Judgements

Neutral Citation Number: [2004] EWHC 2836 (Admin)
Case No: CO/4746/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
07/12/2004
B e f o r e :
THE HONOURABLE MR JUSTICE WILKIE
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Between:

DARLINGTON BOROUGH COUNCIL Claimant
- and -
MALCOLM KAYE Defendant
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Sam Grodzinski (instructed by Darlington Borough Council) for the Appellant
Jill Brown (instructed by Rowley Ashworth) for the Respondent
Hearing dates: 29 November 2004
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice Wilkie :
1. This is an appeal by way of case stated from a decision made on 13 July 2004 by the Justices for the County of Durham. The Justices upheld the appeal by Mr Kaye against the refusal of the appellant council to renew his licence as a driver of a hackney carriage.
Factual background
2. The respondent has worked as a hackney carriage driver in Darlington since 1970. He has held a full driving licence for 35 years. He has never been the subject of a complaint from a passenger. In that 35 years of driving he has received one three point penalty on his licence arising from a speeding conviction dated 9 March 2002.
3. Each year the respondent is required to renew his licence to drive a hackney carriage. Prior to 2002 in order to do so he was required to complete an application form with details of his name and address, date of birth, and previous hackney carriage licence particulars. He was also required to submit a criminal record check signed by a solicitor and a medical certificate which had to be renewed every three years.
4. On a date in September 2002, the precise date being unclear, the appellant passed the following resolution:
a) That the council's current policy be amended to introduce the Driving Standards Agency taxi test as a pre requirement of any grant of hackney carriage and private hire driver licences for those drivers who have driven hackney carriages or private hire vehicles for less than six months together with experienced drivers who have allowed a licence to lapse, the proposed start date for this group of drivers being 4 November 2002.
b) The council's current policy be amended to introduce the Driving Standards Agency taxi test as a requirement for the renewal of all hackney carriage and private hire licences for those drivers whose medical and/or police check are due, the proposed start date for this group of drivers being 1st April 2003.
c) That drivers be asked to pass the Driving Standard Agency test on one occasion only.
d) That the use of the Driver Improvement Scheme be approved as a disciplinary tool that may be used by the licensing committee as an alternative to suspension for drivers with nine or more penalty points or a history of poor driving, the proposed start date being the November 2002 licensing committee and that the Director of Development and Environment make the necessary arrangements to establish a referral system for taxi drivers to the Durham, or alternatively the Cleveland, national driver improvement scheme as outline in paragraph 30 of the submitted report.
The reasons annexed to the minute recording these decisions read as follows:-
a) To raise the standard pf driving skills for the benefit of all road users.
b) To provide reassurance to the public and the fare paying passengers that all drivers have achieved the necessary minimum professional standard of driving skill.
5. Before taking this decision the council conducted a public consultation exercise seeking the views of a representative sample both of the general public and of those in the trade. The outcome of that was a decisive majority of members of the general public in favour of such a change and an equally decisive majority of those in the trade opposed to such a change. The council had before it a report from the Director of Development and Environment which included the following paragraph:-
"The DSA have advised officers that there are currently twenty five local authorities using the DSA driver test and they are testing six hundred drivers per month. The pass rate average nationally is 48% (with a wide variation in pass rates in different areas - between 38% and 86%). This difference appears due to the preparation made by drivers. Licensing Officers in Leeds have advised that some of their private hire operators are employing advanced driving instructors to improve driver's skills in advance of the test and this has had the benefit of also reducing accident rates."
6. The magistrates had in evidence before them a document entitled "The Driving Standards Agency taxi driver test progress report". That showed the results of the taxi driver test from November 2002 through to March 2004. The figures showed, for each quarter, a pass rate ranging from 41% to 59%. This report updated the information which had been presented to the council. In particular it records that in 2003 to 2004 there were forty five local authorities using the DSA driver test and seven thousand drivers were tested with a pass rate of 50%. It goes on to say the DSA have indicated that the pass rate for taxi drivers could be significantly improved by drivers better preparing for the test. The council established in March 2003 a free driver assessment scheme with funding from the local transport plan. The written assessments are carried out by qualified advance driving instructors based in Darlington who have been placed on an approval list. Ninety seven of the one hundred and seventy seven vouchers issued in the twelve month period up to 1 April 2004 had been redeemed. The local pass rate is the same as the national average.
The report sets out in summary form objections to the DSA test. It says as follows:-
"The policy requiring all drivers to prove competence of driving skills by means of a DSA driver pass certificate continues to be viewed by many applicants to be an unnecessary and unreasonable burden. It is claimed that many drivers are leaving the trade rather than take the test. Private hire operators also claim that due to a general shortage of drivers they are unable to run the number of vehicles needed by customers particularly late at night."
