Sunday, June 05, 2016

Possibly The Best Article Ever Written "What is Plying For Hire....by Alan Fleming"

                   First published 2012 
            Coventry Street, minicab lined.

I  read  with interest in the last edition of United Cabbies News the proposals of  T&PH, for allowing PH ranks. 

Some ten years ago when at the Club I was informed that this was going to be the case in Kingston. I informed the other trade organisations but had no response. 

I did take it up with the then PCO but my observations fell on  deaf ears.  
I thought that your readers may wish to know what constitutes plying for hire.

What is plying for hire? That is a question that we all think we can answer, but can you? Since I first became a cab driver almost forty years ago I made it my business to understand the laws that we have to abide by. Further very early in my time as a driver I spent many hours reading all the stated cases involving plying for hire. Because I have done this many consider that I am an expert on the subject. Knowing what I do it has long been my opinion that the relevant  laws that govern both taxis and PHV are not fully understood by those, who regulate both trades. 

This also applies to those who make the laws and the solicitors who advise them.  Most will know that PHVs  have been licensed since 1976 under the Miscellaneous  Provisions Act. It was always said that London should not and did not need mini-cabs to be licensed as London was a special case. What ever was meant by that has always been a mystery. So now let us get on with the question of what constitutes plying for hire.


There has never been a definitive explanation for this particular part of a taxi drivers daily work. However, Butterworths legal dictionary states that the phrase is akin to waiting. Never the less we have to look at the many cases that have gone to the High Court to find the true definition. I will take you back to one of the earliest cases of unlawfully plying for hire this took place 140 years ago. The location was Harrow  Railway Station in 1871. The case in question is Clarke & Goodge v Stanford. The facts of this case are that a driver a Mr. F G Clarke took up a position on the station forecourt to await being hired. Clarke and the owner of the vehicle obviously felt they were safe as the forecourt of the station was private, but they were wrong. The driver Clarke was convicted of plying for hire and the owner Goodge convicted of owning an unlicensed hackney carriage, which both of them appealed against the conviction.


On April 29  1871 the case came before the Court of the Queens Bench in the High Court.
Lord Chief Justice Cockburn presided over the case accompanied by Mr Justice Mellor and Mr Justice Lush. The conviction was upheld. The summing up of the Lord Chief  Justice is very interesting as you  will read. This was what the LCJ had to say about the activities of F G  Clarke. The carriage was on the private forecourt of the station and was available for anyone who wished to hire his carriage, it was plying for hire.  

Although the place is private property the public are entitled to travel by train, and has a right to pass over the premises of  the railway to get in or out.  Therefore if a man is standing on those premises with his carriage to take persons who are desirous of hiring said carriage, he is plying for hire.  So the essence of plying for hire is being on view to the public at the time of hiring.    Mr. Justice Mellor stated in support the following.  


It is said there is no plying for hire as the carriage is admitted on the railway premises under certain regulations, that is it is only to carry persons who come by train. But what is the carriage there for? Though the driver makes no sign he is there to be hired by persons who arrive by train, and there is no restriction as to the persons who, arriving by train shall hire the carriage, therefore it is plying for hire.   


          Swallow Street Arch, minicab rank.

Now let me rephrase that comment and apply it to Leicester Square 2009, approaching  Xmas
The cars are in Whitcomb St under certain regulations are only to carry passengers who make a booking  at the ticket office in Leicester Sq.  
But what is the car there for? 

Though the driver makes no sign he is there to be hired by persons who apply to the ticket office, and there is no restriction as to the persons who apply to the office to hire the car, therefore it is plying for hire!

Further to this as you know there is a taxi rank in Whitcomb St outside the hotel were cabs ply for hire, by waiting to be hired. So what is the difference between the cabs on rank and the cars who wait to be hired on the opposite side of the street? The answer is obviously none at all.  So where does this leave PHVs who stand round London, and await to be hired by radio. If they are standing in a public place at the time of the hiring they must be on view to the public. Therefore they are unlawfully plying for hire.

