Case No: CO/1508/2000

IN THE SUPREME COURT OF JUDICATURE
ADMINISTRATIVE COURT 
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 31 October 2000	

	B e f o r e :

LORD JUSTICE PILL
and
MR JUSTICE BELL		
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	Eastbourne Borough Council	Appellant	
	
-  v  -		
	
Charles William Stirling and
Robert John Morley	Respondents	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr Nicholas Hall (instructed by Eastbourne Borough Council Legal Services Dept) appeared for the Appellant

Mr James King-Smith (instructed by Mayo & Perkins, eastborne, BN21 4RP) appeared for the Respondents

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Pill:

1.	This is a prosecutor’s appeal against a decision of Mr Kevin John Gladwell, acting stipendiary magistrate for the County of East Sussex, sitting at Eastbourne on 7 February 2000. The magistrate dismissed informations against Mr Charles William Stirling and Mr Robert John Morley alleging that each of them, being the driver of a private hire vehicle was found plying for hire with the vehicle on the west forecourt of Eastbourne railway station without a licence to ply for hire having previously been obtained under section 37 of the Town Police Clauses Act 1847 (“the 1847 Act”), contrary to section 45 of the Act. Mr Stirling is alleged to have infringed on 28 May 1999 and Mr Morley on 29 May 1999.

2.	It is conceded that the respondents were not licensed as required by the 1847 Act. The issue is whether the respondents were “plying for hire in any street” within the meaning of that expression in section 38 of the 1847 Act. The section provides that “every wheeled carriage … used in standing or plying for hire in any street … shall be deemed to be a hackney carriage within the meaning of this Act”. The west forecourt of Eastbourne railway station is shown on an agreed plan on which is marked the position of the taxi rank where the respondents were observed. 

3.	On each occasion, Mr Douglas Lindsay, an environmental health officer, approached a vehicle in that position. On 28 May, he asked Mr Stirling if he had a fare and Mr Stirling replied that he did not and where did Mr Lindsay want to go. On 29 May he asked Mr Morley if he had a booking and when, Mr Morley gave a negative answer, told Mr Morley that he was plying for hire. Having referred to the authorities, the learned magistrate concluded that “the prosecution had not shown that the west forecourt at Eastbourne railway station is a ‘street’ for the purposes of this prosecution and therefore the application of  no case to answer must succeed”. It is not disputed that the west forecourt is owned by Railtrack and is therefore private property.

4.	Two questions are posed for the opinion of the High Court, the first being procedural:

(a)	Was the Court correct as a matter of law to exclude the proposed evidence of Bryan Thomas from the Prosecutor’s case?

(b)	Was the Court correct as a matter of law to uphold the submission of no case to answer by the Defendants on the basis that the Prosecutor had not proved that the public had a right of access to the West Forecourt of Eastbourne Railway Station, and/or that the West Forecourt was not a “street” within the meaning of the Town Police Clauses Act 1847?

5.	The procedural question can be dealt with briefly. The proposed evidence of Mr Thomas was that on two occasions in November 1999, about six months after the alleged offences, he observed a number of pedestrians approaching and entering taxis on the rank on the west forecourt from the nearby public streets. The magistrate refused to admit Mr Thomas’s evidence because “it was too far removed by time to be considered reliable as to usage by the public on the days in question, 28 and 29 May 1999”. That was a conclusion which the magistrate was in my view entitled to reach in the circumstances and his decision cannot be impugned on that ground.

6.	That conclusion is of very limited value to the respondents, however, because Mr King-Smith rightly concedes that the Court is entitled to draw inferences from the agreed plan as to the likelihood of pedestrians approaching the taxi rank on the west forecourt not only from  the railway premises but from the adjoining streets. The west forecourt of Eastbourne station, which is in fact a terminus, is adjacent to Terminus Road which no doubt takes its name from the railway premises. The road has terraced development on both frontages and two public houses and a bank can be observed close to the west forecourt. A market and an enterprise centre are also shown nearby. The immediate area is at least partly commercial. While on private land, the taxi rank is very close to the public highway. Indeed one end of the taxi rank is extremely close to, if not on, the boundary between the forecourt and the public highway. There is no barrier and nothing on the ground to signify the boundary between the private property and the public highway. The inference must in my judgment be drawn, on the facts of this case, that a substantial part of the demand for taxis positioned at the rank will come from pedestrians approaching from the public highway as distinct from the railway premises. Vehicles positioned on the rank will present an obvious attraction to people on the public highway.

