Morris, R (On the Application Of) v Preston Crown Court & Anor

MR JUSTICE HICKINBOTTOM: On 29 October 2009 Karl Bischoff, a Public Protection Officer in the Trading Standard Section of the Interested Party, Blackpool Borough Council (“the Council”), was on patrol near the junction of Rigby Road and the East Promenade, Blackpool, when he saw a horse drawn hackney carriage drive at speed through a red light and over white lines into the oncoming traffic, before returning to the correct side of the road. The carriage had a driver and four passengers.

Mr Bischoff believed the vehicle to have been Blackpool Hackney Carriage Licence No 117, and the Claimant, Mark Morris, to have been the driver. The Claimant was later seen and reported for the offence of furious driving. That offence was not pursued against him; but he was summoned to appear before the Fylde Justices in respect of the incident for an offence under byelaw 20 of the Blackpool Hackney Carriage Byelaws 1979. Those byelaws were made under section 68 of the Town Police Clauses Act 1847, which empowered the Council's statutory predecessor to make byelaws for the regulation of hackney carriages, their proprietors and drivers. Hackney carriages are of course not simply vehicles for hire: they are subject to particular and detailed regulation at the hands of the relevant local authority with which they are licensed.

Byelaw 20 provides as follows:

Before the magistrates, the Claimant raised a number of defences, including (i) the relevant vehicle was not Carriage Licence No 117, (ii) he was not the driver of the vehicle at the relevant time, and (iii) the vehicle was not at that time being driven for hire. However, on 15 February 2011 he was duly convicted of the offence.

The Claimant appealed to Preston Crown Court on a number of grounds including the entirely new ground, not relied upon before the magistrates, that byelaw 20 does not create an offence based on manner of driving, but only an offence in respect of the condition and use of the horse and equipment. The Crown Court (His Honour Judge Wright and justices) dismissed the appeal, in particular finding that a prosecution under byelaw 20 could in law be based upon the manner in which a hackney carriage was driven.

In this judicial review, brought with the permission of Kenneth Parker J, the Claimant contends that in that respect the Crown Court erred in law. No other grounds are pursued before this court.

Judge Wright, in his ruling of the court dated 22 September 2009, said that the true construction of byelaw 20 required consideration of its constituent parts, which he identified. Having done so, he concluded that the byelaw covered two discrete situations, namely (i) the way in which a hackney carriage is driven and (ii) the use of an animal in a particular condition, either or both of which exposed persons falling within the identified categories (including passengers) to the risk of injury.

The Crown Court considered that to be the clear and obvious construction of the words used in byelaw 20. That too is the Council’s contention before us. However, in so far as there may be any ambiguity, the Council in its detailed grounds of response to this claim and Mr Williams on its behalf this morning, submitted that that construction, favoured by the Crown Court, ought to be preferred in any event, for the following reasons.

First, the interpretation urged by the Claimant renders the words "drive or allowed to be driven" otiose – they are redundant – and it is a well-recognised tenet of construction that words used in such provisions must have been intended to have had some substantive meaning, and consequently a construction that gives those words some meaning should be preferred.

Second, the Claimant's interpretation can only be valid for horse drawn hackney carriages, whereas the byelaws apply to both horse drawn and motorised carriages. If byelaw 20 was intended to apply to just horse drawn carriages, as the Claimant contends, similar wording to that in byelaws 21 and 22 would be expected: those byelaws specifically refer to the proprietor or driver "of a horse drawn hackney carriage" (emphasis added). He also referred us to byelaw 3(i), which is similarly restricted but to motorised hackney carriages only. He submitted that those provisions supported the proposition that, where the byelaws are intended to be restricted in scope so far as type of carriage is concerned, that is made expressly clear.

Third, the marginal note to byelaw 20 refers to, "Carriage not to be driven so as to expose any person to risks".

However, Mr Marsh-Finch for the Claimant submitted that the manner of the Claimant's driving could not form the basis of an offence under byelaw 20 for the following reasons.

First, byelaw 20 is ultra vires the Council: the 1847 Act, under which the byelaws are made, does not empower the Council to make provision for the manner in which a hackney carriage is driven. The manner of driving a hackney carriage is covered by general road traffic regulation in Road Traffic Acts; and, by the 1847 Act, Parliament could not have intended to have given Police Commissioners (and, in Blackpool, their statutory successor, in the form of the Council) duplicate powers.

However, that basis of challenge, made in the written grounds, has not been pursued before us this morning. In my view, it was wisely abandoned. Section 68 of the 1847 Act gives the Council power to make byelaws "for regulating the conduct of the proprietors and drivers of hackney carriages" within its area. In my view, driving a hackney carriage clearly falls within the ambit of the conduct of a driver, and allowing a it to be driven within the conduct of a proprietor.