During that same year of 1871 there was another case came before the courts. This was Allen V Tonbridge. The case was about a Mr. Tonbridge who owned a carriage and was allowed to stand on the property of  Cannon Street railway station.  He had permission to do this by the railway company. Tonbridge had placed his carriage a Brougham on the arrivals platform and waited for the train to arrive. 

The sole purpose of this was so that his carriage could be hired, which it was. However, a Met police inspector Robert Allen saw the carriage hired and Tonbridge was summoned. He was convicted of plying for hire in the magistrates court and consequently appealed against, the conviction. The appeal came before what was then known as, The Court of Common Pleas. This was where three Chief Justices sat in Judgement. Counsel for Tonbridge argued that there was no plying for hire as the station was private property.  The senior Chief Justice summed up and delivered this judgement.

Mr. Justice Willes made the following judgement.
The carriage was in the station and was intentionally exposed so as to be hired by any person.  Moreover it was proved that actual application was made to two persons who arrived by train to hire the carriage. And the decision of the magistrates court to convict must stand. As you can see the conviction was based on the fact that the carriage was on view to the public at the appropriate time. 

Mr Justice Smith in support agreed with the judgement stating the following.

I base my judgement on the case in the Queens Bench referring  to the case of  Clarke and Stanford V Allen.  This was his judgement. It was held that if a person exposes his carriage where every body passing by may be willing to hire it, that is plying for hire.

I now come to the case of White V  Cubitt 1929 LCJ Hewart presiding in the Kings Bench Division of the High Court. This little escapade occurred in the private yard at the side of The Railway Tavern public house at the junction of, Rocks lane and  Upper  Richmond  road. The owner of the vehicle rented the space in the yard from the publican to carry out his business.  Two ladies walked into the yard from the street and hired the car to go to Richmond Park  Golf Club.  The owner of the car a Mr. Charles Cubitt was seen by Sgt White  of the Met police accepting the hiring, and  Cubitt was summoned to appear in the magistrates Court, where he was convicted.  He appealed against the conviction and the case came before the High Court.

The argument put forward by his defence counsel was that he did not ply for hire in a public place as, the yard was private property. Counsel further laboured the point that the public did not have access to the yard. However the Lord Chief Justice stated the following facts.

Although the car was on private property and the public did not have access to the yard, the vehicle was plying for hire. Again his comments in summing up are very interesting for the following reasons. The Lord Chief Justice made the following Statement. The car may have been on private property but it had been placed  in such a way in the yard and with the gates to the yard wide open, it was on full view to the public. And the conviction in the lower court was upheld. Again I have to say this puts PHVs in a position of breaking the laws of plying for hire. This for the simple fact they are on view to the public at all material times.

Lets us now come  forward a few years to 1946 this is the case of Gilbert V McKay.
McKay had an office in Rupert St. with a sign over the shop window showing that cars were for hire. Several  cars belonging to McKay were standing in the street outside of  the office.
Several people were seen to enter the office for the purpose of paying for the hire of anyone of the cars, in which they were driven away. McKay was charged with being the owner of unlicensed hackney carriages. He was convicted and fined by the Magistrates court and lodged an appeal, the appeal was dismissed. 

The  Lord Chief Justice Lord Goddard had the following to say. In my opinion even if the cars had been standing in a private yard and could not be seen by the public, there could still have been a plying for hire if they had been appropriated for immediate hiring. The important thing here is the reference to a private yard and not on view to the public at the time of hiring. Even more important is his reference to an immediate hiring. This is what was happening in Leicester Sq. As you can see the essence of plying for hire is being on view to the public. Is this the position of the PHV or not?

We now come forward in time to 1962 to the case of Rose V  Welbeck  Welbeck motors being the first minicabs to hit the streets in London. This was brought to court by a London cab driver, Emanuel Rose. The car was standing in the street at Stratford Broadway obviously waiting to be hired. The police were summoned to the scene by Mr. Rose and the upshot was that the driver of the car was summoned to appear in court, for plying for hire.

When the case was heard the magistrates court dismissed the case so an appeal against the decision was entered. The case came before LCJ  Parker in the Queens  Bench division of the High Court. The car had Welbeck motors emblazoned on the side of the vehicle and a telephone number.  It had been argued by counsel for Welbeck motors that the advertising on and the appearance of the car  were incapable of conveying to the public an invitation that the vehicle was for hire. The following is the judgement of LCJ  Parker. 

