Gateshead Council v Henderson [2012] EWHC 807 (Admin) (13 February 2012)

The case below shows exactly why plying for hire needs to be defined in law.

The Law commission has stated they will not be defining plying for hire in law, but will be taking a more modem approach to pre-booking arrangements. 

Case
This is an appeal by way of a case stated against a decision of the Gateshead justices, whereby they dismissed an information against the respondent, Paul Henderson, that he, on 2 October 2010, was plying for hire with a motor vehicle registration number NA 57 VRT within the borough of Gateshead, without having obtained a licence from the appropriate authority, contrary to section 45 of the Town and Police Clauses Act 1847. 

The statement of case records the evidence heard by the justices. Two licensing enforcement officers with Gateshead Council, Mr Lines and Mr Harris, were on duty on 22 October 2010 checking licensed premises and takeaway restaurants on Durham Road. Upon leaving a takeaway premise Mr Lines became aware of a Citroen Xsara Picasso motor vehicle outside the Travellers Rest public house. He noted it was a Gateshead licensed private hire vehicle. Following a discussion with Mr Harris, a decision was made to carry out a test purchase. 

Mr Lines's evidence was that he approached the driver's side of the vehicle but he waited until a passenger in the vehicle had alighted. He stated that he then knocked on the driver's window and in response the respondent wound his window down. Mr Lines then asked if the driver was booked and was told by the respondent "No". At this point, Mr Lines called Mr Harris over and got into the front passenger seat. Mr Harris sat in the rear of the vehicle behind the driver. Mr Lines asked the respondent to take them to the Hilton Hotel. The respondent reversed the vehicle off the path onto the main road and put on the taxi meter. He then made contact by way of his vehicle radio, stating "Just picked up from here", before transporting the officers to the Hilton Hotel as requested. Mr Lines stated that when they arrived at the Hilton Hotel at 9:20pm he paid the fare displayed on the meter and was issued with a receipt when he requested one. 

During cross-examination Mr Lines accepted that the vehicle was clearly not a Hackney carriage, nor was the driver trying to lead anyone to believe that it was. He also accepted that the vehicle was stationary and not parked up in a taxi rank. Mr Harris gave evidence. He noted that a passenger had been in the vehicle and Mr Lines knocked on the driver's window after the lady had got out of the vehicle. He was certain Mr Lines allowed her to alight before getting into the vehicle as she was sitting in the front passenger seat, which is the same seat that Mr Lines occupied for the journey. Mr Lines spoke to the driver before beckoning Mr Harris over and Mr Harris sat in the rear of the vehicle. 

In a section 9 statement Mr Martin stated that he is a private hire operator for Team Valley Taxis. He commented that "private hire drivers can only collect passengers once a booking has been received by the operator. All bookings must be pre-booked". From his records for 2 October 2010 there was no booking shown for the journey in question. 

The respondent gave evidence that he held a Hackney carriage licence with Gateshead Council and had done so since 2003. In October 2010 he obtained a private hire licence as well. Although ordinarily he drove a Hackney carriage minibus, on 22 October he was driving a private hire vehicle belonging to Team Valley Taxis, as his minibus was being repaired. At 9:15 pm he picked up Kathleen Hunter to take her to the Traveller's Rest public house. He knew her as a regular fare, he was aware of her disability and the fact that it takes time for her to get out of the vehicle. Upon arrival at the public house Mrs Hunter handed him a £5 note to cover her fare of £2.80. This meant she required change. She was sitting in the rear seat behind the passenger seat. Whilst completing this transaction an unknown male knocked on his driver's window, which he then wound down. The male asked the respondent if he could be taken to the Hilton Hotel. The respondent asked the male to give him a moment and the male repeated his request. The respondent then wound his window back up and the male asked again. At this point the respondent said that he would. He explained that the unknown male got into the front passenger seat as Mrs Hunter left the rear seat. The unknown male shouted over to another male person who came and sat in the rear seat behind the driver's seat. 

In cross-examination the respondent stated that he should not have picked up these two persons and that he knew he was in a private hire vehicle in the Gateshead area. He stated that he was stationary when he was approached and he radioed the operator to say that he was picking them up. He said he was not plying for hire. He had a customer in the car and if Mr Lines had not come to his car he would not have picked them up. 

Finally, the passenger, Mrs Hunter, gave evidence. She confirmed that she had been sitting in the rear of the vehicle and that she always sits there. She said that as she was handing over payment for the fare and waiting for her change she became aware of a male banging on the driver's door window. She was adamant that the male tried to get into the taxi when she was still in the vehicle and that he opened the front door. 

At paragraph 18 of the case stated, the justices say: 

"Having heard all the evidence we made the following findings of fact in relation to the contentious issues. We found that Mrs Hunter had not alighted from the vehicle prior to Mr Lines knocking on the window and making his repeated requests. Furthermore Mrs Hunter was still in the rear of the vehicle completing her transaction when Mr Lines physically entered the vehicle and made a request to be taken to the Hilton Hotel. 

In our view we could not be sure that the respondent had either expressly or by inference, invited or encouraged a member of the public to use his vehicle. Therefore we dismissed the allegation of plying for hire…"

The justices state that after receipt of the case stated, they had their attention drawn to two authorities, Ogwr Borough Council v Baker [1989] COD 489 and Nottingham City Council v Woodings [1994] RTR 72. At paragraph 23 of the case stated the justices saying having considered those cases: 

"In relation to the interpretation of the word 'plying' we have drawn a distinction between a driver agreeing to complete an unsolicited request, as in the instant case, and a driver who solicits the trade directly or indirectly by parking up or lingering for longer than is necessary in the expectation or hope of further custom. This was clearly not the situation in this case, where the driver was still in the process of concluding a legitimate fare when engaged by the council officers."
The question posed by the justices for consideration of this court is: 

"Were we correct in law in acquitting the respondent on the basis of the definition of 'plying' as applied by us in this case?"

Taxis are divided into 2 distinct types, Hackney carriages and private hire vehicles. A Hackney carriage can be hailed from the street or it can park on a rank and wait for passengers to approach it; a private hire vehicle cannot. A private hire vehicle must be pre-booked through a licensed operator prior to the commencement of a journey. A Hackney carriage can only be driven by a person holding a Hackney carriage licence; likewise a private hire vehicle can only be driven by a person holding a private hire vehicle licence. The vehicle must act in accordance with its respective licence. (See Yates v Gates [1971] All ER 754 and Benson v Boyce [1997] EWHC Admin 35). 

The vehicle in question was a private hire vehicle and the journey was not pre-booked. Section 45 of the Town and Police Clauses Act 1847 provides that it is an offence for a person to stand or ply for hire without a Hackney carriage licence. Accordingly, it is an offence for any person to ply for hire with any carriage which in effect is being used as a Hackney carriage without previously having obtained the requisite licence for that purpose. 

Ms Smith, for the appellant, makes two submissions. First at paragraph 53 of her skeleton argument she submits that: 

"The bench failed to take into consideration the factors relating to the alleged offence and paid too much regard to matters that were irrelevant."
Second, in her oral submissions today she submitted that the bench erred in their construction of the words "plying for hire" in section 45 of the 1847 Act because the driver of a private hire car commits an offence if he agrees to carry a passenger who has not pre-booked the vehicle. I shall deal with these submissions in turn. 

As for the first submission, Ms Smith relies on the cases of Ogwr Borough Council v Baker and Nottingham City Council v Woodings. The case of Ogwr Borough Council v Baker concerned a line of Hackney carriages and private hire vehicles parked outside a nightclub. The Hackney carriages were plying for hire by persons emerging from the nightclub. Also in the street was a hotdog van. It was parked about ten yards away from the nightclub and the respondent's private hire vehicle was parked near to the hotdog van. A couple emerged from the nightclub, walked past some Hackney carriages and went up to the respondent's vehicle. It bore on its windscreen a sticker saying "Always", which the justices found was the name of the firm that employed the respondent. It made available private hire vehicles. The couple approached the driver and asked him whether he was for them and he then communicated with his controller for the purpose of ascertaining whether the couple had indeed booked a private hire vehicle from his firm. It was established they had although the respondent had not been sent there by his firm for the purpose of fulfilling that booking. The justices found that the respondent sometimes parked in the position where he was when accosted by the couple for the purpose of using, as they put it, the facilities of the hotdog van, but as the police constable observed the respondent did not get out of his vehicle for that purpose on this occasion. The officer approached the vehicle and asked the respondent the names and addresses of his passengers. He did not know either and confirmed that this was not a pre-arranged pick up. 

Leggatt J identified the question which the judges had to ask themselves as being: 

"Whether by parking the vehicle where he did the respondent was in the circumstances impliedly soliciting custom -- that is, exhibiting the vehicle to the public as one which might be hired."