7. That report also includes a section concerning issues associated with the implementation of the DSA test. It says as follows:-
"Officers implementing the policy routinely refused to renew driver licences where the applicant is unable to provide a DSA pass certificate. An existing driver, in such a position applying for a renewal, may formally appeal against the decision to the magistrates' court and the council is obliged to issue a licence until the appeal is heard. Most drivers following their appeal procedure have obtained a pass certificate and then withdrawn their appeal. One driver, Malcolm Kaye, declared that he will not take the test, and license renewal was refused is, with the support of his trade union, challenging the council policy by formally appealing to the courts."
8. The council, after an initial wrinkle, treated Mr Kaye's application to renew his license from 18 November 2003 as one which fell within the requirement that, pursuant to paragraph (b) of the resolution, in order to be granted needed to be supported by the production of a DSA pass certificate. Mr Kaye did not produce such a pass certificate, as he had decided not to take the test. Accordingly on 14 November 2003 the council wrote to Mr Kaye as follows:-
"As properly authorised officer of the council I have decided to refuse your application for grant of a hackney carriage driver license and the reason is:
you have failed to meet the council's requirement that you provide a DSA taxi driver pass certificate with your application for grant of a hackney carriage driver license.
Section 51 of the Local Government (Miscellaneous Provisions) Act 1976 states that a District Council shall not grant a license unless they are satisfied that the applicant is a fit and proper person to hold a driver's license. Section 57 further states that a District Council may require any application for a license under the Act of 1847 or under this part of this Act to submit to them such information as they may reasonably consider necessary to enable them to determine whether the license should be granted and whether conditions should be attached to any such license. The DSA pass certificate is part of the information that Darlington Borough Council requires to make a grant."
The letter went on to inform Mr Kaye of his right to appeal to the Magistrates' Court. It also included a special note as follows:-
"The council reviewed its licensing policy in September 2002 introducing the requirement for any applicant to provide a DSA taxi driver pass certificate to raise the standard driving skills for the benefit of all road users and to provide reassurance to the public and the fare paying passengers that all drivers have achieved the necessary minimum professional standard of driving skill."
The decision of the Magistrates' Court
9. The magistrates, as requested, have stated a case for the purposes of this appeal. The magistrates begin by setting out a statement of the facts which is similar to that which I have already set out and which was not in dispute. It set out the respective contentions of the appellant and respondent. The case for the appellant was that the requirement to supply a DSA pass certificate was a request for information which they reasonably considered necessary to enable them to determine whether the applicant was a fit and proper person to hold a hackney carriage driver's license. The respondent's submission was that the requirement for a DSA pass certificate was more than a request for information rather it was a condition attached to the grant of the license. The respondent relied on the authority of the case of Wathan v Neath and Port Talbot County Borough Council [2002] EWHC 1634(Admin) as authority for the proposition that a licensing authority is not permitted to attach conditions to the grant of a hackney carriage driver's license. The requirement that the applicant undertake a stringent test of his ability to drive amounted to more than a request for information, it amounted to a condition.
10. The magistrates formed the opinion that the requirement upon the respondent to supply a DSA pass certificate went further than a mere request for information and was in fact a condition upon the grant of hackney carriage driver's license. Their conclusion was that the requirement for a DSA pass certificate was unlawful and the evidence they had heard convinced them that the respondent was a fit and proper person to hold a license. Accordingly they upheld the complaint.
11. The magistrates formulated two questions for the opinion of the High Court. I set them out in reverse order to that in which they appear in the case stated as it appears to be more logical to do so. They were as follows:
b) Was the requirement to pass the DSA driving test a request for information as envisaged by section 57 Local Government (Miscellaneous Provisions) Act 1976 or did it amount to a condition to the grant of a license which must be fulfilled before the Borough Council would consider whether or not to grant a hackney carriage driver's license?
a) Was the information as to whether an applicant or a hackney carriage driver's license had passed the DSA driving test reasonably required and necessary to establish whether the respondent was a fit and proper person to hold a license under section 59 Local Government (Miscellaneous Provisions) Act 1976?
The statutory scheme
12. The power to license hackney carriages is conferred on Commissioners pursuant to section 37 of the Town Police Clauses Act 1847. By section 2 of that Act the Commissioners are defined and it is common ground that the licensing committee of the District Council constitutes the Commissioners for the relevant area.
13. The Commissioners have powers to make bye laws for a number of purposes including regulating the conduct of the proprietors and drivers of hackney carriages and such detailed matters as what badges they are required to wear, the hours in which the may exercise their calling, the manner in which the number of each carriage shall be displayed an so on. The Commissioners by means of bye laws regulate the general conduct of the hackney carriage trade within their area. It is common ground that there is no power for them to impose conditions on individual licenses. In this respect the powers of the Commissioners relating to hackney carriages is different from that of the same council when it deals with licenses for private hire cars.
14. Section 59 of the Local Government (Miscellaneous Provisions) Act 1976 ("the 1976 Act") provides amongst other things as follows:-
(1) Notwithstanding anything in the Act of 1847, a District Council shall not grant a license to drive a hackney carriage - (a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's license; or (b) to any person who has not for at least 12 months been authorised to drive a motor car, or is not at the date of the application for a driver's license so authorised.
