England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE MANCE: This is an appeal by way of case stated by the Justices for the County of Cumbria acting in the Petty Session Division of Whitehaven, who on 18th March 1996 convicted the appellant on trial of an information that he on 2nd September 1995 in a controlled district acted as a driver of a private hire vehicle without having a current licence to act as such a driver contrary to section 46(1((b) of the Local Government (Miscellaneous Provisions) Act 1976. The provisions of that Act have, I note, previously been described in this court as not easy to construe, a view which I share.

2. The essential issue is whether section 46(1)(b) applies whatever use is being made of the vehicle at the time or only when it is being used for or in connection with private hire. The facts as found by the justices were that the appellant had no licence to drive private hire vehicles under section 51 of the Act, although he was, we are informed, licensed to drive hackney carriages. On 2nd September 1995 he drove a minibus, which was licensed by the Copeland District Council as a private hire vehicle under section 48, to premises in Whitehaven, with his employer's son and eight friends as passengers. Whitehaven was a controlled district for the purposes of section 46(1)(b). The justices said that they did "not find that the journey had been made in pursuance of any hire agreement or that payment had in fact either been requested or tendered."

3. The appellant's submission is that, since the vehicle was not actually being used for private hire, no offence was committed under section 46(1)(b). The respondents submit that the justices were right to conclude that the Act characterises certain vehicles as private hire vehicles, irrespective of their specific use at any time, and that section 46(1)(b) strikes at any driving in a controlled area of such a vehicle, whatever the nature of the specific activity for which the vehicle was being used.

4. Section 80(1) of the Act defines private hire vehicle as follows:

5. The first part of this definition looks to more or less permanent characteristics of the vehicle as constructed or adapted. The exclusion in respect of hackney carriages, public service vehicles and London cabs also relates to vehicles which have been defined in terms of their characteristic, rather than specific use. See, in the case of hackney carriages, Hawkins v Edwards [1901] 2 KB 169 and Yates v Gates [1970] 2 QB 27; and in the case of public hire vehicles, the definition in section 1(1) and (2) of the Public Passenger vehicles Act 1981 (set out in Stone's Justices Manual [1996] Vol 3, para. 8-870). A London cab is defined by section 80(1) with reference to the Metropolitan Public Carriage Act 1869 in terms which again introduce the conception of hackney carriage.

6. The question arises whether the further phrase which appears in section 80(1) of the present Act "which is provided for hire with the services of a driver for the purposes of carrying passengers" refers to characteristic use or introduces consideration of the specific use on any specific occasion. The previous part of the definition points, I think, towards the former approach, classification according to characteristic use, being correct.

7. When one looks at other sections of the Act, it appears to me clear that for many purposes it is necessary to classify in this way. For example, under section 49, the proprietor of a hackney carriage or of a private hire vehicle in respect of which a vehicle licence has been granted by a council under section 48 must, if he transfers his interest to some other person, give notice to the council of the name and address of the transferee. Under section 50(1) the proprietor of any hackney carriage or private hire vehicle is required to present it for inspection and testing by or on behalf of the council at such period and place within the council's area as the council may reasonably require. These provisions could not depend on the use from time to time of the vehicle. Notably also, section 50(2) goes on to require the proprietor to inform the council of "the address of every place where such hackney carriage or private hire vehicles are kept when not in use" and to afford the council facilities on request for inspection and testing there. Again, under section 68, there are provisions for inspection by a council officer of any hackney carriage or private hire vehicle and any taximeter affixed thereto, which treat vehicles as possessing a fixed character.

8. The actual before us concerns the correct interpretation of section 46(1)(b). I set out section 46 in its entirety, to see the context, from which both sides sought to draw assistance:

9. The licences to which this section refers are issued by the district council for the area of each controlled district. They consist of a licence to use a vehicle as a private hire vehicle under section 48, a driver's licence to drive private hire vehicles under section 51 and a licence to operate private hire vehicles under section 55. Under sections 45(2) and 80(2) the application of the relevant part of the Act and the efficacy of licences issued under it are territorially limited. Section 45(2) reads:

10. Section 80(2) reads:

11. Some relaxation of this territorial limitation will be found in section 75, which I will consider later in this judgment.

12. Reverting to section 46, I start by noting that, even if the definition of private hire vehicle in section 80 looks to characteristic, rather than specific, use, the wording "act as a driver of any private hire vehicle" in section 46(1)(b) might still be said to leave some scope for a submission that the driving must bear a relationship to the nature or characteristic use of the vehicle as a private hire vehicle. A simpler alternative view is that, if a vehicle is under section 80(1) characterised as a private hire vehicle, then any person who in a controlled area without a licence acts as driver of a vehicle which is so characterised commits an offence (subject to certain exceptions in section 75, which it is not suggested could apply in this case).

