Monday, 10 December 2018

High Court Quashes Wakefield Taxi Fees

The High Court has quashed the licensing fees charged for private hire vehicle and Hackney carriage licences set by Wakefield City Council, following a claim for judicial review by the Wakefield District Private Hire and Hackney Association.
His Honour Judge Saffman, sitting as a deputy judge of the High Court, held that the fees charged by Wakefield were unlawful. In particular, the Council had wrongly interpreted section 70 of the Local Government (Miscellaneous Provisions) Act 1976 and had erroneously charged the costs of enforcement against drivers (for speeding, bad parking, dressing inappropriately and a miscellany of uncivil or illegal conduct) to the control and supervision of vehicles. Wakefield’s case had been that the costs were properly accounted for against vehicles because the errant drivers were driving vehicles. The learned judge described that as ‘stretching beyond breaking point’ the language of the section.
The case is of wider importance as it dispels any suggestion that there is a general principle of law that licensing regimes should be self-financing. The judge made it clear that a local authority’s entitlement to recover from the licence fee the costs of administering a licensing regime is governed by the words of the empowering statute. Where Parliament has awarded local authorities a broad discretion (e.g. “such fee as they think reasonable”) the courts have upheld policies of full cost recovery on the sole ground that the policies, being reasonable, are intra vires; but where, as in s 70 LGMPA 1976, the power to charge a fee is circumscribed by reference to specific heads of recovery, recovery is restricted to those specified heads. Licensing authorities are creatures of statute, and have no powers beyond those which statute has given them.
In the course of the High Court action it became apparent that Wakefield Council has overcharged private hire vehicle licence fees by an aggregate sum in excess of £1million, which will form the subject of a claim for restitution.
Gerald Gouriet QC and Charles Streeten acted for the successful claimant, with the assistance of A2Z licensing


As the article states, the greater legal significance of the judgment was to recognise that there is no general principle of law that requires licensing regimes to be self-financing, but for members of the Wakefield trade, it might be the prospect of being able to bring a restitution claim for in excess of £1 million that was the most significant thing to come out of the case, which was heard by the High Court in Leeds last Wednesday (5 December 2018).

For the sake of completeness, I should advise that the Council was refused permission to appeal to the Court of Appeal, but does, of course, have 21 days in which to renew its application directly to the Court of Appeal.

David B Wilson
a2z Licensing 

Wednesday, 30 May 2018

And So It Begins....Visa Doubles Transaction Charges to 8%

£1bn assault on the High Street: Shopkeepers suffer as Visa hikes fees on card payments. Unfortunately, this will give the green light to increase transaction charges for Taxi drivers taking Card payments. 

It's estimated that shopkeepers will pay £1billion extra a year to payments giant Visa after it hiked fees.

The increase comes as the Taxi trade faced a boom in customers who want to pay by card.

But what many passengers don’t realise is that every transaction costs the driver, and Visa has been accused of cashing in, by hiking its fees.

Card sharks: Taxi drivers have seen a massive increase in customers who pay by card for even the cheapest journeys meaning that drivers with company's that charge the extra 20p on top of the transaction percentage, pay even more in fees

Experts warned that some will see their bills more than double. 

Obviously it's not just Taxis who will be affected, payments consultant CMSPI said that increased card costs will hit Europe’s shops for £2billion.

In the UK alone, which has embraced contactless cards and chip and pin, the bill will be £1billion.

Visa Europe has doubled charges since 2015 from an average 4p per transaction to 8p, says CMSPI. 

Firm’s crippling £26,750 card bill 
Hardware store owner Vin Vara says his firm is struggling because of huge bills from credit card companies.
Vara, 58, employs 38 people at 11 Tool Shop stores in London and lost £20,400 in fees last year as shoppers paid by credit card. 

Some 60 per cent of customers pay by card and he expects the bill to rise to £26,750 this year.
He said: ‘People don’t understand the damage this can do. I’m scared for others on the High St about what’s going to happen to them.’
It used to keep just 1.5p of this as profit but now takes 5p after cutting costs, the consultant said.

