage, driven by a licensed
hackney carriage driver, to be subject also to the requirements
of an operator.s licence; otherwise the limitations on the
wording which Parliament has clearly set out would not be
given their true meaning.


[31] It is true that, if one looks at it at face value without
considering the technical meaning, the words “operate any
vehicle as a private hire vehicle” could lead to the belief that
hackney carriages were included because a hackney carriage is
obviously a vehicle. But, as it seems to me, that is quite
impossible having regard to the meanings which Parliament has
attached to the various words and to which I have already
referred.”

He added this (paragraphs [35]-[36]):

“[35] The district judge posed this question for the opinion
of the High Court:

“Whether it is necessary to hold a licence under s.55 of the
Local Government (Miscellaneous Provisions) Act 1976 , in
an area where that Act is in force, to operate a hackney
carriage duly licensed as such under the Town Police
Clauses Act 1847 [as a private hire vehicle]”.

[36] The answer to that question is: No.”

37. I observe that, although he referred to Mance J.s judgment in Benson (albeit a
different passage on a different point), Collins J did not refer to either Britain or
Wilson, both of which had been considered by Mance J. However, it appears from the
report that Britain (though not Wilson) had been cited to Collins and Silber JJ.

38. The next decision is that of District Judge Shaw sitting as a Magistrates. Court in
Wrexham County Borough Council v Whalley and Higgins (2008 – unreported). In
that case vehicles licensed as hackney carriages by Oswestry Borough Council were
being used for private hire in Wrexham. The defendants were charged under section
46(1)(d). Convicting them, the District Judge said:

“In Gladen the use of the hackney cab for private hire took
place within the same area in which it was licensed. The
distinction in the present case is that the hackney cabs were
used for private hire in another area and without a licence in
that area. I do not accept that this is permissible and find that
hackney cabs cannot be used generally in other controlled areas
for private hire without a licence. I … accept the proposition
that a [Wrexham] licence is required … to use hackney cabs
licensed in another area for private hire in Wrexham.”

There was no appeal.

39. The last case is R (On the Application of Newcastle City Council) v Berwick-upon-
Tweed Borough Council [2008] EWHC 2369 (Admin), [2009] RTR 413, a decision of
Mr Christopher Symons QC (sitting as a Deputy Judge of the High Court) on an
application by Newcastle City Council for judicial review of the hackney carriage
licensing policy operated by Berwick-upon-Tweed Borough Council. One of the
effects of that policy was that large numbers of vehicles licensed as hackney carriages


by Berwick-upon-Tweed Borough Council were being used in Newcastle for private
hire. So, although the facts were analytically identical to those in the present case, the
primary legal issue was very different. However, in the course of his judgment the
Deputy Judge considered whether, as he put it (paragraph [2]), “it is lawful for a
hackney carriage to be booked, and to carry out that booking, in a district remote from
where it is licensed”, an issue which, he observed (paragraph [8]), largely turned on
the meaning of section 46(1)(e). On that issue, Newcastle (perhaps surprisingly) and
Berwick were at one: it was lawful. The opposing stance was adopted (perhaps
unsurprisingly) by one of the interested parties, the Berwick Borough Taxi
Association.

40. Having recited the relevant provisions of sections 46 and 80, the Deputy Judge set out
(paragraphs [45]-[46]) the submissions of Mr Maddox, counsel for the Berwick
Borough Taxi Association, to the effect that “Newcastle could prosecute operators
licensed under s. 55 of the 1976 Act where those operators use vehicles other than
appropriately licensed private hire vehicles to fulfil pre-booked hirings”, although on
the other hand “A Berwick hackney carriage would be able to undertake a pre-booked
hiring where the booking was made with the hackney carriage proprietor/driver rather
than through an operator licensed under s. 55 of the 1976 Act and where the booking
was taken in that hackney carriage's own licensed area.”

