B e f o r e :
LORD JUSTICE RICHARDS MR JUSTICE CRANSTON ____________________
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Mr J Thackray (instructed by ERYC) appeared on behalf of the Claimant Mr C Hassall (instructed by Amber Solicitors) appeared on behalf of the Defendant ____________________
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LORD JUSTICE RICHARDS: This is an appeal by way of case stated against a decision on 5 May 2010 by justices sitting in the justice area of Beverley and the Wolds, in the Humber Division of the Humber and South Yorkshire Area. By their decision, the justices stayed on the grounds of abuse of process a prosecution brought by the present appellant, the East Riding Yorkshire Council, against the respondent, Mr Philip Dearlove. The Council had preferred informations against Mr Dearlove to the effect that (a) on 12 August 2009 he drove a private hire vehicle without having a licence under section 51 of the Local Government (Miscellaneous Provisions) Act 1976, (b) between 19 March and 12 August 2009 he operated a private hire vehicle without a licence under section 55 of that Act, (c) on 12 August 2009, being the owner and driver of a vehicle, he carried on a licensable activity namely the sale by retail of alcohol from that vehicle without an authorisation required by the Licensing Act 2003, and (d) on 12 August 2009, being the proprietor of a vehicle in respect of which a vehicle excise licence was in force, he knowingly used the vehicle as a private hire vehicle without a current licence under section 48 of the 1976 Act.
The facts relevant to those charges, as found by the justices and set out in paragraph 2 of the case stated, are these:
The issue for the justices was whether the Council had overstepped the limits of acceptable conduct, thereby giving rise to an abuse of process, in acting as described in those findings of fact and then prosecuting Mr Dearlove in respect of the matters covered by the test purchase.
The principal authority on this topic is the decision of the House of Lords in Attorney General's Reference No.3 of 2000, R v Loosely [2002] 1 Cr App R 29 . At paragraphs 1 and 2 of his judgment in that case, Lord Nicholls of Birkenhead observes:
Having dismissed as unsatisfactory a putative boundary based on mere passive observation by the police, he continued as follows in paragraphs 3 and 4:
Lord Nicholls returned later, at paragraphs 19 and following, to the problem of defining or identifying the limits of acceptable proactive conduct by the police. I take two passages from that part of his judgment:
One of the cases referred to by Lord Nicholls was the decision of the Divisional Court in Nottingham City Council v Amin [2001] 1 WLR 1071. Lord Hoffman in Loosely at paragraph 51 described Amin as a good example of a straightforward application of the distinction between causing the commission of the offence and providing an opportunity for it to be committed. Mr Amin owned a taxi which was not licensed to ply for hire in Nottingham. Two plain clothes policemen who saw him driving down a street in Nottingham in the middle of the night flagged him down. He stopped and upon request agreed to take them to the destination which they named. When they arrived, the policemen paid the fare and then charged him with the offence of plying for hire without a licence. The stipendiary magistrate excluded the evidence of the policemen under section 78 of the Police and Criminal Evidence Act 1984, referring to the officers as agents provocateurs, and in consequence dismissed the information. The Divisional Court held that it was wrong to do so and remitted the case with a direction to convict. At pages 1076H to 1077A, in a passage quoted by Lord Hoffman at paragraph 53 of Loosely , Lord Bingham of Cornhill CJ drew the following distinction from the authorities:
As Lord Hoffman observed at paragraph 54, what Lord Bingham meant by that last observation was that the policemen had behaved like ordinary members of the public in flagging the taxi down. They did not wave £50 notes or pretend to be in distress.
The justices in the present case had those two authorities cited to them. In the light of them and the submissions they heard, they found as follows at paragraph 7 of the case statement:
The questions posed for the opinion of the High Court with regard to those findings are these:
The submissions of both counsel have been commendably concise and focused. For the appellant, Mr Thackray submits that the justices erred in law in concluding that there had been an abuse of process in ordering a stay. In particular, he submits that they made findings that were Wednesbury unreasonable or they otherwise erred in law in distinguishing Amin and failing properly to apply the principles laid down in Loosely . It is said that the Council in this case did no more than behave in the same way as any member of the public wanting a private hire vehicle. The fact that a telephone call was made as opposed to flagging the taxi down was not a meaningful point of distinction with Amin because the service Mr Dearlove was offering was one that required a telephone booking rather than flagging the vehicle down in the street. It is further said that the advertisement was continuing evidence of Mr Dearlove's potential to commit the crime, which was confirmed by his attendance for booking and his voluntary provision to the officers of a business card for further business.
