R (Oddy) v Bugbugs Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PITCHFORD |
| Judgment Date | 12 November 2003 |
| Neutral Citation | [2003] EWHC 2865 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3503/2003 |
| Date | 12 November 2003 |
[2003] EWHC 2865 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Pitchford
CO/3503/2003
MR J BARTFELD (instructed by Michael Demidecki Solicitors) appeared on behalf of the CLAIMANT
MR D WOLFE (instructed by Richard Buxton) appeared on behalf of the DEFENDANT
This is an appeal by a private prosecutor from the dismissal by District Judge Sawetz, sitting at Tower Bridge Magistrates' Court on 13th February 2003, of charges against three respondents.
The evidence was agreed. The District Judge found:
"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."
The first respondent, Bugbugs Ltd, faced charges on 12th July 2002 at Blackfriars Road in London, of owning a pedal-powered Bugbugs pedicab which was plying for hire notwithstanding that it was an unlicensed hackney carriage contrary to section 7 of the Metropolitan Public Carriage Act 1869. There were two charges in respect of two separate drivers; that is to say, the second and third respondents.
There were charges, also, against the drivers under section 7, but on the day of the hearing the prosecution did not proceed since it was accepted that a statutory defence would apply to them. They were, however, charged that on 12th July 2002, in a public place, they solicited persons to hire a vehicle, namely a pedal-powered Bugbugs pedicab, to carry those passengers, contrary to section 167 Criminal Justice and Public Order Act 1994.
The second respondent is Mr Navindh Baburam and the third respondent is Mr Slawomir Mlynarski. The District Judge found that upon a correct interpretation of section 7 of the Metropolitan Public Carriage Act 1869, the pedicabs owned by the first respondent, and driven by the second and third respondent, were not hackney carriages within the meaning of the Act. Accordingly, no offence was committed under section 7. As to the charges of offences contrary to section 167 Criminal Justice and Public Order Act 1994, the District Judge found that no soliciting had taken place. Finally, the District Judge ordered the defendant's costs against the prosecutor.
The questions identified by the District Judge for the decision of this court are:
"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."
Section 7 Metropolitan Public Carriage Act 1869 reads as follows:
"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."
A hackney carriage is defined by section 4 as:
"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."
Section 4 also provides:
"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."
Since it was an agreed fact that each pedicab was a carriage which plied for hire, in which passengers were charged to pay separate and distinct fares, the District Judge found it was not a hackney carriage but a stage carriage and therefore excluded from the operation of section 7.
The appellant contends that the term "stage carriage" is indistinguishable from the term "stagecoach", as used in section 38 Town Police Clauses Act 1847 which applied outside London. The Court of Appeal in R v Cambridge City Council ex parte Lane (1999) RTR 1982 found that a vehicle in all relevant respects identical to these pedicabs was not a stagecoach, for the purposes of section 38, but a hackney carriage. By a parity of reasoning, pedicabs could not be stage carriages for the purposes of section 7 of the 1869 Act.
I have been provided with a transcript of the decision in ex parte Lane. Mr Lane called his vehicles "trishaws", described by the Vice Chancellor, at page 2 of the transcript, as a:
" … 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."
Mr Lane asked Cambridge City Council for a licence to run two trishaws for one year. He was to operate along a fixed route, stopping at pre-determined places. Prices to passengers would depend on the length of the journey along the route, both parties proceeding on the footing that Mr Lane was seeking a licence to operate an omnibus.
The Council granted Mr Lane preliminary licences for one vehicle and one driver, himself, for a 6-month trial period. Differences later arose between the Council and Mr Lane as to the operation of the service. The Council published its decision to grant preliminary licences subject to conditions which were objectionable to Mr Lane. The issue before the Court of Appeal was whether the city council had the power to licence the service and to impose the conditions it did. Resolution of the issue turned on the question of whether Mr Lane's vehicles were to be regarded as hackney carriages or as stagecoaches within the meaning of section 38 Town Police Clauses Act 1847 which reads as follows:
"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 decision reached by the court was that the trishaw was a hackney carriage for the purposes of the 1847 Act. Accordingly, it was subject to licence under section 37 of that Act and the City Council had power to impose the conditions it did under sections 47 and 59 of the Local Government (Miscellaneous Provisions) Act 1976. However, the grounds upon which the court concluded that the trishaw was not a stagecoach are not readily ascertainable.
At page 7 of the transcript, page 145 of the appeal bundle, the Vice Chancellor said:
"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...
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