41. In the event, the Deputy Judge rejected those submissions. Having observed
(paragraph [47]) that there is no provision for hackney carriages to have operators as
required for private hire vehicles by section 55, he turned to consider the authorities,
going first to Britain and then to Wilson and Benson before commenting (paragraph
[52]) that “I confess I have found it difficult to reconcile the various dicta in these
cases.” The Deputy Judge then turned to Gladen and Wrexham, commenting
(paragraph [55]) in relation to the District Judge.s reasoning in the latter case:

“The district judge distinguished Gladen on the basis that in
Gladen the private hire took place in the area where the
hackney carriage was licensed whereas in Whalley the hire took
place outside the district where the hackney carriage was
licensed. The owner was thus convicted under s.46(1)(e) . I
confess that on my reading of Gladen the critical issue was
whether the vehicle used for private hire had a hackney carriage
licence not whether the licence was issued in the particular area
where the hire took place.”

42. Having thus surveyed the authorities the Deputy Judge concluded (paragraphs [56]-
[58]):

“[56] The court is therefore in the position that both the
claimant and the defendant … are agreed that Newcastle has no
power to prosecute those private hire operators licensed under
s.55 of the 1976 Act who use hackney carriages to fulfil pre-
booked hirings provided the hackney carriage and the driver are
properly licensed. The authority of this court in Gladen in my
judgment supports that view. On the opposite side appears to
me to be the decision in Wilson and the decision of the district
judge in Whalley …


[57] While … I have considerable sympathy with the
argument persuasively put by Mr Maddox, I am not prepared to
do other than follow Gladen which is a decision of this court
which I am certainly not prepared to say is obviously wrong.
Mr Maddox sought to persuade me that since that case involved
s.46(1)(d) the submission now advanced … was not fully
argued. However it is clear from the judgment in that case that
the court considered s.46(1)(d) and (e) and expressed its
conclusions and I do not think it is possible to distinguish it.

[58] So it follows that I am not prepared to hold that
Newcastle can prosecute those using hackney carriages to fulfil
pre-booked hirings in Newcastle upon Tyne albeit that their
hackney carriage licence is obtained from a local authority
remote from Newcastle.”

43. Before parting from the authorities I should refer to the passages in Shanks v North
Tyneside Borough Council [2001] EWHC 533 (Admin), [2001] All ER (D) 344
(June), and in R (On the Application of Newcastle City Council) v Berwick-upon-
Tweed Borough Council [2008] EWHC 2369 (Admin), [2009] RTR 413, setting out
the policy considerations relied on by the prosecution in the present case.

44. Shanks was not a case about hackney carriages. What it re-affirmed was that the 1976
Act requires the three licenses required respectively under sections 48, 51 and 53 all
to have been issued by the same authority. As Latham LJ put it (paragraph [22]):

“The provisions of section 80(2) as applied to section 46(1)(e),
in my judgment, brook of no other answer but that the operator
granted the licence under section 55 can only operate vehicles
and drivers licensed by the licensing authority which granted it
its operator.s licence.”

_________________
Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

45. The passage which is relied upon follows (paragraphs [22]-[24]):

“[22] … One way of testing whether or not that particular
construction is correct is to consider the consequences of the
construction contended for by Miss Booth. One of the
consequences would be that if one applied her logic to section
46(1)(d) and (e), the only conclusion that one could come to
would be that an operator could operate in any district provided
he had obtained a licence authorising him to operate in one
district.

[23] That would, in my judgment, drive a coach and horses
through what appears to me to be a central principle of this
legislation, which is that the authorities responsible for granting
licences should have the ability to exercise full control over the
operation of private hire vehicles within their area.

[24] I consider therefore that there are good policy reasons
for ensuring that there is a unified system of control in relation


to private hire vehicles operating within the area of any given
authority. That ensures consistency of policy in relation to the
provision of private hire vehicles and their drivers. It enables
the authority to ensure that it is able to exercise such control as
it is entitled to exercise over all the vehicles and drivers being
operated to provide private hire services within its area. That
seems to me to be a central purpose of the statutory
provisions.”

46. In the Berwick case, the Deputy Judge identified (paragraphs [22]-[23]) some of the
purposes behind the legislation:

“[22] In my judgment the major purpose behind the 1847
Act, and indeed the 1976 Act, is the safety of the public by
which I include both the travelling public as passengers and
other road users. Thus the scheme of the legislation is directed
towards having safe vehicles, fit and proper drivers and
appropriate conditions of hire … Byelaws and conditions apply
locally to the licensed hackney carriages and it was apparent
from the evidence before me that different councils will impose
different conditions and have different byelaws … dependent
on the area concerned … It may be, for example, that an
authority covering a large conurbation will have different
concerns, and require different conditions, to one covering a
more rural area.