7.	For the respondents, Mr King-Smith submits that for ground to be a street, within the meaning of section 38, the public must have a right of access to it. They have no right of access to the forecourt, which is private property. For the appellant, Mr Hall submits that there is a plying in a street when vehicles are positioned, albeit on private land, in order to draw custom from the public on the adjoining public highway. Both sides rely on the judgment of Auld J, with which Mann LJ agreed, in Young v Scampion [1989] RTR 95. Mr King-Smith submits that it establishes the first of the above principles; Mr Hall submits that it acknowledges the second, though distinguishing it on the facts.

8.	In Young, the unlicensed vehicles were plying for hire at Airport Way, Birmingham International Airport. It was an unenclosed road on land owned by the Airport Authority and subject to its bylaws. It led to the front of the airport. The Authority effectively controlled the public’s use of the airport land. There was a barrier at the point where the road joined the public highway but it was drawn across the road only on Christmas Day and was normally devoid of anything to indicate its presence or significance. There was no perceptible change in the carriageway or road surface, no restriction on vehicular traffic and no checks on any vehicles going into the airport.  

9.	Auld J referred to Curtis v Embery (1872) LR 4 Exch 369 (Court of Exchequer) and Jones v Short (1900) 69 LJ QB 473 (Queen’s Bench Divisional Court), on which Mr King-Smith relies. Those cases were concerned with land adjoining a railway station and whether it was a street within section 3 of the 1847 Act. Both cases were cases stated for the opinion of the Court. In Curtis, Bramwell B stated, at p 371, that he was of the opinion “that the road spoken of must be a road over which the public have rights”. Cleasby B agreed stating that “it appears that the railway company are entitled to prevent [the piece of land] being used by any person, and actually do prevent its being so used by all other persons: the use of it by the appellant [the carriage owner] is a special privilege granted to him. I can only say that these facts do not make the place a ‘road’ in any sense within the Act.”

10.	The same conclusion was reached in Jones. It was sought to distinguish Curtis on the basis that there was a public right of footway going along the edge of the piece of ground which was private property. Channell J stated that it was clear “that a piece of private ground does not come within that definition [the definition of ‘street’ in section 3 of the 1847 Act] merely because a public footway passes along it”. Bucknill J agreed. In Jones, the emphasis was upon the meaning of “street” in section 3 of the 1847 Act, where the word is defined as extending to and including “any road, square, court, alley and thoroughfare or public passage”. The effect of the expression “plying for hire” in this context was not addressed. 

11.	Curtis was cited in  White v Cubitt [1930] 1 KB 443 on which Mr Hall relies. The issue was whether a driver who plied for hire upon a piece of private ground adjoining the public highway was plying for hire “in any public street, road, or place” within the meaning of that expression in section 4 of the Metropolitan Public Carriage Act 1869. The piece of ground belonged to a public house adjoining the public highway. It was level with the public street but  marked off from it by a line of stone sets not raised above the street level. Curtis was relied on by counsel in White to support the proposition that the ground was not public because the public had no access to it except by permission of the owner. Lord Hewart CJ stated at page 449: “It is not denied that the locus referred to was a place. But it is said that it was not a public place within the meaning of this particular definition. … . The justices came to the conclusion that the vehicle was not in any public street, road or place … .”

12.	Lord Hewart continued:

“The attention of the Court has been very properly directed to certain cases which are thought to have some bearing upon the matter here in question. It has not been necessary to refer to the series of cases involving controversies that may be thought to be of a somewhat artificial kind as to the meaning of the expression ‘plying for hire’. But various cases have been cited for the purpose of illustrating the proposition that this particular place was not a public place within the meaning of this Act, though at the same time it is freely admitted that there is no case directly in point. The question is not concluded by authority, and we approach it as if it were a tabula rasa.

It seems to me that much light is thrown upon the matter by the observations of Avory J in the case of Birmingham and Midland Motor Omnibus Co v Thompson [1918] 2 KB 105. In that case he used these pregnant words: ‘I should like to add that if it were necessary to discuss the question whether these omnibuses were under the circumstances plying for hire in a street I should have liked further time to consider it. I am not satisfied that it has been decided in any previous case that under such circumstances as those of the present — namely, the gate of the yard being open, placards and notices directing the public to the yard, and the omnibuses being visible from the street — these omnibuses might not properly be said to be plying for hire in a street, but it is not necessary to decide that, and I postpone the expression of any opinion upon it. (Page 113)’ In the same case Atkin J, now Lord Atkin, said: ‘There is one matter that I should like to refer to, though I express no opinion upon it namely, whether, if this case had to be sent back for decision upon the question, it would not have been open to the magistrates to find that the appellants there were permitting their omnibus to be used for plying for hire in a street. In this case the magistrates have found the contrary. I only desire to say that in another case it appears to me that upon similar facts it might be possible for the magistrates to come to a difference conclusion.’ (Page 114).