13. 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 subparagraph (1)(d), dealing in different terms with the different question of driving. 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 subparagraph (1)(c), the words "for the purpose of any hiring" are plainly directed to the specific purpose of the proprietor's employment of a driver. Again, the wording is in contrast with subparagraph (1)(b), where it would have been easy to express a similar restriction, if it had been intended. Subparagraphs (d) and (e) 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.

14. In attempting to understand the scheme of section 46, some relevance might, I think, attach to the provisions of section 75, to which counsel did not in fact refer. Although section 75 is described as a section of "saving for certain vehicles, et cetera", most of its provisions exclude from the operation of the relevant part of the Act, or of particular provisions of the Act, vehicles while being used for a particular activity, such as bringing within a controlled district passengers under a contract for hire made outside the district, so long as the vehicle is not made available for hire within the district (section 75(1)(a)); or use in connection with a funeral or funeral director's business (section 75(1)(b)) or wedding (section 75(1)(c)); or use under a contract for less than 24 hours (section 75(1)(d) - which however merely removes the obligation to display a plate, disc or notice in such a case). Both section 75(2) -- which appears to involve a degree of overlap with section 75(1)(a) -- and section 75(2A) are also exclusions expressed by the reference to the current use of the vehicle.

15. The exclusion from the operation of this part, or of certain provisions, of the Act of a vehicle while being used for certain purposes does not itself mean that the offence in section 46(1)(b) is restricted only to circumstances when a vehicle categorised generally as a private hire vehicle is actually being used as such, eg in connection with hiring; nor does it appear to me to assist on the interpretation of section 80(1). It is clearly possible to have a blanket prohibition on driving a private hire vehicle in a controlled district without a driver's licence, coupled with certain exceptions defined by reference to particular circumstances of use. The only comment that may be made is that there are no exclusions relating to circumstances other than hire for the purpose of carrying passengers. In the case of most of the offences under section 46(1), that does not however appear in any way remarkable since they are related to such use. As to the offence in subparagraph (b) of section 46(1), it may be for the simple reason that it was intended that in a controlled district no one other than a licensed driver should drive a vehicle having the character of a private hire vehicle in any circumstances.

16. The qualification in section 75(2) does throw up one possible practical point. This subparagraph reads:

17. Thus a private hire vehicle licensed in, and driven by a driver licensed in, another controlled district may be "used as a private hire vehicle in any controlled district", and the provisions of the first three subparagraphs of section 46 do not apply to the use or driving of the vehicle or the employment of the driver while the vehicle is so used. The omission of any equivalent provision in respect of operation of a private hire vehicle is deliberate; an operator requires a licence from the council for the controlled district where he operates and may operate only in that district using vehicles and drivers licensed in that district; however, those vehicles and drivers will themselves by virtue of section 75 be able to go anywhere in the course of a hiring: see Dittah v Birmingham District Council [1993] RTR 356.

18. The possible practical point is as follows. Under section 75(1)(a) a driver may bring passengers or goods within a controlled district in pursuance of a contract for hire made outside the district, and under section 75(2) a driver licensed elsewhere may drive in a controlled district a vehicle licensed elsewhere "while the vehicle is being used as a private hire vehicle". If section 46(1)(b) applies to all driving of a vehicle having the character of a private hire vehicle, whatever the purpose, why are the exceptions in section 75(1)(a) and 75(2) apparently confined to circumstances of use as a private hire vehicle? Can it be the intention that driving by a licensed driver outside the scope of any hiring (for example, while on holiday) should be restricted to (i) the district in which he is licensed and (ii) places lying outside any controlled district? It might be suggested, although the argument was not in fact raised before us, that such a result would be so anomalous as to indicate that the operation of section 46(1)(b) should itself be restricted to circumstances of driving while the vehicle is being used as a private hire vehicle in connection with hiring. The result could however only follow if a private hire vehicle in one controlled district must always be regarded as a private hire vehicle in every other controlled district. Since the scheme of regulation operates, as I have pointed out, territorially by controlled district (see sections 45(2) and 80(2)), there may conceivably be a contrary argument. Further, if there is a problem, it appears very possible that it arises, unintentionally, from an attempt to deal compendiously in section 75(2) with the three different categories of offence introduced by subparagraphs (a), (b) and (c) of section 46.