[23] If hackney carriages are working remote from their
licensing authority a number of, at the least potentially,
undesirable consequences follow. The licensing authority will
not easily keep their licensed fleet under observation. It will be
carrying out its enforcement powers from a distance. The
licensing authority where the hackney carriage has chosen to
operate will have no enforcement powers over the vehicle
although it is being used in its area. Further, unlike its own
licensed vehicles, the hackney carriage from remote areas will
not be subject to the same conditions and byelaws as the local
vehicles. It is no surprise that the legislation provides for
testing and testing centres to be within the licensing authority's
area.”

47. He recorded how Berwick.s large, but remote, fleet of hackney carriages had had the
effect of persuading Berwick of the need to have testing stations over a wide area well
removed from Berwick-on-Tweed. Indeed, such was the financial surplus generated
by the large number of licences being issued Berwick that it was used in part to pay
for a vehicle on the road in the Tyneside area to keep an eye on their hackney
carriages. He added (paragraph [25]:

“it must be desirable for an authority issuing licences to
hackney carriages to be able to restrict the issuing of those
licences to proprietors and drivers which are intending to ply
for hire in that authority.s area. Similarly it must be desirable to


be able to refuse to issue licences to proprietors and drivers
who do not intend to ply for hire, to a material extent, in the
area of the licence grantor.”

48. In this connection Ms Smith points also to section 68 of the 1976 Act which provides
that:

“Any authorised officer of the council in question or any
constable shall have power at all reasonable times to inspect
and test, for the purpose of ascertaining its fitness, any hackney
carriage or private hire vehicle licensed by a district council, or
any taximeter affixed to such a vehicle, and if he is not satisfied
as to the fitness of the hackney carriage or private hire vehicle
or as to the accuracy of its taximeter he may by notice in
writing require the proprietor of the hackney carriage or private
hire vehicle to make it or its taximeter available for further
inspection and testing at such reasonable time and place as may
be specified in the notice and suspend the vehicle licence until
such time as such authorised officer or constable is so satisfied”

As she points out, although these powers are conferred upon any constable, they are
exercisable only by authorised officers of the local authority which has licensed the
vehicle. So, as she points out, authorised officers of Stockton-on-Tees Borough
Council cannot exercise their powers under section 68 in relation to vehicles licensed,
as in the present case, by Berwick-upon-Tweed Borough Council, however unfit or
even dangerous they may be. Thus if the Respondents in the present case are right,
there is, she says, a significant „gap. in the regulatory scheme designed to protect the
public from unfit and potentially dangerous hackney carriages. Berwick-upon-Tweed
Borough Council may be willing and able to send its authorised officers „out of
borough. as far as Newcastle, but that is not to say that it does or can necessarily be
expected to do so as far south as Stockton-on-Tees.

49. I return to the two questions posed for our consideration by the Deputy District Judge.
It is convenient to deal first with the second question, relating to whether offences
under section 45 of the 1847 Act had been committed by Mr Hussain and Mr
Zamanian.

50. Ms Smith submits, and Mr Rodger accepts, that upon the true construction of section
45 a person performing any of the acts prohibited by that section, that is, standing or
plying for hire, is guilty of an offence unless licensed by the local authority for the
area in which the acts take place. Mr Rodger does not dispute that a hackney carriage
licensed by local authority A may not be used to stand or ply for hire outside the area
of local authority A. It is, he accepts, clearly an offence for a hackney carriage to
stand or ply for hire outside the area for which it is licensed. Accordingly, he accepts
that if Mr Hussain and Mr Zamanian were indeed standing or plying for hire, then
they were guilty of the offence. I agree. It follows that the answer to the second
question posed for our consideration by the Deputy District Judge is, in my judgment,
Yes.