It seems to me that those observations made with reference to the circumstances of that case are applicable a fortiori to the circumstances of the present case. Here the whole scheme and purpose of the arrangements which have, not without ingenuity, been made, were to enable this motor vehicle to ply for hire by attracting the public through being manifestly exhibited near the edge of the highway at a place to which the public were invited, to which the public had resort, and around which there was no sort of barrier, physical or other, to prevent the ingress and egress of the public.

In my opinion this place was as public as it could be, and was selected for the purpose of the respondent precisely because it was as public as it could be. Upon the materials, I think, there was no evidence to justify the justices in coming to the conclusion that for the purposes of this section, and with reference to the mischief against which this section is directed, this was not a public place.”

That approach to the question was not considered in Curtis or Jones.

(The “arrangements” which Lord Hewart appears to have had in mind were that the respondent had an arrangement with the owner of the public house by which he could position his motor car “in full view of the public highway”.)

13.	I do not consider that any distinction can be drawn on the basis that Lord Hewart made reference to a “public place” rather than to a “public street” which is also in the relevant definition. He relied upon the dicta of Avory J and Atkin J both of whom referred to a “street”. 

14.	In Young, Auld J drew attention, at page 110F, to the fact that in White “the vehicles, although on private land, were located where they were in order to draw custom from the general public in the adjoining public street”. That appears to have been the principle extracted by Auld J from White. Auld J continued:

“In Curtis v Embery (1872) LR 7 Exch 369 and Jones v Short (1900) 69 LJ QB 473 the railway cases, the carriages were parked on railway land to draw custom from those members of the public using the railway, that is people on the railway company’s private property. Both the carriages and the behaviour of the railway travellers using them were, when on that land, subject to the control of the railway company.

Here, the defendants were parked on the Airport Authority’s private property in order to draw custom from those using the airport. They were not soliciting custom from those using the public streets of Solihull, and whilst there, were physically separated from such general custom more completely than were the vehicles in the railway cases or those relied upon by the Solihull Council. Whilst there, they and their potential customers were subject to the control of the Airport Authority as expressed in the bylaws and as exercisable by it as owner of the land.

The various matters relied upon by the justices in paragraphs 8 and 9 of the case stated going to the lack of any physical restriction or sign of change at the boundary between the public highway and the start of Airport Way are no more relevant than the lack of physical divide between the road and hackney carriage stand in the railway cases. The principle applied in those cases, with which, as I have said, I agree, is that land is not a ‘street’ for the purpose of section 38 unless the public, including taxi drivers in their taxis, have a legal right of access to it. The fact that the public, including taxi drivers, in fact resort to a particular location in large numbers, as they do to modern railway stations, airports and hotel entrances, and the like, cannot of itself make such a location a street for this purpose.

15.	Thus Auld J did not reject the principle in White, as he stated it, but distinguished the case on the basis that the physical separation from the public highway at Birmingham Airport required that a distinction be made. I respectfully agree with that distinction. 

16	Mr King-Smith submits that the decision in White was reached per incuriam. The effect of Curtis and of Jones was not understood. It was not open to the Divisional Court in White to hold that the ground was a public place because a place can be public for present purposes only if the public have a right of access to it. Since the public have no right of access to the west forecourt at Eastbourne station, taxis at the rank are not “plying for hire in any street”. 

17.	I am unable to dismiss White in that way and neither in my view did Auld J in Young. Auld J appears to me to have to accepted the principle that vehicles positioned “in order to draw custom from the general public in the adjoining public street” can be “plying for hire in any street”, within the meaning of section 38. I have to say that if Auld J indeed accepted the White principle, as he stated it, I do have difficulty with the concluding sentences in the passage cited from his judgment, where a definition is stated by reference to section 38 without mentioning the principle. I agree with the actual decision in Young because the taxi rank was well away from the public road and likely to attract only pedestrians using the airport.

18.	I would apply the White principle in this case. The taxi rank is situated immediately adjacent to a public street in what is plainly a busy part of Eastbourne where many commercial premises are situated and pedestrian traffic will be high. A vehicle on the rank is plainly likely to attract custom from members of the public using the adjoining street in a busy part of the town. The respondents were plying for hire in a street within the meaning of section 38. 

