Oddy, R (on the application of) v Bugbugs Ltd.

MR JUSTICE PITCHFORD: 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:

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:

Section 7 Metropolitan Public Carriage Act 1869 reads as follows:

A hackney carriage is defined by section 4 as:

Section 4 also provides:

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:

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:

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:

Having reviewed successive and interrelated statutory provisions, the Vice Chancellor continued at page 13 of the transcript, page 151 of the appeal bundle:

The court seems to proceed upon the basis that the very idea that a three-wheeled carriage propelled by foot-operated pedals should be a stagecoach was ludicrous. The question for me is whether the District Judge and this court are bound to apply that construction of section 38 to the terms of sections 4 and 7 of the Act of 1869.

The District Judge found that the Court of Appeal's judgment was confined to the operation of the proviso of section 38 of the 1847 Act. Unlike section 4 of the 1869 Act, section 38 did not attempt to define the term "stagecoach". It was open to the court in ex parte Lane to reach its own conclusion: what nature of vehicle was contemplated by the term "stagecoach". In section 4 of the 1869 Act, a stage carriage was defined to mean any carriage for the conveyance of passengers which, (1) plied for hire in London, (2) in which passengers were separately charged. In other words, in connection with section 4 of the 1869 Act, Parliament was doing what the Vice Chancellor would have required before he regarded section 38 as a definition section, as submitted by counsel in that appeal.

Mr Robert Francis QC, for the Appellant, submitted that it was improbable that Parliament intended one regime in London and another outside London. He demands that pedicabs should be treated in the same way as Mr Lane's trishaw. If it were so treated, then it would have been subject to the licensing provisions for hackney carriages, and offences under section 7 were committed. Were the District Judge's view to be preferred, there would be no regulatory or licensing system applying to pedicabs. That would be an undesirable result of the construction of sections 4 and 7.

I should explain in this context that there is legislation regulating the use of public service vehicles and private hire vehicles but that legislation relates only to mechanically propelled and motorised vehicles, not manually propelled, such as a pedicab.

In this case, the pedicabs were not even travelling along a pre-determined route and stopping at fixed stages. Parliament submits Mr Francis must have intended the word "stage" to carry some meaning. Since the 1869 Act did not otherwise define it, the court is free to apply, and should apply, the meaning adopted in ex parte Lane. Section 4 should be read as if the word "such" or "stage" was inserted in the opening line so that section 4 would provide, "in this act 'stage carriage' shall mean any stage carriage for the conveyance of passengers," and so on.

"Stage", submits Mr Francis, must mean at least that the vehicle makes stops along a pre-determined route. There is some support for Mr Francis' view what was in the 19th century generally understood by a stage carriage or stagecoach. It appears in section 8, to which I shall come in a moment. By adopting this purposive approach, the respondent's pedicabs would be excluded from the definition of stage carriage and subject to licensing as a hackney carriage. I have been provided, by Mr Wolfe, with a copy of the 1869 Act in the terms in which it was originally enacted. It is now almost unrecognisable following several amendments and repeals. Section 8 of the Act provided:

The latest amendment to section 8 was made by the Greater London Authority Act 1999, the effect of which is that the drivers of hackney carriages shall be licensed by transport from London. The licence may be granted on conditions. There is no equivalent provision for stage carriages.

The explanation for this is that stage carriages commonly were the forerunner of the modern omnibus which is, in later legislation, treated as a public service vehicle. However, that legislation, as I have said, applies to motorised vehicles, which the pedicab does not.

I think Mr Francis is right. What was generally understood as a stagecoach or stage carriage was a vehicle making stops and picking up and dropping passengers at predetermined places along a predetermined route. That is not what these respondents were doing. The question for me, however, is whether the exercise conducted by the Court of Appeal in ex parte Lane is open to me, given the different terms of the Acts concerned, or whether I am bound by the Court of Appeal's decision to exclude the pedicab from the definition of "stage carriage".