51. Whether Mr Hussain and Mr Zamanian were committing an offence under section 45
of the 1847 Act therefore depends upon whether or not Tower Street Car Park in


Stockton-on-Tees is a “street” within the meaning of the Act (as to which see, for
example, Young v Scampion [1989] RTR 95) and whether or not what they were
doing amounted to either “standing” or “plying for hire”. Whether or not the offence
was committed depends therefore on the primary facts as found by the court, those
primary facts then being evaluated in the light of the various authorities on the
meaning of the words “standing”, “plying for hire” and “street”.

52. Mr Rodger admits the facts as set out in the witness statements of the prosecuting
authority.s officers but submits that they do not come even close to establishing either
standing or plying for hire. This factual issue has not as yet been determined by the
Deputy District Judge, whose rulings were confined to preliminary issues of law. We
cannot resolve this factual issue, which in principle should therefore go back for
determination by the Deputy District Judge in accordance with our ruling.
Appropriately, however, Ms Smith indicates that the prosecuting authority, having
established the principle, does not think it necessary in the circumstances to pursue
the matter any further against either Mr Hussain or Mr Zamanian. Accordingly, while
I answer the second question posed by the Deputy District Judge in terms favourable
to the prosecution, I would not remit the matter for any further proceedings against
either Mr Hussain or Mr Zamanian. They were acquitted by the Deputy District
Judge. Those acquittals will, if my brother agrees, therefore stand.

53. I turn to the other, and much more difficult and important question, which relates to
whether offences under section 46 of the 1976 Act had been committed by Mr Fidler.

54. Ms Smith submits that the Deputy District Judge was wrong to decide the preliminary
issue as she did. Ms Smith points to the linked references in section 38 and section 45
of the 1847 Act to “hackney carriage” and “prescribed distance” (and, in section 45,
also to “a licence as aforesaid”) as demonstrating what she submits is the essential
geographical connection between a hackney carriage and the place where it is
registered. She points to the policy factors I have mentioned as supporting the
approach she contends for. She points to the omission from sections 46(1)(d) and
46(1)(e) of the 1976 Act of the qualifying words “not being a hackney carriage or
London cab” which appear in section 46(1)(a). She submits that the word “as”, when
used in the phrase “operate any vehicle as a private hire vehicle” in sections 46(1)(d)
and 46(1)(e), is to be understood as meaning “as if it were, though it is not”. She relies
upon Buxton J.s analysis in Wilson. She points out that Gladen related to user of a
vehicle for private hire purposes within the area for which it was licensed as a
hackney carriage, and that the case therefore did not engage the matter at issue here.
Britain likewise, she submits, can be distinguished on the facts. Berwick she says can
be disregarded and distinguished, conflicting with other cases that are still good law.

55. Mr Rodger, for his part, submits that the Deputy District Judge was entirely correct in
deciding the preliminary issue as she did. He relies in particular upon Britain, Gladen
and Berwick, all of which, he submits, were correctly decided. He submits that unless
what I can conveniently refer to as the „hackney carriage exemption. – that is, the
qualifying reference in the definition of a private hire vehicle in section 80(1) of the
1976 Act to “a … vehicle … other than a hackney carriage … or a London cab” – is
read back into the references to “a private hire vehicle” in sections 46(1)(d) and
46(1)(e) of the 1976 Act, it will not be lawful to “operate … as a private hire vehicle”
a vehicle which is licensed as a hackney carriage, even in the area in which it is so
licensed, unless it is also licensed under the 1976 Act. And the latter, he says, is


impossible, not least in the light of the definition of a private hire vehicle in section
80(1) of the 1976 Act and given the requirement in section 48(1)(a)(ii) of the 1976
Act that:

“a district council shall not grant … a licence [under section
48] unless they are satisfied … that the vehicle is … not of such
design and appearance as to lead any person to believe that the
vehicle is a hackney carriage”.

On the contrary, he says, the lawfulness of the use of a hackney carriage for private
hire (at least in the area in which it is licensed as a hackney carriage) is assumed in
section 67(1) of the 1976 Act, which provides that:

“No hackney carriage shall be used in the district under a
contract or purported contract for private hire except at a rate of
fares or charges not greater than that fixed by the byelaws or
tables mentioned in section 66 of this Act …”

Section 67(2) makes contravention of this provision a criminal offence.