CMSPI chief executive Brendan Doyle said: ‘This is incredibly disappointing. Visa, a multinational that consistently reports profit margins in excess of 50 per cent on multi-billion-dollar revenues, is piling cost after cost onto retailers and the latest change will be particularly hard on struggling small businesses.’ 

He added that CMSPI will complain to the European Commission about the hike.

Visa has become more aggressive since it was bought by its US sister firm for £15billion in 2016.

Until then, Visa Europe had been owned by banks, including Lloyds and Royal Bank of Scotland, and they made billions from its sale to namesake Visa Inc. 

The American company’s chief executive Charles Scharf plotted to hugely increase fees – in 2015, he said he hoped to ‘expand yields in Europe’.

MPs and business groups called for regulators to step in.

SNP MP Stewart Hosie, of the Treasury Select Committee, said: ‘It’s a scandal card issuers’ fees have increased massively. I would hope and expect card issuers would think again before they impose these costs.’

Meanwhile, High Street retailers face average hikes for UK card fees of 75 per cent, and other European card costs will come close to trebling with an increase of 189 per cent.

James Lowman of the Association of Convenience Stores said: ‘We encourage the Payment Systems Regulator to look closely at these fees to ensure fairness.’

Andrew Cregan, at the British Retail Consortium, also backed intervention by the regulator.

Visa said: ‘The figures quoted are misleading and over-inflated. Our pricing means we can invest in world-leading cybersecurity and consumer protection, in innovation such as contactless and mobile payments, and in providing a global network which enables billions to make purchases safely, securely and reliably.’

In the past, we've seen many retailers refuse to take Amex because of the time it takes them to pay up. 
We could now see the same exclusion notices regarding payment with Visa cards.

The London Taxi trade haven't been granted the right to choose how they are paid as our largest org says "it was a done deal'....and it was the drivers who were done!

The trade were promised a increase in bums on seats and a massive publicity campaign from just never happen. 

Mike Brown Apologises For ‘Ill-Judged’ Expansion Of Cycle Superhighway, Blamed For Gridlock And Increased Pollution

Farce of the cycle super highways: London transport chief apologises for ‘ill-judged’ expansion that’s blamed for gridlock and increased pollution

             Mike Brown                    Will Norman

Britain’s most powerful transport tsar has now admitted that the the speedy expansion of controversial cycle ‘superhighways’ has actually slowed traffic for motorists.
Mike Brown, the commissioner for Transport for London, criticised the cycle lane expansion in London as ‘ill judged’ and ‘ill thought through’.

He apologised to motorists who say that the segregated cycle lanes are exasperating traffic problems.

Mr Brown, who is a passionate supporter of cycle lanes, said that they had been hurried through under Boris Johnson during his eight-year tenure as London mayor.

Cycling groups, council chiefs and safety campaigners said that the lanes would reduce congestion and pollution - which causes thousands of premature deaths in Britain every year - and that they make the roads safer.

But in practise, the lanes have infuriated most drivers who claim they are stuck in traffic for longer because part of the road has been taken over by bikes. 

Now, Mr Brown's attack on one of Mr Johnson’s flagship policies will likely spark more contentious debate about the further roll out of cycle lanes around the country.

LBC Radio host Nick Ferrari – who claims cycle superhighways have caused the biggest slow down in traffic since the Luftwaffe bombed London in the Second World War - was hosting a debate in London where Mr Brown made his controversial comments. 

Mr Brown said: ‘I apologise absolutely for the way cycle lanes were delivered in the last mayor’s administration’ .

‘I think it was ill-judged, it was too fast and ill thought through in the speed in which it was done, which I’m afraid is the main downside of living in a democracy – people want to do things in their term

But Mr Brown also insisted that that the routes have helped save ‘many, many lives’ and made the roads safer for cyclists.  