In the result, I cannot accept Mr Francis' argument. It seems to me that the insertion of the word "stage" amounts to a rewriting of the definition. I cannot assume the legislative intention he advances. It has not been demonstrated to me that the legislative purpose was to define stage carriages as any carriage which stopped at stages and plied for hire and charged passengers separate fares. The Act originally enacted, provided by section 6:

No such regulations have been drawn to my attention. Section 6 continued to provide that a licence for either vehicle might be subject to condition, granted for a fee and transferred to a next of kin. As originally enacted, section 7 created an offence, "If any licensed or stage carriage plies for hire." Section 8, as I have said, required any conductor and driver of a carriage to obtain licences from the Secretary of State. By section 9, the Secretary of State could make regulations both for hackney and stage carriages.

It seems to me that the language used demonstrates only an intention by Parliament to distinguish between the hire of a carriage, whatever the number of passengers up to the regulatory limit, and a carriage on which a fare was paid to the driver or conductor by passengers each paying separately. There is no indication in the statutory language that Parliament intended to exclude from the definition of stage carriage any vehicle which did not have predetermined stage stops.

Section 8 of the Act did not, in the original, provide that every stage carriage shall have a driver and a conductor, only that the conductor and driver of such a carriage shall be licensed. Had a stage carriage not carried a conductor, it does not seem to me that what would otherwise have been a stage carriage within the meaning of section 4, ceased to be so. Furthermore, as I have observed, the provisions relating to conductors and drivers of stage carriages in the Act have been repealed and replaced only by provisions concerning hackney carriages. In fact, all consequential references to stage carriages have been repealed.

Nevertheless, the definitions of hackney carriage and stage carriage have been left entirely untouched, save that in 1992 the Transport and Works Act added the exclusion of tramcar from the definition of hackney carriage. Interestingly, the word tramcar was not, itself, defined.

I consider section 4 to be a deeming provision which caught and still catches all carriages falling within its terms. It seems to me that since it was an agreed fact that pedicab passengers, if there was more than one, were charged a separate fare, then, strange as it may appear, pedicabs fall within the deeming provision. Mr Francis suggests the fare scheme was a sham to overcome the legislation. It may be that the fare scheme was deliberately adopted to avoid the licensing provision for hackney carriages but that fact does not, in my view, render the definition of a stage carriage inapplicable to this vehicle.

While the draughtsman may not have contemplated a vehicle such as this, nor operating procedures such as those of the respondent, I conclude that the District Judge was right to find as she did. It seems to me that ex parte Lane has no application to sections 4 and 7 of the 1869 Act and the District Judge was right to make that finding. Accordingly, I would answer the District Judge's first two questions in the affirmative.

I recognise that the consequence of this decision is that the pedicab plying for hire in London is subject to no licensing regime. That may be regarded as an unwelcome consequence. The first respondent has submitted to the London Public Carriage Office a draft strategy for pedicab regulation and it is anticipated that a scheme will be prepared within the next few months. I comment only that unless my decision is wrong in law, primary legislation will probably be required.

Section 167 Criminal Justice and Public Order Act 1994 provides as follows:

The appellant's case before the District Judge was that the mere appearance of the pedicab constituted an invitation to hire; as such, custom was being solicited. He relied upon the decision of this court in Behrendt v Burridge63 Criminal Appeal Courts 202. There the prosecutor charged the defendant with an offence contrary to section 1 of the Street Offences Act 1959 which provided:

The defendant, a prostitute wearing clothing which, by the standard of 1976, was revealing, sat silent and motionless behind a bay window, illuminated by a red light, to advertise her services as a prostitute. The Divisional Court held that she was soliciting, in the sense of tempting or alluring prospective customers to visit her for the purposes of prostitution. No movement, signal or words were required. In giving the leading judgment of the court, Mr Justice Boreham said:

Further authorities upon the meaning of soliciting, within the context of section 1(1) Street Offences Act 1959 and section 32 Sexual Offences Act 1956 were drawn to my attention. It was the prostitute who was guilty of soliciting by his or her physical presence. It was not enough for a written advertisement to be placed by him or her, or on their behalf, in a public place. (See Weitz and AnothervMonaghan [1962] WLR 262 and Burge v Director of Public Prosecutions [1962] WLR 265).

