Arun District Council, R (on the application of) v Spooner [2007] EWHC 307 (Admin)

Case No CO/8478/2006

Neutral Citation Number: [2007] EWHC 307(Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 17th January 2007

Strand

London WC2

B E F O R E:

LORD JUSTICE THOMAS

and

MRS JUSTICE DOBBS

THE QUEEN ON THE APPLICATION OF ARUN DISTRICT COUNCIL

(CLAIMANT)

-v-

DERRICK GORDON SPOONER

(DEFENDANT)

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MR K BERKLEY (instructed by Legal Services of Arun Ditrict Council) appeared on behalf of the CLAIMANT

MR J LAMB (instructed by Matthew Gibbons West Sussex BN17 5AP) appeared on behalf of the DEFENDANT

J U D G M E N T

Between

Arun District Council, R (on the application of)Claimant

SpoonerDefendant

LORD JUSTICE THOMAS:

This

[1]is an appeal by way of case stated from the dismissal on 24 July 2006 of three informations layed by the Arun District Council, the appellants, against a Mr Spooner, under section 46 of the Local Government Miscellaneous Provisions Act 1976, in relation to the operation of a pet ambulance service. The essential issue before the court was whether licences were required for the activity in which Mr Spooner was engaged.

[2]I think it is right to begin by summarising, in a sentence or two, the activity for which this local authority decided to prosecute the respondent, in this case Mr Spooner, at the time a man of 70 and now 72 years of age. He provided what was essentially a charitable service, though it is right to accept he might have got some small incidental benefit for himself. However, he gave of his own time and took no money, apart from money required to defray the costs of his activities, by providing a service to, what the magistrates found were, elderly people within the area of this district council in taking their pets to the vet.

[3]For that, in circumstances in which we shall set out in detail, he was prosecuted for not having a licence. The magistrates dismissed that, as we have said. The matter was brought to this court at no doubt considerable further expense to the ratepayers of the Arun District Council. Yet we were told that the decision made to appeal to this court, despite the acquittal before the magistrates, was as a matter of policy. I shall return further to that issue at the conclusion of this judgment.

[4]The facts as found by the Justices, supplemented by a matter that was agreed between counsel, were as follows. In 1999 when the respondent, Mr Spooner, retired he established a pet care ambulance to help elderly people with no transport to get their pets to veterinary surgeries of their choice. He equipped the vehicle as a pet ambulance with cages, veterinary stretchers and sprays, and other equipment. We were told, and it was agreed, that what the pet ambulance was was an estate car where the estate portion of the vehicle had been converted in the manner described. His wife acted as a receptionist.

[5]Up to December 2004 he ran the service to take pets with their owners to the clinic and then take the pet home with the owner. In July 2004 the appellant council, which is the responsible authority under the relevant statutory provisions for licensing private hire vehicles, had a meeting with the respondent and advised him of the need to obtain a private hire licence. The respondent told the council, on 19 July 2004, that he would not continue with the business. In December 2004, at the request made, no doubt, by the elderly residents of the area over which Arun District Council has responsibility, he reinstated his service, but with a difference. It was to be, as the magistrates found, a pet only service. He took the pets to the vet, waited while the treatment was administered and then returned the pet home. Under this new service the respondent had a form of authority which authorised the respondent to sign for treatment of the pets on behalf of the owner. No offer of carriage was made to the owner. In 95 per cent of the journeys the animal alone was conveyed. However, in five per cent of the cases, where the vet requires the owner's attendance or in an emergency, the owner was taken in the vehicle, but no further charge was made. The service was an appointment only service; bookings were made and the fee normally charged was £6. No fee, as I have said, was charged for those occasions where in an emergency, or the vet required it, the owner accompanied the vehicle.