Fourteen cyclists were killed in London in 2013 but this tragic number dropped to eight deaths in 2016.

Despite his clear concerns, TFL has now insisted that Mr Brown's negative comments about the cycle infrastructure actually referred to the disruption caused by roadworks as too many lanes were built at the same time - and not to any traffic after they were operational.

But the criticism will provide ammunition for those who believe that cycle lanes being built all over Britain are making the roads more congested by reducing space for motor traffic.

Critics claim that this may actually increase  air pollution as cars are stuck on the roads with their engines running for longer as they idle in traffic.

Will Norman, Sadiq Khan's new cycling tsar wants to diversify cycling  to stop London's cycling routes being overwhelmed by middle class men
And so-called 'mamils' (middle-aged men in lycra) were another target for criticism of a burgeoning British cycle culture.

Mamils are dominating the cycling scene in London, leading to a false perception that cycling is not for everyone, Will Norman, Sadiq Khan's new cycling tsar claimed.

Too few females and people from ethnic minority backgrounds are taking to two wheels around the capital and the Mayor's office could introduce 'diversity targets' to combat the figures.

Despite millions being pumped into the cycling infrastructure in London the majority of those making use of it are middle aged men.

At present, black, Asian and minority ethnic groups account for about 15 per cent of cycled journeys in London – around two-thirds less than Transport for London (TfL) estimates it could be. 

Mr Norman told The Independent: 'There is a problem with cycling and the way it is perceived of getting middle-aged men cycling faster around the city, which is not the objective at all.

'It touches on something which is a real challenge for London cycling, which is diversity.'

Too many cyclists in London are middle-aged men according to the city's new cycling chief

London mayor Sadiq Khan said he would make cycling safer around London.

However, members of the London Assembly said it is not being done quickly enough.

Now Mr Norman said more groups should be benefitting from the changes made.

He added: 'Even when we have seen the growth in the number of cyclists, we haven't seen that diversity.

'There are a number of reasons for that. One is that safety is paramount for getting different people from different walks of life cycling: older people, younger people, those from different backgrounds.'

The way in which the gap will be filled, Mr Norman says, is through projects such as promoting electric bikes, cycling courses and grants for community groups who do not typically cycle.

Schemes could be rolled out across London to diversify the cycling scene. (Pictured: One woman cycles among a pack of men)

There was a six per cent recorded rise in female cyclists after the opening of Quietway 1, which links Waterloo with Greenwich, from 29 per cent to 35 per cent.

Mr Khan promised an average of £169m annually for cycling schemes over the next five years.

'Is it ambitious enough in the longer term? I think we need a higher level of change,' Mr Norman told The Independent.

'The target that we have set out in the mayor's transport strategy is over that 25 years we want to shift to 80 per cent of journeys to be walking, cycling or by public transport.

'That is a much more ambitious target and really is fundamentally rethinking the way that we move around our city.

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Saturday, 26 May 2018

Cross Border Hiring By Gerald Gouriet QC

Summary: cross border hiring & localism

“Cross border hiring” is a portmanteau expression covering a miscellany of different activities, some of which are lawfully undertaken, others unlawfully. There is no case law to the general effect that cross border hiring of PHV drivers is per se lawful; and PHV licences may be conditioned so as to prevent cross border hiring from undermining local licensing control.

The ‘Right to Roam’

