...KNOW YOUR RIGHTS...
We have had a spate of enquiries recently from private hire drivers who have been accused of touting or plying for hire.
Firstly, we need to be clear about the difference between touting and plying for hire. To be con- victed of touting, the prosecution must prove that you have solicited someone to carry him or her as a passenger without a hackney carriage licence. This involves a positive act on your part. In contrast, if an officer approaches you and you enter into negotiations about a fare, it will be suggested that you are plying for hire.
In almost every case of plying for hire, our clients have felt aggrieved that the officers have effec- tively enticed them into committing an offence and have asked us if they have a defence.
Here’s the law:
If an undercover officer approaches and makes an enquiry about a fare and you enter into a negotiation with him or her about it, even if you do not actually get so far as to take them to their destination, then the offence of plying for hire has been committed.
The issue then is whether the officer acted appropriately, or whether it can be suggested that the driver was “entrapped”. If the officer has not acted appropriately, it might be possible to suggest that his or her evidence should be excluded, as it has been obtained unfairly.
Entrapment arises when a person is encouraged
by someone in an official capacity to commit a crime. Entrapment in itself does not amount to a defence however if entrapment occurs, it may result in exclusion of part of the prosecution evi- dence under S78 Police and Criminal Evidence Act 1984 or ultimately, the proceedings being discontinued altogether.
Setting a ‘trap’ is common practice in relation to detecting taxi touting offences in London, and plying offences elsewhere. It is generally accept- able for the police to pose as passengers in this role (Nottingham City Council v Amin [1999]). What is the line, however, between a need to monitor and enforce the law, and entrapping an individual into committing an offence?
The leading authority on whether proceedings should be discontinued in these circumstances is R V Loosley: Attorney-General’s Reference (no 3 of 2000). The Court set down certain crite- ria to take into account when assessing whether the police did more than simply present the defendant with an opportunity to commit an offence. The Court will consider the following:-
- whether the police acted in good faith; - whether they had good reason to suspect the accused of criminal acts;
- if this type of crime was prevalent in the area; - if pro-active investigatory techniques were necessary because of the secrecy and difficul- ty of detection of the offence; - the nature of the offence.
Whilst the criteria provide the police with wide
scope, each case is decided upon its own mer- its. If the officer goes over and above to entice a driver into plying for hire, then an application for the evidence to be excluded should be made. Whether or not the Court will then dismiss the proceedings is another matter. The Court must be satisfied that you cannot have a fair trial if the evidence is admitted.
It is difficult to know what amounts to “over and above”. If an undercover officer does nothing more then flag down the taxi and make enquiries about a journey, it will be unlikely the Court will find that the evidence has been obtained unfair- ly. However, if an undercover officer acts as a distressed female who requires assistance, then the Court is more likely to find in your favour.
It is important for drivers to note that the argu- ment that they have been “entrapped” can relate only to an allegation of plying for hire. It cannot apply in an allegation that the driver was touting because touting is about the driver actively approaching/soliciting a fare. It cannot be sug- gested that you were “entrapped” if you made an active approach of your own volition. The only defence to “touting” is if the driver denies that he solicited the fare.
Complicated advice we know – but the moral of the story is to probably just say “No”……
Supplied and written by Patterson Law (01626 359800/
www.pattersonlaw.co.uk) and the National Private Hire Association (0161 280 2800/
www.npha.org.uk)
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PHTM JANUARY 2014
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