[6]Although some of the advertising material suggested that longer journeys might be made, for which some further charge was to be levied, those were in fact not undertaken and £6 was charged for taking each animal to the clinic and bringing it back again. The service was always non-profit making, though it was not registered as a charity or a trust. The respondent and his wife gave up their time on a voluntary basis. No one was paid wages and the money that was charged was to cover the costs of the vehicle and other incidental expenses. The majority of the takings were retained for expenses, normally 75 to 80 per cent and the remainder normally, 20 to 25 per cent, was paid to a charity. The vehicle was classed by the DVLA as an ambulance and nil rated. The magistrates found that the respondent had fully comprehensive insurance for the vehicle.

[7]In early 2005 the authority learned of the continuation of the service, having obtained a leaflet which seemed to advertise the service in the terms in which it had been operated prior to July 2004. The respondent was interviewed under caution. It is clear on findings of the magistrates that the local authority was mistaken in thinking the service had not been changed, but nonetheless the local authority had decided it would continue with the prosecution of the matter. On 27 June 2005 the council decided to lay three informations against the respondent, alleging between 4 January 2005 and 10 February 2005, that is to say during the period of the revised pet ambulance scheme, that(1) he, contrary to section 46(1)(a), as the proprietor of the vehicle, used the vehicle as a private hire vehicle without a licence,

(2) contrary to section 46(1)(b) he acted as the driver of a private hire vehicle without a licence, and

(3) contrary to section 46(1)(d) operated the vehicle without a licence.

[8]The matter was heard by the magistrates in July 2006. They heard evidence from Mr Spooner and made the findings of fact to which I have referred. On the basis of those findings, they concluded that no offence was committed because the vehicle did not come within the definition of a private hire vehicle since it was not provided for hire for the purpose of carrying passengers. It was carrying pets, and no fee was charged for passengers.

[9]As to the offence under section 46(1)(d) in relation to the operation of the vehicle without a licence, the Act required bookings to be made for the purposes of operating a vehicle in the course of a business. They concluded on the facts that they did not consider the respondent was operating a business. They asked four questions of this court, to which I shall refer in due course.

[10]It is clear that on the facts as raised by the Justices, only two issues arose. The first issue related to the question of whether, under the definition section of the Local Government Miscellaneous Provisions Act 1976, section 80, the vehicle was a private hire vehicle. The definition of private hire vehicle is as follows:

"'private hire vehicle' means a motor vehicle constructed or adopted to seat [fewer than nine passengers], other than a hackney carriage or public service vehicle [or a London cab] [or tramcar], which is provided for hire with the services of a driver for the purpose of carrying passengers;"

[11]On that definition, on the facts of this case, four sub-issues arose. First, was the vehicle constructed to carry fewer than nine passengers? It is common ground that it was. The second sub-issue that arose: was the vehicle provided with the services of the driver? Again it is common ground that it was. The third sub-issue which arose is whether the vehicle was provided for hire. Again it was accepted that it was, in the light of the findings made. It is therefore unnecessary for me to refer to the judgment of Lord Justice Russell in St Albans District Council v Taylor [1991] RTR 400 where he discusses, at page 404, the issues relating to what amounts to a hiring.

[12]The fourth and final sub-issue that arose is whether the hire was for the purpose of carrying passengers. It is on that sole issue that the dispute arose before this court. There is little by way of authority to help. It is useful to refer briefly to the judgment of Mance J, as he then was, in Benson v Boyce [1997] RTR 226, where, in considering the relevant provisions, he considered that what mattered in determining whether a vehicle was a private hire vehicle was that one looked at its characteristic use, rather than its use on a specific occasion.

[13]Taking that guidance, I asked myself the question whether on the primary findings of fact made by the magistrates, which I have set out, they were entitled to find whether the purpose of the hire was for the purpose of carrying passengers or some other purpose. In the submissions before us it was not suggested by the local authority that a finding made by the Justices that the purpose was not the carriage of passengers, but the carriage of pets, was perverse. However, it was contended by the local authority that if passengers were carried on one single occasion, even though the underlying purpose of a hire might have been the carriage of animals or goods, because one person was carried on one occasion, the purpose of that hiring became purpose of carrying passengers.

