Stratford On Avon District Council v Dyde [2009] EWHC 3011 (Admin)

[2009] EWHC 3011 (Admin)Case No CO/5495/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 4th November 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SULLIVAN
MR JUSTICE OPENSHAW
Between
STRATFORD-ON-AVON DISTRICT COUNCILClaimantv
Between
VINCENT CHARLES DYDEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Kevin Leigh and Philip Williams (instructed by Stratford-on-Avon District Council) appeared for ClaimantJamie Burton (instructed by Dennings LLP) appeared for Defendant
J U D G M E N T

LORD JUSTICE SULLIVAN:

[1]This is a prosecutor's appeal by way of case stated against the decision of the Stratford-on-Avon Magistrates' Court on 3rd March 2009 dismissing two informations laid against the respondent.[2]The magistrates dismissed the informations because the appellant offered no evidence. The appellant offered no evidence because the magistrates had excluded, under section 78 of Police and Criminal Evidence Act 1984, the evidence of two undercover investigating officers who were employed by the appellant, Mr Jones and Ms Goodman. The magistrates excluded the evidence of the two officers because they concluded that the respondent had been persuaded to commit the offences alleged in the informations.[3]The magistrates posed two questions for the opinion of this court:
"(a) Were we correct in law to conclude that Mr Dyde had been persuaded to commit the offences? (b) Were we correct to exclude the evidence of Mr Jones and Ms Goodman under section 78 of Police and Criminal Evidence Act 1984 for this reason?"
[4]The two informations had alleged that on 28th March 2008 the respondent (1):
"... did undertake a journey in a hackney carriage, plate number 015, used as a private hire vehicle from Walton Hall Wellesbourne to the Heritage Motor Centre Gaydon, and carried out the journey knowingly charging Vikki Goodman more than what would have been the meter fare, which would have been £20.10p and the charged fare being £32 Contrary to section 67(1) of the Local Government (Miscellaneous Provisions) Act 1976 ['the 1976 Act']." and (2): "... drove a hackney carriage, plate number 015, on a journey between Walton Hall, Wellesbourne to the Heritage Motor Centre, Gaydon, with fare paying passengerswithout switching on the meter to indicate the lawful fare. Contrary to the Stratford-on-Avon District Council Byelaw 5(b) made under section 68 of the Town Police Clauses Act 1847."
[5]Much of the case stated is taken up with a summary of the parties' legal submissions. The magistrates' conclusions are briefly expressed and it is common ground that they have to be considered against the background of what appears to have been an agreed position between the parties as to what were the relevant facts.[6]Those facts were set out in the submissions made on behalf of the respondent as recorded in paragraph 4 of the case stated:
"(i) Mr Dyde is a dual licence holder, that is he is licensed to drive both hackney carriages and private hire vehicles. On 28th March 2008the local authority witnesses, Mr Jones and Ms Goodman, were undertaking an undercover operation. Ms Goodman telephoned 007 Taxis, who are based in Stratford-on-Avon and for whom Mr Dyde was working on the day in question. She requested a taxi to collect passengers in the name of Smith from Walton Hall Hotel, Wellesbourne, to take them to Gaydon, a few miles away. An agreement was made between Ms Goodman and the telephone operator at 007 Taxis that the fare would be £32 for the journey. (ii) Mr Dyde was not party to this telephone call and received a call via his radio instructing him to drive to Walton Hall to collect passengers in the name of 'Smith' and take them to Gaydon. He was told that a fare of £32 had been agreed between the company and the passengers. (iii)Mr Dydearrived at Walton Hall, met with the passengers and, before the journey commenced, confirmed with them that there was an agreed fare of £32. Upon arrival at Gaydonthe customers paid £32 to Mr Dyde and, upon request, a receipt was provided to them. At this point the passengers revealed their true identities and the purpose of their journey to Mr Dyde. (iv) Mr Dydewas cautioned and told that he would be reported for overcharging. Mr Dyde replied under caution that it had been an agreed fare with his base."