In his judgment the respondent's presence in the vehicle with the name of the taxi service on the windscreen near a line of Hackney carriages outside a nightclub at 1:30 in the morning could not but constitute an invitation. As Bingham LJ observed, this was a very clear case of plying for hire by an unlicensed vehicle. The facts of the present case can in my view be distinguished from those in Ogwr in two material respects. First, the vehicle was stationary but not parked, the transaction with Mrs Hunter still being in progress when the vehicle was first sighted by the enforcement officers and approached by Mr Lines; second, the respondent's vehicle was not near a taxi rank. 

In Nottingham City Council v Woodings the defendant was sitting in the driver's seat of a private hire vehicle, recognisable as a minicab by signs on the side of the car. The car was parked and there was no passenger in the vehicle. Lord Justice Rose LJ said at page 75DE 

"In my judgment, when the defendant parked the marked car in the street, for the purpose of going into the toilet, he was not plying for hire, and when he came out of the toilet, he was not plying for hire. But when, having sat in the driver's seat, he told the prospective passengers that he was free to carry them, at that stage he was, bearing in mind where the car was and what the car looked like, plying for hire."

Again, as the justices noted at paragraph 22 of the statement of case, the facts of the present case can be distinguished from those in the Woodings case. The respondent had not parked his vehicle and Mrs Hunter, his passenger, was still in the vehicle completing her transaction when Mr Lines approached and made his request. 

In my judgment the decision of the justices in the present case was one to which a reasonable bench, applying their minds to proper considerations and giving themselves proper directions, could come on the findings of fact that they made. Accordingly, I reject Ms Smith's first submission. 

Ms Smith's second submission, which Mr Holland for the respondent describes as a bold submission, I also reject. In my view it plainly runs counter to the analysis of Leggatt J, with whom Bingham LJ agreed in Ogwr Borough Council, and of Rose LJ with which Waller J agreed in Woodings. Mr Holland submits that there is no comprehensive and authoritative definition of plying for hire. It is a question of fact and agree in each case. In Cogley v Sherwood [1959] 2 QB 311 Lord Parker CJ said at pages 325-326: 

"In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for hire that the vehicle in question should be on view, that the owner or driver should expressly or impliedly invite the public to use it, and that the member of the public should be able to use that vehicle if he wanted to."

Ms Smith noted that that case was determined under a different statute, namely the Metropolitan Public Carriage Act 1869. However, Rose LJ in Woodings cited it with approval. In my view both Cogley v Sherwood and Sales v Lake [1922] 1KB 553, a case also involving the 1869 Act to which Mr Holland referred, support the approach adopted in Woodings and in Ogwr. Accordingly this appeal is dismissed. 


Order: 1. Appeal dismissed.

2. No order for costs.

3. LA Direction Respondent.

http://www.bailii.org/ew/cases/EWHC/Admin/2012/807.html

CCTV in Taxis and Private Hire Vehicles

On 29 October 2013, Conservative MP for Bedford Richard Fuller introduced a ten minute rule bill on CCTV in taxis and private hire cabs.

Mr Fuller is calling on the government to introduce legislation which requires CCTV to be installed in licensed Hackney carriages and private hire vehicles - and for a minimum standard to be established for such installations.

Mr Fuller wants private hire and taxi drivers to be afforded the same protection as "bus drivers, airline staff and railway employees".

In January 2012 Mehar Dariwal, a taxi driver in Mr Fuller's constituency, was killed by a customer.

Full report from Commons:

Conservative MP for Bedford Richard Fuller 

I beg,

That leave be given to bring in a Bill to require the installation of closed circuit television in licensed hackney carriages and private hire vehicles; to establish a minimum standard for such installations; and for connected purposes.

Like many right hon. and hon. Members on both sides of the House, I am sceptical about the value of the pervasiveness of CCTV in our lives and in our communities, but I wish to explain to the House why I believe that its provision in private hirevehicles and taxis is warranted and justified. For too long our private hire and taxi drivers have been treated like second-class citizens. Indeed, they are an overlooked community when it comes to personal safety. Yet they are an essential part of our public transport system, for in many towns across the country, who is going to take people home in the evenings? It will be a private hire cab or a licensed taxi. However, the safety provided in those circumstances is below that provided in other forms of public transport. It is the most trusting of circumstances: one, two or three people in a single vehicle late at night, with nothing to provide any evidence if a crime is committed.

The types of crime that are committed run the gamut, from theft to racial abuse and assault. Many of our taxi drivers are drawn from ethnic minorities. Racial abuse, wherever it happens, is unacceptable. In Doncaster, taxi drivers requested that the local council bring in CCTV because they were concerned about the incidence of racial abuse. They noted a significant decline in racial abuse following the introduction of CCTV. Theft is almost thought of as a cost of doing business. We should consider what it must be like for a taxi driver when two or three people they have driven home simply refuse to pay. What evidence does the driver have that a crime has been committed? What power does he or she have to stop those people perpetrating that crime? There is little ability to stop the crime and little evidence that it has happened. The number of assaults that occur in disputes between drivers and passengers is horrifying, and occasionally they lead to murder.

Having CCTV in taxis is about providing safety not only for drivers but for passengers, because there are sometimes instances of passengers attacking each other in the back of taxis. In my conversations with the Metropolitan police, I was interested to hear that they regard the provision of CCTV in taxis and private hirevehicles as helpful in cases of sexual assault or rape that occur after people have been taken by taxi to a place of residence.

Those are some general examples, but I have been moved to seek to bring in this Bill by specific examples in my constituency. A year ago one of my constituents, Mehar Dhariwal, was murdered. His murder brought into sharp relief the dangers that men and women in our taxis can be under when they are put in situations of risk. I met his widow, Mrs Dhariwal, last weekend. Although her loss can never be made up for, her encouragement to me was to say, “Richard, it’s important

that we bring in this measure so that other people do not have to go through the suffering that I and my family have gone through.”

The dangers faced by taxi drivers were also brought into sharp relief when a friend of mine who works for 24-7 Cars was held at knife point between Bedford and Luton. He managed to escape only because he was smart enough to realise that there was a police car parked at a petrol station he was approaching. He rolled out of the taxi, sustaining injuries, and the taxi came to a halt. The two perpetrators of the crime got out and were chased by two police officers. One of those idiots threw a knife at the police officers and the other turned a gun on them, but the officers bravely dodged the knife and one of them knocked the gun away. I am pleased to say that our chief constable was prepared to take all necessary measures to ensure that those criminals faced the full force of justice.

This Bill proposes to provide for secure and encrypted CCTV in taxi cabs. It is important from the point of view of privacy that the information is secure and encrypted. It should also be accessible by the police only in circumstances in which a crime is reported to have been committed. The system should be mandatory, because then the citizen would know that it was being used when they got into a taxi cab. If the take-up were voluntary rather than mandatory, people would not know exactly what type of safety provision was in use. Councils around the country have seen the value of introducing a mandatory system over a voluntary one.

There is a question about whether CCTV should provide just video coverage or audio coverage as well. This issue was subject to an Information Commissioner review involving Southampton council earlier this year. The consequence was not to ban audio recording outright, but to say that it could be provided only in a panic situation—a short burst of audio at the particular point when a driver felt a crime was being committed. I believe that that is the correct approach.

There are also issues with costs. The last thing I would wish as a result of this Bill is to place additional costs on drivers. We do not ask bus drivers to pay for the CCTV that protects them, and nor should we ask taxi drivers to pay for their own personal safety while they ply their trade. Southampton has built on its work with the Information Commissioner and has a very good approach to covering costs: the council covers the cost of the camera and the taxi drivers are responsible for the maintenance and installation of the system. That also allows the driver to recoup their costs through insurance reductions, because CCTV is able to look outside as well as inside the vehicle and can therefore be used as evidence in claims when crashes or whiplash are caused. In such circumstances, I believe that the costs that would fall on the drivers would be negligible at best.

This Bill seeks to provide a level of security for our taxi drivers that is long overdue. Workers in other high-risk transport situations already benefit from it and I believe it would have a significant impact. A US study recently compared the effect of measures such as CCTV and barriers between the driver and passengers. It found that only one method contributed to a significant reduction in crimes against drivers, and that was CCTV.

This Bill has many benefits, but to my mind the most important is that it will start to give respect to our taxi drivers and stop people treating them as second-class citizens.

Question put and agreed to.

Ordered,

That Richard Fuller, Meg Hillier, Mr Adam Holloway, Siobhain McDonagh, Stephen McPartland and Priti Patel present the Bill.

Richard Fuller accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 8 November, and to be printed (Bill 121).