The respondents' argument before the District Judge was that the terms of section 167(2) of the 1994 Act were critical. The mere display of a sign on the vehicle that the vehicle is for hire does not amount to soliciting. In the context of this legislation, advertisement on the vehicle itself is not soliciting. If, by the mere presence and availability for hire of the conveyance, the pedicab operator was soliciting within the meaning of section 167(1), then so must a licensed cab, since that is exactly what a licensed cab does. On the contrary, submitted Mr Wolfe, Parliament specifically exempted from consideration signs specifying availability for hire. It cannot have been the intention of Parliament that the other distinguishing features of the cab, such as its shape, colour and size, constituted soliciting.

Mr Francis recognised the problem with the application of Behrendt v Burridge to the context of taxi cabs. He made two distinctions between the hackney cab and the pedicab. First, the taxicab, subject to limited exception, was obliged by the terms of its licence to carry the passenger where he wanted to go. The pedicab, being unlicensed, had no such obligation. The driver could accept or refuse the fare. Second, the taxicab is licensed and a pedicab is not.

Mr Francis submitted, boldly, that section 167 has no application to the activities of licensed cab drivers. Accordingly, construction of the word "solicit" cannot be affected by the activities of such cab drivers. He relies, first, on section 167(3). Mr Francis suggests that subsection (3) demonstrates an intention that licensed taxi drivers should not be penalised for performing their ordinary functions. I do not see how that submission supports the appellant's case. On the contrary, I would have thought the draughtsman found it necessary to include it to express exclusions in subsections (2) and (3), which otherwise might have attributed to a conclusion of soliciting.

The inference is that none of the other features of a London cab and its normal work could, alone, amount to soliciting. In other words, being in the street waiting to be paid was not regarded by the draughtsman as soliciting. Had it been, then given the intention behind subsection (2), at least it, too, would have been excluded. Mr Wolfe submitted that there is no justification for the assertion that black cabs are excluded from the generality of section 167. I agree. Black cab drivers are, subject to the exceptions, just as capable of committing the offence of soliciting as any other driver, licensed or unlicensed.

Mr Francis referred me to extracts at pages 236 and 238 of the appeal bundle. He wished me to draw from the statements of Ministers a conclusion that section 167 was aimed only at unlicensed taxi drivers. As I read the passage, what was aimed at was touting by the unscrupulous, particularly at London stations and Heathrow. The government recognised the current touting problem was created by the drivers of unlicensed cabs. It is not the case, in my judgment, that Parliament had any intention of exempting licensed cab drivers altogether. In my view, had that been the intention then Parliament would undoubtedly have said so.

The Oxford English Dictionary describes the meaning of "solicit" as:

Mr Francis argues that by a combination of actions and words, the second and third respondents did ask for or try to obtain from someone. The evidence of what they did was agreed. Mr Oddy described the first transaction with Mr Mlynarski as follows:

An hour and a half later, Mr Oddy and his colleagues were back at Blackfriars Road. The second incident is described by Mr Richard Massett:

Mr Wolfe has provided for me a copy of the Stroud Judicial Dictionary meaning of the word "solicit". In it is cited the decision of this court in Darroch v The Director of Public Prosecution[1990] 91 Cr App R 378 in which Behrendt v Burridge was relied on by the prosecutor. The appellant was charged with persistently soliciting a woman for the purposes of prostitution, contrary to section 2, subsection 1 of the Sexual Offences Act 1985. He was observed on several occasions driving his car slowly around a red light district. On one occasion he beckoned a woman towards him. As he was driving with the woman in his car, he was stopped and arrested. He was convicted by the Justices and appealed.