The licensing requirements of PHV drivers and their vehicles, and the exemptions therefrom, are different from those made of PHV operators. The so-called ‘right to roam’ (insofar as it is a right) applies to PHV drivers and vehicles – not operators.
PHV drivers and vehicles
Outside Greater London the owner of a vehicle may not use it as a private hire vehicle in a controlled district unless the vehicle is licensed under section 48 LGMPA 1976: section 46(1)(a). Nor may the vehicle be driven otherwise than by someone licensed under section 51: section 46(1)(b). It is also an offence for the owner of a vehicle to employ as a driver someone who is not so licensed: 46(1)(c).
No offence under sections 46(1)(a), (b) or (c) is committed in respect of the use of a vehicle in controlled district A  if a driver’s licence and a vehicle licence issued in controlled district B are in force: section 75(2).  All three licences, however, (operator’s, driver’s and vehicle), must be issued by the same authority: Dittah v Birmingham City Council [1993] RTR 356.
The so-called “right to roam” of PHV drivers and vehicles derives from section 75(2). The right is not unqualified: PHV drivers and vehicles may not ply for hire, and may only fulfil a booking accepted by an operator licensed by the same authority as licensed them: Dittah.
PHV operators
Section 80(1) LGMPA 1976 provides:
operate” means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle.
An operator may only make provision for the invitation or acceptance of PHV bookings in the controlled district in which he is licensed: LGMPA section 46(1)(d), applying section 80, subsections (1) & (2).
Section 75 of the LGMPA 1976 does not provide an exemption for operators (from section 46(1)(d)), equivalent to that which it provides for drivers and vehicles (from sections 46(1)(a), (b) & (c)). Thus, whilst drivers and vehicles may lawfully undertake journeys “which ultimately have no connection with the area in which they are licensed” (per Latham LJ in Shanks v North Tyneside BC [2001] LLR 706), lawful provision for the invitation or acceptance of bookings is anchored to the controlled district in which the operator is licensed.

Unlawful provision for invitation of bookings by PHV drivers

Whether or not provision has been made in breach of section 46(1)(d) is a question of fact. The following guidance emerges from the cases –
  • “It is simply a question of asking, in common sense terms, whether there has been provision made in the controlled district for invitation or acceptance of bookings”: Kingston Upon Hull City Council v Wilson(1995) WL 1082181, per Buxton J.
  • “There could well be provision for invitation of bookings in one place and for acceptance in another”: East Staffordshire BC v Rendell (1995) WL 1084118, per Simon Brown LJ.
  • “As the authorities clearly show, the main question is not where the act of accepting any particular booking or bookings take place, but where the provision is made”: idem
  • “The determining factor is not whether any individual booking was accepted, let alone where it was accepted, but whether the person accused has in the area in question made provision for the invitation or acceptance of bookings in general”: Windsor and Maidenhead v Khan [1994] RTR 87, per McCullough J.
If a PHV operator makes arrangements for drivers in his fleet to go to remote areas (i.e. other than the area of the authority that licensed the operator/drivers/vehicles) it may well be that, on the facts of a particular case, he is unlawfully making provision for the invitation of PHV bookings. If he has organised dedicated parking areas and pick up points for his drivers, and the means to let the public know they are waiting there and available for hire, it may be difficult to conclude otherwise.

Undermining local licensing control: revocation or refusal to renew licence

Section 62(1) of the Local Government (Miscellaneous Provisions) Act 1976 gives a licensing authority power to refuse to renew (or revoke) an operator’s licence on the grounds that –
(a) he has committed an offence under the 1976 Act (or an immigration offence);
(b) he is otherwise not fit and proper to hold the licence;
(c) there is a material change of circumstances: or
(d) any other reasonable cause.
Even in circumstances that are otherwise lawful, a PHV operator who knowingly sends drivers in his fleet to work (exclusively or predominantly) in remote areas where they are not licensed, is vulnerable to having his operator’s licence revoked or refused renewal under section 62(1)(d) of the 1976 Act on the ground that he undermines local licensing control.  The threat to public safety (let alone the affront to local control) in the growing use of drivers who ‘shop’ to be licensed by authorities that demand only the lowest standards, so that they can work in an area where standards are higher but licences more difficult to obtain, is ample demonstration of “reasonable cause”. At least one PHV operator has been known to steer potential drivers to licensing authorities with minimal licensing criteria and low licensing fees.