(2) Any applicant aggrieved by the refusal of a District Council to grant a driver's license on the ground that he is not a fit and proper person to hold such license may appeal to a magistrates' court.
A person is authorised to drive a motor car if he holds a standard licence granted under part 3 of the Road Traffic Act 1988 not being a provisional license.( Subsection 1B)
15. Section 61 of the 1976 Act provides amongst other things as follows:-
(1) Notwithstanding anything in the Act of 1847 or in this part of this Act, a District Council may suspend or revoke or…refuse to renew the licence of a driver of a hackney carriage…on any of the following grounds- (a) that he has since the grant of the licence - (i) been convicted of an offence involving dishonesty, indecency or violence; or (ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this part of this Act; or (b) any other reasonable cause….
(3) any driver aggrieved by a decision of a District Council under this section may appeal to a magistrates' court.
16. Section 57 of the 1976 Act provides amongst other things as follows:-
(1) A District Council may require any applicant for a license under the Act of 1847 or under this part of this Act to submit to them such information as they may reasonably consider necessary to enable them to determine whether the licence should be granted…
(2) Without prejudice to the generality of the foregoing sub-section - (a) a District Council may require an applicant for a driver's license in respect of a hackney carriage… - (i) to produce a certificate signed by a registered medical practitioner to the effect that he is physically fit to be the driver of a hackney carriage or a private hire vehicle; and (ii) whether or not such a certificate has been produced, to submit to examination by a registered medical practitioner selected by the District Council as to his physical fitness to be the driver of a hackney carriage…
17. It is common ground that the power which the District Council has to refuse to renew the license of a driver of a hackney carriage, for amongst other things any reasonable cause, is co-extensive with the obligation on a District Council not to grant a license to drive a hackney carriage unless they are satisfied that the applicant is a fit and proper person or that the applicant has not been authorised to drive a motor car for at least 12 months or at the date of the application is not so authorised.
18. It follows, therefore, that the decision which the District Council had to take concerning the respondent, given that he was a person, who for at least 12 months had been authorised to drive a motor car and at the date of his application was so authorised, was whether they were satisfied that he was a fit and proper person to hold a driver's license. Unless they were so satisfied the District Council did not have the power to renew his license.
19. It was accepted in the course of the argument by Miss Brown acting for the respondent that the District Council was entitled in that exercise to have regard to evidence casting doubt on the applicant's fitness by reference to his competence or conduct as a driver. That this was so must follow from the fact that, pursuant to section 61, the Council had powers of suspension or revocation during the currency of a license and that it was commonplace for those powers to be exercised by reason of a driver having driving convictions the sanction for which stopped short of disqualification from driving. Furthermore it would follow that it would be lawful for the District Council to require any applicant for renewal of a licence to require that person to submit such information as they may reasonably consider necessary to enable them to determine whether the license should be renewed. That information would plainly include information concerning driving convictions.
20. It is also not in dispute that, pursuant to section 57, the District Council may require an applicant to submit a medical certificate and/or to submit to examination by a registered medical practitioner so that they might assess his physical fitness to be the driver of a hackney carriage for the purposes of considering whether the applicant was a fit and proper person to hold a license.
21. The dispute between the parties amounts to this: the respondent contends that, provided the applicant for a license satisfied the basic qualification of holding a driver's licence for 12 months he is not required to meet any further more stringent standard by reference to any different examination.
The appellant on the other hand argues that the District Council is entitled to have a policy that in considering whether a person is a fit and proper person to hold a license they should have satisfied a standard of driving set by the DSA and that it is therefore necessary for them to require that an applicant provide information whether he has satisfied that test requirement. Mr Grodzinski for the appellant has indicated, upon instructions, that this is a policy but that the District Council is prepared to listen to any argument as to why the policy should not apply in a particular case. For example it might be argued that an applicant has very recently passed an equivalent test, though not one examined by the DSA. Miss Brown on the other hand has conceded that her submission would be the same even if the appellant's position were stated in terms that it would, as a matter of policy, generally require such a test to have been passed but would be prepared to examine an individual case on its merits on grounds such as have been indicated by Mr Grodzinski. Accordingly, this is not a case where the parties are in conflict over whether the position of the appellant is one which is unlawful by reason of having fettered their discretion, or having delegated a potentially decisive element to the exercise of their power to decide whether an applicant is a fit and proper person to a third party namely the DSA. The dispute is more fundamental than that. The respondent says that, whilst matters of individual conduct or competence evidenced by driving convictions may be taken into account in determining whether a person is a fit and proper person to hold a licence, what the appellant cannot lawfully do is to require as a condition precedent to the grant of a license that the applicant has passed a more stringent driving examination than that which he has passed in order to satisfy section 59 1 B of the 1976 Act.
