QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ROBERT DAVID ODDY||(CLAIMANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D WOLFE (instructed by Richard Buxton) appeared on behalf of the DEFENDANT
Crown Copyright ©
"1.3 'Bugbugs Ltd' (1st Respondent) owns a number of bicycle rickshaws referred to as pedicabs which are non-motorised and propelled by pedal power.
"1.4 Bugbugs hired pedicabs to Mr Baburam (2nd Respondent) and Mr Mlynarski (3rd Respondent), the drivers.
"1.5 On the 12th July 2002 the drivers were each hailed on separate occasions by the prosecution witnesses and by request transported those passengers on a journey. In responding as they did to the hailing, the drivers acted in the same way that a hackney carriage driver would act (in that drivers simply responded to a hail from a member of the public who was on the pavement while they were riding along the road, pulled up and discussed the matter with the potential passenger) except that the drivers charged each passenger a separate and distinct fare which was collected at the end of the journey."
"1) Whether I was correct in law in ruling that the pedicabs operated by the Defendants should be classified as 'Stage Carriages' rather than 'Hackney Carriages' for the purposes of the Metropolitan Carriage Act 1869.
"2) Whether I was correct in ruling that I was not bound by the principles laid down in R v Cambridge City Council ex parte Lane (1999) RTR 1982 (Transcript FC3 98/6268/4 CA 13/7/99) and/or correct in ruling that those principles should not apply equally to the Metropolitan Public Carriage Act 1869 as the Town Police Clauses Act 1847.
"3) Whether I was correct in holding that the drivers were not 'soliciting' within the meaning of section 167 of the Criminal Justice and Public Order Act.
"4) Whether I was entitled in law to hold that, in the circumstances, costs could properly be awarded against the prosecutor rather than from Central Funds."
"If any unlicensed hackney . . . carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding five pounds for every day during which such unlicensed carriage plies. And if any unlicensed hackney carriage is found on any stand within the limits of this Act, the owner of such carriage shall be liable to a penalty not exceeding five pounds for each time it is so found. The driver also shall in every such case be liable to a like penalty unless he proves that he was ignorant of the fact of the carriage being an unlicensed carriage.
"Any hackney . . . carriage plying for hire, and any hackney carriage found on any stand without having such distinguishing mark, or being otherwise distinguished in such manner as may for the time being be prescribed . . ., shall be deemed to be an unlicensed carriage."
"Any carriage for the conveyance of passengers which plies for hire within the limits of this Act and is neither a stage carriage nor a tram car."
"In this Act 'stage carriage' shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road or place within the limits of this Act and in which the passengers, or any of them, are charged to pay separate and distinct or at the rate of separate and distinct fares for their respective places or seats therein."
" . . . cross between a rickshaw and a bicycle and a tricycle. Like a tricycle, it has three wheels; a single front wheel and two rear wheels. Over the rear wheels, a compartment in which the passengers may sit is suspended. The vehicle is an adaptation of a rickshaw replacing the individual running on the ground and pulling the vehicle with an individual using cycle technique to provide the power for propelling the vehicle."
"Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance, having thereon any numbered plate required by this or the special Act to be fixed upon a hackney carriage, or having thereon any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of this Act; and in all proceedings at law or otherwise the term 'hackney carriage' shall be sufficient to describe any such carriage: Provided always, that no stagecoach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, and duly licensed for that purpose, and having thereon the proper numbered plates required by law to be placed on such stagecoaches, shall be deemed to be a hackney carriage within the meaning of this Act."
"The question arises in this appeal (in any event it may be the critical question) whether, within the meaning of the language used in the 1847 Act, Mr Lane's trishaws can be regarded as 'stagecoaches'. One only has to put that question to have an almost irresistible urge to start laughing. Whatever one may envisage as a stagecoach, it will be a long way removed from Mr Lane's trishaws. But Miss Baxendale has asked us to concentrate, not on the concept of the stagecoach, but rather on the part of the proviso that refers to passengers being carried 'for hire at separate fares'. She says that, if a wheeled vehicle is standing or plying for passengers to be carried for hire at separate fares, it is within the proviso, and therefore excluded from the regime of the 1847 Act, whether or not it is what one would have in mind as a stagecoach. I will come back to this question after I have described the other relevant statutory provisions".
