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.”

Conclusions

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

Worboys - What went wrong? : Crimeline.info ..... 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.

US-Style Class Actions Introduced Into The UK : Solicitor Anna Morfey explains why the change is "really significant"

A newly introduced law allows British courts to hear US-style class actions - where one or several people sue on behalf of a much larger group.

The Consumer Rights Act 2015 will make it far easier for groups of consumers to seek compensation from firms that have fixed prices and formed cartels.

It introduces "opt out" actions where everyone affected is automatically a member of the "class" which is suing.

Consumer groups say it is a huge step forward in helping secure compensation.

Fixing the prices

Previously, when groups of consumers or small and medium-sized businesses wanted to take action against companies who fixed the price of goods or services, on - for example - replica football shirts or air fares, it was very difficult.

All of those affected had ether had to "opt in" to the action or bring a claim in their own name. As individual losses were small and legal costs and risks high, few did.

Such were the problems with opt-in actions that there has only been one of note. This was when consumer body Which? sued JJB Sports which had taken part in fixing prices of some replica football shirts. 

The action was settled and consumers who joined it who had paid up to £39.99 for certain England and Manchester United football shirts, during specific periods in 2000 or 2001, received a payment of £20 each.

JJB Sports also agreed to compensate those who bought one of the shirts but did not join the claim.

They were entitled to £10 if they presented either proof of purchase or the shirt itself, with its label intact, at a JJB Sports store.

It was all a bit messy and many who bought the shirts did not join the claim and so did not get any money back. 

Under the new law, everyone who purchased the overpriced goods can be automatically "in" the claim unless they opt out. 

It means there will be strength in numbers and consumers could get their money back without lifting a finger.

"The new collective redress rules will give consumers more power against unscrupulous businesses that have been found guilty of anti-competitive practices," said Which? executive director Richard Lloyd.

"Now everyone who has been affected will be automatically included so more people should get redress and sooner."

He added the move was good news for consumers and responsible businesses because "those caught acting illegally will be made to pay the price". 

'Billions in damages'

Under the new law, claims have to be approved by the Competition Appeal Tribunal.

They can be brought by a suitable representative of the group affected by the price fixing, who then advertises the claim in order to make others in the group aware of it and would then distribute the money. Any residue goes to charity.

Two kinds of claims can be brought. 

Firstly, so-called "follow on" claims that follow a competition regulator's finding that there has been an infringement of competition law. 

Secondly, "standalone" claims which are not based on an infringement decision. This frees up claimants to seek damages for any competition law violations - not just those the regulators have chosen to pursue.

In the US, class actions are far more widespread with damages awards running into billions of dollars.

Class actions have been filed in the US over the Volkswagen emission test scandal

They are not confined to cases where companies get together and fix prices. 

Claims against retailers and manufacturers relating to faulty goods and services can also be brought. 

Class actions have been filed in the US by groups of consumers affected by the recent Volkswagen emission test scandal. 

In the US, juries hear the cases and set the damages, which can then be trebled by the judge.

'Safeguards including'

So, will the new regime really see US-style class actions with huge pay outs?

"The regime incorporates a number of safeguards against what are perceived to be the 'excesses' of the US system," said Anna Morfey, a specialist competition law solicitor with the London firm Hausfeld.

"In particular, the fact that the losing party is typically required to pay the winner's costs acts as a deterrent to frivolous claims in the UK.

"But there are other important differences - no treble or 'exemplary' damages, and no jury trials of these claims in the UK, will mean damages awards really are compensatory and not windfalls for claimants."

What is clear is that companies who fix prices now face a much greater risk of being sued by all of those who have paid the inflated prices.

Class Action Explained

The Competition Appeal Tribunal decides whether the "class representative" is representative of anybody else who would want to sue 

Safeguards to prevent frivolous claims include strict conditions to be met before a claim is approved as "opt-out" as opposed to "opt-in"; and rules governing damages and costs

"Opt-out" provisions only apply to UK-domiciled consumers or companies.

Taxi Leaks Extra Bit :