England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/07/2006

Lord Justice Maurice Kay:

1. These two appeals by way of case stated are a graphic illustration of what can happen when a prosecutor, in this case the London Borough of Newham, becomes overzealous. In each case Newham prosecuted Mr Onasanya in Stratford Magistrates Court for an offence or offences of unlawful street trading. It is not and never has been suggested that Mr Onasanya is in any sense a professional street trader. Indeed, he is a local government officer employed by a neighbouring London borough.
2. The first of the two cases to be heard concerned a Volvo motor car. The information laid by Newham alleged that on or about 2 February 2005, Mr Onasanya, "being a person who was not the holder of a street trading licence did engage in street trading, namely exposing or offering for sale a Volvo motor vehicle registration mark Y453HCP from the public highway known as Greengate Street, London E13". The allegation was of an offence contrary to section 38(1)(a) of the London Local Authorities Act 1990 (as amended). The facts found by the District Judge were as follows:

"Johnson Onasanya was the owner and registered keeper of the Volvo purchased in about July or August of 2004. It was used by him as his own private motor vehicle.

On a date prior to 2 February 2005 Mr Onasanya fixed a notice in the rear window of the car advertising the car for sale. This notice contained Mr Onasanya's mobile telephone number. The purpose of so doing was to attract potential purchasers of the vehicle who would then be able to contact Mr Onasanya.

On 2 February 2005 Mr Onasanya was driven in the said motor car by his wife and parked the vehicle in Greengate Street, E13. The reason for that particular journey was that Mr Onasanya had an appointment to see his general practitioner at his surgery at 94 Greengate Street. The notice advertising the car for sale remained fixed in the rear window and visible to passers-by."

3. The District Judge concluded that, despite Mr Onasanya's attendance at his doctor's surgery, one of the purposes for which he brought the vehicle into Greengate Street remained the offer for sale of the vehicle. Mr Onasanya was convicted.
4. The facts of the second case had occurred earlier but came for trial a day later than the Volvo case. The second case concerned a Rover motor vehicle. Three informations alleged that Mr Onasanya had engaged in unlawful street trading, "namely exposing or offering for sale a blue Rover motor vehicle registration mark LD510LT from the public highway known as High Street, London E13". The three informations related to the dates of 27 November 2004, 19 December 2004 and 7 January 2005. The District Judge (not the same District Judge as on the previous day) found the following facts:

"(a) The vehicle was parked in High Street E13 on each of the three occasions stated.

(b) There were 'For Sale' notices displayed in the vehicle on each of the three occasions.

(c) The warning notices affixed to the vehicle [by council officials] informed the keeper of the vehicle that the 'For Sale' notices constituted trading or exposing the vehicle for sale without a street trading licence.

(d) Mr Onasanya was out of the United Kingdom for a period of three weeks from 19 December 2004 to 7 January 2005.

(e) The vehicle had been loaned by Mr Onasanya to Mr Ahyde.

(f) It was Mr Onasanya's expectation that the vehicle would be garaged by Mr Ahyde.

(g) On each of the three occasions the vehicle was situated in the vicinity of Mr Ahyde's address and the purpose for which it was so situated was as a result of Mr Onasanya lending the vehicle to Mr Ahyde.

(h) Although Mr Onasanya had driven past the parked vehicle on a number of occasions and had seen the 'For Sale' notices displayed, he believed that the vehicle must have been parked there for an innocent purpose other than for sale as his expectation had been that the vehicle would be garaged by Mr Ahyde.

(i) Mr Onasanya had not been aware of the fact that the warning notices had been affixed to the motor vehicle on the relevant dates.

(j) There was no evidence to contradict the account given by Mr Onasanya in interview with the council officials."

5. The relevant offence is defined in section 38(1) of the London Local Authority's Act 1990 (as amended) in the following terms:

"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 whether or not from a stationary position …

shall be guilty of an offence … "

6. "Street trading" means

"(a) the selling or exposure or offer for sale of any article …

in a street for gain or reward."

7. Section 38(2) then provides:

"In any proceedings for an offence under this section … where it is shown that

(a) any article or thing was displayed (whether or not in or on any receptacle) in any street …

the article [or] thing … concerned shall be presumed to have been exposed or offered for sale … unless it can be proved to the satisfaction of the court that the article or thing … was brought into that street for some purpose other than street trading."

8. In the Volvo case the District Judge concluded that

"The statutory defence provided by section 38(2) … was not established as it was not proved to the satisfaction of the court that the vehicle was brought into that street for some purpose other than street trading."

9. The question posed for the opinion of this court in the Volvo case is in the following terms:

"Was I right to conclude that in the circumstances a purpose for which the vehicle was brought into Greengate Street remained the offer for sale of the vehicle and accordingly the statutory defence provided by section 38(2) … was not established as it was not proved to the satisfaction of the court that the vehicle was brought into that street for some purpose other than street trading?"

10. In the Rover case, the findings to which I have referred were based to a significant extent upon what Mr Onasanya had said to the council officials in interview. Although he did not give evidence at trial the District Judge concluded that there was no evidence to contradict the account given in interview. In these circumstances the District Judge concluded that Mr Onasanya had "adequately addressed the evidential burden to satisfy the provisions of section 38(2) in that the vehicle had been in the vicinity of Mr Ahyde's address for some purpose other than for sale" and, on that basis, she dismissed the three informations. The question posed for this court in the Rover case is in these terms:

"On the facts as found by me, was I entitled to hold the view that [Mr Onasanya] had discharged his evidential burden of establishing that the vehicle had been in the vicinity for some purpose other than for sale?"

