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Uber appears to be ‘untouchable’ says Gouriet QC

In a decision which is more likely to be mis-cited than any in recent memory, and which has already been widely misrepresented on social media, the Senior District Judge has dismissed the prosecution of an Uber driver for plying for hire in Reading. 

The lawfulness of the Uber app, and its equivalence to a taxi ‘for hire’ sign, were not addressed. 

The material facts

  • The defendant was a TfL-licensed driver of a private hire vehicle also licensed by TfL.

  • He was working through a Smartphone App provided by Uber.

  • On the date in question, about 60 Uber vehicles were showing on the Uber App map of Reading. Reading Borough Council has refused to licence Uber as an operator there.

  • The defendant’s vehicle was stationary on a road in Reading. It had no significant markings, or any marking advertising a telephone number or other means of contacting Uber to make a booking.

  • The vehicle was not at a taxi rank, and could not be hired from the street by hailing it down in the traditional way.

  • The vehicle’s outline, however, was visible to any Uber customer using the Smartphone App. That outline advertised the presence of an Uber driver.

  • Licensing Enforcement Officers saw the vehicle on their Smartphone App, approached the car, introduced themselves, and interviewed the defendant.

  • The defendant said that he was waiting for a booking through the Uber app.

The decision

The key passage in the judge’s decision to find the defendant ‘not guilty’ is: “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.” It is respectfully submitted that focusing on “where the booking process starts” misses the central question, which is whether a vehicle, not being a hackney carriage, has advertised itself as available for immediate hire. Plying for hire will occur before any booking process starts, and certainly before any booking is made. The driver who directs potential customers to a licensed operator, so that they can then book his vehicle in the usual way, is plying for hire – the subsequent booking via a licensed operator is immaterial: Rose v Welbeck Motors Ltd, Chorley Borough Council v Thomas.  

Uber app: The Big Issue

It was hoped that this prosecution would determine, once and for all, whether displaying a vehicle’s proximity and availability for immediate hire on the Uber App is the modern equivalent of displaying a ‘for hire’ sign on the vehicle. It is regrettable that that all-important question was never answered. Indeed, on one reading of the decision, the judge might even be thought to have been careful to avoid answering it: the determining factors (the vehicle’s lack of distinctive markings, its not being parked at a stand or able to be flagged-down in the usual way) had no bearing at all on what was really at issue. A charmed life

St. Christopher is the patron saint of travellers. There is even a patron saint of automobile drivers – St. Frances of Rome. Perhaps it is time we had one for PHV operators, so that obeisance may be made and candles lit to encourage (and continue) divine intervention on their behalf. It is not that Uber has the blessing of the courts as to the lawfulness of its operating model – it hasn’t: all attempts to obtain a definitive ruling have, for one reason or another, been stopped in their tracks. Deus ex machina in more ways than one, perhaps. A judicial review of TfL’s decision to licence Uber had to be withdrawn, because it was out of time (no other reason). ‘Plying for Hire’ was said by the Senior District Judge to be irrelevant to the recent Uber appeal against the non-renewal of its licence; as was the possible unlawfulness of Uber’s cross-border operations. The CPS (wrongly) discontinued the ‘plying for hire’ prosecution of an Uber driver in Bromley. And now a Reading Uber driver has been acquitted of plying for hire, without the court having fully considered the unlawfulness of the model under which he operated. The Uber model should have been properly tested in the courts long ago. Until it is, we will have licensing authorities up and down the country being told they are powerless to stop an invasion of Uber drivers over whom they have no control – Uber even braving the streets of councils that have refused to give them a licence. There is understandable concern, across a wide 

spectrum that by no means is limited to licensed taxi drivers, that Uber appears to be ‘untouchable’.

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