MAKDA vs THE PARKING ADJUDICATOR. Picking up a pre booked job

Case No. CO/4743/2009 
Neutral Citation Number: [2010] EWHC 3392 (Admin) 
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand 
London WC2A 2LL 
Date: Monday, 29th November 2010 
B e f o r e: 
MR JUSTICE BURNETT 
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Between: 
THE QUEEN ON THE APPLICATION OF MAKDA 
Claimant 
v 
THE PARKING ADJUDICATOR 
Defendant 
- - - - - - - - - - - - - - - - - - - - - 
Computer Aided Transcript of the Stenograph Notes of 
WordWave International Limited 
A Merrill Communications Company 
165 Fleet Street London EC4A 2DY 
(Official Shorthand Writers to the Court) 
- - - - - - - - - - - - - - - - - - - - - 
Mr C Morrison Appeared On Behalf Of The Claimant 
Mr I Rogers (Instructed By Patas) Appeared On Behalf Of The Defendant 
- - - - - - - - - - - - - - - - - - - - - 

J U D G M E N T 
1. MR JUSTICE BURNETT: This is an application for judicial review of two decisions of parking adjudicators, each upheld on review within the parking adjudication system. The claimant, Mr Makda, is a licenced minicab driver who operates through an office in Frith Street, London W1. Licenced minicab drivers, unlike those licenced to drive Hackney carriages, may not tout for work but must pick up only pre-booked fares. 

2. At about 9.17 in the evening of 25 June 2008 Mr Makda drove to Dean Street, London W1, in response to a booking that had been made at 9.03 by telephone to the office. The customer who had booked the journey was called Laura. She wished to be taken to Streatham Place SW2. Mr Makda pulled up close to the junction with Dean Street, where he had been told that the passenger would be waiting. He did not leave his car. She, however, did not show up. Having established that she was not there, Mr Makda very shortly thereafter drove off. 

3. A CCTV camera operator watched the car in real time for a total of 1 minute 30 seconds. Mr Makda was stopped on double yellow lines. The operator issued a parking charge notice for £120 subject to a reduction if paid within 21 days. 

4. An almost identical event occurred on 3 July 2008 at about 9.25. On that occasion the CCTV camera operator watched Mr Makda for about 1 minute 20 seconds. Again, Mr Makda was responding to a telephone booking made to his control office. That booking had been made about 3 minutes beforehand and asked for a cab immediately in Dean Street. The destination was Kingsland High Road, E8. The passenger on this occasion was noted in the office as Noella Bible. Again, she did not show up and a parking charge notice was issued by the camera operator. 

5. Parking restrictions in the City of Westminster are enforced by Civil Enforcement Powers, deriving from the Traffic Management Act 2004. Parking on a double yellow line used to be a criminal offence in Westminster, but this has not been the case for many years. The civil contravention is created by Article 5(1) of the City of Westminster Traffic Management Order 2002. It provides: 
"No person shall cause or permit any vehicle to wait during the prescribed hours in any restricted street except subject to the provisions of the next paragraph for so long as may be necessary for the purposes of delivering or collected goods or loading or unloading a vehicle at premises adjacent to the street." 
The exemptions relating to loading are then further refined within Article 5. 

6. Article 12 provides the first of a number of further exemptions from parking restrictions. As material, it reads: 
"Nothing in Article 5 of this order shall render it unlawful to cause or permit a vehicle to wait in any restricted street for so long as may be necessary for the purpose of enabling any person to board or alight from the vehicle or to load there on or unload there from his personal luggage." 

7. The Civil Enforcement of Parking Contraventions (England) Representations and Appeal Regulations 2007 allow someone served with a penalty charge notice, or the owner of a vehicle concerned, to make representations to the local authority why he should not be liable to pay the charge. The grounds of such representations are set out in regulation 4(4). It is sufficient to record that one of those grounds is "that the alleged contravention did not occur." 

8. A local authority is obliged to consider any representations made and respond to them. If the representations are not accepted, the reasons must be set out in a "Notice of Rejection" which is provided for by Regulation 6 of the 2007 Regulations. 

9. Following the rejection of representations, the person concerned has a right of appeal under Regulation 7 to the Parking Adjudicator. The grounds of appeal are the same as those upon which representations could be made to the Local Authority. An adverse decision from the Parking Adjudicator may be reviewed by another parking adjudicator. The nature and extent of such a review jurisdiction is set out in paragraph 12 of schedule 1 to the 2007 Regulations. 

10. The scope of that review power has not, it would seem, been the subject of detailed consideration, either by parking adjudicators themselves or in this court. As we shall see, Mr Makda was unsuccessful in his representations, his appeal and also on review. 

11. The primary argument advanced by Mr Makda in these proceedings through his counsel, Mr Morrison, is that the exemption set out in Article 12 applied in the circumstances as described. In consequence, Mr Morrison submits that the adjudicators, both when considering the appeal and on review, were wrong to refuse to set aside the notice. 

12. I should note that there was a subsidiary argument founded upon guidance issued by the Council, which suggests that camera operators cannot issue parking charge notices unless they observe a vehicle waiting for more than 2 minutes. That argument is not pressed in this application, not least because the guidance to which reference is made post dates the alleged contraventions with which I am concerned. 

13. The sequence of events in respect of the first notice was as follows: the penalty charge notice itself was dated 2 July 2008. It was served by post. It stated that a camera operator was observing the vehicle in real time at 21.17 parked on double yellow lines in Dean Street. A rather grainy still appears on the notice. Mr Makda made representations to Westminster City Council, the essence of which were as follows: 
"I am a minicab driver by trade. On the day in question I had a fare from Dean Street to Streatham Place SW2. I enclose the printout for the job, which was booked for 21.15 hours." 
Westminster rejected the representations by letter dated 15 July 2008. The substance of that letter was as follows: 
"I have considered all of the information you have provided but I am unable to cancel the PCN. This letter is therefore a formal notice of rejection to your representations. The PCN was issued because the vehicle was seen parked in a street when parking restrictions were in force. Yellow lines at the edge of the road mean that there are parking restrictions which apply to the entire road. The vehicle was observed by a CCTV operator, but no picking up/setting down activity was observed. The picking up/setting down exemption does not permit the vehicle to wait for passengers at any time. Whilst appreciating that you drive a minicab, I must, however, advise that there is no exemption for you to wait for passengers. The exemption means that passengers must be ready to board the vehicle upon its arrival. If passengers are not ready, the vehicle must move on to a legal parking space. The evidence you supplied shows a 2 minute wait from the appearance time. This is not permitted. The PCN was therefore correctly issued." 

14. The author of the letter indicates that his understanding of the exemption is that it allows for no waiting at all for a passenger to show up. The clear impression given by this letter is that no tolerance is allowed for a passenger who may not know the identity of the driver or a driver who may not know the identity of a passenger to establish contact. 

15. Mr Makda's representations to Westminster in respect of the second penalty charge notice which is dated 11 July 2008 were, for practical purposes, in the same terms. So too was the response from Westminster City Council, except that there was of course no reference to the timing of the first incident. I should say that the print outs from both jobs which were produced in due course by Mr Makda to the adjudicator identify the passengers in the way that I have described. 

16. Mr Makda appealed to the parking adjudicator in respect of both penalty charge notices. As regards the first, he wrote this to the adjudicator: 
"I work as a minicab driver. On the day in question I had a fare booked for 21.15 and arrived at the appointed time to pick up my passenger. The normal practice is for me to arrive at the designated place at the appointed time and the pre-booked passenger would come up to my window to confirm their name and destination. I cannot approach people to the street, as this would constitute touting. I agree with the council's view in their notice of rejection that the passenger should have been ready when I arrived. Unfortunately she was not there at the appointed time. There were some people at the car window, but none of them was the passenger that had booked the journey. As is sometimes the case, some passenger would book a fare and then decide not to travel or find and take a taxi without even calling my office to cancel. I absolutely refute the council's assertion that I was waiting for the passenger. I arrived at the booked time to pick up the passenger and it just happened that she was not there when I arrived." 
The account that Mr Makda gave in respect of the second occasion on which he had been issued a penalty charge notice was similar, save that he gave no indication that people were at the window of the vehicle. 

17. Both appeals were considered on paper by the same adjudicator, Edward Houghton. His reasons for rejecting the first appeal were these: 
"the appellant's vehicle was waiting in a restricted street. This is unlawful unless some legal exemption applies, although there is an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle. This does not extend to waiting for the passenger to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully." 
As far as the second is concerned, he said this: 
"It is not in dispute that as the DVD evidence shows, the vehicle was waiting in a restricted street indicated by double yellow lines. The appellant is a minicab driver and was waiting for a pre-booked passenger who was not on time. However, although there was an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle, this does not extent to waiting for passengers to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully." 
Mr Houghton went on to indicate that the circumstances were such that the council might consider exercising discretion to cancel the penalty. That suggestion fell on deaf ears. 

18. As I have already indicated, both decisions were reviewed. The review of the first noted that the vehicle was visible in the CCTV footage for something over a minute and 20 seconds with no sign of anyone getting into the car. The second review was dealt with rather differently. Unlike the adjudicator considering the first review, who engaged with the facts and circumstances of the alleged contravention, the second reviewing adjudicator considered that a review was not appropriate because in essence Mr Makda was simply seeking to challenge the factual finding. 