Erosion of localism: licence conditions

The Courts have said that “the hallmark of the licensing regulatory regime is localism[1], and that “that the authorities responsible for granting licences should have the authority to exercise full control” over “all vehicles and drivers being operated … within its area.” [2]
In The Queen on the application of Delta Merseyside Limited and Uber Britannia Limited v Knowsley BC [2018] EWHC 757, Kerr J said –
I refrain from expressing any view on the point, but I am fortified in my conclusion in this case by the consideration that, in principle, a condition on a licence could be imposed which, if otherwise lawful, would require a fit and proper person who is a licence holder to abide by whatever restrictions are contained within a condition that are considered reasonably necessary to meet any perceived erosion of localism in the governance of PHV licensing.”


Although correction of the abuses of what may lawfully be done by way of cross border hiring may, as has frequently been said, require national legislative change, it is only necessary to enforce existing law to address some of the widespread concerns about unlawful cross border operations and the erosion of localism by some minicab firms and their drivers.

Gerald Gouriet QC

Monday, 8 January 2018

Worboys - What went wrong? : ..... By Andrew Keogh, Barrister

One newspaper questioned how justice had been served after reporting that convicted sex offender John Worboys was to be released from prison following a decision by the Parole Board.

The headline, one of many similar ones, read:

'Black Cab rapist John Worboys to be freed after eight years – that’s just TWO WEEKS for each of 200 victims'

On the face of it, eight years imprisonment for 200 sexual crimes does appear remarkably lenient, and it is no wonder that members of the public not appraised of the full facts should express outrage on social media and elsewhere.

The facts reveal a very different story.

Was Worboys convicted of 200 offences?

The simple answer to that is no. Worboys was tried in 2009 on an indictment containing 23 allegations. In March 2009 he was convicted of 19 offences, including one charge of rape, the other charges related to sexual assaults and the administration of drugs to his victims. At the time of the offending Worboys worked as a taxi-driver and used that position of trust to take advantage of his victims.

The trial Judge, Mr Justice Penry-Davey sentenced Worboys to Imprisonment for Public Protection' ('IPP), with a minimum term before any possible release of 8 years.

Eight years reflects the sentence he would have received had an IPP sentence not been imposed (more on that below) and is based on a determinate prison sentence equivalent to 16 years (because he would have served half of that 16-year term before release).

So, why is the press reporting that he has committed more offences?

A substantial number of victims of sexual assault have come forward. It is apparent from evidence given at his trial that although 105 victims came forward, and are accepted by the police as having been subjected to assault by Worboys, these may represent only a small proportion of those assaulted.

In the words of prosecuting counsel at the trial:

"As you will see from the time span on the indictment the Defendant was able to cruise the nightclub areas of London identifying and picking up girls upon which to carry out his assaults for some time. Each girl felt concerned at the very least when she awoke the next morning, feeling that something was wrong but many did not make a complaint to the police at the time. It is perhaps easy to see why. Each of them could remember getting into the Defendant's cab. Many could describe the cab driver. Each could remember the conversation in the cab and the offer of alcohol. But many who had consumed that alcohol could remember very little of what had happened thereafter. They could remember little about which to complain. Many spoke to friends and family about the matter but left it there".

Some of these complainants won a civil action against the Metropolitan Police, although that is subject to an appeal, with the Supreme Court expected to give judgment later this year.

The quite horrific extent of police failures to properly investigate Worboys can be read here.

So, although there is a body of evidence to suggest that Worboys committed a very large number of crimes, the simple fact is that he was tried and convicted of only 19.

What about the sentence length?

There are some things to note about the sentence.

The first is that despite the number of convictions (19), some of the allegations (i.e. the drugging) are part and parcel of the main sexual offending. While properly charged separately, the sheer number of offences is not always a good indicator of the length of sentence that might follow.

The most serious offence for which Worboys was convicted was the single count of rape, although that is not to suggest the other offences were in any way insignificant.

Sentencing for sexual offences in 2009 is not the same as it is today.