[7]The magistrates then refer in the case stated to the parties' legal submissions.[8]The only pieces of additional background factual information which do not appear to have been in dispute between the parties were that the magistrates "were told that Ms Goodman is authorised by the local authority to undertake this type of undercover activity" (paragraph 10), and "we were told that the respondent had been warned, in a letter dated 11th March 2008 and sent to his home address, against overcharging. We had sight of the letter which sought to provide clarification, stating 'confusion appears to have arisen as to at which point the driver of the hackney carriage should engage the meter'" (paragraph 11).[9]It was clarified on behalf of the respondent "that although Mr Dyde is a dual licence holder, this was immaterial because the respondent was not seeking to suggest that the journey had been undertaken on a private hire basis." It was submitted that the respondent's case was that he "believed the journey to be a 'fixed job' and he had played no part in reaching this arrangement" (paragraph 15).[10]Paragraph 16 of the case stated records that is was "also submitted for the respondent that both offences should stand or fall together, as there would be no need to have the meter on if there was a contractual arrangement. This was not opposed by the appellant."[11]For present purposes it is unnecessary, in my judgment, to consider whether under the appellant's byelaws the respondent was in fact required to switch on his meter, even if there was a contractual agreement for a fixed fare. The magistrates were invited by the parties to treat the two informations on the basis that they stood or fell together and it is too late for the appellant to complain that they did so.[12]Against this somewhat unsatisfactory background of there being only submissions but no evidence, although the magistrates were told what the two officers' evidence would have been had it not been excluded under section 78, the magistrates concluded:
"18... a. Mr Dyde was not [a] party to the original discussion about the fare between his base and the customers; b. Prior to commencing the journey Mr Dydeconfirmed with the customers that the fare that had been negotiated by them with his operating base was agreed as £32, being the cost of the journey; c. Mr Dyde was not asked to switch the taxi meter on asan alternative to the fixed fare; d. Journeys for fixed fares are regularly undertaken by drivers who do not participate in discussions about the appropriate cost and that therefore Mr Dyde might have been more readily persuaded to undertake this journey for a fixed price than if such a procedure was unheard of. 19. We concluded that, notwithstanding the local authority's letter of 11th March 2008 to Mr Dyde which warned against overcharging, Mr Dyde was persuaded that it was legitimate for him to undertake a fixed-fare journey as he had not been party to the fixing of the price and that in all the circumstances, the evidence of Ms Goodman and Mr Jones should be excludedunder section 78 Police and Criminal Evidence Act 1984."
[13]There appears to have been no significant dispute before the magistrates as to the appropriate legal test to be applied for the purpose of deciding whether a prosecution based on the evidence of Mr Jones and Ms Goodman would be unfair. The magistrates were referred to R v Looseley Attorney General's reference (no 3 of 2000), [2002] 2 CrAppR 29, a decision of the House of Lords, and were told that: "... entrapment is permissible, provided undercover people do not incite, encourage, persuade or coerce the defendant to commit an offence".[14]The magistrates were also reminded that the House of Lords had said in that case that: "It will not, however, normally be regarded as objectionable for the police to behave as would an ordinary customer of a trade, whether lawful or unlawful, being carried on by the defendant".[15]The magistrates' legal adviser referred them to the notes in Stone's Justices' Manual, which stated that: "... a guide to whether police conduct is acceptable is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime; ie did no more than might have been expected from others in the circumstances".[16]Mr Leigh, who did not appear before the magistrates, submitted in his skeleton argument on behalf of the appellant that the magistrates had erred in law because the conduct of the undercover officers "was akin to and no different from a test purchase... there was no encouragement of the respondent to commit the offences alleged and the [officers] did no more thanpresent the respondent with an unexceptional opportunity to commit a crime".[17]It might be thought that whether or not there was an element of persuasion was very much a question of fact for the magistrates and if there was some persuasion, whether the officers' evidence should be excluded under section 78 was very much a matter for the magistrates' discretion.[18]Mr Burton, who did not appear before the magistrates, submitted to us on behalf of the respondent that this court should not lightly interfere with a finding of fact or an exercise of discretion by the magistrates where the case stated shows that they have properly directed themselves as a matter of law.[19]In paragraphs 11 and 12 of the appellant's skeleton argument it was submitted that:
"11. It is of particular relevance in our submission that the respondent was a licensed hackney carriage driver who was obliged to be aware of and understand the requirements of the general law and the byelaws. Ignorance of the law is no defence. 12 ... the respondent should have known that he was not permitted to convey a fixed fare in circumstances when he had no knowledge of a contract being in place (thereby obviating the need to rely on his taxi meter). We submit that the relevant issue was whether the respondent knew that a contract arrangement was in place such that would lawful permit a fixed fare (and there was no evidence that he was so aware) or whether, as a licensed hackney carriage driver presumed to be aware of the general and local laws affecting his trade, he was bound or at least presumed to know thathe could not take a fixed fare other than in the knowledge that it was done under a contract (about which he had no knowledge)."
[20]I have no difficulty with the first of those submissions. It was clearly relevant that the respondent was a licensed hackney carriage driver who could be expected to be familiar with the law regulating the use of his hackney carriage.[21]Turning to the second of those submissions, I confess that I found the appellant's approach to the question whether there was a contract somewhat of a diversion from the real issue, because on the agreed facts the magistrates were certainly entitled to conclude that there was an agreement in place between the appellant's officers and 007 Taxis. An oral agreement had been reached between them and 007 Taxis that they would be taken to their destination for £32. On the agreed facts, that was what the respondent had been told by 007 Taxis and that was what he had confirmed with his passengers when he had first met them.[22]It seems to me, however, that the question was not whether there was an agreement between 007 Taxis and the appellant's officers, but whether an agreement to convey the two officers from Walton Hall Hotel, Wellesbourne to Gaydon could lawfully have been entered into for a fare of £32, in view of the provisions of section 67 of the 1976 Act.[23]Section 67 provides as follows:
"Hackney carriages used for private hire (1) No hackney carriage shall be used in the district under a contract or purported contract for private hire except at a rate of fares or charges not greater than that fixed by the byelaws or tables mentioned in section 66 of this Act, and, when any such hackney carriage is so used, the fare or charge shall be calculated from the point in the district at which the hirer commences his journey. (2) Any person who knowingly contravenes this section shall be guilty of an offence. (3) In subsection (1) of this section 'contract' means— (a)a contract made otherwise than while the relevant hackney carriage is plying for hire in the district or waiting at a place in the district which, when the contract is made, is a stand for hackney carriages appointed by the district council under section 63 of this Act; and (b)a contract made, otherwise than with or through the driver of the relevant hackney carriage, while it is so plying or waiting."
[24]007 Taxis was, as its name implies, a taxi operating company, and it was confirmed to the magistrates that although the respondent was a dual licence holder he was undertaking this particular journey as a licensed hackney carriage driver and not on a private hire basis. As a licensed hackney carriage driver, the respondent would have been well aware of two matters in particular:(1) that although it was permissible for a taxi to undertake journeys for a fixed price ("a fixed job", as it was put on the respondent's behalf), it was a criminal offence to do so at a fixed price that was in excess of the metered fare (see section 67(1));(2) that a metered fare from Walton Hotel, Wellesbourne to Gaydon would not be nearly as much as £32. The respondent might not have known that the metered fare would be precisely £20.10, as alleged in the information, but, given the considerable discrepancy between the two figures, he would have been in no doubt that a fare of £32 was significantly in excess of the metered fare and was therefore unlawful.