London Borough of Haringey v Michniewicz

Neutral Citation Number: [2004] EWHC 1728 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT B E F O R E: LORD JUSTICE ROSE MR JUSTICE HOLLAND - - - - - - - THE LONDON BOROUGH OF HARINGEY -v- MARIUZ MICHNIEWICZ - - - - - - - Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - CO/1818/2004 Royal Courts of Justice Strand London WC2 Monday, 14th June 2004 (CLAIMANT) (DEFENDANT) The Claimant appeared in Person MR S WALSH (instructed by THE BOROUGH COUNCIL) appeared on behalf of the DEFENDANT - - - - - - - J U D G M E N T SMITH BERNAL WORDWAVE 1. MR JUSTICE HOLLAND: Section 38 of the London Local Authorities Act 1990 provides, so far as relevant, as follows: "(1) A person who- (a) is not the holder of a street trading licence or a temporary licence and who engages in street trading in a borough... shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. (2) In any proceedings for an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section where it shown that- (a) any article or thing was displayed (whether or not in or on any receptacle) in any street; or. (b) any receptacle or equipment used in the provision of any service was available in any street in such circumstance that a service was being offered; the article or thing shall be presumed to have been exposed or offered for sale and the receptacle or equipment shall be presumed to have been available for the provision of a service at such time and in such position as it was displayed or available by the person having care or control or appearing to have care and control thereof unless in either case, it is shown to the satisfaction of the court that the article or thing or receptacle or equipment was brought into that street for some purpose other than for the purpose of selling it or exposing or offering it for sale or using it in the course of the provision of the service in a street." 2. The Act throws some further light on the meaning of "street trading" by the definitions section, section 21, which provides: "'street trading' means subject to subsection (2) below the selling or exposing or the offering for sale of any article (including a living thing') or the supplying or offering to supply any service in a street for again or gain or reward." Reference section 21(2) reveals nothing that is germane to the present issue. 3. 4. Turning to what that issue is. It arises as follows. On 11th November 2003 information was laid by the local authority against Mr Michniewicz alleging an offence pursuant to section 38. That information was heard by the Haringey Magistrates on 25th November 2003. The defendant did not attend the hearing, but the magistrates, having been satisfied that he had been given proper notification, went on to hear the case. In the upshot, they found the facts to be as evidenced before them by a senior shop's inspector, Kelly Peck. Her evidence, in terms, as accepted by the justices was: "I am an enforcement officer employed by the London Borough of Haringey. Part of my duties are concerned with the enforcement of street trading regulations. I also maintain the register of street traders who are licensed to offer for sale any article in the street. Further, I am aware that St Ann's Road, Tottenham, N15 is not a licence street within the meaning of the London Local Authorities Act 1990 (as amended). On Thursday 30th October 2003 I was on duty at St Ann's Road, Tottenham. I was accompanied by our contracted removal company. In the carriageway there were a number of motor vehicles with for sale signs displayed on their glazing. I took the decision that all the cars could be seized under section 38 of the London Local Authorities Act 1990. Outside Chesnut Park, St Ann's Road, N15 I noted a car with the registration mark H649 YGG being an Audi 80. On the vehicle I noted a for sale notice with the price £750 ono displayed together with the telephone number 07791899142. I then supervised the seizure of the vehicle. The vehicle was removed from the location at 12.15 pm. Subsequently on the 5th November 2003 a gentleman who gave his name as Mr Mariusz Michniewicz of 43 Fairview Road, N15 visited the Council Offices and spoke to me and claimed to be the person having care and control of the vehicle which he said he left in St Ann's Road. He produced a number of items as evidence of ownership. Copies I now produce as KP1. I told him that I had reason to believe he has committed an offence of unlicensed street trading and that the vehicle will be held pending further enquires and the matter will be directed to the legal service in view of a prosecution." SMITH BERNAL WORDWAVE 5. The magistrates asked the prosecutor whether there was evidence that any more than one car was being offered for sale through the same telephone number, that is by the same defendant. The answer they were given was no. They then enquired whether offering one vehicle for sale could be found to be "street trading" within the terms of the Act. 6. Having asked for submissions on the point, they reached their conclusions in these terms: "We were of the opinion that there was insufficient evidence to prove the case, as we found the evidence of one vehicle for sale, could not amount to trading and we therefore dismiss the information." The question they then posed to the High Court is thus in these terms: "Whether we were correct in holding that the offer of no more than one motor vehicle for sale in the street was not trading for the purposes of section 38 of the London Local Authorities Act 1990 and therefore not requiring a licence under that Act." For my part, the answer to the question is a short one: no, the justices were not correct. That answer comes, in my judgment, first and foremost from the terms of the Act itself. The terms of section 38(2), as already cited in this judgment, plainly apposite to a situation in which just one article is being offered for sale and there is nothing in the balance of the Act in contradiction. Indeed, as has been pointed out by Mr Walsh in an analogous situation, that is with respect to the licensing of street traders as provided for by section 23, it includes these terms: "For the purposes of this Part of this Act, a person shall be deemed to engage in street trading, whether or not he regularly carries on the business of street trading." It is also to be borne in mind, turning back to section 38(2), that a presumption is specified by Parliament. This vehicle having been in the street displayed as "For Sale", then the onus fell upon the defendant to satisfy the court that it had not been brought into the street for some purpose other than for the purpose of selling it and that, as already pointed out, was a task that he did not on the hearing of 25th November seek to deal with. In all these circumstances, I am for sending the matter back to the justices, with the answer to the question, "No", so they may continue hearing in the light of the opinion of this Court. LORD JUSTICE ROSE: I agree. For the reasons given by my Lord, the answer to the question posed in the case is "no", by virtue of section 38(2)(a) the display "For Sale" in the street of a single motorcar is capable of giving rise to unlicensed street trading within the Act. 7. 8. 9. 10. Accordingly, the appeal is allowed. The case will be remitted to the justices with a direction that they continue the hearing against the respondent. SMITH BERNAL WORDWAVE