Dudley Metropolitan Borough Council v Arif
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson,MR JUSTICE BEATSON,MR DE MELLO,MR MILLS |
| Judgment Date | 01 December 2011 |
| Neutral Citation | [2011] EWHC 3880 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7133/2011 |
| Date | 01 December 2011 |
[2011] EWHC 3880 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
3. Bull Street
Birmingham
B4 6DS
The Honourable Mr Justice Beatson
Case No: CO/7133/2011
Mr Mills (instructed by Dudley MBC) appeared on behalf of the Claimant.
Mr De Mello (instructed by McGrath & Co Sols) appeared on behalf of the Defendant.
(As Approved)
1. This is an appeal by way of case stated pursuant to section 11 of the Magistrates Court Act 1980 by Dudley Metropolitan Borough Council, the licensing authority, against the decision of the Sandwell Magistrates Court on 6 May 2011 dismissing charges brought against the respondent, Mohammed Arif, a private hire vehicle driver.
2. The issue is as follows., A private hire vehicle is booked at a specified time to take a person from a specified place to an identified destination. The driver is then approached at that place by a person of the same gender as the booked person soon after the specified time and asked if the driver could take her to the specified place. The driver does so without asking for her identity. The person carried was not the person who was booked. Is the driver guilty of the offence of plying for hire contrary to section 45 of the Town and Police Clauses Act 1845 and the consequential offence under section 143 of the Road Traffic Act 1988 of driving without insurance? The magistrates decided that the driver was, on the facts before them, not guilty, and dismissed the information laid against the respondent by the council.
3. Section 45 of the Town and Police Clauses Act 1845 provides :
If the proprietor… of any carriage….permits the same to be used as a hackney carriage plying for hire within the [local authority's area) without having obtained a licence as aforesaid for such carriage…or if any person be found driving, standing, or plying for hire with any carriage within the [local authority's area] to which such licence …has not been previously obtained…every such person so offending shall…be liable to a penalty.”
4. The condition of the respondent's license as a private hire vehicle driver states: “The holder of this licence shall not, whilst driving or in charge of a private hire car (a) stand or ply for hire or solicit on or in a road or any public place any person to hire or be carried for hire in any private hire car… (c) accept an offer for the minimum hire of any private hire,” or cause or procure others to do so.
5. The facts in the case stated are as follows. References are to either the paragraph numbers or the page numbers. On 13 February 2010 the respondent was working as a taxi driver for ABC Taxis (paragraph 1(c)). He was using his father in law's vehicle, which had a private hire licence plate. It was insured. He was insured for its use in connection with private hire business only. After midnight on the night in question he was outside the Showcase Cinema in Dudley when he was approached by two of the council's female licensing investigators. One of them asked the respondent to take them to a location at Kingswinford (page 2). The respondent nodded, did not ask his interlocutor for her name or if she had booked the taxi and took her and her companion to the destination and charged the £10.00 fare. During the journey he radioed his base and said “3 POB”. It was accepted that this meant car 3, his driver number with ABC taxis that day, and that there were passengers on board.
6. On 16 February a licensing enforcement officer attended the offices of ABC Taxis and obtained the booking records for 13 February. There was an entry for a booking at 12.20 am with a pick-up point of “Showcase” and a destination of Kingswinford. The name of the passenger was Jenny and the driver number was 3. Later that day a letter was sent by the appellant to ABC Taxis informing them that an allegation had been made of a private hire driver plying for trade. The respondent was then interviewed by the enforcement officer. This occurred on 3 March. The respondent stated that the fare was pre-booked but conceded that he had not asked for the passengers' details.
7. The magistrates heard evidence from Kelly Mullings and Sarah McKeown, the two investigators who approached the vehicle that night. Michael Massingham, the licensing officer who visited ABC Taxis and interviewed the respondent, Thomas Trickett, an enforcement officer who provided evidence in connection with the respondent's private hire license and its conditions, and a respondent who gave his evidence with the assistance of an Urdu interpreter.