19. Article 12 of the 2002 order allows a vehicle to wait: 
"for so long as may be necessary for enabling any person to board or alight from the vehicle and to load thereon or unload there from his personal luggage." 
This provision admits of no difficulty in interpretation in almost all circumstances in which private drivers, Hackney carriage drivers or minicab drivers stop to let someone out of the car. The governing factor is plainly how long it takes to get out of the car, to unload the various things that the passenger has with him and then, in the case of a Hackney carriage or minicab, to pay. Similarly, in most cases of picking up, the driver knows his intended passenger or in the case of a Hackney carriage, is flagged down to the side of the road. In those circumstances the reverse process occurs. There is unlikely to be any difficulty in considering the facts to decide whether the vehicle concerned was stopped for longer than was necessary for those activities to be completed. 

20. Even in cases where the driver and passenger are unknown to each other but the passenger is at the pick up site, ready and waiting, contact is likely to be made very quickly indeed. The time taken to make such contact in those circumstances, would, in my judgment, be necessary for the purpose of enabling that person to board the vehicle. But what if a driver pulls up expecting to find a passenger waiting for him but the passenger fails to show up or, as is not uncommon, has made other arrangements? 

21. In the skeleton argument lodged on behalf of Mr Makda by his solicitors, it was submitted that any waiting for a pre-booked passenger is exempted by Article 12. It is fair to say that Mr Morrison has not supported that submission in oral argument. It is not a submission that I can accept. It overlooks two important features found within Article 12, one of which is explicit and the other which is clearly implicit from its context. 

22. The explicit feature within Article 12 is the concept of necessity. So, for example if a driver were early for a rendezvous it could hardly be said to be necessary to wait in a restricted area until the pick up time. Neither would it in general terms be necessary for a driver to wait for a passenger who was late. A fresh rendezvous could, in almost all modern circumstances, be arranged. If that were not possible, then, using language which is perhaps not entirely apt nowadays, the driver would have to go round the block. 

23. The implicit feature is in my judgment that the exemption in Article 12 is concerned with a time which is proximate to the getting into or the getting out of the vehicle. 

24. For those reasons I do not accept the bold submission found in the skeleton argument. I deal with it despite Mr Morrison's not supporting it, simply to make the position clear in the event that similar arguments are advanced in other cases. 

25. Mr Morrison has advanced an alternative construction. It is essentially this: that Article 12 is concerned with allowing a vehicle to wait to facilitate the immediate pick up or drop off of passengers. That, as it seems to me, comes closer to identifying the true meaning of Article 12. It is unnecessary to rewrite the language of Article 12, which is not lacking in clarity. In the context of a driver picking up any passenger at a pre determined time and place, it is in my judgment necessary for the purpose of enabling that person to board the vehicle for the driver and passenger to make contact with each other; alternatively for the driver to conclude that the passenger is not there. 

26. Whether the time spent on that exercise in any given case was necessary is a question of fact. That will depend upon the myriad circumstances which can apply on the ground at the time. The fact that the passenger fails to materialise does not, in my judgment, mean that the exemption can have no application. The time spent by the driver seeking out his passenger by looking for him from the vehicle or waiting for his passenger to identify the vehicle is capable of being time necessary for the purposes of enabling the person to board his vehicle. 

27. The reasons given by the adjudicator in respect of these two notices and supported on review in the instance in which the facts were considered drew a distinction between waiting whilst passengers boarded and waiting for passengers to arrive. Mr Makda "absolutely refuted" that he was waiting for his passenger to arrive on either occasion in a general sense. Although he did not express himself with the clarity with which Mr Morrison has been able to develop arguments, the point that Mr Makda was seeking to make was that he pulled up for as long as was necessary to make contact with his passenger. Having failed to do so, within fairly short order he drove away. I have already noted that in the review decision in which the facts were considered, the absence of a passenger seen on the CCTV was a factor that was given considerable weight. 

28. In the course of argument this morning I have had cause to observe that adjudicators have an extremely difficult task. They perform what seems to me to be an important yet very difficult judicial function. It is important because thousands of appeals are adjudicated upon each year in circumstances where many people who appeal parking tickets will have no other cause to become involved with the judicial system. Mr Rogers, who appears for the parking adjudicator this morning, indicated that overall about 80,000 appeals are made each year. The task is difficult because a very large number of those appeals are dealt with on paper. They are dealt with on short submissions made by drivers or vehicle owners. Those submissions are inevitably not informed by reference to the underlying statutory provisions or legal concepts in play. Adjudicators are therefore in one sense expected to be all seeing and all knowing. 

29. In the circumstances that are revealed in the papers before me and which I have sought to summarise, the subtlety of the argument being advanced by Mr Makda does not appear to have been fully appreciated by the adjudicators concerned. That is not altogether surprising and should not be taken as any real criticism. 

30. However, taking the reasoning in the round, it is clear that Mr Makda's evidence was not explicitly rejected. The impact of his evidence on the true interpretation of Article 12 was similarly not explored in the decisions to which I have referred. It does not appear that the underlying interpretation of Article 12 which was being applied by the adjudicators accorded with the meaning I have sought to give it in the course of this judgment. That being the case, in the course of both decision making processes there was an error of law. 

31. The question was not asked whether the time during which Mr Makda's vehicle was seen to be stationary in Dean Street was necessary for the purposes of enabling his passenger to board the vehicle, albeit that on both occasions the passenger failed to show. Mr Rogers helpfully suggested in the course of argument that were I to conclude that there was an error of law in the course of the decision making process, the proper course of action would be to quash both decisions of the adjudicators on review, quash both of the underlying decisions of Mr Houghton in respect of the appeals brought by Mr Makda and issue a mandatory order that in the circumstances both appeals should be allowed on the matters being remitted to the adjudicator. In the circumstances, that is the order I shall make. 

32. Mr Morrison, Mr Rogers, have I covered everything in the course of that judgment that needs to be covered? 

33. MR MORRISON: Yes, my Lord. 

34. MR ROGERS: In the appropriate relief it may be, since Westminster are not here and have not intended to participate at all in this judicial review, it may be appropriate to order further declaratory relief in terms of liability to pay the penalty charges. Would your Lordship be minded to do that? 
35. MR JUSTICE BURNETT: If there is a mandatory order that Mr Houghton's decisions on appeal are quashed, that the matters are then remitted to him with an order that he allow the appeals, will that not sort it? 

36. MR ROGERS: Yes, what would normally then happen is my Lord might be aware that if the adjudicator allows an appeal he normally has to consider what direction to say make, and standard direction when one allows an appeal is the penalty charge be cancelled. 

37. MR JUSTICE BURNETT: You are quite right. The subtleties of the directions had slipped my mind. Could I invite you and Mr Morrison to draft an order and to email it to my Clerk, or the associate later today so that we can have a look at it and ensure we have covered all bases. 

38. MR ROGERS: My Lord, yes. 

39. MR JUSTICE BURNETT: The critical thing, Mr Rogers, is that as far as Mr Makda is concerned, today should be his last engagement in the process. What is to follow may involve Mr Houghton in a little bit of paperwork, but nothing more than that.

40. MR ROGERS: My Lord yes, I understand that. 

41. MR JUSTICE BURNETT: Yes, all right. Thank you very much. 

42. MR MORRISON: My Lord, I am instructed to apply for a limited costs order. I am very care aware and I am sure you are too that ordinarily course costs would not be awarded, however I am instructed that until we received the defendant's skeleton argument we understood that they opposed the application for judicial review based on a letter explaining their grounds for the decision, page 165 to 168 of the bundle. 

43. MR JUSTICE BURNETT: These are the summary grounds. 

44. MR MORRISON: Yes and they renewed that opposition in a further short letter at page 173. I would not suggest that we should get any costs in respect of this hearing and the preparation for it, but my instructing solicitors are keen to secure some form of costs order for the preparation of the skeleton argument, since they understood at that point that the application was opposed. It is a limited order we seek. I appreciate that this is a 

45. MR JUSTICE BURNETT: What are you asking for? 

46. MR MORRISON: Unfortunately a cost schedule has not been prepared yet, so costs to be summarily assessed at a later date, the proportion of costs between the preparation of the skeleton argument up to the defendant's skeleton argument and the costs incurred after that, in a form of a recovery order. 

47. MR JUSTICE BURNETT: All right. 

48. MR MORRISON: Thank you. 

49. MR JUSTICE BURNETT: Mr Rogers, has the position softened a little? 

50. MR ROGERS: My Lord, I don't think it has. The page 163 it looks like the acknowledgement of the service may have it is said that the adjudicator, with the tribunal finding submission at 163, did use the words, unfortunately, "grounds for contesting", but when one reads the summary grounds, if one reads the summary grounds I don't believe there is any softening of the position at all. There is nothing in there that suggests that this is matter in which this decision was contested and nothing which would suggest that the Tribunal was departing from the normal position of the Tribunal being neutral. There is nothing in there contesting the substance of the points, indeed there is a letter written recently, there was recent correspondence suggesting that the claimant thought he was going to be applying for a costs order and the tribunal drew the claimant's solicitor's attention to the case of Davies v Birmingham Deputy Coroner, copies of which I have. 