19. I return to the wording of section 46(1)(b). At the end of the day I am considerably influenced by two factors. First, the natural reading of section 80(1) and of section 46(1)(b), read together, is, I consider, that adopted by the justices. It would have been easy to introduce qualifications on the offence by reference to the purpose or content of the driving, and none were. Second, the present legislation is closely connected with the long-standing legislation regarding hackney carriages, to which there are frequent references in it. The latter legislation includes sections 38 and 46 of the Town Police Clauses Act 1847, reading as follows:

20. The court, therefore, found no difficulty in defining a hackney carriage by reference to its characteristic use or in treating section 46 as broken, irrespective of the particular use to which the vehicle was being put when the driver was "acting as driver".

21. The wording of section 46(1)(b) of the Local Government (Miscellaneous Provisions) Act 1976 before us is along similar lines to section 46 of the 1847 Act before the Court in Yates v Gates . Counsel submitted that material differences were to be found in the presence in the 1847 Act of reference to a hackney carriage "licensed in pursuance of this or the special Act to ply for hire". Having come to the conclusion that the most natural reading of the definition of private hire vehicle in section 80(1) is to define the nature of a vehicle by reference to its characteristic use, I see no material distinction in this regard between the two Acts. The absence of any reference in section 46(1)(b) to licensing of the private hire vehicle is explicable on the simple basis that the offence of driving without a driver's licence under section 51 should not depend upon whether or not the private hire vehicle has itself been licensed as and when required under section 48.

22. Counsel also submitted that the mischief differed and justified a different approach in the case of private hire vehicles; hackney carriages plyed for hire, whereas private hire vehicles would be subject to arrangements for hire in advance (of which their operators are also obliged to keep records: see section 56), and therefore the authorities would have no difficulty in indentifying whether a particular journey was in connection with a hiring or not. That may be so, at least in theory, but as I have pointed out there may also be sound reasons for restricting driving within a controlled district to drivers having a licence for that district or permitted to drive in it under section 75. I have noted a possible oddity in that regard which may arise from the apparently limited wording of section 75(2). Even if this does however exist, I am not persuaded that it can or should outweigh the other factors pointing in an opposite direction and, now that it has been identified, it will, if it exists, be open to those concerned to seek to address it.

23. Counsel referred us to another, more recent decision of this court, Kingston upon Hull District Council v. Wilson (Balcombe LJ and Buxton J) reported in The Times for 25th July 1995. The transcript obtained from the Crown Office shows that in that case the appellant had had an operator's licence to operate private hire vehicles from an address at Francis Street in Hull (which the prosecution maintained to be a controlled district) but no proprietor's or driver's licence, while his wife had all three kinds of licence for the vehicle as a hackney carriage in Beverley (a different controlled district). The information laid related to a hiring arranged, as the court held, in Hull in the course of a business carried on there, albeit from a quite different address to the Francis Street address. The justices' acquittal of the appellant under section 46(1)(a) was upheld on the ground that it sufficed for the appellant to show that the vehicle was by nature a hackney carriage in respect of which a licence was in force in Beverley and that it was irrelevant to the application of the express qualification in section 46(1)(a) that the licence related to another controlled district or person (the appellant's wife). The court relied in this connection on a further decision of this court in Britain v ABC (Camberley) Limited [1981] RTR 395.

24. Under section 46(1)(b) the court held that, subject to the technical but decisive point that there was no proof that Hull was a controlled district, the existence of the hackney carriage licence in Beverley provided no defence. The appellant's argument had relied on the words in the definition of private hire vehicle in section 80(1) "other than a hackney carriage..." 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; or the extent to which a private hire vehicle characterised as such in one controlled district must always be regarded as such in any other, whatever its characteristic or actual use there. 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, and the vehicle was being driven in the controlled district where it was both licensed and used characteristically as a private hire vehicle.

25. I consider that the correct interpretation of section 46(1)(b) is that it applies to all driving in a controlled district of a vehicle characterised under section 80(1) as a private hire vehicle, whatever the specific activity in connection with which the vehicle is in fact being driven. The two questions raised by the case stated are:

26. In the context of this case, I would answer the first question in the affirmative and the second in the negative. I would therefore uphold the Justices' conviction of the appellant and dismiss the appeal. The appellant being legally-aided with a nil contribution, the respondent does not in these circumstances seek an order for costs against the appellant, and there will be an order for legal aid taxation of the appellant's costs.