Nottingham City Council v Amin
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE HARRISON |
| Judgment Date | 15 November 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1115-5 |
| Docket Number | CO/3733/99 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 November 1999 |
[1999] EWCA Civ J1115-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice Of England And Wales (lord bingham of cornhill)
and
Mr Justice Harrison
CO/3733/99
MR C LEWIS (instructed by the Legal Services Division, Nottingham City Council) appeared on behalf of THE APPELLANT
MR M BELOFF QC and MISS H MOUNTFIELD (instructed by Messrs Nelsons, Nottingham NG1 7BQ) appeared on behalf of THE RESPONDENT
Monday 15 November 1999
Section 37 of the Town Police Clauses Act 1847 empowers a local authority to license hackney carriages to ply for hire within a specified area. By section 45 of that Act it is an offence for any person to ply for hire with any carriage within the specified area without a licence applicable to that area. These are plainly measures to control and regulate the supply of taxi services to the public. The meaning of "plying for hire" was explained in Nottingham City Council v Woodings [1994] RTR 72, but is not in issue in this appeal.
An information was preferred by the Nottingham City Council against the respondent alleging that on 22 October 1998 he had as the driver of a car registration number G312 BUY plied for hire in Lower Parliament Street, Nottingham, without a licence permitting him to do so, contrary to section 45 of the 1847 Act. That information came before the stipendiary magistrate for Nottinghamshire sitting in Nottingham on 8 July 1999. He dismissed the information on the ground that the evidence against the respondent had to be excluded under section 78 of the Police and Criminal Evidence Act 1984 in the reasonable exercise of his discretion, having regard to decisions of the European Court of Human Rights and the planned implementation of the Human Rights Act 1998 in October 2000. The city council appeal against that decision by case stated.
It is to be observed that the proceedings before the stipendiary magistrate followed a somewhat strange course. Counsel now representing the respective parties were not present at the hearing, but we understand that the solicitor then representing the driver, the present respondent, did at the outset raise an issue with regard to exclusion of the evidence under section 78 and the European Convention on Human Rights. The stipendiary magistrate, however, took the view that those questions were better deferred until the end of the case with the result that the prosecution evidence was called and the witnesses cross-examined. The defendant was called and he was cross-examined. The submission was then made that the evidence which had already been given on behalf of the prosecution should be excluded. Reliance was placed on the European Convention and the matter was adjourned for written submissions, in the light of which the stipendiary magistrate made the decision already mentioned.
The essential question as it seems to me for decision by this court is whether the stipendiary magistrate erred in law in reaching the conclusion which he did. The facts of the case as admitted or found were clear and simple. The respondent was the driver of a licensed taxi from an area adjoining, but not including, the area of the Nottingham City Council. That licensed vehicle was G312 BUY, the subject of the information. On 22 October 1998 the respondent was driving this car in Lower Parliament Street, Nottingham, in the area of the Nottingham City Council in which the vehicle was not licensed. The vehicle was fitted with a roof light which was capable of being lit, but which was not lit up at the time of the relevant encounter. Two special constables in plain clothes flagged the car down and the respondent stopped. The two constables asked the respondent to take them to a specified destination. He agreed and carried them to that destination in the car. On reaching the destination they paid him the fare for the journey, which he accepted. Also at the destination the respondent spoke to two enforcement officers of the Nottingham City Council.
On the stipendiary magistrate's findings there was no evidence to show that the respondent had offended on any earlier occasion or on this particular evening until this event. The stipendiary magistrate described the special constables as "agents provocateurs", but in my judgment that is to treat as a primary fact a judgmental issue at the heart of the case.
The respondent gave evidence at the trial and said that he had been under a mistake when he picked up the passengers, but the stipendiary magistrate rejected that evidence. He found that there was no conversation in which the respondent had asked the officers for identification and that he had not in the course of that conversation suggested that he was in the city to collect a pre-arranged fare. The magistrate found that the respondent's spoken English was not good, but that his understanding was better, and that there had been no misunderstanding when he had accepted the passengers. The magistrate rejected the evidence of the respondent when it conflicted with that of the constables.
Thus, in a nutshell, the respondent was driving in the middle of Nottingham a car which was licensed as a taxi, but not for that area. Two pedestrians hailed him. He stopped, picked them up and carried them for a fare to their destination. The stipendiary magistrate was in the event left with no explanation why the respondent was in the middle of Nottingham in the car, where he was coming from or where he was going, and there was no explanation which the magistrate accepted as to why the respondent had picked up the passengers when he was not licensed to do so. There was, however, no evidence of any pressure exerted by the constables or any persuasion of the respondent, and he was not wheedled into doing what he did.
In paragraph 6 of the case stated the magistrate said:
"I was of opinion that:-
(a) based on my findings of fact, there could be no question of the Respondent being in any misunderstanding as to the circumstances in which he accepted the two fares as passengers. As his evidence was not believed, there was no basis of fact upon which he could be acquitted."
There are further expressions of opinion, culminating in:
"(f) Accordingly, I concluded that the evidence of the special police constables must be excluded by Section 78 of the Police and Criminal Evidence Act 1984 in my discretion reasonably exercised having regard to decisions of the European Court and the planned implementation of the Human Rights Act in October 2000…."
In their approach to this case the parties have found significant common ground. It is, first, common ground between them that entrapment is not a defence to a criminal charge in England and Wales. The authority for that is the well-known decision of the House of Lord in R v Sang [1980] AC 402. It is furthermore, however, common ground that the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to refuse to allow evidence to be given on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It is plain from that provision that, in exercising its discretion, the court has to make a judgment whether the admission of the evidence would render the trial unfair. If the court concludes that the admission of the evidence will render the trial unfair, it will exclude it. If it concludes that it will not have that adverse effect, then it is likely to allow the evidence to be admitted. If the case is near the borderline then the court has to exercise a judgment, taking account of all the relevant circumstances of the case. Although at the time when R v Sang was decided section 78 of the 1984 Act had not been passed, it is important to note nevertheless that all members of the House of Lords, as one would expect, accepted that a trial judge was empowered to rule against the admission of evidence if the effect of admitting it would be to render a trial unfair.
Our attention has been crucially drawn to Article 6 of the European Convention on Human Rights. It is unnecessary in my judgment to cite the terms of that familiar article. It is directed to ensuring that a defendant has the benefit of a fair trial and the European Court has on more than one occasion emphasised that it is the fairness of the whole proceedings which must be looked at and not the fairness of any subordinate procedure in isolation.
There have been a series of cases in this country where the commission of a crime has involved the participation not only of the party charged as a defendant but also of the person acting in a law enforcement role. Such a situation can give rise to difficult questions concerning the reception of evidence, in particular questions as to whether it would be fair or unfair to the defendant if such evidence were admitted. It seems to me that the court has adopted a fairly consistent line. On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been...
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