How to catch an (illegal) cab

Vincent Blake-Barnard reports on a recent case which looked at whether a test purchase of an advertised chauffeur service carried out by a council overstepped the mark and became entrapment.

The use by an authority of an agent provocateur to entrap its citizens into committing a crime has been the subject of many defences that the state has gone above and beyond what is lawful in detecting crime and has subsequently abused its power and abused the process.

For those who deal with taxi licensing, whether representing the trade or licensing authorities who undertake such operations, the thorny issue of the test purchase is of major interest. The whole issue has been revisited and expanded upon for the first time post-Looseley in the recent case of East Riding of Yorkshire Council v Dearlove [2012] EWHC 278 (Admin), CO/8593/2010.

It has never been the case within the English courts that evidence obtained from such action is inadmissible but the criteria the trial judge must use to distinguish the acceptable from the unacceptable have been clearly and well settled following the case of R v Looseley Attorney General’s Reference No.3 of 2002, 1 Criminal Appeal Reports 29.

The Looseley ruling cited the observations of Lord Bingham in the earlier case of Nottingham City Council v Amin (2000) WLR 1071 (a taxi licensing case)that: “On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a Defendant would be convicted and punished for committing a crime which he only committed because he has been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer.

“On the other hand it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable, if a law enforcement officer gives a Defendant an opportunity to break the law, of which the Defendant freely takes advantage, in circumstances where it appears that the Defendant would have behaved in the same way if the opportunity had been offered by anyone else.”

The case of Amin involved a plain clothes police officer waving down and being picked up by a private hire taxi although his light was not illuminated. As such the officer did no more than a member of the public would have done. He was not waving large bundles of notes to attract the driver’s attention or claiming injury or emergency.

Looseley went on to develop a range of criteria as to what should be taken into consideration when the trial judge has to distinguish the acceptable from the unacceptable. These include reasonable suspicion and supervision of the operation, but this is primarily in reference to a large scale operation involving large drug scale dealings, conspiracies to rob and/or hire assassins.

The issues as to regulatory issues are usefully referred to in para 55 as follows: “The test of whether the law enforcement officer behaved like an ordinary member of the public works well and is likely be decisive in many cases of regulatory offences committed with ordinary members of the public, such as selling liquor in unlicensed quantities (Director of Public Prosecutions v Marshall [1988] 3 All ER 683) selling videos to children under age (Ealing London Borough Council v Woolworths plc [1998] Crim LR 58, DC, and operating a private hire vehicle without a licence (Taunton Deane Borough Council v Brice (DC unreported 10 July 1997).

“But ordinary members of the public do not become involved in large scale drug dealing, conspiracy to rob (R v Mealey and Sheridan (1974) 60 Cr App R 59 or hiring assassins (R v Gill [1989] Crim LR 358; R v Smurthwaite [1994] All ER 898. The appropriate standards of behaviour are in such cases rather more problematic. And even in the case of offences committed with ordinary members of the public, other factors may require a purely causal test to be modified.”

As such this basic test may need some modification to include reasonable suspicion and supervision. A reasonable suspicion does not mean of an individual but can be that criminality is taking place in an area. Supervision within a licensing authority arena will come in the form of policy, delegated authority and if necessary in the form of authorisation to undertake covert operation under RIPA.

In the case of Dearlove the Magistrates found the following facts during a voir dire hearing on the issue of abuse of process: "In March 2009 Mr Dearlove placed an advert stating 'Chauffeur driven BMW X6, VIP, Executive, Corporate, Business travel, Airport Connections, Male/Female Chauffeurs'. At the bottom of the advert was his email address. The Council's records showed that Mr Dearlove was not licensed to offer the services in the advert. The Licensing Officer liaised with Mr Dearlove via email and although he initially indicated that he would be pursuing licence applications he subsequently said that he would be using his vehicle for 'weddings and funerals' only but he had  had no work whatsoever.

“On 17 June 2009 a Senior Licensing Officer emailed Mr Dearlove reminding him of his licensing obligations if he was still minded to use his vehicle other than for weddings and funerals. In her email she warned regarding the possibility of a test purchase and the fact that further action would be taken if Mr Dearlove did not respond. Mr Dearlove did respond the following day advising that he was not trading as a taxi and in fact had had no business at all.

“On 4 August 2009 under supervision a Licensing Officer made a telephone call to the number provided in the aforementioned advert. A taxi journey between Ferriby and Beverley was arranged for a fare of £100. On 12 August 2009 the 'test purchase' took place. Mr Dearlove was the driver of the vehicle and escorted two Licensing Officers as requested. At the end of the journey Mr Dearlove accepted the £100 payment from the Officer and gave a pre-written receipt for the amount of £100 and a business card. The Council interviewed Mr Dearlove under caution on 8 September 2009 at which he accepted that he was the owner, driver, operator of the vehicle on the day of the test purchase and the sole owner of Executive Business Travel. He accepted that he knew he needed to be licensed but accepted the job because it was a carrot being dangled.”

Despite having the cases of Looseley and Amin before them the justices found as follows: “The 'test purchase' took place in the absence of any suggestion, information or complaint that Mr Dearlove had breached the licensing laws. Throughout the whole of the period 19 March 2009 to 12 August 2009 there is no evidence before the court that would give rise to any suspicion whatsoever that Mr Dearlove had acted illegally by contravening the licensing legislation. The only evidence we have is that Mr Dearlove placed a single advert in March 2009 and no more and following that had no work whatsoever."

"We were of the opinion that the actions of the local authority were excessive in the absence of any criminal activity on Mr Dearlove's part and as such we found it would be unfair to allow the proceedings to continue and ordered a stay of the proceedings.”

When the matter was appealed case stated the conclusions were somewhat different. In para 11 HHJ Richards stated as follows: “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.

“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.

“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.”

Conclusion

For a defense in this area to be successful there are three areas which need to be considered:.

1. Did the officer go over and above that which a normal member of the public would have done? This can be in the form of an excess inducement, pestering or placing the driver in a morally indefensible position ie in response to an emergency.
2. Was there suspicion that an offence could or would take place? This could be information on an individual or information that the issue was a problem in the area or community.
3. Authorisation: Were the actions in line with the with the Council’s policy? Was the officer authorised within the authority? And finally was there RIPA authorisation, if necessary?

Vincent Blake-Barnard is a Barrister at No 6 Chambers in Leeds specialising in Licensing, Regulatory Crime and Housing.