19.	As a matter of language, I have no difficulty in construing the expression “plying for hire in any street” as covering a situation in which the vehicle is in a prominent position just off the street and the public are in numbers on the street. The same point arose in the context of the Street Offences Act 1959 in Smith v Hughes [1960] 2 All ER 859 where this Court considered whether a prostitute who solicits men in a street from the balcony of a house or from behind closed or open ground floor or first floor windows of a house adjoining the street commits the offence of soliciting “in a street or public place” contrary to section 1(1) of that Act. Lord Parker stated, at p 861B:

“Observe that it does not say there specifically that the person who is doing the soliciting must be in the street. Equally it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone. I think that the magistrate came to a correct conclusion in each case, and that these appeals should be dismissed.”

20.	That the services offered in that case were different from those in the present case needs no underlining but the reasoning of Lord Parker applies in the present context. The driver is plying for hire in the street if his vehicle is positioned in circumstances such that the offer of services is “projected to and addressed to” members of the public in the street.

21.	I only add that this litigation in the High Court could have been avoided because the case is concerned with railway premises. Had the appellant Council adopted section 76 of the Public Health Act 1925, as it is conceded they could have done, proceedings could have been taken against the respondents under that section. Subject to exceptions, section 76 provides:

“In any area within which the provisions of the Town Police Clauses Act 1847 with respect to hackney carriages are in force, those provisions and any bylaws of the local authority with respect to hackney carriages shall be as fully applicable in all respects to hackney carriages standing or plying for hire at any railway station or railway premises within such area, as if such railway station or railway premises were a stand for hackney carriages on a street.” 

22.	I would allow the appeal.

MR JUSTICE Bell:

23.	I agree.

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MR JUSTICE BELL: Lord Justice Pill apologises for not being here, he is presiding over a division of the Court of Appeal (Criminal Division) in Cardiff.  Unless there is anything further to be said about the judgment which you have seen in draft, Lord Justice Pill has asked me to hand down his judgment with which I agree and that I formally do.
      So far as any ancillary matters are concerned, all but one I can deal with on my own provided the parties consent to that.  Do you agree that I deal with any other matters on my own?  If not the matter would go over until Lord Justice Pill and I were available to sit together.
MR JUDGE: My Lord, I appear for the appellants, Eastbourne Council, and certainly on their behalf I would agree to your Lordship dealing with ancillary matters.
MR JUSTICE BELL: Mr Thomas?
MR THOMAS: I also agree, my Lord.
MR JUSTICE BELL: What other matters are there to be dealt with then?
MR THOMAS: Perhaps logically the first thing to do would be an application by me on behalf of the respondents for a certificate from this court of a point of law so that they may appeal to the House of Lords. 
MR JUSTICE BELL: That is the one thing I cannot deal with on my own.  What I suggest is that you make the application in writing, which it is possible to do.
MR THOMAS: My Lord, yes.
MR JUSTICE BELL: Presumably you will report back to Mr King‑Smith.
MR THOMAS: I certainly will, my Lord, yes.
MR JUSTICE BELL: It will have to be done promptly but if he makes the application in writing and addresses it for the attention of Lord Justice Pill it seems to me there is no reason why it should not be dealt with on the papers.
MR THOMAS: Indeed.  I am grateful for that, my Lord.
MR JUSTICE BELL: You may have it already but of course you have to actually specify in precise terms the point which you apply to have certified.
MR JUDGE: My Lord, the appellant's would apply for this matter to be remitted to the magistrates for a re‑hearing.  I would also invite your Lordship to consider an inter‑parties order for costs in this matter.
MR JUSTICE BELL: Let us deal with that first.  Is there any objection to that Mr Thomas?
MR THOMAS: My Lord, yes, I would object to that.  May I just indicate the basis upon which I do so?  The  decision itself at the penultimate paragraph, paragraph 21.
MR JUSTICE BELL: The case stated or the judgment?
MR THOMAS: My Lord the judgment.  Is your Lordship dealing with the question of costs now?
MR JUSTICE BELL: No, I am dealing with the question of remission first of all.
MR THOMAS: I am sorry, I misunderstood what your Lordship was dealing with.  The point I wish to make is in relation to costs rather than remission.
MR JUSTICE BELL: Is there anything you have to say concerning remission?
MR THOMAS: My Lord, no, only that the remission may be more safely put back to await the outcome of the application for a certificate of a point of law.  If that application is unsuccessful of course then it may be remitted.  If it is successful then an application at least could be made for leave to appeal to the House of Lords and in the event that that was successful an appeal would proceed and in those circumstances it may be better, in my submission, to remit it after that decision ‑ if at all.
MR JUSTICE BELL: I must say I had it in my mind that ‑ it is easy to mistake one case for another when one is doing a series in the Divisional Court ‑ the prosecutor  was not asking for remission in this case it was more a question of actually deciding the technical point.
MR JUDGE: I have taken over this case this morning and I have a note from counsel and it does refer to asking that this matter be returned to the Magistrates Court for a rehearing.
MR JUSTICE BELL: Let us just look at the dates of the actual offences.
MR JUDGE: As I understand it, my Lord, we will we are dealing with 28th and 29th May 1999.
MR JUSTICE BELL: Yes.  What is the maximum penalty for these offences.  It was one offence each, was it not?
MR THOMAS: My Lord my understanding is it is a fine at level four.
MR JUSTICE BELL: What is level four.
MR THOMAS: I think, and here I am not absolutely certain, it is £2,000, being the maximum.  I understand.
MR JUSTICE BELL: I do not see any useful purpose in a further hearing.  It was a test case for the kind of situation which prevailed in respect of each respondent.
      What about costs?
MR JUDGE: My Lord, I would invite your Lordship to consider an inter‑parties costs order in the sum of  £1,799 to be taxed.
MR JUSTICE BELL: Is that in relation to the appeal or does that cover both matters?
MR JUDGE: If your Lordship will bear with me, as I have just taken over the case.  It relates to the application fee, the brief fee for the substantive hearing in the magistrates.
MR JUSTICE BELL: Before this court or the magistrates?
MR JUDGE: I think it must be before your Lordships, looking at the breakdown, and also the solicitors' preparation in respect of that hearing and my fee for today.
MR JUSTICE BELL: What was the position of the costs below?
MR THOMAS: My Lord, the costs below were ordered against the appellant, the defendants in the Magistrates Court being successful on the application of no case to answer the costs were awarded against the prosecutor.
MR JUSTICE BELL: It seems to me you are asking for ‑‑ are you asking for costs below as well as here then?
MR JUDGE: I am only instructed to ask for this sum in relation to this hearing.
MR JUSTICE BELL: Yes.  Let us deal with costs below then.  It seems to me I ought to quash the order for costs against the prosecuting counsel below. 
MR JUDGE: I am obliged.
MR JUSTICE BELL: Is there any answer to the costs of the appeal Mr Thomas?
MR THOMAS: My Lord, there is an answer to it, although I have to acknowledge that the appellants were successful, and the answer lies in paragraph 21 of the judgment which I referred to a little earlier.  If your Lordship looks at paragraph 21 which is at the bottom of the penultimate page where Lord Justice Pill says:
"I only add that this litigation in the High Court could have been avoided because the case is concerned with railway premises.  Had the appellant Council adopted section 76 of the Public Health Act 1925 [namely a different act], as it is conceded they could have done, proceedings could have been taken against the respondents under that section.  Subject to exceptions, section 76 provides:
 