 It is perfectly true that the inscriptions were advertising Welbeck motors and if you ring Welbeck 4440 you can have one of the vehicles that they hire, known as a minicab.  He went on to say that the inscription was saying more. What it was saying was the following. I am one of those minicabs and I am for hire, I think in that connection that the reference to minicabs is important as it is saying I am one of those vehicles and I am for hire. And referred the case back to the lower court where Welbeck motors were convicted for plying for hire. Again the conviction was due to the fact the vehicle was on view to the public.

Just a few days later the case of Vincent V Newman came before LCJ Parker the circumstances were similar. The vehicle had been stood in Addison Crescent were it was observed by a police officer and was summoned to appear before the Magistrates court, for unlawfully plying for hire. The magistrates dismissed the case and the Met police appealed.

The appeal was upheld and referred  back to the Magistrates, where the driver was convicted. Once again due to the fact that the car was standing in a public place.

I now come to the most recent case which occurred in Eastbourne in 2000. This case came before Lord Justice Pill and Mr. Justice Bell. This was in the Queens Bench division of the High Court. The case had been brought to court by Eastbourne Borough Council against two PHV drivers. They had been found on the rank of the forecourt of Eastbourne station.  And were summoned under sect.37 of the Town Police Clauses Act of 1847 of plying for hire without a licence. The magistrates dismissed the case on the grounds that the forecourt was not a public place.  Lord Justice Pill quoted the case of White V Cubitt  where a vehicle parked in a private yard was plying for hire, as it could be seen from the street. He went on to say applying the principle in White V Cubbit since a vehicle parked in the station forecourt was likely to attract custom from members of the public using the adjoining street, the defendants were plying for hire. Again we have the situation of being on view to the public.

This now brings me to the situation  in Leicester square where the theatre ticket booking office has been licensed as a Licensed PHV Operator centre. Not only has it been licensed it advertises the following by a revolving neon sign, the following message.  Need a safe journey home fully licensed private hire minicab service available here. 

That in itself is unlawful as it is soliciting business and is tantamount to touting, under sect 167 of the Criminal Justice and Public order Act 1994.  The cars are parked up like a taxi rank in Whitcomb street and are waiting to be hired, and are on full view to the public.  A person goes to the booking office hires a car and is taken by a marshal to the waiting car. This is a repeat of Gilbert V McKay 1946 which was judged by LCJ Goddard to be plying for hire.  

Now Westminster City councils director of transportation Martin Low states this is not plying for hire. Well I have news for Mr. Low he is 100% wrong.  For his enlightenment and for the PCO I will tell you why.  Sect 35 of the London hackney carriage act of 1831 states the following.  Every hackney carriage which shall be found  standing in any street or place, unless actually hired, shall be deemed to be plying for hire, this is what the cars were doing in Whitcomb St.  The powers that be would of course argue that the cars are not hackney carriages. Well the 1907  London Cab and Stage Carriage Act sect. (6) is laid out like this.

It Is hereby declared that for the purposes of any Act relating to hackney carriages, stage carriages, metropolitan stage carriages, or cabs,  in London, the expressions “ hackney carriage,”   “stage carriage”  “metropolitan stage carriage,”  “or Cab,” shall include any such vehicle, whether drawn or propelled by animal or mechanical power.
As you will have observed a hackney carriage is a vehicle that is not necessarily a taxi, although a  taxi is a form of hackney carriage.   What this means is that any vehicle that carries passengers is a  hackney carriage. 

As you all know a hackney carriage to be able to carry passengers for hire, has to be licensed under sect 6 of the Metropolitan  Public Carriage Act 1869. The offence that was being perpetrated here is that we had a situation where unlicensed hackney carriages were plying for hire.  The cars in Whitcomb St may have had a PHV licence,  however, they were  in fact unlicensed hackney carriages.  Therefore as the vehicles were unlicensed all persons who entered one of these cars were a passenger in an uninsured vehicle. And this with the approval of the police and TFL/ PCO.  