"I am unable to accept that Mr Lane's trishaws are stagecoaches for the purpose of this proviso. I accept for present purposes that his trishaws may be vehicles 'standing or plying for passengers to be carried for hire at separate fares'. I would simply say of that that the evidence is not very satisfactory. That may be because attention was not paid to this point at the time that the evidence was originally being prepared. But accepting in Mr Lane's favour that his trishaws are vehicles standing or plying for passengers to be carried for hire at separate fares, they are not, in my judgment, stagecoaches. The approach which Miss Baxendale urged on us was that 'stagecoach' should be treated as covering every wheeled carriage, of whatever character, used for the specified purpose, namely, carriage for hire at separate fares. I am unable to accept that. If that was what Parliament meant, there was no reason why Parliament should in the proviso have singled out stagecoaches from other wheeled carriages referred to in the 'hackney carriage' definition. I remain of the view that I formed on a preliminary footing when I first read section 38, that, whatever a 'stagecoach' might include, it did not include a trishaw, the combination of rickshaw and tricycle, which is the vehicle by means of which Mr Lane desires to offer the service to the public in Cambridge. Nor, for that matter, would a rickshaw be a 'stagecoach'."
"No hackney carriage shall ply for hire within the limits of this Act unless under the charge of a driver, having a licence from the Secretary of State. No stage carriage shall ply for hire within the limits of this Act unless the conductor and driver of such carriage have, respectively, licences from the Secretary of State . . . "
"One of Her Majesty's principle Secretaries of State with the power to license both hackney and stage carriages 'to be distinguished in such manner as he may, by order, prescribe'."
"(1) Subject to the following provisions, it is an offence, in a public place, to solicit persons to hire vehicles to carry them as passengers.
"(2) Subsection (1) above does not imply that the soliciting must refer to any particular vehicle nor is the mere display of a sign on a vehicle that the vehicle is for hire soliciting within that subsection.
"(3) No offence is committed under this section where soliciting persons to hire licensed taxis is permitted by a scheme under section 10 of the Transport Act 1985 (schemes for shared taxis) whether or not supplemented by provision made under section 13 of that Act (modifications of the taxi code).
"(4) It is a defence for the accused to show that he was soliciting for [passengers to be carried at separate fares by public service vehicles] on behalf of the holder of a PSV operator's licence for those vehicles whose authority he had at the time of the alleged offence.
"(5) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
"(6) In this section --
'public place includes any highway and any other premises or place to which at the material time the public have or are permitted to have access (whether on payment or otherwise); and
'public service vehicle' and 'PSV operator's licence' have the same meaning as in Part II of the Public Passenger Vehicles Act 1981."
"It shall be an offence for a common prostitute to loiter or solicit in a street or other public place for the purpose of prostitution."
"In my judgment the facts here are conclusive against the defendant, and, as I see them, in the light of the law which is to be applied to them, there is but one answer. This young woman, sitting on a stool scantily clad, in a window bathed in red light and in an area where prostitutes were sought, might just as well have had at her feet an advertisement saying 'I am a prostitute. I am ready and willing to give the service of a prostitute and my premises are now available for that purpose.' It is clear, in my judgment, that she was soliciting in the sense of tempting or alluring prospective customers to come in for the purpose of prostitution and projecting her solicitation to passers-by."
"(1) Ask for or try to obtain (something) from someone. Ask for something from. (2) Accost someone and offer one's or someone else's services as a prostitute."