[25]The magistrates do not appear to have considered the implications of section 67 of the 1976 Act in this respect. Looking at their conclusions in paragraphs 18 and 19 of the case stated, the fact that the respondent was not a party to the original discussion about the fare, and that he confirmed with the officers that the fare had been negotiated by them with 007 Taxis, and the fact that he was not asked to switch on his taxi meter, are all beside the point if the respondent knew, as he should have done, as a licensed hackney carriage driver, that any fixed fare agreed by a third party had to be equal to or not greater than the metered fare, and that the metered fare would not be as much as £32.[26]Similarly, the fact that because journeys for fixed fares agreed by 007 Taxis were regularly undertaken the respondent might have been more readily persuaded to undertake this journey for a fixed price than if such a procedure was unheard of does not engage with the question whether the respondent would have been well aware of the fact that the fixed price for this particular journey undertaken by a hackney carriage could not lawfully be in excess of the metered fare.[27]The reason given by the magistrates as to why the respondent was persuaded "that it was legitimate for him to undertake a fixed-fare journey" was because "he had not been [a] party to the fixing of the price". The respondent was not a party to fixing a fare of £32 — the fare had been suggested by 007 Taxis to the officers and they had agreed to it — but there was nothing before the magistrates which might have suggested that the respondent might have believed that the agreed fare was a lawful one.[28]Mr Burton submitted that there was scope for the respondent to be confused because the fare had been agreed between a third party and the officers and because that third party was the respondent's employer. He submitted that the magistrates had been entitled to conclude that this confusion had been encouraged by the officers' conduct and that therefore it was unfair to admit their evidence.[29]The short answer to this submission is that it does not appear to have been submitted on behalf of the respondent before the magistrates that he was in any way confused as to the lawfulness of a fixed fare of £32 for this particular journey (see the submissions advanced on the respondent's behalf in paragraph 14 of the case stated).[30]There is no finding by the magistrates to that effect (see paragraphs 18 and 19 of the case stated) and in any event such a finding could not rationally have been made in the absence of any evidence to support it, given that respondent was a licensed hackney carriage driver and in respect of such a driver it could safely be assumed, unless the contrary was proved, that he would have a sufficiently good knowledge of both his area and the metered fares within it to know that it was unlawful for him to charge his passenger as much as £32 for this particular journey.[31]This case perhaps illustrates the difficulties that can arise if magistrates are invited to make such rulings on the basis of submissions alone and without hearing any evidence whatsoever.[32]For these reasons I would answer both of the two questions posed in the case stated in the negative and I would propose that the case be remitted to the Stratford-on-Avon Magistrates' Court for a hearing to proceed before a fresh bench of magistrates.[33]MR JUSTICE OPENSHAW: I entirely agree. I add only this, which is not directed at Mr Burton, who did not appear below and bears no responsibility for what happened. The application made at the Magistrates' Court to exclude the evidence of the local authority officers was made entirely without any advance notice to the court or to the prosecution. This type of forensic ambush should never happen. It is a clear obligation under the overriding objective of the Criminal Procedure Rules to give such notice and the failure to do so is, at best, highly regrettable, and, at worst, a breach of professional obligation to the court and to the other parties and, in my judgment, such conduct should not pass without some specific condemnation.