22. The respondent relies on Wathan v Neath and Port Talbot County Borough Council already referred to. It is common ground that this is authority for the proposition that a licensing authority cannot impose a condition upon the grant of a license. That case concerned the imposition of a condition subsequent to the grant of a licence. In my judgment it applies equally to any requirement that an applicant satisfy a condition precedent. The sole question for the District Council is whether it is satisfied that the applicant is a fit and proper person.
23. In my judgment the District Council, in deciding whether it is satisfied that an applicant is a fit and proper person, is entitled to have regard to the applicant's standard of driving. It is not to be artificially limited to considering evidence about that standard which happens to have arisen because of criminal convictions. Nor is it precluded from having any regard to an applicant's standard of driving merely because he has held a driver's license for 12 months. It is a matter for the District Council to set the standard of what will amount to a fit and proper person by reference to, amongst other things, the applicant's standard of driving provided in so doing they taken into account all relevant matters and leave out of account irrelevant matters and come to a decision to which a reasonable licensing body could come. Furthermore it is entitled to have a policy which it applies in the generality of cases provided it is prepared to be "willing to listen to anyone with something new to say" (see Lord Reid in British Oxygen Company versus Board of Trade (1971) AC 610, 625D).
24. It follows, in my judgment, that the appellant was entitled, after due consideration and proper consultation, which plainly took place, to adopt a policy that it would not regard a person as a fit and proper person to have a license who had not first passed the specific DSA taxi driver test. It further follows that, given that policy, it was entitled to consider that it was reasonably necessary for it, in order to form a view whether a person was a fit and proper person to have a license, to require information from an applicant whether he or she had passed that test.
25. Thus, addressing the questions posed by the magistrates in their case stated, in my judgment the requirement to pass the DSA driving test was not a condition attached to the grant of a license which must be fulfilled before the Borough Council would consider whether or not to grant a hackney carriage driver's license. Rather, it was a policy which the District Council applied when considering whether an applicant was a fit and proper person to whom to grant or renew a license. Given that policy, the District Council was reasonably entitled to consider it necessary that it should receive information whether the applicant had or had not passed the DSA driving test. Accordingly, the requirement that the applicant should so inform the District Council was a requirement for information within section 57 of the 1976 Act.
26. It therefore follows that, in my judgment, the magistrates misdirected themselves in concluding that the requirement for that information was outwith the terms of the statute.
27. A supplementary argument appeared at one stage to be advanced by the respondent. This was to the effect that, as the hearing before the magistrates was a rehearing rather than a by way of a judicial review of the decision of the District Council, then the magistrates were capable of reaching a De Novo decision whether the respondent was a fit and proper person to hold a licence disregarding the policy of the District Council. It is apparent that this is what the magistrates did in upholding the respondent's appeal.
28. It has become apparent, however, by reason of the citation by the respondent of the case of Sagnata Investments Ltd versus Norwich Corporation (1971) 2QB 614 and by the appellant of the Queen on the application of Westminster City Council and Middlesex Crown Court and Chorion plc and Fred Proud 92002) EWHC 1104 (Admin) that it is common ground that where magistrates consider an appeal by way of rehearing against a decision of a local authority, which has a policy, that they ought to have regard to the fact that the local authority has a policy and should not lightly reverse the local authority's decision or, to put it another way, the magistrates must accept the policy and apply it as if it was standing in the shoes of the council considering the application. It is, of course, obvious that such an approach is predicated on the lawfulness of the policy. Given that this is the undisputed position as a matter of law, it is apparent that the magistrates, though rightly considering the respondent's appeal as a rehearing, erred in failing to have regard to the District Council's policy in considering whether the respondent was a fit and proper person to hold a licence.
29. It has been urged on me by the appellant that the position is sufficiently clear cut that I should decide the question whether the respondent is a fit and proper person having regard to the policy of the District Council and in the light of the facts that are disclosed in this appeal. I am not persuaded that that would be the correct course. It is clear that the magistrates heard a great deal of factual evidence and had regard to that. This material is not before me. As I have indicated, the District Council has a policy which it does not apply in an entirely fettered manner. In accordance with the law it is always prepared to listen to what an individual applicant has to say. The fact that at the moment it does not appear that there is anything much that this respondent could say which would persuade the District Council, or the magistrates having proper regard to that policy, to depart from that lawful policy in his case does not mean that I should preclude his ability to persuade the magistrates otherwise. There may be matters of fact not before me which the respondent would be able to deploy before the magistrates which would persuade them, notwithstanding the policy to which they must have due regard, that nonetheless his appeal against the District Council's refusal of his licence should be upheld.
30. It therefore follows that the appeal must be allowed and the order of the Court is that the matter be remitted to a fresh bench of magistrates for them to consider the respondent's appeal in accordance with the law.