56. Put more generally, Mr Rodger submits that a hackney carriage is always a hackney
carriage, no matter what it is doing, or where, and that its use, for whatever purpose,
can never make it a private hire vehicle in the statutory sense. There are, he says,
entirely separate and distinct regimes for the licensing of vehicles as hackney
carriages and as private hire vehicles and the regime which regulates private hire
vehicles has no application to a vehicle registered as a hackney carriage. The purpose
of the 1976 Act (as later, in relation to London, of the 1998 Act) was, he submits, to
impose a scheme of licensing on otherwise unlicensed vehicles and their drivers; it
was not to impose further regulation on already-regulated hackney carriages. To
“operate” within the meaning of the 1976 Act, including for the purposes of sections
46(1)(d) and 46(1)(e), is, he says, as the definition of “operate” in section 80(1) makes
clear, an activity that can be carried out only in relation to a private hire vehicle as
defined by section 80(1) – and that definition explicitly excludes a hackney carriage;
it is not an activity carried out, or capable of being carried out, in relation to a
hackney carriage, however or wherever it is being used. The provision of a hackney
carriage for hire together with the services of a driver pursuant to an advance booking
is not, he submits, a licensable activity. It always has been, and continues to be, he
asserts, an activity unregulated under any statute. In short, Mr Rodger prays in aid
what in Button is described (page xvi) as “the inherent right of the hackney carriage
proprietor to undertake pre-booked hirings anywhere in England or Wales.”

57. I agree with Mr Rodger and essentially for all the reasons he has given.

58. Central to the dispute in this case, as it seems to me, are two questions of statutory
construction. The first relates to the meaning of the words “hackney carriage” where
they appear in the definition of “private hire vehicle” in section 80(1) of the 1976 Act.
This is the issue determined by the Divisional Court in Britain v ABC Cabs
(Camberley) Ltd [1981] RTR 395. In agreement with the decision in that case, I
would hold that “hackney carriage” in section 80(1) means a hackney carriage
wherever it may be licensed as such. So what I have referred to as the „hackney
carriage exemption. is not confined to hackney carriages licensed as such by the local


authority which is seeking to enforce within its own area the provisions of the 1976
Act. I respectfully agree with the reasoning in Britain of both Webster J and, more
particularly, of Ormrod LJ. Their reasoning is compelling. The decision has stood for
thirty years without challenge. In my judgment it is correct and we should follow it.

59. The second question relates to whether what I have called the „hackney carriage
exemption. is to be read back into the references to a “private hire vehicle” in sections
46(1)(d) and 46(1)(e) of the 1976 Act. This is the issue determined by the Divisional
Court in Brentwood Borough Council v Gladen [2004] EWHC 2500 (Admin), [2005]
RTR 152. I agree with Collins J.s decision and with his reasoning. In my judgment
the words “private hire vehicle” in sections 46(1)(d) and 46(1)(e) have to be read as
governed by the definition of “private hire vehicle” in section 80(1) and they are,
accordingly, subject to the „hackney carriage exemption.. This is a conclusion,
moreover, which receives powerful support from the arguments which Mr Rodger has
put forward (summarised in paragraph [55] above), in particular, the arguments based
upon sections 48(1)(a)(ii) and 67(1).

60. I accept that in Gladen the court was not concerned, as we are, with a vehicle which
had been licensed as a hackney carriage by another local authority. But that, in my
judgment, does not take Ms Smith where she would have us go, for the „foreign
hackney carriage. point is determined against her by Britain.

61. Put shortly, the correct analysis, in my judgment, is this: first, and for the reasons
given in Gladen, one has to read into the references to “private hire vehicle” in
sections 46(1)(d) and 46(1)(e) the definition of “private hire vehicle” in section 80(1),
including what I have called the „hackney carriage exemption.; second, and for the
reasons given in Britain, the words “hackney carriage” where they appear in section
80(1) are not confined to a vehicle licensed as a hackney carriage by the local
authority which is seeking to enforce within its own area the provisions of the 1976
Act; they extend to any vehicle registered as a hackney carriage anywhere. And the
combination of these two matters leads inexorably, as a matter of both logic and law,
to the conclusion for which Mr Rodger contends.

