England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 October 2002

Mr Justice McCOMBE :

1. This is an appeal by way of case stated from the decision of the Crown Court at Middlesex Guildhall which, on 20 April 2001, dismissed the appeal by Mr Harvey Phillips against his conviction before District Judge Wicks, following a hearing variously held at Bow Street Magistrates’ Court and Horseferry Road Magistrates’ Court, on 3 November 2000 of an offence contrary to Regulation 4 (27) of the Royal Parks and other Open Spaces Regulations 1997. That regulation makes it an offence to “drive or ride any vehicle which is constructed, adapted or in use for the purpose of a trade or business except as specified in Part I of Schedule 2 to [the] Regulations” within areas specified in the regulations.
2. One of those exceptions is in respect of “a taxi”, defined as being a vehicle licensed under section 6 of the Metropolitan Carriage Act 1869, ie. “black cabs”. Another exemption is in relation to, “ a vehicle in use for the purpose of transacting business with any person … using land therein under licence from the Secretary of State”.
3. The Appellant was employed as driver of a private hire car under the auspices of a company trading as “Addison Lee”. On the date concerned, 24 January 2000, he was driving a black Fiat vehicle with a capacity of seven passengers eastwards through St. James’s Park in the Mall. Officers of the Royal Parks Police and the Benefits Agency were stopping vehicles in pursuit of their respective duties. As the Appellant approached the officers, he did a U-turn and drove west along the Mall. The vehicle displayed a logo on its rear which read, “Addison Lee”. A police motorcycle gave chase and brought the Appellant back to the checkpoint. The Appellant was asked whether he was on authorised trade or business within St. James’s Park. He responded, “You’ve got to be kidding, my governor sorted all this out. This isn’t a trade vehicle”. He was handed a fixed penalty notice and stated that he would not be paying the penalty. He told the officers that the reason he had turned round was because he had received a message to collect passengers in Page Street which is in another part of London outside the Park.
4. It is apparent from the notes of the learned District Judge’s decision that he decided that the vehicle was not one “constructed or adapted” for trade or business and according to the Appellant could only fall foul of the Regulations if, the vehicle was “in use” for such purpose (see paragraph 27 of the Note). The learned District Judge concluded on the facts that it was in such use. It is apparent from the case stated by the Crown Court that there was no challenge to that factual decision before that Court. The submission made to the Crown Court was that it would be an abuse of process for the matter to proceed. Reliance was placed upon Articles 6 and 7 of the European Convention on Human Rights which provide as follows:

“ 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

7(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

5. The submission was that the wording of Regulation 4 (27) was so wide and uncertain in scope as to be incapable of sensible definition or reasonable or consistent enforcement. It was also submitted that the arbitrary manner of enforcement was also a breach of the Convention. With regard to these submissions the Crown Court held that any person driving a vehicle into the Park was able to determine whether or not he was engaged in trade or business and that there was accordingly nothing uncertain about the wording of this offence. Further the Court found that many such traffic offences have to be and are enforced in a random way from time to time and that there could be no proper objection to that. There is no appeal against the Crown Court’s decision on those grounds.
6. Also at the Crown Court the Appellant advanced the argument that the offence constituted a breach of Article 14 of the Convention. That Article provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

7. The submission made against that was that “the right to drive down the Mall” was not a Convention right. No other right under the Convention was relied upon by the Appellant. Thus, the court found, as stated in the final paragraph of the Case, that there was nothing incompatible with the Convention in the prosecution of the present offence and that accordingly there was no basis for saying that it was an abuse of process for the matter to proceed. The question asked by the Crown Court now is whether it was right so to find.
8. On the present appeal, Mr Rhodri Thompson QC for the Appellant argued the following points:

(1) that the Appellant’s conduct did not fall within the prohibition contained in the Regulation

(2) that the terms of Regulation 4 (27) are insufficiently precise to satisfy the requirement that offences should be “prescribed by law” for the purposes of the Convention

(3) that the Regulation infringes the principle of proportionality inherent in the Convention

(4) that Regulation 4 (27) is incompatible with Article 14 of the Convention in its unequal treatment of “black cabs” and other types of taxi or hire vehicle in its restriction of the “peaceful enjoyment of possessions” contrary to Article 1 of the First Protocol to the Convention.