Neutral Citation Number: [2004] EWHC 2500 (Admin)
CO/1932/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2

28 October 2004
B e f o r e :
MR JUSTICE COLLINS
MR JUSTICE SILBER
____________________
BRENTWOOD BOROUGH COUNCIL (CLAIMANT)
-v-
ANDREW ERNEST GLADEN (DEFENDANT)
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MR JAMES FINDLAY (instructed by Sharpe Pritchard) appeared on behalf of the CLAIMANT
MR PETER MADDOX (instructed by Kearns & Co) appeared on behalf of the DEFENDANT

1. MR JUSTICE COLLINS: This is an appeal by way of case stated by District Judge Gray, sitting at Grays in Essex. He had before him five informations laid by the deputy town clerk of Brentwood Borough Council against Mr Gladen (the respondent), each in identical terms relating to different dates. It is therefore only necessary to read one of them, which was that he:
"On 16 December 2002 did knowingly operate a Ford Mondeo as a private hire vehicle within the area of Brentwood Borough Council being a controlled District under Part II of the Local Government (Miscellaneous Provisions) Act 1976 without having a current Operators Licence under section 55 of that Act."
The district judge acquitted the respondent of all five charges, and it is against that acquittal that the prosecutor now appeals.
2. There was no issue as to the facts. Essentially, on the various dates an employee of the Council telephoned the relevant telephone number in Brentwood, asking for "848 cars", that being part of the telephone number in question, and a taxi was duly sent, picked the individual up and took him or her to the place where he or she wished to go. Having made those findings, in paragraph 5 of the case the district judge continues:
"(vi) Brentwood Borough Council adopted Part II of the Local Government (Miscellaneous Provisions) Act 1976 on 6 November 1985 and the area of Brentwood Borough Council has from that date been a controlled area for the purposes of Part II of the Act.
(vii) The vehicles referred to in paragraphs 1 to 5 above whether driven by Mr Gladen or others did so as a result of the telephone bookings referred to in those paragraphs.
(viii) Those vehicles attended in accordance with the requests made and those requests were received by the defendant responding as '848 cars'.
(ix) On each case referred to in paragraphs 1 to 5 both the vehicle and the driver concerned were properly licensed as hackney carriages and hackney carriage drivers respectively."
3. The argument was that, although they were licensed as hackney carriages and although the drivers were equally licensed as hackney carriage drivers, there was a requirement under the legislation that there should be an operator's licence under the relevant provisions of Part II of the Local Government (Miscellaneous Provisions) Act 1976 because they were, by virtue of section 46(1)(d) of the 1976 Act, to be regarded as requiring an operator's licence under that Act, to enable the particular operations to be carried out lawfully.
4. As Mr Findlay submitted then and now, the need for such controls is to ensure that there are proper records kept of calls received and of the dispatching of the vehicles, and therefore, if there are any complaints, then it can be easily seen when a booking was made and when the vehicle was dispatched so as to ensure that the operation was being carried out properly and in the interests of the public, and people were not likely to be subject to unnecessary and possibly even dangerous delays in being picked up from wherever they wished to be picked up.
5. It is first necessary to have a look at the legislation, part of which is to be found in the provisions of the Town Police Clauses Act 1847, which deals with hackney carriages, and part in Part II of the Local Government (Miscellaneous Provisions) Act 1976, which introduced a licensing scheme for private hire vehicles, but also has additional provisions relating to hackney carriages.
6. Section 37 of the 1847 Act requires that a hackney carriage should be licensed, and section 38 defines what are to be deemed to be hackney carriages, which essentially are:
"Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance."
7. That is just the commencement of the relevant section. Essentially, the idea behind a hackney carriage was and is that it is a vehicle that can be flagged down in the street: it plies for hire or can be found standing at a stand or perhaps outside an office, where anyone can go and require to be taken to a place within the district in question or outside if agreement is reached on the amount to be paid.
8. In addition, under section 46 of the 1847 Act there was a requirement that the drivers also should be licensed, and thus one has a licence which attaches to the vehicle and a licence which attaches to the driver; both must be held.
9. Finally, so far as drivers are concerned, and indeed generally, section 68 of the 1847 Act enables byelaws to be made for, among other things, regulating the conduct of the proprietors and drivers of hackney carriages, plying within the prescribed distance in their several employments, and so on.
10. The 1976 Act, Part II, deals with the licensing of vehicles being used for the purposes of private hire. That imposes a requirement that the vehicle and the driver be licensed, much as in the case of hackney carriages, but, in addition, it requires that the operator should be licensed. The purpose behind that is, as Mr Findlay submits, to enable a check to be kept to ensure that the operation is being carried out properly and the public are getting a proper service and the matter is being dealt with in terms of safety in an appropriate manner. But the operator's licence is an additional licence which was not required for the purposes of the 1847 Act for hackney carriage operators. That, perhaps, is not altogether surprising since the concept behind a hackney carriage would not easily, on the face of it, include the situation where one rings up a central office and a hackney carriage, or a taxi which has a hackney carriage licence, is dispatched to pick someone up. But by 1976 it is apparent that such means of getting taxis was common place and Parliament must be taken to have appreciated that. The whole purpose behind the 1976 Act, as I understand it, was to bring within licensing control those who were operating private hire; it being recognised that hackney carriages already had the controls under the 1847 Act. It was regarded as not in the interests of the public that there should be the possibility of a separate provision of private hire vehicles which was outside any licensing scheme.
