Saturday, February 18, 2017

Repairing Broken Boundaries : by Lee Ward.


Since my post on Taxi Leaks, and also printed in PHTM named Uber Boundaries, Bent or Broken? (Link found here) I have now evolved this issue to repair the boundaries that have been bent or broken, and the repair comes with Case Law to support it, so why are we doing, once again, what the Licensing Authorities are paid to do from our fees? 
 
Is it because we actually care and are the ones being hurt on a daily basis from it? 
... Probably.
 
Is it because the Licensing Authorities have the same apathy that some of our colleagues have? …Possibly.
 
Let’s look at the scenario that effects many areas within the UK, and that’s vehicles and drivers licensed in another area ranking up on the roads awaiting a job to come to them from the public through the platform that the driver is working on, that would be an accurate occurrence of events, wouldn’t you agree?
 
Problem is, this is actually illegal, and both the driver and the Operator are equally guilty of the offence of Plying for Hire. Yes, I know, Plying For Hire does not have a statutory definition, however the description written in the article on Taxi Leaks by Alan Flemming, which I think is possibly the most definitive explanation and reference for this offence (article found here) has the most accurate definition and one point I wish to extract from that well of information is from a case way back in 1946 from the case of Gilbert v McKay where the presiding Lord Chief Justice Lord Goddard(ironically the first ever Lord Chief Justice to hold a Law degree, go figure…) stated.
Lord Chief Justice stated;
 
“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.
 
 
So, a vehicle parked on private land and out of sight, let alone on a main road near popular public places, is in fact sat waiting for the immediate hire as would a Hackney.
Now let’s remind ourselves of what these vehicles that commute from their own licensing area do, they sit at the side of the road waiting for a member of the public to make an immediate booking through an App and they set off to pick up that person, a member of the public who, as far as they are concerned opened an App in a City and expect a Licensed Vehicle and Driver with that Cities Authorities to come and fulfil their request.
 
 
 
Probably the same as they would not expect a curry ordered on an App to be supplied by a curry house some 200 mile away, they expect it to be local, don’t they? … Of course they do…
 
But I hear drivers who work in the area that they are licensed already screaming out “WTF we have to park up like this, don’t tell me I have to hide in a side street” actually, no you don’t, so calm down and carry on reading.
 
A driver who is working outside the area that he is licensed must as Mr Justice Hickinbottom stated in the case between Blueline Taxis v Newcastle;
 
The operation is geographically fixed in the operator's licensing area: that area must be where the operator's premises are located, bookings made and from which vehicles are. It is an offence for operators to operate outside that licensing area; nor can they subcontract work to operators outside that area. It is therefore clear that Parliament has determined that the licensing regime for private hire vehicles is inherently local in nature – presumably on the basis that "devolved decision making in relation to the application of the legislation is beneficial in that local authorities are in the best position to determine what is needed most in their area and what the main problems and issues are" and it is a "central principle of this legislation" that "the authorities responsible for granting licences should have the ability to exercise full control over the operation of private hire vehicles within their area.

Case references removed for ease of reading, full report can be read >here<
 
So as you can see, Mr Justice Hickinbottom acknowledged that a local council knows best in its area, and therefore can see that locally licensed Private Hire Vehicles will park in certain areas, but should these areas be outside popular places? Of course not or they are equally sat Plying for Hire, however, the locally licensed driver is well within his right to sit in the area that he is licensed to work to provide a service for a member of the public who wishes a Private Hire as soon as possible. Sorry Hackney drivers, but this is a fact of the Private Hire trade also, it is not your given right to be the only service that works on a complete ad hoc basis.
 

 
Now I hear the drivers who are working out of area screaming “If I am not parked in a popular place waiting for a job, then what’s the difference”… oh, that one is both simple and very clear and in the same court case of Blueline v Newcastle where Mr Justice Hickinbottom also stated that;
 
 
However, although the operator must be based and "operate" exclusively in the relevant licensing authority's area, that does not prevent a pre-booked journey, in whole or part, being made outside that authority's area. So long as the relevant operator's licence, vehicle licence and driver's licence are all issued by the same local authority, then it is irrelevant that any particular journey undertaken by a private hire vehicle neither begins, nor ends, nor passes through the area for which that authority is responsible although it may be that, if an operation engages in journeys none or few of which pass through the geographical area of the licensing authority, then a licence may not be forthcoming from that authority.
Again, edited from case references for ease of reading, same link as above.
 
 
So, if you missed it, it’s in two parts, the first says “that does not prevent a pre-booked journey” well sorry guys, but when you are sat in another area waiting for someone to open the App and request a vehicle, then that’s not a pre booked job, its ad hoc.
 
And the other bit is where he says “if an operation engages in journeys none or few of which pass through the geographical area of the licensing authority, then a licence may not be forthcoming from that authority” and what that means is that you and your vehicle may be licensed by the same authority, but the person or company who is licensed by that very authority is not allowed to continually take bookings in another authorities jurisdiction…
 
Therefore, to summarise, any Private Hire Vehicle that is using the ‘Triple Licensing Rule’ to predominately work outside its Licensing Area is in fact working illegally, it’s as simple as that.
 
Any Operator who is encouraging a driver to break the law in regards to Plying for hire is equally guilty of the same offence, under Section 72 of the LGMPA 1976 which is;
 
Offences due to fault of other person etc.
(1) Where an offence by any person under this Part of this Act is due to the act or default of another person, then, whether proceedings are taken against the first-mentioned person or not, that other person may be charged with and convicted of that offence, and shall be liable on conviction to the same punishment as might have been imposed on the first-mentioned person if he had been convicted of the offence.
So basically, even if the driver is charged or convicted of the offence of Plying for Hire, the company that he represents is guilty regardless by allowing him to sit in an area that he is not licensed in. And before these companies cry wolf and state that they are not in control of what the driver does, sorry, but you are. You can prevent the driver from signing onto the platform and be available to accept bookings in an area that he is not licensed in, as you do in London and Birmingham for drivers who are not licensed there, yes Uber if you have not realised yet, I am talking about you and your platform. Or at the worst case scenario put the driver not available when vacant and not in the area he is licensed in, let’s be honest here, we would not want a driver who has dropped out of his area being punished simply because he stopped for a rest break or food, would we?
 
You see, there is always an answer to every problem, it’s just whether you want to look for the answer and then work at the problem, or do you want to put your head in the sand and pretend that the problem will go away…



With thanks to Mark Jennings from Southend with assisting me in this. Full respect to Mark and his commitment to this nationwide issue.

Extra Comment 
 
 
If this is how TfL licensed vehicles can be sold, who monitors them for Hire and Reward Insurance and PH Drivers Licenses...

If no Insurance on those vehicles then the roundels should be handed back, surely !!!!!