(5) that accordingly the prosecution for this offence contravened Section 6 of the Human Rights Act 1998.

9. It will be apparent that some of these arguments stray from the contents of the Case stated by the Crown Court and were not advanced in either court below.
10. So far as the first point is concerned, the learned District Judge found, as recorded in paragraph 24 of his Note, that the Appellant was driving a vehicle with the intention of soliciting business as a private hire limousine at premises within the Park and that the vehicle was thus in use for the purpose of trade. He found that there was no applicable exception. No point was taken in the Magistrates’ Court or in the Crown Court that soliciting business at government offices fell within the exemption in paragraph 2 of Part I of Schedule 2 to the Regulations. The findings of the District Judge in these respects were not challenged in the Crown Court and I consider that it is far too late and indeed impossible to mount a challenge to those findings on this appeal.
11. As for the second point, I did not understand that any further argument was being addressed to the Court that the Regulation and/or the prosecution offended Article 7 of the Convention (no punishment without law) but it was argued that the absence of precision in the regulation rendered the Regulation incompatible with the right of the Appellant to enjoyment of his possession under Article 1 of the First Protocol. Thus, all the remaining arguments depend upon the rights of the Appellant under that Article being engaged.
12. Article 1 of the Protocol provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

13. The principles underlying that provision are helpfully set out in two passages from the judgment of the European Court of Human Rights in National and Provincial Building Society v United Kingdom (1998) 25 EHRR 127 at paragraphs 78 and 80.

“ 78….The Court recalls that Article 1 of Protocol No.1 guarantees in substance the right to property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

However, the three rules are not ‘distinct’ in the sense of being unconnected: the second and the third rules are concerned with particular interferences with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule”.

“ 80….According to the Court’s well-established case law, an interference, including one resulting from a measure to secure the payment of taxes, must strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aims pursued.

Furthermore, in determining whether this requirement has been met, it is recognised that a Contracting State, not least when framing and implementing policies in the area of taxation, enjoys a wide margin of appreciation and the Court will respect the legislature’s assessment in such matters unless it is devoid of reasonable foundation”.

14. We were also directed to two cases in the European Court where rights under Article 1 of the Protocol were alleged to have been infringed. Those two cases were Tre Traktorer Aktiebolag v Sweden (1991) 13 EHRR 309 and Van Marle v The Netherlands (1986) 8 EHRR 483. The first case concerned the withdrawal by the authorities of a licence to sell alcoholic drink at a restaurant and the applicant alleged that this had led to the immediate closure of the restaurant. The second case involved the introduction of a new statute requiring accountants to apply for registration. The applicants, who had practised for some years as accountants prior to the introduction of the new law, were refused registration. They challenged the validity of the law under Article 1. In each case the Court held that the respective applicant’s rights under the Article were engaged but that the restriction was in each case justified in the public interest.
15. The first question for this Court is whether the Regulation here engages this Appellant’s right to the “peaceful enjoyment” of his “possession” either in pursuit of his trade or the use of the relevant vehicle.
16. Clearly, any system of law will regulate in many respects the use of private possessions. For example, it may prohibit the playing of ball games in certain places; it may prevent vehicles being driven in “bus lanes” and make other restrictions on traffic access; it will prohibit the playing of musical instruments or the use of photographic equipment in certain places in certain circumstances. It seems clear to me that not every such restriction will engage Article 1 of the Protocol at all. As Lord Steyn observed in Brown v Stott [2001] 2 WLR 817, 839 it may be opportune on occasions to stand back and consider what the aims of the Convention are in the relevant respects.
17. While the cases cited illustrate that Article 1 of the Protocol extends beyond cases of mere expropriation (at which the Article may have been primarily directed: it is headed “Protection of Property”) and that material interference with business interests may be incompatible with peaceful enjoyment of possessions, it does not seem to me that a regulation of the present character, preventing certain uses of vehicles in defined and limited areas, really involves a material interference with the enjoyment of the vehicle, or with the business conducted by means of the vehicle, at all. When one looks at the purposes of the Convention in protecting fundamental rights and freedoms I do not consider that legislation restricting vehicle use in the present manner comes anywhere near infringing the enjoyment of possessions. I think that the Convention did not envisage that the Court would have to scrutinise the restriction of the use of possessions in this extreme fashion.
18. However, if I am wrong about that it becomes necessary to examine whether any relevant interference is justifiable as pursuing a legitimate aim, whether it is proportionate and sufficiently certain in scope to comply with the Appellant’s Convention rights. In considering these questions, I refer again to the National and Provincial Building Society case (supra) at page 171, paragraph 80, already quoted above.
19. The concept of “proportionality” was described by Lord Steyn in R(Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, as follows:

“The contours of the proportionality principle are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, the Privy Council adopted a three stage test. Lord Clyde observed, at page 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive, the court should ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental constitutional right: (ii) the measures designed to meet the legislative objectives are rationally connected to it: (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

20. In my view, the prohibition contained in this Regulation is justifiable as pursuing a legitimate aim and proportionate in all the circumstances. The Regulations are made by the Secretary of State for National Heritage in exercise of powers conferred under the Parks Regulation (Amendment) Act 1926 and section 7 (5) of the Crown Estate Act 1961. The areas covered by the Regulations are areas of particular historical and patrimonial significance and also of natural beauty. It seems clear that the Secretary of State has considered it appropriate to proscribe, so far as is possible, trade activities within these areas, no doubt with a view to preserving their status, as I have described it, for the benefit of society as a whole. It seems to me to be within the reasonable bounds of his discretion to endeavour accordingly to prevent the use of these areas by trade vehicles and to restrict vehicles being used for trade or business, save in very restricted circumstances. The fact that limited exceptions have been granted does not vitiate the validity of the exercise as a whole or render illegitimate an exception granted to one category of hire vehicle of a long established character as opposed to others.
21. Given the limited restriction of the Appellant’s use of his vehicle it does not appear to me to be incompatible with his Convention rights to prohibit his use of the vehicle for trade purposes in these defined areas, even if others operating a different category of hire vehicle are permitted so to use their vehicles.
22. It is not necessary to examine the precise motivation of the Secretary of State in making the exemption for “black cabs”. It would not, however, be unreasonable to suppose that the aim of the trade prohibition was not frustrated by the user by “black cabs”, a traditional feature of the London scene, very different from other trade vehicles. It may also have been thought justified to give leeway to such vehicles whose drivers are obliged to carry passengers seeking their services to any destination within the prescribed area, and are confined to a statutory prescribed fare regime, obligations not owed by drivers of other types of private hire vehicles. For similar reasons it does not seem to me that the prohibition applying to the Appellant (if it truly engages Article 1 of the Protocol) is discriminatory in a manner incompatible with Article 14 of the Convention. The Appellant and the licensed taxi drivers are conducting different business activities.
23. Finally, I do not think that the Regulation, if restrictive at all of the Appellant’s Convention rights, is insufficiently precise to satisfy the Convention concept of certainty. I agree with the submission of Mr Perry, Counsel for the Director of Public Prosecutions, that the law is accessible and of sufficient precision that any person may (with advice, if necessary) anticipate the circumstances in which the prohibition may apply. In many cases, there are circumstances on the borderlines of criminal activity which may give rise to legal argument. As Mr. Perry submitted this was even true in respect of the very basic offence of theft under Section 1 of the Theft Act 1968. Such potential for argument does not, in my view, render a criminal offence insufficiently precise to be compatible with a Convention right of this character.
24. For these reasons, I am unable to accept that this prosecution constituted a breach of Section 6 of the Human Rights Act 1998 and I would dismiss the appeal.

Lord Justice Latham: I agree.