"We parked and went to Blackfriars Road. Richard Massett and I waited on the pavement on the west side of Blackfriars Road, adjacent to the northbound carriageway, close to the junction with Stamford Street. Steve McNamara stood behind us by the side of a bus shelter, from which position I knew he would be filming with a video camera. Within a few minutes of our arrival in Blackfriars Road, a Bugbugs pedicab approached from the direction of Chancel Street. I put my hand out in the manner one would do when hiring a taxi. The rider, a man, stopped the pedicab and Richard asked him if he was for hire. He said he was. I asked if he would take us to Waterloo Station and he agreed to do so."
"Steve McNamara and I waited for some time. Another pedicab came by. Steve put his hand up to hail it in the manner one would hail a taxi. The pedicab, ridden by a man, coming from the direction of Chancel Street, stopped. I asked the man if he was for hire and he said he was. I believe it was Steve who asked if he would take us to Waterloo. He agreed and said it would be £2.50 each. We got in and the rider took us south along Blackfriars Road, turning left into Stamford Street. On the way, he stopped, at our request, by a shop. I stayed on the vehicle and Steve McNamara went into the shop. I engaged the rider in conversation. Amongst other things, I asked him if he owned the bike. He said he didn't and that it was owned by Bugbugs."
"I entirely agree that it is necessary for the prosecution to establish that the defendant, of whom it is said he has been soliciting a prostitute, had given some positive indication, by physical action or words, to the prostitute that he requires her services."
"I found that the drivers were not soliciting for the following reasons:
"i) The Statute does not provide a definition of soliciting.
"ii) The dictionary definition is ' . . . ask for or try to obtain . . . from someone . . . ask for something from. 2) Accost someone'.
"iii) The pedicab drivers according to their own evidence, the evidence of Mr Oddy and the video did nothing to actively invite passengers and, as above, acted as would a licensed hackney carriage driver in responding to a hail from a member of public.
"iv) The case of Behrendt v Burridge (1976) 63 Cr App R 202 is not applicable. The decision therein related to the Street Offences Act 1959 and the issue was one of soliciting for the purposes of prostitution, an entirely different set of facts and law."
"8.1 At the conclusion of the proceedings I ordered the Appellant to pay Bugbugs Ltd's costs and the costs of Counsel for all the Respondents to be taxed and paid by the Appellant in accordance with Regulations made under Sections 19, 19A and 20 of the Prosecution of Offences Act 1985. The Appellant accepted that I had the power to make such an Order.
"8.2 I found that costs had been incurred as a result of an unnecessary or improper act or omission by the Appellant.
"8.3 The facts of this case and the issues raised were materially identical to those previously raised before the then Metropolitan Stipendiary Magistrate, Mr C Pratt on the 6th December 1999 in a prosecution brought by the Crown against Alan Joseph Begg in the Bow Street Magistrates' Court.
"8.4 Mr Pratt found that the trishaw in that case brought under section 7 of the Metropolitan Carriage Act 1869 was not a hackney Carriage.
"8.5 He gave a written decision and reasons clearly indicating why he did not find in favour of the Prosecution and why he did not feel bound by the Cambridge case.
"8.6 No challenge to this decision was mounted in any Higher Court by the Crown Prosecution Service. No attempt was made by Mr Oddy or the Licensed Taxi Drivers' Association to take over the Prosecution or otherwise seek the appropriate remedy so as to challenge Mr Pratt's findings of law.
"8.7 This failure to do so and the decision of the Appellant to pursue in the main identical issues based on identical facts through the Magistrates' Court was in effect a re-hearing. I felt that the costs should therefore be paid by the Appellant as opposed to Central Funds."
"Subject to the provisions of this regulation, where at any time during criminal proceedings (a) the Magistrates' Court is satisfied that costs have been incurred in respect of the proceedings by one of the parties, as a result of an unnecessary or improper act or omission by or on behalf of another party to the proceedings, the court may, after hearing the parties, award that all or part of the costs incurred by that party shall be paid by the other party."