The other grounds of challenge concern the proper construction of byelaw 30. Mr Marsh-Finch submitted that the object, effect and limited extent of the byelaw is clear and unambiguous from its wording: it is to ensure that a dangerous or unsuitable animal is not attached to the hackney carriage. However, in so far as the wording used is unclear, he submitted in the alternative that the provision is penal; and, consequently, in the event of ambiguity, it is a well-settled principle of statutory interpretation that it ought to be interpreted in favour of the construction more lenient to the citizen (see, e.g., London and North Eastern Railway Company v Berriman [1946] AC 278 at page 313, per Lord Simonds).

However, I find those submissions unconvincing, for the following reasons.

Whilst it appears to be common ground between the parties (with which I agree) that the wording of byelaw 20 – and its punctuation – could have been better made, I consider the true meaning of the provision is clear enough.

It is common ground that byelaw 20 at least prohibits a driver of a hackney carriage from harnessing (or a proprietor from allowing a horse to be harnessed to such a carriage) any animal in such condition as to expose any passenger or person traversing the road to risk of injury. That much is, indeed, clear.

The issue in this case is rather with the phrase "drive or allow to be driven". "To drive" is a transitive verb: it requires an object, although of course the object may be implied. For example, when someone gives his car keys to a friend, after a night out, and says, "You can drive", it is implicit that the object to be driven is his car.

It seems to me that the determinative question for this application is this: what is the object of "drive or allow to be driven" in byelaw 20? Is it a hackney carriage, as referred to previously in the provision, as in essence contended for by the Council: or is it the animal (i.e. the horse) referred to later in the provision? So far as "driving" is concerned, does the byelaw mean: “The proprietor or driver of a hackney carriage shall not… drive [the carriage], or allow [the carriage] to be driven… as to expose a person [in the defined categories] to risk of injury?” Or does it mean: “The proprietor or driver of a hackney carriage shall not… drive [the horse] or allow [the horse] to be driven as to expose a person [in the defined categories] to risk of injury?”.

In my judgment, on its true construction, it is unambiguously the former. In the context of horse drawn hackney carriages, “driving” ordinarily, naturally and plainly means driving the carriage, not simply the horse. But, in any event, byelaw 20 does not refer simply to a horse, but to a horse "in such condition as to expose any [relevant] person… to risk of injury". On the construction propounded by the Claimant, the risk that must arise for the byelaw to apply has to arise from the condition of the horse. As I have indicated, it is common ground that the byelaw prohibits a driver from harnessing a horse in such condition as to expose a relevant person to the risk of injury. In my view, the Claimant's construction consequently renders the words "drive or allowed to be driven" otiose, because for a horse to be driven it must be harnessed.

Mr Marsh-Finch sought to counter that by submitting, first, that the reference to "harness" was to the act of harnessing rather than being in harness. However, that does not seem to me to be the ordinary meaning of “harness” in this context; but, in any event, that construction would lead to an irrational lacuna in the provision, because the byelaw would not apply in circumstances in which a horse in proper condition were put into harness, and thereafter, whilst waiting for hire and prior to it being driven, came into a dangerous condition because of traffic, heat or from some other cause. It is unlikely that that was the intention of the provision.

Second, Mr Marsh-Finch submitted that it would be unusual – and in his experience, unique – for manner of driving on the one hand, and condition and use on the other, to be included in the same provision as discrete ways in which to commit a single offence. However, even if that were so, that could not be a factor that could override the clear words of this provision.

Given that, in my judgment, that is the plain and literal meaning of the byelaw, is there any reason for not giving the words used that construction?

I have already dealt with the ultra vires point, not now pursued.

Neither am I impressed by the assertion of Mr Marsh-Finch that the object of byelaw 20 is solely focused on the attachment of a dangerous or otherwise unsuitable horse to a hackney carriage. The purpose of the provision can only be ascertained by consideration of the wording used and that, for the reasons I have given, in my view, is plain and clear.

Nor is the fact that particular driving of a hackney carriage may amount to conduct which will breach other statutory provisions, applying to all road users, a reason for not giving the wording in the byelaw its plain meaning. Driving a hackney carriage or allowing it to be driven in a manner prohibited by byelaw 20 may not necessarily breach the general provisions of road use. But, in any event, there is nothing offensive about a specific regulatory scheme prohibiting conduct that would also fall foul of the general law.

For those reasons, I accept the substance of paragraph 4.4 of the Council's detailed grounds of response to this application, which says succinctly:

The reference to "allow to be driven" and "allow to be harnessed" is relevant to the way in which a proprietor may commit those two modes of offending.

I consider that construction to be unambiguous, although it comes as some comfort that (i) where a particular byelaw refers only to horse-drawn carriages elsewhere, that is expressed to be so; and (ii) the marginal note to byelaw 20 is consistent with that interpretation.

That construction of byelaw 20 is in substance that which the Crown Court applied in the appeal before it. The Crown Court did not, in my judgment, err in law and I would consequently refuse this application.

PRESIDENT OF THE QUEEN'S BENCH DIVISION: I agree.