LORD JUSTICE SULLIVAN: Right then, Mr Leigh.

[35]MR LEIGH: I am very grateful, my Lord.[36]So far as costs are concerned, it seems there is little I can do because the respondent is -- benefit from a legal aid certificate and I cannot, as a local authority, ask for my costs out of central funds because I am expressly excluded by the provisions of the relevant Act.

LORD JUSTICE SULLIVAN: You are not asking for a pools order, are you?

[38]MR LEIGH: No, I am not instructed to do so. We considered the point, but one [can] imagine the answer we are going to get, given the circumstances. It is unfortunate. It has cost the authority money to come here to sort out something which, with due respect, should never have arisen in the first place, but your fellow judge has made the point, and no doubt that will go ringing in someone's ears at some point. But at least we have this back on track and no doubt this will be reported somewhere and people will pay attention to it, particularly the comments you made.

LORD JUSTICE SULLIVAN: So it is no order as to costs? That is what you are advising us to do? I should think, if that is the invitation, Mr Burton is hardly likely to submit anything to the contrary.

[40]MR LEIGH: My Lord understands to try and persuade you would be rather -- one would do one's best, but one imagines I am really knocking on a firmly closed door and I do not want to waste time on something I think is hopeless.

LORD JUSTICE SULLIVAN: You are agreed that it should go back and, presumably, that if it goes back it should go back to a fresh bench?

[42]MR LEIGH: That would be our view. I know my learned friend indicated that he would want to persuade you not to send it back. I do not know whether he still wants to try and do that, but clearly our case would be, in those circumstances, especially given what your Lordships have said, we would certainly want this to go back to the magistrates and the trial can properly continue.

LORD JUSTICE SULLIVAN: There is no advantage, even if it were possible, to get this bench together again and query whether that would be possible, because they hardly embarked on the thing, so it is not as though they have virtually got to the end of a very long and difficult case and it only just remains to tidy up odds and ends with a legal direction. Effectively, it has to start again anyway because no evidence had been given.

[44]MR LEIGH: It would be quicker to go back to the magistrates and a fresh bench than try to get the same magistrates all together on the same occasion.

LORD JUSTICE SULLIVAN: Right. I am sorry, Mr Burton, then, if we rather pre-empted you by saying it should be remitted to the magistrates, but of course I am quite happy to re-open that if you give me any good reason why it should not.

[46]MR BURTON: My Lord, the only reason I am going to give, my Lord, is that in light of the findings that are made in order to find in favour of the appellant -- and I do add that that is for a reason, which, with the greatest respect to my learned friends, has not ever appeared before in their case. I perfectly well understand why your Lordships have given that reason, but it does rather prejudge, in my submission, the capacity of the magistrates to reach a fair determination as to whether or not Mr Dyde ought to have known, or otherwise, that the fare that was agreed between his base and the officers was one which was unlawful or not, because the manner in which court have expressed themselves in regard to that point seems to me to be -- well, certainly it was expressed in very strong terms that it was effectively implausible that he could believe otherwise.[47]He only committed this offence, leaving aside the issue of whether or not the meter should have been on at all, if he did so knowingly and, therefore, crucially, that is going to be the question before the magistrates, and the magistrates are now going to be shown a public judgment from two Lordships saying, "It is untenable to suggest otherwise".[48]Now, the local authority, in my submission, have achieved what they needed to achieve today, which was clarity about these types of investigations and whether or not they could proceed. Indeed, I am grateful for your Lordships' indication about the manner in which this application was made. Again, I would very much hope that that would have the desired effect and prevent people from doing something similar in the future, but I am solely concerned here with whether or not Mr Dyde can obtain a fair trial if the matter goes back and it is my submission that the weight that is going to be attributed to the conclusions of your Lordships might be such that it would make it very difficult for him to have that fair trial.

LORD JUSTICE SULLIVAN: I think I do recall that I said it was a reasonable assumption that a taxi driver within his area would know enough about the area and the fares within the area to know that £32 was not -- "over the top" are the words used in the judgment -- in the absence of evidence to the contrary. So is it not open to your client to come along and provide evidence to the contrary?

[50]MR BURTON: Well, of course, it is, but ultimately that is going to be a question of credibility.

LORD JUSTICE SULLIVAN: Yes, indeed.

[52]MR BURTON: And that is where I say there is an opportunity for unfairness.

LORD JUSTICE SULLIVAN: And you will be able to forcefully submit on his behalf that we did not have an opportunity to hear the respondent.

[54]MR BURTON: Well, the balancing exercise of prejudicial versus probative rather recedes to a certain extent, that the judges might be unduly swayed by the opinions of their superiors. That is what concerns me.

LORD JUSTICE SULLIVAN: Thank you very much.

[56]We think it is a jolly good try, Mr Burton, but we think that if the magistrates think that any indication of ours is wrong, having heard Mr Dyde, they will no doubt be quite sufficiently robust to say so.[57]MR BURTON: I am grateful.

LORD JUSTICE SULLIVAN: So it should go back.

[59]Any more for any more? No? Thank you both very much.