Sect  4 of the 1831 Act states that  every  carriage with two or more wheels which shall be used for the purpose of  standing or plying  for hire in any street road or public street  or road at any place within 5 miles now 12, from  the  General  Post Office  in the City of London,  whatever  may be the form or construction of such carriage,  or the number of persons which it shall be calculated to convey, shall be  deemed and taken to be a “  Hackney  Carriage” within the meaning of this act.

It seems quite obvious that a pedicab is a form of hackney carriage as it  has 3  wheels, and is propelled by mechanical power, that being the pedals.   Further as  they wait to be hired they  are plying for hire. The Pedicab comes within the scope and definition  of a hackney carriage. Any hackney carriage that takes passengers for hire has to comply with the Metropolitan Conditions of fitness (MCF)  This is covered by the  1934  London Cab Order, Statutory Instrument 1634. Therefore as Pedicabs  do not comply with the MCF  they cannot wait to be hired.  As I have said earlier the essence of plying for hire is being on view to the public at the time of hiring.
Further as has been stated in many cases if the vehicle is waiting to be hired, it is plying for hire.

So as you will observe the brain dead at TFL/ T&PH  do not know what they are doing, or do they?  For hear we have a group of people who do not  know the laws that they are charged with enforcing. The phrase, “Not  Fit  For Purpose” comes to mind.



MORE COURT CASES
During that same year of 1871 there was another case came before the courts.   This was Allen V Tonbridge.  The case was about a Mr. Tonbridge who owned  a carriage and was allowed to stand on the property of Cannon Street railway  station.  He had permission to do this by the railway company. Tonbridge had  placed his carriage a Brougham on the arrivals platform and waited for the  train to arrive. The sole purpose of this was so that his carriage could be hired,  which it was. However, a Met police inspector Robert Allen saw the carriage  hired and Tonbridge was summoned.  He was convicted of plying for hire in  the magistrates court and consequently appealed against, the conviction. 

The appeal came before what was then known as The Court of Common Pleas.   This was where three Chief Justices sat in Judgement. Counsel for Tonbridge argued that there was no plying for hire as the station was private property.  The senior Chief Justice summed up and delivered this judgement. Mr. Justice Willes said: “The carriage was in the station and was intentionally exposed so as to be hired by any person.  Moreover it was proved that actual application was made to two persons who arrived by train to hire the carriage. And the decision of the Magistrates Court to convict must stand. As you can see the conviction was based on the fact that the carriage was on view to the public at the appropriate time.”

Mr Justice Smith in support agreed with the judgement stating the following.
“I base my judgement on the case in the Queens Bench referring to the case of Clarke and Stanford V Allen.  This was his judgement.  It was held that if a person exposes his carriage where every body passing by may be willing to hire it, that is plying for hire.”

I now come to the case of White V Cubitt 1929 LCJ Hewart presiding in the Kings Bench Division of the High Court.  This little escapade occurred in the private yard at the side of The Railway Tavern public house at the junction of, Rocks lane and Upper Richmond Road. The owner of the vehicle rented the space in the yard from the publican to carry out his business.  Two ladies walked into the yard from the street and hired the car to go to Richmond Park Golf Club.  The owner of the car a Mr. Charles Cubitt was seen by Sgt White of the Met police accepting the hiring, and Cubitt was summoned to appear in the magistrates Court, where he was convicted.  He appealed against the conviction and the case came before the High Court.

The argument put forward by his defence counsel was that he did not ply for hire in a public place as, the yard was private property. Counsel further laboured the point that the public did not have access to the yard. However the Lord Chief Justice stated the following facts. Although the car was on private property and the public did not have access to the yard, the vehicle was plying for hire. Again his comments in summing up are very interesting for the following reasons.

The Lord Chief Justice made the following Statement.  “The car may have been on private property but it had been placed in such a way in the yard and with the gates to the yard wide open, it was on full view to the public”. And the conviction in the lower court was upheld. Again I have to say this puts PHVs in a position of breaking the laws of plying for hire. This for the simple fact they are on view to the public at all material times.