51. MR JUSTICE BURNETT: I am very familiar with it. 

52. MR ROGERS: I appreciate your Lordship is very familiar with that. There is no reason to say this case falls outside the Davies guidelines. This is a case where the Tribunal has effectively played a neutral role throughout regardless of the slight differences in wording there. 

53. MR JUSTICE BURNETT: I am just looking for the claim form. It is also a fair observation, is it not, that the original claim form did not quite raise the point with the clarity as has later emerged. 

54. MR ROGERS: My Lord, yes. 

55. MR JUSTICE BURNETT: It is very difficult to make a generalisation, but it looked as though the matter was being challenged on factual grounds fairly substantially. 

56. MR ROGERS: Yes, my Lord, and I did not draw up the summary grounds, but I notice that they stated effectively the claim raises no new point, it is essentially a challenge which the adjudicators and the reviewing adjudicator were ones they were entitled to come to on the evidence before them. 

57. MR JUSTICE BURNETT: I am trying to remind myself whether the grounds mentioned Article 12 at all in terms. 

58. MR ROGERS: It is certainly a case where the extent of the argument was really clear from the skeleton argument, which came later. 

59. MR JUSTICE BURNETT: Yes, that is right. 

60. MR MORRISON: They did not, my Lord, I am afraid the particular Article we relied upon was not available at the application for permission. 

61. MR JUSTICE BURNETT: All right. There is an application made on behalf of Mr Makda by Mr Morrison for costs. This is a case which has, to put it mildly, evolved since it was first issued. The original claim form made no mention of the Article 12 point, which is what has occupied time this morning. The original claim seemed to be founded upon a suggestion that the adjudicator had come to a factual conclusion which was not truly open to him. The acknowledgement of service suggested, in fairly measured terms, that the application would be resisted on the basis that the findings and conclusions were open to the adjudicator. Much has happened since. Permission was originally refused on the papers, but allowed at the renewed oral application before Judge Thornton. He granted permission on the basis of what might loosely be called the guidance point, which has in fact not been pursued. 

62. The real focus of this challenge became apparent when an extremely detailed skeleton argument was lodged and served by the claimant's solicitors, dated 19 April 2010. The arguments came into focus at that stage. The adjudicator, in compliance with the order made by Judge Thornton, responded to that skeleton argument. Mr Rogers settled that skeleton argument on 21 May 2010. The skeleton made it plain that the adjudicator was not taking up an adversarial position in these proceedings. In summary, the adjudicator was taking part to assist the court. 

63. The nature of the arguments today have happily not engaged very detailed technical aspects of law relating to parking. Occasionally that does happen, and in those circumstances the attendance of the adjudicator can be vital to ensure that the court does not fall into error. 

64. The principles in play in respect of the costs application of this sort are well known. They are conveniently set out in the decision of the Court of Appeal in Davies (No.2). that of course was a case which concerned a coroner, but the principles are no different. If a judicial respondent in judicial review proceedings attends to assist the court and does not take up an adversarial position then only exceptionally would be it right for the court to award costs against the judicial officer if the judicial review is successful. 

65. In my judgment the parking adjudicator has remained on the right side of the line as far as Davies (No. 2) is concerned throughout these proceedings. Despite Mr Morrison's attractive submission, it is not a case in which it would be appropriate to order the adjudicator to pay the costs or any part of the claimant's costs. 




Barrie's Segal’s Comments:

The general rule of law is now confirmed that taxi drivers, minicab drivers and any other drivers are allowed to wait for a long as necessary on single or double yellow lines for the purpose of picking up a passenger and/or their luggage. In the case of black cabs which can be hailed by a passenger in the street it is easy to see what time is taken and in the normal course of events that pickup time is clearly necessary.

The question arises (and this was dealt with by the court): what is the necessary time for a taxi driver or minicab driver to pick up a passenger when they receive a pre-booked cab fare. I have won many cases at the parking adjudicator arguing that there has to be a time period to pick up a passenger starts when the vehicle arrives, the driver looks for his passenger and the passenger comes from their premises, finds the cab and enters the vehicle. My view is that that is all part of the process of waiting for the purpose of picking up the passenger. I am pleased to say that the court confirmed my view.


Background

Nearly all councils have taken the rigorous view ( in my view totally incorrect and illogical) that when a taxi driver or minicab driver receives a pre-booked fare the driver cannot wait at all and that the passenger has to be at the kerb ready to get into the vehicle. Some parking adjudicators have agreed with the councils’ view, but many parking adjudicators have not agreed. Indeed one parking adjudicator said that it was preposterous to suggest that a driver arriving to pick up a passenger should act like a Formula One driver performing a pit stop with the passenger diving into the vehicle and the vehicle taking off.

The High Court has now clarified the law on this issue and has stated that councils are wrong to adopt the position they have taken so far.

The learning judge stated that when a driver arrives at the destination, the time taken looking for the passenger or waiting for the passenger to identify the vehicle are all a necessary part of the process of picking up the passenger - and accordingly any parking tickets issued in those circumstances must be cancelled.

The judge also decided that if a driver arrives at the destination to pick up the passenger but the passenger then cancels the journey this is still nevertheless part of the process of picking up the passenger and accordingly any parking tickets issued in such circumstances must be cancelled..

Barrie Segal’s Final Comment: This is a very important clarification of the law which demonstrates that councils have been unfairly penalising licensed taxi and minicabs.

Man Jailed Under Double Jeopardy Legislation For Rape In 1997 Of A Pensioner.

A man who brutally attacked, raped and left a woman locked in a cupboard for 15 hours has been found guilty today, Tuesday 25 June, in a landmark double jeopardy historic case at the Old Bailey. 

Wendell Wilberforce Baker 56 (07.03.57), was convicted of the rape of Hazel Backwell, 66 (15.05.30) which took place in January 1997 at her home address in Litchfield Avenue, E15.

He will be sentenced on Friday 28 June. 

The investigation, known as Operation Starfield, began after retired Mrs Backwell - who has sadly since died - was raped in the early hours of 23 January 1997. She had woken up to find Baker standing on a chair in front of her wardrobe.

Startled and frightened at finding Baker in her room, she asked him what he was doing. Baker shouted at her not to look at him and he jumped down off the chair and pulled the blankets over her head. Her hands were tied up with flex and Baker began hitting Mrs Backwell before later raping her.

After Baker subjected her to the rape she was locked in a cramped cupboard for 15 hours where she was unable to stand properly. Mrs Backwell desperately called out for help and was eventually found by a friend who happened to be passing. Police have no doubt she would have died had she not been found. 

An investigation began at a borough level and DNA samples were taken from the victim and sent to the national DNA database. No match was shown.

In January 1998 Baker was arrested for a burglary in Hackney. On arrest he gave a saliva sample which was sent to the national database. Baker was charged with burglary but later acquitted of the offence. 

The law at that time stated that DNA of an individual could only be retained if they were convicted of a recordable offence. The burglary sample should therefore have been destroyed, but remained on the database and showed a clear match with DNA from the rape. There was only a one in 17 million chance that they were not from the same person.

On the basis of the DNA match, Baker was arrested on 15 October 1998 and charged with the rape of Mrs Backwell. He refused to provide a fresh DNA sample, so - as permitted by law - a sample of his hair was taken and used to provide a second DNA sample, which also matched that taken from Hazel Backwell. 

However, as Baker had been arrested and charged with the rape only on the basis of the saliva sample from the burglary, which should have been destroyed, the defence argued that the match should not be disclosed to the jury.

The rape trial was discontinued by the Judge on 19 June 1999 and Baker was acquitted of the rape of Mrs Backwell. The Metropolitan Police Service (MPS) and the Crown Prosecution Service (CPS) appealed the Judge's decision but lost. 

The case was taken to the House of Lords in December 2000 and an appeal was granted but this did not change the fact that Baker had been acquitted.

In 2001, prompted in part by the House of Lords judgment, the then Home Secretary Jack Straw announced plans under the Police and Criminal Evidence Act (PACE) 1984 to retain all genetic samples on the database indefinitely, even when a suspect was acquitted.

Sadly Hazel Backwell died, aged 72, in 2002 before seeing a change in the law that would allow her case to be heard before a jury.

After new legislation regarding the double jeopardy rule became effective in 2005 (meaning individuals could be tried twice, in certain circumstances, for the same specified serious offences), officers from the Homicide and Serious Crime Command (HSCC) Special Casework Investigation Team were assigned in October 2007 to re-investigate the rape, as it fulfilled the criteria for double jeopardy.