[14]It seems to me that if the relevant statutory provision had read, "which is provided for hire with the service of a driver during which passengers are carried" there could be no doubt that that contention was correct. But that is not what the legislation provides. The legislation requires the trier of fact to ask the question: what was the purpose of the hire? That, it seems to me, is purely a factual question to be determined on the evidence. On the facts, as set out by the Justices, it seems the me clear that they were entitled to find that the purpose was not the carriage of passengers, but the carriage of pets.

[15]It seems to me that the basic underlying finding that supported that conclusion was the fact that no additional charge was made for the carriage of a passenger, that a passenger was only carried in an emergency or where the vet required the attendance of the owner, and that the charge that was made was for the pet and in the overwhelming number of cases where pets were carried, the pet alone was carried. In those circumstances it seems to me that the magistrates were entitled to come to the conclusion that they did, and which I have set out, and as there is no suggestion that their finding was perverse, the local authority's appeal on that issue must fail.

[16]As it was essential for the local authority to establish, in respect of each of the informations laid, that the vehicle was a private hire vehicle, it follows, in my judgment, that the magistrates were right to come to the conclusion that they did, and dismiss the information.

[17]That is really sufficient to deal with the decision in this case. However, we have been asked a question in relation to a second issue, namely the meaning of "operating" as defined in the Act; I would like to deal with that matter as well, though briefly. As I have set out, it was the view of the Justices that because no personal profit accrued to the respondent he was not conducting a business. Therefore he was not, within the definition of the word "operating" in section 80 of the Act, carrying out an activity in the course of a business. It seems to me, and this has essentially been accepted by Mr Lamb, that their reasoning was fallacious.

[18]On the facts, the respondent was plainly carrying on a business. He was operating a booking system and had a specially adapted vehicle. A charge was made. The charge made resulted in a profit being made in the ordinary sense of the word in that the expenses of the business were far less by a matter of 20 or 25 per cent than the costs of the operation. The fact that the Respondent then donated that excess of 20 to 25 per cent to charity cannot possibly mean the activity is not a business. If a profit, as is the case here, was made from this activity, the use of that profit is entirely irrelevant; the activity must have constituted a business. That, however, makes no difference to the overall conclusion, to which I have come, as it is clear, as I have already stated, that the appeal must fail because of the first issues in relation to the definition of a private hire vehicle.

[19]It remains, therefore, for me, first of all, to answer the questions proposed by the court to us. The first was:

"Was our interpretation of the definition of a private hire vehicle within Section 80 of the Act correct in law, as meaning the vehicle comes only within the definition that is provided for hire for the purpose of carrying passengers and does not come within the definition that the carriage of passengers is incidental to the purpose in which the carriage is intended, in this case the carriage of animals."

As is clear, I consider the interpretation broadly correct.

[20]The second question was:

"Were we correct in law to find that the respondent's vehicle was not a 'Private Hire Vehicle' within the definition as set out in Section 80, having found the carriage of passengers to be incidental to the carriage of pets?"

The answer to that is yes, but it does not really ask a separate question from the first question. The third question was:

"Were we correct in law to find that the respondent did not 'operate' the business within the definition of Section 80 of the Act?"

The answer to that is no; he plainly operated a business. The fourth question was:

"Were we correct in law to distinguish the case of St AlbansDistrict Council v Taylor [1991] Crim LR 852 on the basis that that case concerned a private hire business whereas we found that the respondent's business in the instant case was not?"

It has not been necessary for us to consider that case in the way in which issues were dealt with in this court.

[21]It follows, therefore, that the magistrates were correct in my judgment in dismissing the information. It seems to me a matter of regret (but I say no more) that in the circumstances which I outlined at the beginning of this judgment, the local authority decided, after they had discovered the change in the way in which the service provided by the respondent had been conducted, to pursue the matter before the court.