8. The magistrates were referred to the decision in Nottingham City Council v Woodings [1994] RTR 72 QBD, Divisional Court, 22 February 1993. After referring to the conditions laid down in that case for a court to be satisfied that a person was plying for hire, they stated in paragraph 4:
“The facts that the respondent has radioed to his base to inform it that he had picked up his fare demonstrates that [plying for hire] was not the respondent's objective.”
and this evidence:
“…also confirmed that the respondent was complying with the conditions of the private hire license.”
because:
“If the respondent had been plying for hire by radioing his base to confirm passengers were on board he would be alerting his employers to the fact that he was committing the offence.”
The case stated continued:
“This action simply confirmed the respondent's intention to confirm the conveyance of the passengers in accordance with the pre-booking.”
9. As to the respondent's failure to ascertain the passengers' details, the case stated noted that the relevant part of the license did not require this and that:
“The respondent was acting within the conditions of that licence as the fare had been communicated by radio or telephone.”
It is also stated that:
“The fact that he had assumed that these were his passengers does not make him guilty of the offence.”
10. In concluding that the respondent was not plying for hire the magistrates also took into account (paragraph 6) the booking records of ABC Taxis, evidence they heard that there were no other persons present at the scene and no evidence to indicate that the respondent expressly indicated that his vehicle was “free”. They stated that it was their opinion that:
“…given the circumstances in which Mohammed Arif was approached by Sarah McKeown and Karen Mullings it was reasonable for him to assume that this was the fare that had been booked. It would be unreasonable to expect Mohammed Arif to have made further inquiry of the identity of the fares given that their request matched the booking he…was required [sic] to collect only five minutes earlier.”
11. The question for the opinion of this court is:
“As a matter of law, were the magistrates right to come to the conclusion that the respondent was not plying for hire given the evidence that they heard and the principles set out in the case of Nottingham City Council v Woodings [1994] RTR 72?”
12. Mr Mills presented the case of the appellant council succinctly and clearly. He submitted that decision of the magistrates was wrong on two grounds. The first was, and I quote from his written submissions which he elaborated orally and in part in answer to questions:
“Their decision could only have been arrived at on the basis that they concluded that the respondent had made a mistake of fact as to who he was picking up. ‘Mistake’ is not a defence to this offence.”
The second ground is that:
“On the facts of the case the conclusion that it would have been unreasonable to expect Mohammed Arif to have made further inquiry of the identity of the fare, was one which no reasonable magistrates' court would have arrived at. That conclusion underpinned their ultimate decision.”
13. Mr Mills submitted that it is trite law that section 45 is a strict liability offence. He relied on the absence of any reference to mens rea in section 45 by contrast with other offences under the Act such as that in section 35, which uses the word “knowingly”. He relied on a number of decisions, in particular Cogley v Sherwood [1959] 2 QB 311 and Nottingham City Council v Woodings.
14. He also relied on Sweet v Parsley [1970] AC 132 for the proposition that the strong presumption that mens rea is an essential ingredient of every offence does not apply to acts which are not criminal in any real sense but are acts prohibited under a penalty in the public interest sometimes termed “regulatory” offences and on the more recent decision of the Court of Appeal Criminal Division in R v Muhamad [2002] EWCA Crim 1856 [2003] QB 1031.
15. In Muhamad's case Dyson LJ gave the judgment of the court. He stated (at [14] – [16]) in relation to an offence under section 362 of the Insolvency Act 1986 for which the maximum sentence was two years imprisonment, that in considering the strength of the presumption and whether it would be rebutted one has to have regard to the seriousness of the offence. “[T]he more serious the offence, the greater is the weight that is to be attached to the presumption”. Of the offence under section 362, the court (at [16]) stated that the two year maximum sentence indicated “Parliament considered this to be an offence of some significance, but not one of the utmost seriousness.”
16. The court also stated that indication was not surprising because it did not believe that great stigma attached to a conviction. In those circumstances it was not a particularly serious offence and,...
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