11. Part II of the 1976 Act is careful throughout to distinguish what is required for those who have hackney carriage licences and for those who simply deal in private hire. But it is also clearly recognised that hackney carriages can be used for the purposes of private hire. So much is clear from section 67 of the 1976 Act, which has the side note, "Hackney carriages used for private hire" and provides by subsection (1):
"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 table mentioned in section 66 of the Act, and, when any such hackney carriage is so used, the fare or charge shall be calculated from the point in the district at which the hirer commences his journey."
12. Subsection (2) creates an offence for the knowing contravention of that provision. In subsection (3) it is provided:
"In subsection (1) of this section 'contract' means-
(a) a contract made otherwise than while the relevant hackney carriage is plying for hire in the district or waiting at a place in the district which, when the contract is made, is a stand for hackney carriages appointed by the district council under section 3 of this Act; and
(b) a contract made, otherwise than with or through the driver of the relevant hackney carriage, while it is so plying or waiting."
That section clearly recognises the possibility that hackney carriages can be obtained otherwise than through being flagged down in the street or approached when standing on a stand.
13. Going back, I should perhaps start with section 46 which is the section under which these prosecutions were brought. That provides:
(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."
14. Section 48 provides for the licensing of the vehicle. Subsection (b) prohibits a person from driving without a driver's licence, and that is a licence which is provided under section 51 of the 1976 Act. Subsection (c) prevents a proprietor of a private hire vehicle, licensed under the Act, from employing a driver who has not got a licence. Then we come to (d) and (e) which read:
"(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."
So (d) and (e) are clearly complementary in the sense that (d) prevents a person from operating a vehicle as a private hire vehicle without an operator's licence, and (e) prevents a person, even if he does have an operator's licence, from operating a vehicle which is not itself licensed as a private hire vehicle, or using any driver who is not licensed as the driver of a private hire vehicle.
15. It is important to note that Parliament, in section 80 of the Act, has defined certain terms for the purposes of Part II. It is headed, as all interpretation sections are, "In this Part of this Act, unless the subject or context otherwise requires". The relevant terms for our purposes are "operate", which is defined as meaning "in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle"; "operator's licence", which means a licence under section 55 of the Act and "private hire vehicle", which 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 tram car], which is provided for hire with the services of a driver for the purpose of carrying passengers."
16. Now, it is, in my view, quite clear that the drafting of section 46 is with the technical meanings in mind. It is true that one could say that, in certain respects, there could have been omissions of various words if one simply went to the definition section, but that would make the wording of the section itself less than clear. It is important, therefore, to note that licensing of operators is dealt with in section 55 and that a licence under section 55 of the Act must be a licence which enables what is there set out to be done.
17. Section 55(1) provides:
"Subject to the provisions of this Part of this Act, a district council shall, on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles grant to that person an operator's licence."
So it is a licence to operate private hire vehicles.
18. Section 56 which is headed, "Operators of private hire vehicles", by subsection (2), for example, provides:
"Every person to whom a licence in force under section 55 of this Act has been granted by a district council shall keep a record in such form as the council may, by condition attached to the grant of the licence, prescribe ...
(3) Every person to whom a licence in force under section 55 of this Act has been granted by a district council shall keep such records as the council may, by condition attached to the grant of the licence [et cetera]."
19. It is clear from those provisions that it is only a person who is operating private hire vehicles who needs to be granted such a licence, and more importantly, he is the only person in respect of whom conditions under section 56 can be imposed.
20. Looking at various other provisions in Part II, one sees that the distinction between what is required for a hackney carriage and what is required for a private hire vehicle are specifically kept apart. I am not going to refer to the relevant sections in detail, but one sees this throughout sections 58 to 66 and 68 and 69 -- section 67 I have already referred to.
21. It seems to me quite clear that the word "operate" in section 46(1)(b) has the technical meaning which is set out in section 80(1). Mr Findlay submits that it should have a wider meaning because the words "operate as a private hire vehicle" are unnecessary since "operate" itself is defined as meaning "in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle". But as it seems to me, there is no reason why the draftsman, for the avoidance of any doubt, should not have included the words "as a private hire vehicle" within that subsection.
