Since the Government announced additional public health measures in England and Wales, there has been much debate about the requirement to wear masks in hackney carriages and PHVs and whether this might be reasonable grounds for refusing a fare.

The issue of refusing fares is restricted to use of hackney carriages more than it is for PHVs.  This is because a private hire operator has the discretion to turn down a booking request whereas hackney carriages plying for hire is expressly prohibited from doing so in law without reasonable excuse.

The question therefore in the context of the current pandemic is whether it is reasonable for a hackney carriage diver to refuse a fare if passengers are not wearing a mask.

Legislation

S.53 of the Town Police Clauses Act 1847 (applies to both England & Wales) states in relation to hackney carriages:

“A driver of a hackney carriage standing at any of the stands for hackney carriages appointed by the commissioners, or in any street, who refuses or neglects, without reasonable excuse, to drive such carriage to any place within the prescribed distance, or the distance to be appointed by any byelaw of the commissioners, not exceeding the prescribed distance to which he is directed to drive by the person hiring or wishing to hire such carriage, shall for every such offence be liable to a penalty not exceeding level 2 on the standard scale.”

It is clear in law therefore that:

  1. For hackney carriages, journeys that start and end in the area where that driver is licensed (controlled district), a fare cannot be refused without reasonable excuse.
  2. For hackney carriages journeys that start in the controlled district but end outside of that area, a fare can be refused as there is no statutory duty on the driver to accept a booking outside of the controlled district.

The legal test is whether the fare was refused with a reasonable excuse.  What constitutes a “reasonable” excuse will ultimately be a matter for the courts to decide.

Public health advice

Certainly, what would be material factors in the particular context (i.e. Covid19 and the wearing of masks) is what the public health advice was (at the time of the alleged offence) and how this relates to hackney carriages and PHVs.

The Government announced that face coverings will be mandatory on all forms of public transport from 15 June. Note the guidance relates to wearing face covering, not masks.

It is also material that hackney carriages and PHVs are not classed public transport.  The Government, in its  guidance[1], has made the separation clear stating: “…travelling by taxis and public transport (for example trains, buses, coaches and ferries).”

The implication is that the requirement to wear face coverings when travelling in hackney carriages is therefore not mandatory.  However, more general Government advice is for people to wear face coverings in “enclosed spaces”[2] which clearly applies to hackney carriages and PHVs.

It is clear the advice on face coverings in hackney carriages and PHVs is muddied.  A Department for Transport spokesperson is reported to have said:

“Taxis are not included in the mandatory requirements primarily because they are private hire vehicles.

“Taxi drivers have a perspex screen and they can, if they want to, refuse to carry passengers.

“We advise that taxi drivers do follow the guidance but it is not a mandatory requirement as is the case on trains, busses and trams.

“The requirement only is for public transport and taxis can choose to follow the guidance – and we advise they do – but ultimately it is up to them because they have more control over their environment.”

The specific advice for travelling in a hackney carriage includes:

“…follow the advice of the driver. For example, you may be asked to sit in the back left hand seat if travelling alone. You may want to check with your taxi operator before travelling if they have put any additional measures in place.

“You should wear a face covering in an enclosed space where social distancing isn’t possible and where you will come into contact with people you do not normally meet.”

Reasonable excuse?

As I mentioned, what constitutes a “reasonable” excuse will ultimately be a matter for the courts to decide.

In making a judgement on this, the courts will need to consider all the facts.  Each case will need to be determined on its merits but there are broad themes that is likely to apply to most cases of this type, including:

  1. The official Government advice at the time and whether this was being followed;
  2. It is material that official statistics suggest hackney carriage drivers are at an increased risk of dying as a result of falling ill with COVID-19[3];
  3. Precautions taken by the licensed driver such as partition screens and other measures;
  4. Whether the passenger was willing to comply with instructions from the licensed driver; and
  5. Passengers were displaying visible symptoms.

There will not be a one-size-fits-all approach to this.  However, drivers can protect themselves against enforcement action through proper due diligence to ensure they can respond to any complaints in a robust and clear manner.

As always, Taxi Defence Barristers can assist licence holders with advice and representation when faced with legal and enforcement difficulties.

 

 

[1] https://www.gov.uk/guidance/coronavirus-covid-19-safer-travel-guidance-for-passengers#travel-safely-during-the-coronavirus-outbreak

[2] https://www.gov.uk/government/news/public-advised-to-cover-faces-in-enclosed-spaces

[3] https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/causesofdeath/bulletins/coronaviruscovid19relateddeathsbyoccupationenglandandwales/deathsregistereduptoandincluding20april2020

Stephen McCaffrey

Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.

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