62. For my part I would therefore answer the first question posed for our consideration by
the Deputy District Judge, No. Mr Fidler was acquitted by the Deputy District Judge.
His acquittal will, if my brother agrees, therefore stand.

63. I agree both with the Deputy District Judge, as also with the Deputy Judge in the
Berwick case, that the authorities are not altogether easy to reconcile. In my judgment
the decision of the District Judge in the Wrexham case was wrong. And if and insofar
as the decision of the Divisional Court in Wilson conflicts with this analysis then it is,
in my respectful judgment, wrong. The law, in my judgment, was and is, as Mr
Rodger submitted, correctly laid down in Britain and Gladen.

64. Mr Rodger seeks further support for his analysis by reference to what I have called
the „London cab. issue.

65. The point arises in this way. It will be recalled that following the amendment of the
1976 Act by the 1985 Act, the „hackney carriage exemption. in the definition of
“private hire vehicle” in section 80(1) of the 1976 Act was extended to include a
reference to “London cab”. So a private hire vehicle is now defined as “a … vehicle


… other than a hackney carriage … or a London cab”, the latter, as we have seen,
being defined as a vehicle which is a hackney carriage within the meaning of the 1869
Act. Mr Rodger.s point is very simple. He submits that a “London cab” is necessarily
a vehicle licensed before 2000 by the Commissioner of the Metropolitan Police or
since then by Transport for London; in other words a vehicle which is not and cannot
be licensed by a local authority licensing vehicles under the 1976 Act. So in relation
to such an authority, whether it be Berwick-upon-Tweed Borough Council or
Stockton-on-Tees Borough Council or, indeed, any other local authority outside
Greater London, a “London cab” is necessarily a hackney carriage licensed by another
authority, now Transport for London. It follows therefore, he says, that the „hackney
carriage exemption. in the definition of a private hire vehicle in section 80(1) is not
confined to a vehicle licensed as a hackney carriage by the local authority seeking to
enforce within its own area the provisions of the 1976 Act. For if a vehicle licensed
by Transport for London as a hackney carriage within the meaning of the 1869 Act (in
other words what is called a London cab for the purposes of the 1976 Act) can be
used in Stockton-on-Tees for private hire purposes without being registered by
Stockton-on-Tees Borough Council as a private hire vehicle – and that is the effect of
the definition of private hire vehicle in section 80(1) – then by parity of reasoning the
same must apply in relation to a vehicle registered, for example by Berwick-upon-
Tweed Borough Council, as a hackney carriage within the meaning of the 1847 Act.

66. Mr Rodger puts what is essentially the same point in a slightly different way. He
submits that the metropolitan police district (within which London cabs are „at home.)
does not – indeed, he says, cannot – overlap geographically with any area which is a
“controlled district” for the purposes of the 1976 Act, because the 1976 Act can be
adopted only by district councils which, by definition, do not exist within Greater
London. So, as he puts it, it is not possible for a London cab to be „at home. within a
controlled district. Implicit in these submissions, as he accepts, is the proposition that
(ignoring as irrelevant for these purposes the fact that the City of London, the Inner
Temple and the Middle Temple are parts of Greater London but are not within the
metropolitan police district) Greater London and the metropolitan police district are
identical.

67. Neither the researches helpfully carried out for us by Mr Rodger and Ms Smith nor
such limited researches of my own as I have since been able to make, throw any light
upon why the references to “London cab” were inserted in the 1976 Act by the 1985
Act; section 139(2) of the 1985 Act refers to these and others as being “minor
amendments and amendments consequential on the provisions of this Act”. Be that as
it may, the amendments were made and the „hackney carriage exemption. is now
defined, inter alia, by reference to a “London cab”.