Let us now come forward a few years to 1946 this is the case of Gilbert V McKay.
McKay had an office in Rupert St. with a sign over the shop window showing that cars were for hire.  Several cars belonging to McKay were standing in the street outside of the office.
Several people were seen to enter the office for the purpose of paying for the hire of anyone of the cars, in which they were driven away.  McKay was charged with being the owner of unlicensed hackney carriages.  He was convicted and fined by the Magistrates court and lodged an appeal, the appeal was dismissed. 

The Lord Chief Justice Lord Goddard had the following to say. “In my opinion even if the cars had been standing in a private yard and could not be seen by the public, there could still have been a plying for hire if they had been appropriated
for immediate hiring”.  The important thing here is the reference to a private yard and not on view to the public at the time of hiring. Even more important is his reference to an immediate hiring.  

20 comments:

lee ward said...

O can see where this is going.

Anonymous said...

Cars 'seen' on the uber platform are now proven to be plying for hire.

Well done for the article.

Laurence Green said...

If case law is not applied immediately, to challenge the legality of instant hailing apps, we as a trade will be DESOLVED as fast as sugar in hot water.

And believe me, it won't taste sweet.

Laurence Green said...

Danny Sullivan of the L.C.D.C, has made a video containing evidence of Uber drivers illegally plying for immediate hire at St Pancras Station.

If you look at the case Rose v Welbeck (1962), and apply that to the instant hailing apps on the i-phone;

The car is on view to the general public, I am one of these vehicles and I am for hire, the vehicle is on view to the public.

Now tell me the difference between the above case law, and an Private Hire driver signed on to the Uber platform, that shows the driver, his location, and the fact that he is waiting at the location to be immediately hired.

The app is sending a clear message to the passenger, that the vehicle is available for immediate hire.

The message described is exactly the same as in Rose v Welbeck (1962).

All that needs to be done now, is to find 1 out of 30,000 Metropolitan Police Officers, to do their job, that they swore an oath to.

If that fails, the trade, should go to the Metropolitan Police Commissioner Sir Bernard Hogan ..... and show him 'HOW'

Lenny Etheridge said...

I tried and failed to explain, on four occasions, the definition of Plying for Hire, on WhatsApp the other day.
I wish I'd read this first.
Fantastic article.

Anonymous said...

Brilliant article Alan.It never ceases to amaze me at some of the outstanding individuals we have in this trade.We need the Police to arrest a PH driver & take him to court.Will this happen.Probably not.Higher ranking officers wouldn't allow it under orders of the government.But there is no doubt that if by some miracle it did happen there would be a conviction & we could have plying for hire defined in law for the present day.

P. White said...

The RMT London Taxi Branch have been saying this and making the case for defining P4H for the last 4 years.
In fact it has been their number one priority in all their work such as answering numerous consultations, writing articles and even at meetings with trade orgs, the Authorities and drivers!

But how many drivers or Organizations have been listening or fully supportive?

More worryingly how many realise the IMPORTANCE of P4H and ensuring that it is further protected by way of STATUTORY DEFINITION and not REPEALED, retaining valuable case law.

If it were to be repealed Mr Fleming's article would carry very little weight as ALL the case law he is referring to would become REDUNDANT over night!

Protect P4H Protect Passengers

TIME 2 DEFINE

Support the RMT campaign if you want a future for the licensed Taxi trade

RMT LTDB
P White

Sean Day said...

Ok. I'll give it a try

1, P4H: A visual, thus available exhibition (real or suggested) of a Hackney Carriage (inc driver) that is licensed by the relevant authority to undertake an immediate public hiring. Anything other is a transgression of the MCF 1934 London Cab Order, Statutory Instrument 1634.

1(a), The impersonation a Hackney Carriage that has been licensed to undertake immediate hirings (either visual, behavioural, or suggested) is soliciting for business and therefore is in contravention of sect 167 of the Criminal Justice and Public order Act 1994, otherwise known as touting (fraud)

SPD

Anonymous said...

Before we all start being happy clap pay about the new engagement arrangement, let's not forget that Oddy, McNamara, Grant Davis and Jim Kelly, did their upmost to keep others out of important meetings with TfL.
Before we move on, they should all be removed. They sold the trade out.

James Savage said...