The court found that in order to be persistent, at least two acts of soliciting were required. One of the acts relied upon was the beckoning of the woman to the car. The court found that the Justices were fully entitled to regard that as an act of soliciting. As to cruising in a motor vehicle, however, Watkins LJ said at page 383 of the report:

It seems to me that subject to the exception specifically provided by section 167 of the 1994 Act, what may amount to soliciting would depend upon the circumstances under consideration. Whether an activity proved against a defendant amounts to a request to another, will depend upon the nature of the activity proved and the circumstances in which the activity took place. In Behrendt, the appearance of the woman amounted to an invitation; in Darroch, cruising in a red light district, alone, did not.

My attention has been drawn to cases on the meaning of plying for hire. The term appears particularly in the context of plying for hire without a licence. It is apparent that the term "plying for hire" may include soliciting, but soliciting is not required before a carriage is plying for hire. It can be plying for hire merely to wait in the street, available to passengers (see Sales v Lake [1922] 1KB 553 at pages 557 to 558). Later cases suggest that it is the exhibition of the vehicle for hire through the agency of the driver which is the essence of the offence of plying for hire, unlicensed, under section 7 Metropolitan Police Public Carriage Act 1869 (see Cogley v Sherwood [1959] WLR 781 and Nottingham City Council v Wooding [1994] RTR 72).

I do not consider, in the light of these authorities, that the terms "plying for hire" and "soliciting" are co-terminous. This, in my view, serves to demonstrate that the draughtsman of section 167 of the 1994 Act had in mind something more than the presence of a vehicle in the street. The District Judge concluded:

In my view, the District Judge was right. What was required to establish soliciting in this context was some form of invitation to a prospective hirer. There was none. Only when hailed by Mr Oddy and Mr Massett did the drivers indicate they were available for hire. At that moment it is possible to conclude that the driver was plying his pedicab for hire but not, in my view, that he was soliciting custom. This conclusion may be tested by further reference to the facts in Darroch. Had the driver been stopped by the prostitute who offered him her services, would the driver, by accepting that offer, have been soliciting her services? I think not. I would answer the District Judge's third question in the affirmative.

At the conclusion of the hearing, the respondents asked for their costs. The District Judge decided as follows:

It was, indeed, the appellant's position that the District Judge had jurisdiction to make an award of costs against the prosecutor, pursuant to the costs in Criminal Cases (General) Regulations 1986 of which regulation 3, paragraph 1(a) provides as follows:

"Improper" does not mean morally reprehensible but improper in the sense of an act or omission which would not have occurred if the party concerned had conducted his case properly (see Director of Public Prosecutions v Denham and Another [1991] 3 WLR 235 at page 243). Mr Francis candidly informed me that the appellant's Association, having observed in court during the hearing before Mr Pratt, made no effort to encourage or to take over the case for the purposes of an appeal. Indeed, no contact at all was made with the prosecutor, which was the Crown Prosecution Service, either at that time or before this prosecution was launched.

Mr Francis advanced two preliminary points. First, there had, before Mr Pratt, been no charge of soliciting; second, the regulation did not envisage the order of costs against the party on the grounds that the prosecution should never have taken place. In my judgment, the second point does not start. The words of the regulation manifestly do apply to an unnecessary or improper act or omission at any stage of the proceedings. It is difficult to envisage a more obvious occasion for the award of costs that than an improper decision to prosecute.

As to the first point, the award was made on the footing that the principal issue between the parties was the liability of the pedicab for licensing as a hackney carriage. That, in my view, was a realistic approach. It is difficult to envisage a prosecution being advanced under section 167 alone when the prosecutor was content to accept the drivers had available the statutory defence to the charge under section 7 of the 1869 Act, and when it was the prosecutor's own evidence that the drivers had done nothing to draw themselves to the attention of Mr Oddy and his colleagues.