68. Mr Rodger.s first formulation of his point is, in my judgment, irrefutable. A “London
cab” is necessarily and by definition a vehicle licensed as such – that is, as a hackney
carriage – by Transport for London (previously the Commissioner) and not by the
local authority seeking to enforce within its own area the provisions of the 1976 Act. I
am not so sure about Mr Rodger.s alternative formulation of the point, because
although the metropolitan police district has since been 2000 been defined by
reference to Greater London, that was not the case when the amendments to the 1976
Act were made by the 1985 Act. For at that time, as we have seen, the metropolitan
police district included certain parts of Essex, Hertfordshire and Surrey. So from 1985


to 2000 there was in fact the geographical overlap which Mr Rodger has to disavow if
this part of his argument is correct. I need not, however, explore this difficult question
any further. Mr Rodger.s primary formulation of his point is correct and, irrespective
of the merits or otherwise of his second argument, suffices to make good his
fundamental point. In my judgment, on the „London cab. issue Mr Rodger is
essentially correct. The inclusion of the words “London cab” within the definition of
“private hire vehicle” in section 80(1) powerfully reinforce the conclusions to which I
would in any event otherwise have come.

69. For all these reasons I would answer the first question posed by the Deputy District
Judge, No, and the second, Yes. I would not, however, remit the case against Mr
Hussain and Mr Zamanian for any further hearing before the District Judge.

Mr Justice Langstaff :

70. I, too, find the answer to the first question posed by the Deputy District Judge to be of
greater difficulty than that to the second. As to this first question, the authorities – in
particular those of Wilson and Britain - are not easy to reconcile. This may be a
consequence of a differing approach in each. Whereas the relevant passages in
Wilson seek to identify the underlying policy of the Act, and do so in part by
concluding that it is to regulate the use of those vehicles which together with their
drivers may be hired for short journeys with a view to the safety of passengers in the
light of a local understanding of that which safety locally requires, it may be said that
Britain takes an approach to the application of the statute which is, rather, driven by
the literal words of the relevant provisions. In the light of this, and of the
consequences of this judgment which may be far reaching, I shall add a few words of
my own as to the answer to the first question.

71. As to the answer to the second question, and whether there should be any remittal of
these proceedings, I agree with the conclusions My Lord has reached, for the
reasoning he expresses, and it is unnecessary for me to add anything.

72. The scheme of both the Local Government (Miscellaneous Provisions) Act 1976,
under which the charges here were brought, and that of the Town Police Clauses Act
1847 is to provide for local regulation of (on the one hand) private hire vehicles, and
(on the other) hackney carriages. The scheme is not one of national regulation,
merely administered locally. If it were, there would be no room for different councils
to adopt differing requirements of applicants for the relevant licences. At first blush,
therefore, and without recourse to authority or to detailed examination of the
interlinking intricacies of the statutory provisions, it seems contrary to the policy
adopted by the legislation to exempt a vehicle from the requirements of regulation of
private hire vehicles in Stockton-on-Tees because it has been registered by another
authority with different priorities and concerns to those of Stockton, as a different
class of vehicle. The reasoning of Buxton J. in Wilson (as set out at page 13 of the
Transcript, see above at paragraph 32) seems roundly dismissive of any suggestion to
the contrary. It relies (page 15, transcript) on there being separate requirements (for
the purposes of section 46(1)(a) of the 1976 Act) for a vehicle to be both (a) a
hackney carriage and (b) to be licensed as such. It was not enough that there should
simply be a licence in force in respect of the vehicle to make it a hackney carriage at
the relevant time. No doubt, if the statute had wished to exempt vehicles which had


been so licensed simply by virtue of that fact it would not have needed to refer to such
a vehicle as actually “being a hackney carriage….”

73. Accordingly, as I understand his reasoning the essential question whether a vehicle is
a hackney carriage is to be answered by looking to see what function the vehicle is
performing at the relevant time, albeit seen in context – to determine its
“characteristic use” as Mance J. described it in Benson v Boyce, by the use of that
phrase ensuring that the forensic focus would be wider than on a short-lived use, out
of character, calculated to avoid regulations otherwise applicable, such as by
obscuring a licence plate or light for the course of one journey (see Hawkins v
Edwards; Yates v Gates).

74. To determine the first question in this case, therefore, in the light of the judgments in
Wilson it would be necessary to ask not only whether the vehicles which Mr. Fidler
operated in Stockton-upon-Tees had been licensed as such in Berwick-upon-Tweed
but also whether at the relevant time their characteristic use was as hackney carriages.
If neither were the case, then the vehicles would not be hackney carriages, and would
require to be licensed (by Stockton-upon-Tees Borough Council) if they were to
operate in other respects as private hire vehicles. Section 80(1) of the 1976 Act would
not confer an exemption, because that relates to vehicles “other than hackney
carriages”, and the application of the statute thereby depends upon the central factual
issue: is the characteristic use that of a hackney carriage? The exemption conferred
by section 80(1) (on this argument) does not depend on whether the vehicle is
licensed as such, but whether it is, or is not, such a vehicle.

