Prosecution of Uber driver dismissed amid claims app was plying for hire

The Chief Magistrate, Dame Emma Arbuthnot, has dismissed a prosecution of a driver using the Uber App, based on an allegation that the App was a form of plying for hire.

Philip Kolvin QC of Cornerstone Barristers, who appeared for the defendant, Mudassar Ali, said the judicial decision was the first on the topic.

The prosecution was brought by Reading Borough Council against Mr Ali, a private hire driver licensed by Transport for London.

He was charged with two offences, namely that:

1. In the early hours of 21 January 2017, in Reading, he was plying for hire with a vehicle for which a licence to ply for hire from the borough council had not previously been obtained. This was contrary to section 45 of the Town Police Clauses Act 1847.
2. He had committed a second offence on identical terms as the first but in the early hours of 22 January 2017.

In her judgment, the Chief Magistrate said the issue in the case was whether the Uber “model” using an App should lead her to conclude that she was sure that the defendant was plying for hire on the two dates.

She added that “the problem is that the legislation and the authorities…..have not kept pace with technological advances”.

Arguing that Mr Ali was playing for hire, Reading contended that there was a market in the town for Uber drivers and vehicles which would not exist if they were not there. It argued that the market was created by the exhibition on the Rider App of icons showing the location and availability of the Uber vehicles.

Mr Ali’s location and availability were displayed to users of the Rider App by an icon on a map, it said. That display, it contended, constituted a solicitation.

Reading also pointed out that Uber described itself as an agent of the drivers who are principals. The drivers/principals therefore were authorizing the soliciting of passengers via the Rider App.

It claimed Mr Ali chose the location as it would be more likely that he would be hired and knew the presence of his vehicle would be advertised to potential passengers on the Rider App.

However, the Chief Magistrate concluded: “The fact that Mr Ali’s vehicle had no distinctive markings, was not at a stand and was not available to pick up passengers on the street combined with the fact that the whole transaction was conducted via an App where the booking process starts, is recorded and the fare estimated, leads me to find that Mr Ali was not plying for hire.

“I am conscious that this decision prevents Reading from determining how many mini cab drivers are for hire at any time but this is a consequence of the legislation and of my view of the authorities relied on by the parties.

“I find the App follows from the job-master, then the telephone booking system and is the most up-to-date way of booking a mini-cab. I have no doubt that the technology will move forward and be susceptible to challenge in the future. So far as the App based booking system in this case I do not find that I can be sure that Mr Ali was plying for hire in those circumstances.”

On the facts she dismissed both charges.

Philip Kolvin QC, who was instructed in the case by James Thompson of Woods Whur, said that trade associations had made similarly unsuccessful attempts to run the argument put forward by Reading. This was through prosecuting a London driver, judicially reviewing Transport for London and making representations in Uber’s operating licence application and appeal in London.

Kolvin said that prosecution was discontinued upon intervention by the DPP, the judicial review was withdrawn and the representations were considered irrelevant by TFL and the magistrates’ court on appeal.

“The decision in Reading is therefore the first judicial decision on the topic,” he said.

Charles Holland of Francis Taylor Building appeared for Reading.