However, when officers tried to obtain the original case files, they found they had not been retained. The MPS approached the court, the CPS and the House of Lords, none of whom had retained copies of the case papers.

On 30 July 2009, BBC Panorama broadcast a programme on double jeopardy and referenced the rape of Mrs Backwell. 

In 2010, officers established that the original defence solicitors had retained a set of case papers which he obtained from them by court order. 

The authority of the Director of Public Prosecution had to be obtained for police to further investigate Baker. He was then re-arrested for the rape of Hazel Backwell on 14 September 2011. He gave a DNA sample which matched the sample from the rape. He was charged with the offence and remanded in custody.

Detective Chief Inspector Christopher Burgess, head of the Specialist Crime Review Group, said: “This was a horrendous and brutal assault on a lone female in her home. Baker subjected Hazel to a frightening and terrifying attack and callously locked her in a cupboard where she feared she may never be found.

“It is down to true strength of character that Hazel survived the ordeal and was able to bravely provide a statement to police giving a detailed account of what Baker had put her through.

“Sadly Hazel passed away in 2002 and it is deeply regrettable that she is unable to see justice being served today. 

“Baker has continued to protest his innocence for 16 years and has shown no remorse for the depraved crime he committed.

“I would like to praise the family of Hazel Backwell who have been dignified and shown a tremendous amount of courage throughout their fight in seeing justice for Hazel. I hope that today’s conviction goes some way in providing closure for the family who have endured so much.

“I would also like to thank the CPS for their co-operation in assisting us in bringing this case before a judge and jury.

“A change in the law has allowed us to achieve the result we have today. Offenders need to know that where possible the MPS will continue review cases where new and compelling evidence presents itself and work towards putting these cases before the court.” 

NON ATTRIBUTABLE: Statement from the family of Hazel Backwell 

NON ATTRIBUTABLE: “Hazel’s life was completely changed after the rape and attack. She felt unable to stay in her own home due to fear. She then had to move into warden assisted flat. 

“Hazel had to leave her own home where she had lived and been very happy for over 30 years. She very much loved her home and garden and had to leave behind some very good friends. Hazel had to also give up her much loved cat which broke her heart as she was unable to keep her cat in her new flat.

“Hazel never settled into the warden assisted flat as it never felt like her own home. She only went out when taken by a friend as she was to frightened to go out on her own but even this was very rare.

“Hazel never got over her ordeal and the family believe she died with a very sad and broken heart. After the rape and attack her life was never to be the same again. This led to the last few years of her life being very lonely and sad and very afraid.

“The family of Hazel Backwell are now very grateful that after fifteen years the police and CPS have been able to bring this case to a satisfactory conclusion. On behalf of Hazel Backwell the family are very pleased that justice has now been done but it is sad our mum is not here to witness the outcome. 

Parking offence by minicab in Dean Street, picking up pre booked passenger

THE PARKING ADJUDICTOR

Defendant

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ComputerAided Transcript of the Stenograph Notes of 

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Mr C Morrison Appeared On Behalf Of The Claimant

Mr I Rogers (Instructed By Patas) Appeared On Behalf Of The Defendant

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J U D G M E N T

1.       MR JUSTICE BURNETT:  This is an application for judicial review of two decisions of parking adjudicators, each upheld on review within the parking adjudication system.  The claimant, Mr Makda, is a licenced minicab driver who operates through an office in Frith Street, London W1.  Licenced minicab drivers, unlike those licenced to drive Hackney carriages, may not tout for work but must pick up only prebooked fairs. 

2.       At about 9.17 in the evening of 25 June 2008 Mr Makda drove to Dean Street, London W1, in response to a booking that had been made at 9.03 by telephone to the office.  The customer who had booked the journey was called Laura.  She wished to be taken to Streatham Place SW2.  Mr Makda pulled up close to the junction with Dean Street, where he had been told that the passenger would be waiting.  He did not leave his car.  She, however, did not show up.  Having established that she was not there, Mr Makda very shortly thereafter drove off.

3.       A CCTV camera operator watched the car in real time for a total of 1 minute 30 seconds.  Mr Makda was stopped on double yellow lines.  The operator issued a parking charge notice for £120 subject to a reduction if paid within 21 days. 

4.       An almost identical event occurred on 3 July 2008 at about 9.25.  On that occasion the CCTV camera operator watched Mr Makda for about 1 minute 20 seconds.  Again, Mr Makda was responding to a telephone booking made to his control office.  That booking had been made about 3 minutes before hand and asked for a cab immediately in Dean Street.  The destination was Kingsland High Road, E8.  The passenger on this occasion was noted in the office as Noella Bible.  Again, she did not show up and a parking charge notice was issued by the camera operator.

5.       Parking restrictions in the City of Westminster are enforced by Civil Enforcement Powers, deriving from the Traffic Management Act 2004.  Parking on a double yellow line used to be a criminal offence in Westminster, but this has not been the case for many years.  The civil contravention is created by Article 5(1) of the City of Westminster Traffic Management Order 2002.  It provides:

"No person shall cause or permit any vehicle to wait during the prescribed hours in any restricted street except subject to the provisions of the next paragraph for so long as may be necessary for the purposes of delivering or collected goods or loading or unloading a vehicle at premises adjacent to the street."

The exemptions relating to loading are then further refined within Article 5.

6.       Article 12 provides the first of a number of further exemptions from parking restrictions.  As material, it reads:

"Nothing in Article 5 of this order shall render it unlawful to cause or permit a vehicle to wait in any restricted street for so long as may be necessary for the purpose of enabling any person to board or alight from the vehicle or to load there on or unload there from his personal luggage."

7.       The Civil Enforcement of Parking Contraventions (England) Representations and Appeal Regulations 2007 allow someone served with a penalty charge notice, or the owner of a vehicle concerned, to make representations to the local authority why he should not be liable to pay the charge.  The grounds of such representations are set out in regulation 4(4).  It is sufficient to record that one of those grounds is "that the alleged contravention did not occur."

8.       A local authority is obliged to consider any representations made and respond to them.  If the representations are not accepted, the reasons must be set out in a "Notice of Rejection" which is provided for by Regulation 6 of the 2007 Regulations.

9.       Following the rejection of representations, the person concerned has a right of appeal under Regulation 7 to the Parking Adjudicator.  The grounds of appeal are the same as those upon which representations could be made to the Local Authority.  An adverse decision from the Parking Adjudicator may be reviewed by another parking adjudicator.  The nature and extent of such a review jurisdiction is set out in paragraph 12 of schedule 1 to the 2007 Regulations. 

10.     The scope of that review power has not, it would seem, been the subject of detailed consideration, either by parking adjudicators themselves or in this court.  As we shall see, Mr Makda was unsuccessful in his representations, his appeal and also on review. 

11.     The primary argument advanced by Mr Makda in these proceedings through his counsel, Mr Morrison, is that the exemption set out in Article 12 applied in the circumstances as described.  In consequence, Mr Morrison submits that the adjudicators, both when considering the appeal and on review, were wrong to refuse to set aside the notice. 

12.     I should note that there was a subsidiary argument founded upon guidance issued by the Council, which suggests that camera operators cannot issue parking charge notices unless they observe a vehicle waiting for more than 2 minutes.  That argument is not pressed in this application, not least because the guidance to which reference is made postdates the alleged contraventions with which I am concerned. 

13.     The sequence of events in respect of the first notice was as follows: the penalty charge notice itself was dated 2 July 2008.  It was served by post.  It stated that a camera operator was observing the vehicle in real time at 21.17 parked on double yellow lines in Dean Street.  A rather grainy still appears on the notice.  Mr Makda made representations to Westminster City Council, the essence of which were as follows:

"I am a minicab driver by trade.  On the day in question I had a fare from Dean Street to Streatham Place SW2.  I enclose the printout for the job, which was booked for 21.15 hours."

Westminster rejected the representations by letter dated 15 July 2008.  The substance of that letter was as follows:

"I have considered all of the information you have provided but I am unable to cancel the PCN.  This letter is therefore a formal notice of rejection to your representations.  The PCN was issued because the vehicle was seen parked in a street when parking restrictions were in force.  Yellow lines at the edge of the road mean that there are parking restrictions which apply to the entire road.  The vehicle was observed by a CCTV operator, but no picking up/setting down activity was observed.  The picking up/setting down exemption does not permit the vehicle to wait for passengers at any time.  Whilst appreciating that you drive a minicab, I must, however, advise that there is no exemption for you to wait for passengers.  The exemption means that passengers must be ready to board the vehicle upon its arrival.  If passengers are not ready, the vehicle must move on to a legal parking space.  The evidence you supplied shows a 2minute wait from the appearance time.  This is not permitted.  The PCN was therefore correctly issued."

