Oddy, R (on the application of) v Bugbugs Ltd.

A carriage falls within the statutory definition of a stage carriage where it plies for hire and passengers pay separate and distinct fares, even if Parliament did not contemplate the vehicle or its operating method. The court cannot insert an additional requirement for predetermined stops or routes. A decision concerning different statutory wording therefore does not govern the construction of the 1869 Act.

For soliciting under section 167 of the Criminal Justice and Public Order Act 1994, more than mere presence or availability for hire is required. The circumstances must show an invitation to a prospective hirer. A driver who merely responds to a passenger’s hail is not thereby soliciting.

This was an appeal by a private prosecutor from the dismissal by District Judge Sawetz of charges against Bugbugs Ltd and two pedicab drivers. The charges alleged that the company’s pedal-powered pedicabs were unlicensed hackney carriages plying for hire contrary to section 7 of the Metropolitan Public Carriage Act 1869, and that the drivers had solicited passengers contrary to section 167 of the Criminal Justice and Public Order Act 1994.

The District Judge held that the pedicabs were stage carriages because passengers paid separate fares, and that the drivers had not solicited anyone. She also ordered the prosecutor to pay costs. The questions were whether the pedicabs were hackney or stage carriages, whether R v Cambridge City Council ex parte Lane (1999) RTR 1982 governed, whether the drivers had solicited, and whether the costs order was lawful.

1. Classification under the 1869 Act. The appeal was dismissed. Section 4 of the Metropolitan Public Carriage Act 1869 is a deeming provision. It captures every carriage which plies for hire and in which passengers are charged separate and distinct fares, subject to the statutory exclusion of a stage carriage from the definition of hackney carriage. The court could not rewrite the definition by inserting a requirement that the carriage stop at predetermined stages or follow a predetermined route.
2. Effect of R v Cambridge City Council ex parte Lane. That decision concerned the different language of section 38 of the Town Police Clauses Act 1847, which did not define stagecoach. It did not govern sections 4 and 7 of the 1869 Act. The pedicabs were therefore stage carriages and no offence under section 7 was committed. The consequence was that they were subject to no existing licensing regime, but that policy consequence could not justify an altered construction. Primary legislation would probably be required to regulate them.
3. Soliciting. Section 167 of the Criminal Justice and Public Order Act 1994 requires conduct which, in its circumstances, amounts to an invitation or request to a prospective hirer. Mere presence in the street, availability for hire, or the features of a vehicle is insufficient. The drivers did nothing to attract the passengers and only responded after being hailed. They were plying for hire, but were not soliciting. Behrendt v Burridge 63 Criminal Appeal Courts 202 was materially different, while Darroch v The Director of Public Prosecution [1990] 91 Cr App R 378 supported the need for a positive indication.
4. Costs. The District Judge was entitled under regulation 3 paragraph 1(a) of the Costs in Criminal Cases (General) Regulations 1986 to order costs against the prosecutor where an improper decision to prosecute caused costs to be incurred. Improper did not mean morally reprehensible. The decision to pursue substantially identical issues after an earlier unchallenged decision was an improper act or omission, and no error of law or perversity had been shown.

The appeal was dismissed. The respondents’ costs were to be addressed by written submissions and assessment.

High Court (Administrative Court): District Judge Sawetz, sitting at Tower Bridge Magistrates’ Court, dismissed the charges on 13 February 2003 and ordered the prosecutor to pay the defendant’s costs. The High Court dismissed the prosecutor’s appeal and upheld the District Judge’s answers on classification, soliciting and costs.