75. I confess that both during and for some while after hearing the arguments of counsel I
was attracted to this analysis, not least because it had the consequence of preserving
the system of local licensing which the Acts appear to adopt. There was one principal
difficulty I had in accepting it, then as now, which depends upon the wording of
section 80(1) and which has led me in the event to prefer the analysis of Ormrod LJ
and Webster J in Britain v ABC Cabs. It is what My Lord calls the “London cab”
issue. The statutory definition of “London cab” is not dependent upon the
characteristic use of such a vehicle as a London cab, for that use is specifically
confined within geographical limits (section 4 of the 1869 Act providing, as it does,
that it is a “carriage...which plies for hire within the limits of this Act…”). If the
applicable legislation affords no possibility of those limits overlapping with those
areas within which the 1976 Act applies then there would equally be no prospect of
there being a “London cab” recognisable as such within those areas if the identity of
such a cab were solely dependent on its characteristic use. Yet the definition within
section 80(1) contemplates the possibility that that which is properly to be identified
as a “London cab” may be a vehicle which accepts passengers for private hire in areas
outside London, so that the exemption conferred from local licensing by the wording
of that section has force. As my Lord holds at paragraph 68 of his judgment, I too
agree that the argument to this effect made by Mr. Rodger is irrefutable, and his
alternative formulation of the point equally persuasive since the geographical area
within which a London cab is to be licensed as such does not (now, at any rate)
overlap with those areas to which the 1976 Act applies.

76. Since the wording of the legislation has the effect, therefore, that what Mance J.
described as the “characteristic use” of a vehicle is not sufficient in itself to determine
what is, or is not, a hackney carriage, I too am bound to hold that “hackney carriage”


in section 80(1) means a hackney carriage, wherever it may be licensed as such, and
the “hackney carriage exemption” is not confined to hackney carriages licensed as
such by the local authority which is seeking to enforce within its own area the
provisions of the 1976 Act.

77. If and insofar as the judgments in Britain and those in Wilson are in conflict, I agree
with my Lord that those in Britain are to be preferred. I would further add that the
reasoning of Ormrod LJ in Britain cannot, as it seems to me, be regarded as
inapplicable (despite that which appears to have been conceded by counsel in Wilson)
on the basis that what was under consideration was a “more composite phrase, „being
a hackney carriage in respect of which a vehicle licence is in force...” since that
phrase necessarily involves a vehicle first being identified as a hackney carriage
before any consideration is given to whether or not it is licensed as such.

78. The practical result of these conclusions is not necessarily such (if one excuses the
expression in the current context) as to drive a coach and horses through the control of
hire vehicle licensing. No hackney carriage is exempt from local licensing as a
private hire vehicle unless it is licensed as a hackney carriage somewhere, and it is an
offence for it to be driven by one who is not licensed by a proper authority as its
driver. No hackney carriage may ply for hire in the area of a local authority unless
specifically licensed to do so within that area. (See sections 45 – 47 Town Police
Clauses Act 1847). Although (as was hinted at by counsel before us) an authority such
as Stockton-upon-Tees may have wished greater control over driver or vehicle in a
specific case, it is not a consequence of this decision that either is without regulation,
which it may be assumed will be properly and appropriately applied by whichever
local authority is that which confers a licence in respect of the relevant hackney
carriage, driver and employer. If it seems that there are nonetheless tensions between
any policy of local licensing and regulation on the one hand, and the proper
interpretation of the wording of statute as determined in this case, that must be a
matter for consideration and review by Parliament rather than the courts.

79. For all these reasons I too would answer the first question posed by the Deputy
District Judge, No, and the second, Yes. In agreement with My Lord I too would not
remit the case against Mr Hussain and Mr Zamanian for any further hearing before the
District Judge.






Chris And that's the man and that's the way he thinks.

_________________
Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

_________________
Kind regards,

Brummie Cabbie.

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