'In any area within which the provisions of the Town Police Clauses Act 1847 with respect to hackney carriages are in force, those provisions and any bylaws of the local authority with respect to hackney carriages shall be as fully applicable in all respects to hackney carriages standing or plying for hire at any railway station or railway premises within such area, as if such railway station or railway premises were a stand for hackney carriages on a street.'" 
The short point is that it is up to the prosecutor to decide the proper section under which to bring the prosecution.  This issue as to whether a street on railway premises was a street for the purposes of the Town Police Clauses Act could have been altogether avoided had the prosecution been brought under that  section.  I understand it to have been conceded‑‑‑‑
MR JUSTICE BELL: I do not think it is a question of the section.  What they have to do is actually adopt the provision, that they could have done and as I recall the argument could still do but had not done, even if they have done it now, by the time of these alleged offences.
MR THOMAS: My Lord, that is correct, that is my understanding.  It was not done in this case is the point.  On that basis the High Court proceedings could have been avoided and when it comes to deciding who is responsible for avoiding it the answer is that the prosecutor ought to have had this in mind and on that basis it would, in my submission, be unfair to make an inter‑parties costs order on this appeal, even where the appellant has been successful.
MR JUSTICE BELL: Yes.  I propose to make an order that the respondents to the appeal pay the appellant's costs.  Although it is true that had the appellant counsel adopted section 76 of the Public Health Act 1925, as it is accepted they could have done, and indeed as they could still do, the point which arose on this appeal would never have arisen.  Nevertheless that provision not having been adopted the point did arise, it was a discrete point to be adjudged by this court on  this appeal.  As it happens the Borough Council won on that point and the respondents lost and I can see no good reason why the respondents, whom in any event I take to be representatives of a taxi firm or business in Eastbourne, should not pay the Borough Council's costs which would otherwise come out of taxpayers' money.
MR JUDGE: I am obliged.