[22]It is a matter of even greater regret that significant sums of ratepayers, money have been expended in an appeal to this court in the circumstances of a case where what the respondent was doing was a charitable service intended to help elderly people in this local authority's area taking their pets to the vet. It is difficult to think of a case where a prosecutor should not have thought much more clearly about whether really this was a case where an appeal should have been pursued to this court.

[23]MISS JUSTICE DOBBS: I agree. Yes, Mr Lamb, your costs?

[24]MR LAMB: Mr Spooner is legally aided in this matter.

LORD JUSTICE THOMAS: Our view at the moment is, this is a disgraceful appeal. It should never have been brought and the legal aid fund ought to be fully indemnified.

[26]MR LAMB: I am obliged for that.

[27]MR BERLEVY: Clearly I would seek to resist that.

LORD JUSTICE THOMAS: Do so. I cannot see why the ratepayers decided, through their elected officers, no doubt, to authorise this. Why should the taxpayers as a whole not pay for it, and why should not the local authority, so that the electors at the next election can consider the wisdom of pursuing policies of this kind?

[29]MR BERLEVY: Your Lordship has quite rightly indicated that there was no authority in relation to the interpretation of the statute. That is the first point.

LORD JUSTICE THOMAS: We have also said that it is difficult to conceive of a case where a prosecutor should have really thought was it sensible to bring an appeal. That is the finding we have made. You can make your submissionS on that basis.

[31]MR BERLEVY: I say that there was arguably a point to be had in relation to the interpretation of the statute and the way that the magistrates had themselves interpreted the statute -- your Lordship raises the fact that there does not seem to be any authority of assistance in relation to the point for the purpose. Your Lordship has found against the authority; in my submission that does not mean that the authority were wholly wrong, in every respect, to bring the appeal as much as it does or does not find favour in this court.

LORD JUSTICE THOMAS: It was a case that should never have been brought in the first place and to pursue it against a 72-year-old man to this court was a disgrace.

[33]MR BERLEVY: Obviously your Lordship's concerns will be conveyed--

LORD JUSTICE THOMAS: Why should it not, so it is brought home to the ratepayers who no doubt appoint these officials, the council, the Mayor, whoever the Chairman of this council is, who no doubt gave authority for this to be pursued, why should they not pay. That is part of the constitutional accountability?

[35]MR BERLEVY: Yes, it is important, that submission, but I say again that there was merit. I fully accept in relation to the interpretation of the statute, and accordingly because the respondent in this case is legally aided, in my submission it would be the usual course that his costs or their costs would be subject to taxation in the usual way.

LORD JUSTICE THOMAS: Why should not the legal fund be indemnified to their last penny they have had to expend, and your client's ratepayers pay for it?

[37]MR BERLEVY: I suppose the argument would be that it is money going around from pot to pot.

LORD JUSTICE THOMAS: It is not. That is the point I have tried to make to you so that the ratepayers of this borough appreciate the consequences of pursuing policies of this kind.

[39]MR BERLEVY: The submission I would make would be that it is unfair the taxpayer--

LORD JUSTICE THOMAS: It is not the taxpayer it is the ratepayer or the council taxpayer as opposed to the national taxpayer. It is a question of constitutional accountability.

[41]MR BERLEVY: The submission is that it would be unfair for the local ratepayer or the council taxpayer to shoulder the burden of a decision taken by the authority, in my submission, in the public interest to the extent that it was a policy issue in relation to public safety and the protection of the public and the carriage of the public.

LORD JUSTICE THOMAS: There is no way in which you can possibly argue that there was a public interest issue in this case. The finding was that the man was fully insured. That is the submission. We will order that the legal aid fund be fully indemnified against all the costs that have been incurred by the fund.

[43]MR LAMB: I am grateful.