Mr Francis advanced reasons why the District Judge may have come to a different conclusion but none of them, in my view, come near to demonstrating an error of law or perversity. I consider that the District Judge was entitled to make the order she did and I would answer her fourth question also in the affirmative. For these reasons, the appeal must be dismissed.

MR WOLFE: My Lord, can I then ask for an order that the appellant pay the costs of the respondent. The individuals are both subjects of Legal Aid so I would simply, in their case, ask my Lord for (Inaudible). That is not the case with the company Bugbugs. In the case of them, they are funding their own position. I would ask for the usual; the losing appellant pay their costs. I am tempted to ask my Lord to undertake a summary assessment. I will happily embark upon submissions in relation to it but I envisage my Lord may not --

MR JUSTICE PITCHFORD: Why should the individual respondents not get their costs?

THE CLERK OF THE COURT: They actually have a representation order.

MR WOLFE: My Lord, on that point, I am happy to ask that all three respondents, that the appellant pay all their costs. I expect it to be assessed if not agreed. If your Lordship is interested in embarking on a summary assessment, your Lordship has a schedule. I can make submissions which will only take a couple of minutes.

MR JUSTICE PITCHFORD: Shall I find out whether there is any dispute on --

MR BARTFELD: There is dispute. It is to do with the hours claimed.

MR JUSTICE PITCHFORD: I imagine, Mr Bartfeld, there is no dispute in principle for an award of costs?

MR BARTFELD: There is not, although I would urge my Lord to make that order of costs be one from Central Funds. This is, again, a matter where, notwithstanding the ruling that has been made, in my submission the District Judge could have made a different decision, made the ordinary order, and your Lordship could make the ordinary order again.

MR JUSTICE PITCHFORD: Would you gentlemen be prepared to make your submissions on costs in writing within seven days?

MR WOLFE: My Lord, if that is what my Lord prefers, of course.

MR BARTFELD: Yes, certainly.

MR JUSTICE PITCHFORD: I think it would be convenient if I did deal with a summary assessment and it would probably assist both of you if you knew, in writing, exactly what it was that the appellant is disputing and why.

MR WOLFE: My Lord, yes. In which case, if we could receive the appellant's submissions first and then respond to them.

MR JUSTICE PITCHFORD: How long would you like, Mr Bartfeld?

MR BARTFELD: I would ask for two weeks because I am not in the jurisdiction from Friday for a week.

MR JUSTICE PITCHFORD: Mr Bartfeld, you were prepared to make submissions to me on your feet now. I do not see why you should not be able to provide these submissions in writing within the next 48 hours. Close of business on Friday, the respondent's submissions in writing within 7 days thereafter. I shall then indicate my decision in writing and it will be added to the order.

MR BARTFELD: My Lord, I am instructed to ask for permission to appeal.

MR JUSTICE PITCHFORD: You may. Mr Bartfeld, is that the right way to go about it? This is a criminal matter, is it not?

MR BARTFELD: Yes.

MR JUSTICE PITCHFORD: I would have to certify the matter as of general public importance, would I not?

MR BARTFELD: Of course.

MR JUSTICE PITCHFORD: Well, I shall do that. With the written submissions on costs, I am going to need to draft the question. Will you discuss that with Mr Wolfe?

MR WOLFE: Can I just make a brief response in relation to the appeal element. I would ask that my Lord makes those orders conditional on, effectively, us not having to pay the costs of what is, for the taxi drivers, (Inaudible) if they wish to take it. On a point of principle, no doubt the interests are fair but not that we should wish to add to our costs.

MR JUSTICE PITCHFORD: I am beginning to think I will have to sit again in open court before this final judgment is given and before time begins to run in respect of an appeal. I would be grateful to have your submissions in writing but I will sit in order to announce the final judgment and to hear any further argument if necessary. Thank you very much.