14.     The author of the letter indicates that his understanding of the exemption is that it allows for no waiting at all for a passenger to show up.  The clear impression given by this letter is that no tolerance is allowed for a passenger who may not know the identity of the driver or a driver who may not know the identity of a passenger to establish contact. 

15.     Mr Makda's representations to Westminster in respect of the second penalty charge notice which is dated 11 July 2008 were, for practical purposes, in the same terms.  So too was the response from Westminster City Council, except that there was of course no reference to the timing of the first incident.  I should say that the print outs from both jobs which were produced in due course by Mr Makda to the adjudicator identify the passengers in the way that I have described.

16.     Mr Makda appealed to the parking adjudicator in respect of both penalty charge notices.  As regards the first, he wrote this to the adjudicator:

"I work as a minicab driver.  On the day in question I had a fare booked for 21.15 and arrived at the appointed time to pick up my passenger.  The normal practice is for me to arrive at the designated place at the appointed time and the prebooked passenger would come up to my window to confirm their name and destination.  I cannot approach people to the street, as this would constitute touting.  I agree with the council's view in their notice of rejection that the passenger should have been ready when I arrived.  Unfortunately she was not there at the appointed time.  There were some people at the car window, but none of them was the passenger that had booked the journey.  As is sometimes the case, some passenger would book a fare and then decide not to travel or find and take a taxi without even calling my office to cancel.  I absolutely refute the council's assertion that I was waiting for the passenger.  I arrived at the booked time to pick up the passenger and it just happened that she was not there when I arrived."

The account that Mr Makda gave in respect of the second occasion on which he had been issued a penalty charge notice was similar, save that he gave no indication that people were at the window of the vehicle.

17.     Both appeals were considered on paper by the same adjudicator, Edward Houghton.  His reasons for rejecting the first appeal were these:

"the appellant's vehicle was waiting in a restricted street.  This is unlawful unless some legal exemption applies, although there is an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle.  This does not extend to waiting for the passenger to arrive, inconvenient though this may be for chauffeurs and private hire drivers.  The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."

As far as the second is concerned, he said this:

"It is not in dispute that as the DVD evidence shows, the vehicle was waiting in a restricted street indicated by double yellow lines.  The appellant is a minicab driver and was waiting for a prebooked passenger who was not on time.  However, although there was an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle, this does not extent to waiting for passengers to arrive, inconvenient though this may be for chauffeurs and private hire drivers.  The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."

Mr Houghton went on to indicate that the circumstances were such that the council might consider exercising discretion to cancel the penalty.  That suggestion fell on deaf ears. 

18.     As I have already indicated, both decisions were reviewed.  The review of the first noted that the vehicle was visible in the CCTV footage for something over a minute and 20 seconds with no sign of anyone getting into the car.  The second review was dealt with rather differently.  Unlike the adjudicator considering the first review, who engaged with the facts and circumstances of the alleged contravention, the second reviewing adjudicator considered that a review was not appropriate because in essence Mr Makda was simply seeking to challenge the factual finding.

19.     Article 12 of the 2002 order allows a vehicle to wait:

"for so long as may be necessary for enabling any person to board or alight from the vehicle and to load thereon or unload there from his personal luggage."

This provision admits of no difficulty in interpretation in almost all circumstances in which private drivers, Hackney carriage drivers or minicab drivers stop to let someone out of the car.  The governing factor is plainly how long it takes to get out of the car, to unload the various things that the passenger has with him and then, in the case of a Hackney carriage or minicab, to pay.  Similarly, in most cases of picking up, the driver knows his intended passenger or in the case of a Hackney carriage, is flagged down to the side of the road.  In those circumstances the reverse process occurs.  There is unlikely to be any difficulty in considering the facts to decide whether the vehicle concerned was stopped for longer than was necessary for those activities to be completed. 

20.     Even in cases where the driver and passenger are unknown to each other but the passenger is at the pick up site, ready and waiting, contact is likely to be made very quickly indeed.  The time taken to make such contact in those circumstances, would, in my judgment, be necessary for the purpose of enabling that person to board the vehicle.  But what if a driver pulls up expecting to find a passenger waiting for him but the passenger fails to show up or, as is not uncommon, has made other arrangements? 

21.     In the skeleton argument lodged on behalf of Mr Makda by his solicitors, it was submitted that any waiting for a prebooked passenger is exempted by Article 12.  It is fair to say that Mr Morrison has not supported that submission in oral argument.  It is not a submission that I can accept.  It over looks two important features found within Article 12, one of which is explicit and the other which is clearly implicit from its context. 

22.     The explicit feature within Article 12 is the concept of necessity.  So, for example if a driver were early for a rendezvous it could hardly be said to be necessary to wait in a restricted area until the pick up time.  Neither would it in general terms be necessary for a driver to wait for a passenger who was late.  A fresh rendezvous could, in almost all modern circumstances, be arranged.  If that were not possible, then, using language which is perhaps not entirely apt nowadays, the driver would have to go round the block. 

23.     The implicit feature is in my judgment that the exemption in Article 12 is concerned with a time which is proximate to the getting into or the getting out of the vehicle. 

24.     For those reasons I do not accept the bold submission found in the skeleton argument.  I deal with it despite Mr Morrison's not supporting it, simply to make the position clear in the event that similar arguments are advanced in other cases. 

25.     Mr Morrison has advanced an alternative construction.  It is essentially this: that Article 12 is concerned with allowing a vehicle to wait to facilitate the immediate pick up or drop off of passengers.  That, as it seems to me, comes closer to identifying the true meaning of Article 12.  It is unnecessary to rewrite the language of Article 12, which is not lacking in clarity.  In the context of a driver picking up any passenger at a predetermined time and place, it is in my judgment necessary for the purpose of enabling that person to board the vehicle for the driver and passenger to make contact with each other; alternatively for the driver to conclude that the passenger is not there. 

26.     Whether the time spent on that exercise in any given case was necessary is a question of fact.  That will depend upon the myriad circumstances which can apply on the ground at the time.  The fact that the passenger fails to materialise does not, in my judgment, mean that the exemption can have no application.  The time spent by the driver seeking out his passenger by looking for him from the vehicle or waiting for his passenger to identify the vehicle is capable of being time necessary for the purposes of enabling the person to board his vehicle. 

27.     The reasons given by the adjudicator in respect of these two notices and supported on review in the instance in which the facts were considered drew a distinction between waiting whilst passengers boarded and waiting for passengers to arrive.  Mr Makda "absolutely refuted" that he was waiting for his passenger to arrive on either occasion in a general sense.  Although he did not express himself with the clarity with which Mr Morrison has been able to develop arguments, the point that Mr Makda was seeking to make was that he pulled up for as long as was necessary to make contact with his passenger.  Having failed to do so, within fairly short order he drove away.  I have already noted that in the review decision in which the facts were considered, the absence of a passenger seen on the CCTV was a factor that was given considerable weight. 

28.     In the course of argument this morning I have had cause to observe that adjudicators have an extremely difficult task.  They perform what seems to me to be an important yet very difficult judicial function.  It is important because thousands of appeals are adjudicated upon each year in circumstances where many people who appeal parking tickets will have no other cause to become involved with the judicial system.  Mr Rogers, who appears for the parking adjudicator this morning, indicated that overall about 80,000 appeals are made each year.  The task is difficult because a very large number of those appeals are dealt with on paper.  They are dealt with on short submissions made by drivers or vehicle owners.  Those submissions are inevitably not informed by reference to the underlying statutory provisions or legal concepts in play.  Adjudicators are therefore in one sense expected to be all seeing and all knowing. 

29.     In the circumstances that are revealed in the papers before me and which I have sought to summarise, the subtlety of the argument being advanced by Mr Makda does not appear to have been fully appreciated by the adjudicators concerned.  That is not altogether surprising and should not be taken as any real criticism. 

30.     However, taking the reasoning in the round, it is clear that Mr Makda's evidence was not explicitly rejected.  The impact of his evidence on the true interpretation of Article 12 was similarly not explored in the decisions to which I have referred.  It does not appear that the underlying interpretation of Article 12 which was being applied by the adjudicators accorded with the meaning I have sought to give it in the course of this judgment.  That being the case, in the course of both decision making processes there was an error of law. 

31.     The question was not asked whether the time during which Mr Makda's vehicle was seen to be stationary in Dean Street was necessary for the purposes of enabling his passenger to board the vehicle, albeit that on both occasions the passenger failed to show.  Mr Rogers helpfully suggested in the course of argument that were I to conclude that there was an error of law in the course of the decision making process, the proper course of action would be to quash both decisions of the adjudicators on review, quash both of the underlying decisions of Mr Houghton in respect of the appeals brought by Mr Makda and issue a mandatory order that in the circumstances both appeals should be allowed on the matters being remitted to the adjudicator.  In the circumstances, that is the order I shall make. 