For Mr Dearlove, Mr Hassall submits that the justices were plainly aware of and had well in mind the relevant authorities and applied the test in those authorities. Loosely shows that each case will turn on its own facts, but regard is to be had amongst other matters to the nature of the offence, the reason for the operation and the nature and extent of the officers' participation in the offence. He submits that the justices considered all those matters and paid particular attention to the fact that this was a single advertisement and there was no evidence of Mr Dearlove having taken any bookings in the intervening period thereafter. They also looked carefully at his personal position and the issue of financial vulnerability and whether the Council's officers took advantage of it. In his submission, the justices' decision cannot be classified as one that no reasonable justices could have reached; they did not take into account any irrelevant or inappropriate material; and they were entitled to distinguish Amin as they did. Mr Hassall suggests that even if this court might not have come to the same decision as the justices, there is nonetheless no basis for interfering with the decision that the justices did reach.
I accept that the justices' reasons show that they had the relevant authorities very much in mind. The real question in this case is not one of legal misdirection but whether it was reasonably open to the justices to reach the conclusion they did in the application of the relevant legal principles to the particular facts. For my part, I respectfully differ from the conclusion they reached. I do not consider that the Council's officers stepped over the permitted line. They did nothing that an ordinary member of the public might not have been expected to do. Although the justices placed a great deal of weight on the absence of any evidence of unlawful conduct by Mr Dearlove beyond the one test purchase, it is important to look at the wider context of that test purchase.
Mr Dearlove placed an advertisement seeking business in March. He subsequently indicated to the Council that he would be pursuing licence applications, but he then switched to saying that he would be using the vehicle only for non-licensable activities, in serving weddings and funerals. In mid-June, he was reminded of his obligations and warned specifically of the possibility of a test purchase, to which he responded that he was not trading and had no business at all. It was only some seven weeks later, on 4 August, that the test purchase was initiated, using the phone number in the March advertisement. Although this does not appear in the findings set out in the case stated, we are told that there was unchallenged evidence before the justices that a female answered that phone call and said, "Hello, Executive Business Travel", and that when the booking was taken, for transport to Ladies' Day at Beverley Races on 12 August for £100, it was confirmed on request that sparkling wine was included in the price. There was also evidence that Executive Business Travel made contact on 11 August to confirm the booking. The service was then provided on 12 August as booked and an invoice was provided, together with a business card advertising the service.
It does not seem to me that there was, in the conduct of the council's officers, anything that could amount to impermissible entrapment. They booked the service just as an ordinary member of the public would do. The telephone booking was the equivalent, for this kind of service, of the flagging down of a taxi in Amin . At first sight it may look like a long journey and a high price, but for an executive service offering business and airport travel with alcohol included it cannot be said to be wholly out of the ordinary. In my view this was not a case of virtue testing or anything akin to it, notwithstanding the Council's knowledge that Mr Dearlove claimed to have no work and for that reason would no doubt be keen to take a booking. In my view the officers simply provided the opportunity for commission of an offence by the provision of the very kind of service that Mr Dearlove had advertised.
Nor is there anything in the wider context to cause me concern. The advertisement itself provided reasonable grounds for suspicion. The service on the day and the business card provided at the end of it shows that continuing suspicion was indeed justified. Mr Dearlove had an express warning that a test purchase might be made and there can be no unfairness in those circumstances in initiating a test purchase a few weeks later. There is, moreover, a strong public interest in ensuring that only licensed operators supply taxi services of this kind. The fact that this was the only evidence of unlawful conduct during the relevant period does not mean that the evidence was improperly obtained. If Mr Dearlove was proved to have offended only on this one occasion, the proper way to reflect that was in the sentence. The bringing of the prosecution, in all the circumstances, could not sensibly be regarded in my view as an affront to the public conscience.
Recognising that the justices, approaching the issue conscientiously, analysed matters in a very different way, I have asked myself carefully whether there could be room here for reasonable disagreement, in which case of course there would be no basis for interfering with the justices' decision. In my judgment, however, it simply was not reasonably open to the justices to find on these facts that the Council's officers had acted in such a way as to make it unfair or an abuse of process for the prosecution to be brought. Thus, the justices, in my judgment, erred in law in ordering the stay of proceedings.
For those reasons, I would answer question 1: "Yes". I do not think an answer is needed to question 2: the information available to the Council formed part of context to which I have referred, but it was open to the Council to make a test purchase irrespective of whether the information provided reasonable grounds for believing that criminal activity was taking place. As to question 3, I have indicated that in my view the situation here was comparable to that in Amin , but I do not think that a specific yes/no answer is required to the question formulated.
For the reasons I have given, I would allow the Council's appeal, would quash the decision to stay the prosecution and, subject to any further submissions, would remit the case to the justices for substantive consideration of the charges.
MR JUSTICE CRANSTON: I agree.
LORD JUSTICE RICHARDS: In the absence of any further submissions, that will be the order.
MR THACKRAY: Thank you.