22. Furthermore, in Benson v Boyce [1997] RTR 226, a case which concerned section 46(1)(b), not (d), of the Act, this court did consider generally the framework of section 46(1). Mance J (as he then was) at page 231 of the report at letter F says this:
"Looking at the other subsections of section 46, the first applies to a proprietor of a vehicle who uses or permits it to be used in a controlled district as a private hire vehicle without having a licence for it as such under section 48. The phrase 'as a private hire vehicle' appears, I accept, to indicate that a proprietor who used or permitted use in a controlled district without a licence under section 48, for purposes other than hiring falling within the Act, would not be committing an offence. Assuming that to be so, it does not appear to throw real light on the proper interpretation of paragraph (d) of subsection (1), dealing in different terms with the different questions of driving [pausing there, I think that should be (b) rather than (d), in context. That is a misprint in the Road Traffic Reports]. In the context of legislation designed to control the use of private hire vehicles, which (as the present case illustrates) may include vehicles of some bulk, the intention may still have been to restrict driving in controlled districts to licensed drivers in all the circumstances. When one turns to paragraph (c) of subsection (1), the words 'for the purpose of any hiring' are plainly directed at the specific purposes of the proprietor's employment of a driver. Again, the wording is in contrast with paragraph (b) of subsection (1), where it would have been easy to express a similar restriction, if it had been intended. Paragraphs (d) and (e) of subsection (1) deal with persons operating vehicles as private hire vehicles. Under section 80(1) 'operate' is defined as meaning 'in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle'. It does not seem to me either surprising, or significant in relation to the issue before us, that the offences introduced in respect of operators are, by the phrase 'as a private hire vehicle' related to the operation of the private hire vehicle as such."
23. That may explain why the draftsman thought it right to include those words in both (d) and (e), although they might be said otherwise to have been included within the word "operate". He put the matter, as it seems to me, beyond any doubt. Furthermore, what Mance J there said is an indication that, in his view, the word "operate" had the technical meaning as set out in section 80(1). The importance of that is that Mr Findlay has submitted that "operate" should be given a wider meaning, and that, effectively, it should mean little more than "makes use of" in the sense of provides a private hire vehicle for carrying out any business which any individual wants to be carried out by means of such a vehicle. It also gives little scope to the limitation to the licence being a licence under section 55 because no licence under section 55 is required to operate a hackney carriage. That is plain from the wording in section 80(1) of the definition of private hire vehicle because a hackney carriage is specifically excluded from that definition.
24. It is also to be noted that the same wording, that is to say "operate any vehicle as a private hire vehicle" occurs in section 46(1)(e), and Mr Findlay accepts, as indeed is obvious, that it would be absurd to suggest that a person who operates for the purpose of private hire and provides duly licensed hackney carriages and hackney carriage drivers should be committing an offence if those hackney carriage drivers and vehicles do not also have a private hire vehicle and driver's licence. But that would clearly result if the construction which Mr Findlay seeks to place upon the words "operate any vehicle as a private hire vehicle" were to prevail. Mr Findlay seeks to get out of that difficulty by submitting that the words at the outset of section 46(1), "except as authorised by this part of this Act", will through section 67 (because he accepts that there is no other specific authorisation) enable sense to prevail and to indicate that section 46(1)(e) is not being contravened.
25. The difficulty with that is that section 67 does not provide an authorisation for anything. It simply provides that it is unlawful to charge more if you use a hackney carriage for a private hire than would be permissible were it being used as a hackney carriage. It does not provide for the authorisation of anything. It simply recognises that it is not unlawful to use hackney carriages as private hire vehicles.
26. Accordingly, although I would not follow the district judge in his suggestion that 46(1)(d) must be read subject to 46(1)(e), the construction of the same words used in each points to the impossibility of the construction being sought to be applied by Mr Findlay.
27. In fairness to Mr Findlay, this construction is one which has appealed to others. It appealed to Judge Allardice, sitting in the Crown Court at Worcester in June 1991. However, his decision perhaps has even less weight than it might otherwise have had because it is apparent that the argument before him was misconceived. One sees that looking at page 16 of the transcript with which we have been provided, where at letter F he says this:
"The argument put forward by Mr Salmon and for which to a very large extent he relies on the Liverpool case [that was another Crown Court case], is that section 67 is a permissive section which allows all vehicles licensed as hackney carriages to be used also for private hire. It is a clear submission which, if it were successful, would seem to me (and I intend no pun) to drive a coach and horses through the Act."
If that was the argument that was being used to suggest that 46(1)(d) did not require an operator's licence where a hackney carriage was used as a private hire vehicle, then, for my part, I can well understand why it was given short shrift. It does not appear from the argument, or from the decision, that the learned judge was referred to the matter in the detail which should have been provided.
28. The other source which Mr Findlay relies on is a book entitled Taxis -- Licensing Law and Practice by Mr James Button. In that, he discusses the question of hackney carriages used as private hire vehicles. At paragraph 13.60 he says this:
"A question which often arises concerns the use of hackney carriages as private hire vehicles. This can occur in one of two ways. First, the hackney carriage can be used effectively as a private hire vehicle because a booking is made with a person, either by telephone or in person, and a vehicle, which is a hackney carriage, is dispatched to fulfil the booking. Secondly, a private hire operator can operate a vehicle as a private hire vehicle, but the vehicle is licensed as a hackney carriage."
