Practice and Procedure


PUBLISHED November 12, 2003

The first defendant's bicycle rickshaws were not hackney carriages within the meaning in s.4 Metropolitan Public Carriage Act 1869 but stage carriages, as passengers were charged separate and distinct fares for their respective places. The defendant's drivers had not solicited persons to hire the rickshaws as they had made no form of invitation to prospective clients.Appeal by way of case stated against the decision of District Judge Sawetz sitting at Tower Bridge Magistrates' Court on 13 February 2003 to, inter alia, dismiss charges against: (a) the defendant company ('B') of owning a tricycle rickshaw ('trishaw') that was plying for hire contrary to s.7 Metropolitan Public Carriage Act 1869; and (b) two of B's drivers of soliciting persons to hire a vehicle in breach of s.167 Criminal Justice and Public Order Act 1994. The charges were brought as a private prosecution by the claimant ('O') acting on behalf of the Licensed Taxi Drivers' Association. Section 7 of the 1869 Act only applied to hackney carriages. A hackney carriage was defined in s.4 of the 1869 Act as "any carriage...which plies for hire...and is neither a stage carriage...". A stage carriage was defined as any carriage..which plies for hire...and in which the passengers...are charged to pay...separate and distinct fares for their respective places". The district judge held that the trishaws were not hackney carriages because they were stage carriages as each passenger paid a separate and distinct fare. The judge also concluded on the evidence that the drivers had not been soliciting as they had done nothing to actively invite passengers but had merely responded to being hailed. On appeal O argued that: (i) the district judge had erred in concluding that she was not bound by R (On the applications of Lane) v Cambridge City Council (1999) RTR 182 where it was held that a trishaw was a hackney carriage within the meaning in the Town Police Clauses Act 1847; (ii) although the 1847 Act was only applicable outside London it was improbable that Parliament could have intended a different regime to apply in London to that outside it; (iii) the trishaws did not operate on a pre-determined route with stops or "stages" but were directed point to point by the passenger; (iv) moreover, the drivers admitted that they had been plying for hire and that was indistinguishable from soliciting; and (v) accordingly, the trishaws were hackney carriages and the drivers had been soliciting.HELD: (1) The district judge had been correct to hold that she was not bound by the decision in Lane (supra). Because the 1847 Act provided no definition of "stage coach" or "stage carriage" the court there had been free to reach its own view to hold that a trishaw was not a stage coach. However, the 1869 Act provided a different regime that, under s.4, did define "stage carriage". It was a deeming provision that caught all vehicles falling within its terms. The trishaws fell within those terms. To adopt the interpretation of O would involve re-writing the statute. Whilst that conclusion meant that trishaws did not require licences that was a consequence of a correct construction of the legislation. (2) Whether soliciting had taken place depended on the circumstances but something more than mere progress down the street was required. "Plying for hire" and "soliciting" were not coterminous. In the latter case some form of invitation to a client was needed. In this case the drivers had plied for hire but had made no form of invitation. Accordingly, they had not solicited within the meaning in the 1994 Act.Appeal dismissed.