32.     Mr Morrison, Mr Rogers, have I covered everything in the course of that judgment that needs to be covered?

33.     MR MORRISON:  Yes, my Lord.

34.     MR ROGERS:  In the appropriate relief it may be, since Westminster are not here and have not intended to participate at all in this judicial review, it may be appropriate to order further declaratory relief in terms of liability to pay the penalty charges.  Would your Lordship be minded to do that?

35.     MR JUSTICE BURNETT:  If there is a mandatory order that Mr Houghton's decisions on appeal are quashed, that the matters are then remitted to him with an order that he allow the appeals, will that not sort it?

36.     MR ROGERS:  Yes, what would normally then happen is my Lord might be aware that if the adjudicator allows an appeal he normally has to consider what direction to say make, and standard direction when one allows an appeal is the penalty charge be cancelled.

37.     MR JUSTICE BURNETT:  You are quite right.  The subtleties of the directions had slipped my mind.  Could I invite you and Mr Morrison to draft an order and to email it to my Clerk, or the associate later today so that we can have a look at it and ensure we have covered all bases.

38.     MR ROGERS:  My Lord, yes.

39.     MR JUSTICE BURNETT:  The critical thing, Mr Rogers, is that as far as Mr Makda is concerned, today should be his last engagement in the process.  What is to follow may involve Mr Houghton in a little bit of paperwork, but nothing more than that.

40.     MR ROGERS:  My Lord yes, I understand that.

41.     MR JUSTICE BURNETT:  Yes, all right.  Thank you very much.

42.     MR MORRISON:  My Lord, I am instructed to apply for a limited costs order.  I am very care aware and I am sure you are too that ordinarily course costs would not be awarded, however I am instructed that until we received the defendant's skeleton argument we understood that they opposed the application for judicial review based on a letter explaining their grounds for the decision, page 165 to 168 of the bundle.

43.     MR JUSTICE BURNETT:  These are the summary grounds.

44.     MR MORRISON:  Yes and they renewed that opposition in a further short letter at page 173.  I would not suggest that we should get any costs in respect of this hearing and the preparation for it, but my instructing solicitors are keen to secure some form of costs order for the preparation of the skeleton argument, since they understood at that point that the application was opposed.  It is a limited order we seek.  I appreciate that this is a

45.     MR JUSTICE BURNETT:  What are you asking for?

46.     MR MORRISON:  Unfortunately a cost schedule has not been prepared yet, so costs to be summarily assessed at a later date, the proportion of costs between the preparation of the skeleton argument up to the defendant's skeleton argument and the costs incurred after that, in a form of a recovery order.

47.     MR JUSTICE BURNETT:  All right.

48.     MR MORRISON:  Thank you.

49.     MR JUSTICE BURNETT:  Mr Rogers, has the position softened a little?

50.     MR ROGERS:  My Lord, I don't think it has.  The page 163 it looks like the acknowledgement of the service may have it is said that the adjudicator, with the tribunal finding submission at 163, did use the words, unfortunately, "grounds for contesting", but when one reads the summary grounds, if one reads the summary grounds I don't believe there is any softening of the position at all.  There is nothing in there that suggests that this is matter in which this decision was contested and nothing which would suggest that the Tribunal was departing from the normal position of the Tribunal being neutral.  There is nothing in there contesting the substance of the points, indeed there is a letter written recently, there was recent correspondence suggesting that the claimant thought he was going to be applying for a costs order and the tribunal drew the claimant's solicitor's attention to the case of Davies v Birmingham Deputy Coroner, copies of which I have.

51.     MR JUSTICE BURNETT:  I am very familiar with it.

52.     MR ROGERS:  I appreciate your Lordship is very familiar with that.  There is no reason to say this case falls outside the Davies guidelines.  This is a case where the Tribunal has effectively played a neutral role throughout regardless of the slight differences in wording there.

53.     MR JUSTICE BURNETT:  I am just looking for the claim form.  It is also a fair observation, is it not, that the original claim form did not quite raise the point with the clarity as has later emerged.

54.     MR ROGERS:  My Lord, yes.

55.     MR JUSTICE BURNETT:  It is very difficult to make a generalisation, but it looked as though the the matter was being challenged on factual grounds fairly substantially.

56.     MR ROGERS:  Yes, my Lord, and I did not draw up the summary grounds, but I notice that they stated effectively the claim raises no new point, it is essentially a challenge which the adjudicators and the reviewing adjudicator were ones they were entitled to come to on the evidence before them.

57.     MR JUSTICE BURNETT:  I am trying to remind myself whether the grounds mentioned Article 12 at all in terms.

58.     MR ROGERS:  It is certainly a case where the extent of the argument was really clear from the skeleton argument, which came later.

59.     MR JUSTICE BURNETT:  Yes, that is right.

60.     MR MORRISON:  They did not, my Lord, I am afraid the particular Article we relied upon was not available at the application for permission.

61.     MR JUSTICE BURNETT:  All right.  There is an application made on behalf of Mr Makda by Mr Morrison for costs.  This is a case which has, to put it mildly, evolved since it was first issued.  The original claim form made no mention of the Article 12 point, which is what has occupied time this morning.  The original claim seemed to be founded upon a suggestion that the adjudicator had come to a factual conclusion which was not truly open to him.  The acknowledgement of service suggested, in fairly measured terms, that the application would be resisted on the basis that the findings and conclusions were open to the adjudicator.  Much has happened since.  Permission was originally refused on the papers, but allowed at the renewed oral application before Judge Thornton.  He granted permission on the basis of what might loosely be called the guidance point, which has in fact not been pursued. 

62.     The real focus of this challenge became apparent when an extremely detailed skeleton argument was lodged and served by the claimant's solicitors, dated 19 April 2010.  The arguments came into focus at that stage.  The adjudicator, in compliance with the order made by Judge Thornton, responded to that skeleton argument.  Mr Rogers settled that skeleton argument on 21 May 2010.  The skeleton made it plain that the adjudicator was not taking up an adversarial position in these proceedings.  In summary, the adjudicator was taking part to assist the court.

63.     The nature of the arguments today have happily not engaged very detailed technical aspects of law relating to parking.  Occasionally that does happen, and in those circumstances the attendance of the adjudicator can be vital to ensure that the court does not fall into error. 

64.     The principles in play in respect of the costs application of this sort are well known.  They are conveniently set out in the decision of the Court of Appeal in Davies (No.2). that of course was a case which concerned a coroner, but the principles are no different.  If a judicial respondent in judicial review proceedings attends to assist the court and does not take up an adversarial position then only exceptionally would be it right for the court to award costs against the judicial officer if the judicial review is successful. 

65.     In my judgment the parking adjudicator has remained on the right side of the line as far as Davies (No. 2) is concerned throughout these proceedings.  Despite Mr Morrison's attractive submission, it is not a case in which it would be appropriate to order the adjudicator to pay the costs or any part of the claimant's costs.

Barrie's Comments:

 

The general rule of law is now confirmed that taxi drivers, minicab drivers and any other drivers are allowed to wait for a long as necessary on single or double yellow lines for the purpose of picking up a passenger and/or their luggage. In the case of black cabs which can be hailed by a passenger in the street it is easy to see what time is taken and in the normal course of events that pickup time is clearly necessary.

The question arises (and this was dealt with by the court): what is the necessary time for a a taxi driver or minicab driver to pickup a passenger when they receive a pre-booked cab fare.  I have won many cases at the parking adjudicator arguing that there has to be a time period to pick up a passenger starts when the vehicle arrives, the driver looks for his passenger and the passenger comes from their premises, finds the cab and enters the vehicle.  My view is that that is all part of the process of waiting for the purpose of picking up the passenger. I am pleased to say that the court confirmed my view.

 

Background

Nearly all councils have taken the rigorous view ( in my view totally incorrect and illogical)  that when a taxi driver or minicab driver receives a pre-booked fare the driver cannot wait at all and that the passenger has to be at the kerb ready to get into the vehicle. Some parking adjudicators have agreed with the councils’ view, but many parking adjudicators have not agreed.  Indeed one parking adjudicator said that it was preposterous to suggest that a driver arriving to pick up a passenger should act like a Formula One driver performing a pitstop with the passenger diving into the vehicle and the vehicle taking off.

The High Court has now clarified the law on this issue and has stated that councils are wrong to adopt the position they have taken so far.

The learning judge stated that when a driver arrives at the destination, the time taken looking for the passenger or waiting for the passenger to identify the vehicle are all a necessary part of the process of picking up the passenger -  and accordingly any parking tickets issued in those circumstances must be cancelled.

The judge also decided that if a driver arrives at the destination to pick up the passenger but the passenger then cancels the journey this is still nevertheless part of the process of picking up the passenger and accordingly any parking tickets issued in such circumstances must be cancelled..

Barrie Segal’s Final Comment:  This is a very important clarification of the law which demonstrates that councils have been unfairly penalising licensed taxi and minicabs.