29. He then sets out the relevant provisions of section 46, and then at 13.64 he says this:
"It appears that the effect of [the 1976 Act], s.46(1)(d) is to require an operator's licence for a person who operates 'any vehicle as a private hire vehicle', the effect being to bring within the provisions of that subsection any vehicle that maybe operated for the purposes of a private hire vehicle, irrespective of whether or not the vehicle itself is actually a private hire vehicle. This obviously therefore includes hackney carriages which are pre-booked, as a pre-booked hackney carriage falls within the definition of operate within [the 1976 Act], s.80."
30. With the greatest respect to Mr Button, I am afraid I cannot agree with what he there says. It seems to me apparent that section 80 excludes hackney carriages from section 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 section 55, and a "private hire vehicle" is defined as meaning a vehicle other than a hackney carriage. Thus, that, coupled with the provisions of section 55 and 56 which I have already read, 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.
32. Mr Findlay submits that the result of that will leave a gap, in the sense that the public's protection, which is provided for by the need for an operator's licence in relation to private hire vehicles, is removed when one is dealing with hackney carriages. There are of course many instances where hackney carriages will operate in much the same way as private hire vehicles, in that members of the public will ring up and ask for a cab, and they do not, on the whole one suspects, really mind what sort of cab they get, provided it is properly licensed and they know that the driver is properly controlled.
33. It was suggested in the course of argument that conditions might be imposed under the 1847 Act, and indeed the 1976 Act which supplements it to some extent. There were observations made by Maurice Kay J in a case which was cited to us, R v Doncaster Metropolitan Borough Council ex parte Heath (unreported), decided on 16 October 2000. That case is not directly in point, but it is to be noted that the submission made then to Maurice Kay J was that the schemes relating to hackney carriages and private hire vehicles were two distinct schemes, and that the issues in that case had arisen because the Council had fallen into the trap of seeking to apply private hire statutory provisions to a hackney carriage situation. Although Maurice Kay J did not specifically have to deal with that point, it is plain from the tenor of his judgment that he was entirely sympathetic to it and essentially agreed with it. But what he did say in paragraph 21 of his judgment was that the Council might be able to require persons in the position of the applicant in that case, who was licensed under the 1847 Act, to provide information in advance about who would act as a substitute driver in a case of need, and further requiring him or anyone else driving the vehicle to keep a contemporaneous record of who drove which vehicle on what day. No doubt, this is very sensible, but we have been referred to the relevant provisions of the two Acts and the only conditions which can be attached in relation to hackney carriages appears to be those arising under section 47 of the 1976 Act, which enables conditions to be attached to the grant of a licence of a hackney carriage but not a driver's licence. So far as the driver is concerned, byelaws under section 68 of the Act can be imposed, and as far as I can see there is no reason in principle why, if there is a problem in any particular district, the Local Council should not decide to try to impose byelaws which require a driver to provide the information which they regard as desirable in the interests of the public and to keep records which equally are considered desirable. If any Council which has a problem is able to persuade the Department that some such conditions are needed, then no doubt they could be imposed. But that is as far as it can go.
34. I have reached the clear view that the district judge in this case was correct and that section 46(1)(d) is not breached where a licensed hackney carriage and a licensed hackney carriage driver is provided for the relevant conveyance of a passenger, albeit it is provided through an operator. In those circumstances, an operator's licence under section 55 of the Act is not appropriate, since that section does not cover hackney carriages.
35. The district judge posed this question for the opinion of the High Court:
"Whether it is necessary to hold a licence under section 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. Accordingly, I would dismiss this appeal.
37. MR JUSTICE SILBER: I agree that this appeal must be dismissed.
38. MR MADDOX: My Lords, in those circumstances I would seek an order that the respondent's costs of the appeal should be paid.
39. MR JUSTICE COLLINS: You cannot resist that, can you?
40. MR FINDLAY: My Lord, I am going to try and shift the burden. My Lord, what I would propose to your Lordships is that, instead of costs being awarded against this particular District Council, they are awarded out of central funds and a defendant's costs order be made.
41. MR JUSTICE COLLINS: I think that is what we would normally do. As far as your clients are concerned, they do not mind who pays it as long as they are paid.
42. MR MADDOX: My Lord, I think that must be right.
43. MR JUSTICE SILBER: That would be the normal order that we would make because it was the court which reached the decision, although you persuaded it to do so, or rather you were not able to persuade it not to do so, but it is the decision of the court, and normally then central funds would be appropriate.
44. MR FINDLAY: My Lord, I am grateful. My Lord, also in this case, although your Lordships have reached a very clear conclusion, your Lordship will be aware from what I have (inaudible) it is a matter of considerable concern to --
45. MR JUSTICE COLLINS: It is only surprising that it has not been expressly decided in the -- whatever it is -- 28 years that this has been in force. We have now decided it, rightly or wrongly.