Beyond any doubt, the treatment of those convicted of serious sexual offences today is very different from even a few years ago.

And finally, an IPP sentence is itself a particularly stringent form of punishment, stripping the offender of the privilege of automatic release, ensuring Parole Board scrutiny before any release, and also leaving the offender under supervision, potentially for life.

But overall, when you look at a sentence equivalent to 16 years, with no automatic release, it does not strike me as lenient, or at least not to any extent that it looks appealable.

Could the sentence have been appealed?

Yes, it could. The Attorney General had the right to refer the sentence to the Court of Appeal, and argue that it was 'unduly lenient'.

We know that the sentence was referred to Baroness Patricia Scotland, the Attorney General at the time. The AGs office issued a statement saying:

“John Worboys’ sentence was considered by the attorney-general at the time. There are sentencing guidelines that judges must adhere to and, in this case, the sentence given fell within the guidelines available for this offence at that time.”

So, the sentence was the correct one?

Yes, the sentence was in accordance with the law. Judges can only sentence offenders for the offences that they have been convicted of.

People may feel in any event that the sentence was lenient, and they may well have a valid point of view. But so far as the law is concerned there appears to be little of concern here.

Why weren't there more charges brought?

The CPS has issued a statement dealing with that point, read it here.

The legal principle of 'totality of sentence' is of importance here and very much explains the thinking of the CPS at the time.

At its simplest, if an offender commits one crime deserving of (say) a three year sentence of imprisonment, and another offender commits (say) 10 crimes each deserving of 3 years imprisonment, the second offender would not receive a sentence of 30 years.

There comes the point when loading the indictment with further offences is largely pointless, and it was not the practice at the time to pursue further prosecutions that could (in some cases) and perhaps should, have been pursued at the time.

It is interesting that despite the stance of the CPS, the police did, in fact, refer at least one further case of sexual assault.

Again, it is worth contrasting the view in 2009 with that now, we have seen in more recent years a much different practice emerge, the case of Rolf Harris is a good example of that, with new allegations being pursued after his initial conviction.

Is there any chance of new criminal allegations being pursued now?

If there is evidence to support any new prosecutions, then I think it highly likely Worboys may face further proceedings.

Why has the Parole Board ordered his release?

The Parole Board is under a statutory duty to consider Worboys release once the minimum term of 8 years has expired.

A release must be ordered unless detention remains necessary for the protection of the public.

So, what we know is that the Parole Board has concluded that Worboys is a manageable risk if released.

That's Bonkers!

It seems a lot of people think so. The Parole Board has however evaluated all of the evidence and thinks differently. Due to secrecy rules passed by parliament, the reasons for the Parole Board's decision cannot be published, so we have no means of evaluating the decision made.

Can the decision be appealed?

The only possible challenge is by way of judicial review - where it could be argued that there was something procedurally wrong with the decision making progress, or that the decision to release was so wrong that it cannot stand (in legal terms often referred to as 'Wednesbury unreasonable').

The courts will, however, be slow to interfere with the expert assessment of the Parole Board, so a successful challenge is not likely.

We know that the victims were not notified of the Parole Board hearing or release decision and no doubt lawyers will be looking at whether that might form a basis for a challenge. It is unlikely in my view.

Who could bring the judicial review?

There is no doubt that the Secretary of State could challenge the decision, and some lawyers suggest that victims could as well, although I am doubtful as to whether victims would have the required 'standing' in law to bring a challenge. However, it is highly likely that this move is being contemplated.

So, he is free then?

He will be later this month unless further charges are brought, and he is remanded in custody (which is unlikely in that very short timeframe).

He will remain under supervision (on licence) for the remainder of his life. He can apply for that licence to be revoked, but given what is known about Worboys that seems unlikely to happen.

So, to sum it up

Worboys is a violent and prolific sexual offender, but the failings, in this case, appear to lie at the door of the Metropolitan Police Service, not the courts and Parole Board.

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