I love Alan Fleming, we met many years ago on the Whitehouse Rank and i badgered him into joining the LCDC, the rest is history.
Such a shame we don't have the same men with balls in Taxi House in Woodfield Road.
Uber are breaking the law every minute of everyday by showing they are ready for immediate hire, it's just the tossers at TFL who refuse to follow up the Law.

Anonymous said...

Fantastic piece and very enlightening.

It proves one thing to me. Political/business corruption trumps the law of the land when it fits an agenda.

Anonymous said...

moan and moan 20 pound each cab driver to tak e TFL to court say no more

Anonymous said...

You don't need £600 grand to take TFL to court, all that's needed is for Hogans Heroes to do the job they are employed to do the job they were employed to do. It's no coincidence that the Met are not levelling charges at instant hailing apps. Weak gullable representation has facilitated TFL to blind side the trade with carefully crafted spin and rheoric about case law and new technology. It's all smoke and mirrors. The case law is current and as relevent today as it was a 100 years ago.
It's time to hold these corrupt bastards accountable and to press for the law to upheld. This corrupt oppression must be ended.

lee ward said...

The aeticle is very well written and explains itself perfectly. I am i terested to see if this, plus the information that I passed to Jean Paul Day recently couldnor would be tied together and make it a water tight kegal case against Uber and uts platform .

Anonymous said...

I've been saying for years that we need a test case in London, ever since TfL licenced satellite offices and allowed PH operators to have their vehicles parked outside venues they have been contravening the laws highlighted in Alan''s excellent article.

TfL know that if a test case was brought before a judge there is a very good chance they will be found to have facilitated an illegal operation, this is why they are reluctant to do so.

Fast forward a couple of years and Tfl''s weakness and refusal to act as a regulator has been fully exploited by the mini cab app companies.They have created this monster and have know clue how to deal with it, in fact they don't want to deal with it because they know that if a judge finds that these apps are plying for hire they will be culpable, so instead they do nothing!

We have a new Mayor and a new opportunity to make our case to him that we need this tested in court,we must get this clarified otherwise we will be going round in circles for years arguing the point.

With regarda to the RMT and their obsession of getting plying for hire defined, it's already defined as this article proves, why would we want to give the pro uber government an opportunity to re-define it in their favour?

Let's push for a test case based on current legislation, if they want to change the laws, make them do it through the proper channels where it can be debated and challenged.

Lee




Anonymous said...

Good luck with any test case all the people running the show know what the laws are they just choose to interpret them to work in their favour without support from the public no one cares about us also when we had the chance to take tfl on even most cabbies didn't care either

Anonymous said...

Lee is right, and what he is suggesting is sensible.
For too long we have been shafted by bent politicians and corrupt civil servants - we must now go down the road of the High Courts and hold TFL and anyone else that gets in our way accountable.
It's no good Danny Sullivan taking his video to compliance to show them Uber are plying for immediate hite at St Pancrass,

THEY ALREADY KNOW
THE POLICE ALREADY KNOW
CAMDEN COUNCIL ALREADY KNOW

They turned a blind eye to satellite offices, and now they are turning a blind eye to plying for hire via instant hailing apps.
There is NO grey area at all, and I for one am fed up with being fed this crap through subservient trade org leaders.

Sadiq Khan and his deputy Joanne McCartney are both lawyers, its time to bypass the shysters at TFL and draw on the legal experience of the Mayor and deputy Mayor to force change.



Anonymous said...

It's not the job of those running the show to decide if thsee apps are operating illegally, that's the responsibility of a judge, like I said earlier, TfL know there is a good chance they would lose in court, that's why they will never instruct enforcement officers or the Police to make an arrest!

Let's put it to Sadiq Khan and see what he says, what do we have to lose?

Lee

Anonymous said...

ALL that's needed is:

a mass demo NOW, highlighting & PUBLICISING, just one thing:

WHY AREN'T THE POLICE & AUTHORITIES, UPHOLDKNG THE LAW.

Anonymous said...

Trouble is, whoever calls the demo will be istracised by the other groups because they never called it and won't get all the glory.
They have no idea how to get together and call a United trade demo.
LTDA and LCDC are still hoping they can resurrect the engagement policy as their power is slipping away.