11. It is perhaps worth adding that the positions in High Street where the Rover was seen were very close indeed to Mr Ahyde's address but a mile or so away from the address of Mr Onasanya.
12. The approach of Newham to these cases and the central submission of Miss Palmer is that, at all material times, there was more than one 'purpose' relating to the presence of the cars in the streets in question. On the one hand, the car was being driven or used for a journey or was parked for convenience. On the other hand, because the "for sale" sign was still in the window, there was the additional purpose of street trading. The suggestion is that a defendant can only avail himself of section 38(2) if the vehicle is in the street entirely for a purpose unrelated to street trading. I have no hesitation in saying that, in my judgment, this approach is simply wrong. What the court has to be satisfied about in section 38(2) is that the article "was brought into that street for some purpose other than street trading". The question that must be asked, therefore, is: why was it in "that street" and nowhere else at the material time? It is abundantly clear on the findings of fact that the Volvo was in Greengate Street because Mr Onasanya was attending an appointment with his general practitioner in "that street". It is equally clear, on the findings of fact, that the Rover was in High Street because Mr Onasanya had lent it to Mr Ahyde who had parked it for convenience virtually outside his house. Of course, there may be a duality of purpose but I do not accept that, wherever there is so, section 38(2) will not avail a defendant. The fundamental question, I repeat, is as to why the article or thing was brought into that street.
13. In my judgment it follows that, having regard to the findings of fact, Mr Onasanya was wrongly convicted in respect of the Volvo but rightly acquitted in respect of the Rover.
14. So far as the Rover is concerned, the question posed by the case stated relates to the discharge of an evidential burden. It seems that there was an issue as to whether the findings of fact were open to the District Judge in circumstances where Mr Onasanya had not given evidence. I have no doubt that the findings of fact were open to the District Judge. Mr Onasanya had given a full account in interview. The evidence of the interview was adduced, not least because the prosecution relied upon it to prove that Mr Onasanya was the owner of the car, that he had displayed the 'For Sale' notices in it, that the telephone number on the notices was his, and that he had seen the car on a number of occasions parked in High Street after he had lent it to Mr Ahyde. On the other hand, the parts of the interview concerning the loan to Mr Ahyde, the expected garaging and the absence of Mr Onasanya from the country from 19 December 2004 were matters relied upon by the defence. In other words, the interview was both inculpatory and exculpatory. It is well established that, in such circumstances, it is all of evidential value, the respective weight to be attached to each part being a matter for the tribunal of fact, which will no doubt bear in mind the inherent likelihood of inculpatory statements starting from a higher level of credibility than exculpatory statements. However, it was clearly open to the District Judge to conclude that, as there was no evidence to contradict the exculpatory parts, he could place reliance upon them. In my judgment, this approach was entirely consistent with authorities such as Duncan (1981) 73 Crim App R 359 and Aziz [1995] 2 Crim App R 478.
15. What I have said so far deals with the questions posed by the cases stated and the central submissions made on behalf of the parties. I am bound to say that, in relation to the Rover case, there is in my view another issue which received little or no attention in the Magistrates' Court or in counsels' submissions in this Court. In the light of the findings of fact that it was Mr Ahyde who was in possession and control of the car in the days in question and who had parked it in High Street, it seems to me that it was not possible to establish that Mr Onasanya had "engaged in street trading" on those days in any event. When challenged on this point, Miss Palmer sought to counter it by arguing that the finding of fact that Mr Onasanya had seen the car parked in High Street with the 'For Sale' notices displayed was sufficient to fix him with liability because it was his car that contained his notices. For my part I do not think that this submission is correct. There is nothing in the London Local Authorities Act which deems the registered keeper to be responsible for his car when it is in the possession and control of someone else. It seems to me that this is another example of just how overzealously Newham seek to approach this particular legislation.
16. I do not lose sight of the fact that this is important legislation administered by local authorities for the public good nor that it must be difficult for a local authority to deal with some of the manoeuvrings of the more unscrupulous street traders. In some ways, their difficulties are alleviated by the fact that the offence is not limited to professional street traders and can be committed by a private individual selling a single item: see Haringey London Borough v Michniewicz [2004] EWHC 1728 (Admin). However, the control mechanism is limited by the terms of the statute and where, as here, a person puts forward a credible explanation against which there is no contradictory evidence it seems to me that prosecution is an excessive response.
17. It follows from what I have said that Mr Onasanya's appeal must be allowed and that of Newham dismissed. I have indicated the answers to the questions posed by the cases stated, namely "No" in the Volvo case and "Yes" in the Rover case. The quashing of Mr Onasanya's conviction carries with it the quashing of the order for costs that was made against him. I am unsure as to whether he incurred personal costs in his unsuccessful defence in the Volvo case in the Magistrates' Court. If he did it seems to me that he should now be relieved of that burden and we shall consider an appropriate application. As to the costs of these appeals, we raised this issue at the end of the hearing and the matter stands resolved subject to some fine tuning as to quantum, failing agreement as to which there will have to be an assessment.

Mr Justice Mitting:

18. I agree for the reasons given.

LORD JUSTICE MAURICE KAY: We indicated on 14th June when this matter was heard that we were allowing Mr Onasanya's appeal and dismissing Newham's appeal and answering the posed questions accordingly. We are now handing down the judgment containing the reasons for those decisions.

It seems to us that all that remains to be considered is costs. We had hoped and indeed expected in view of what we said at the end of last time and what we said at the end of this judgment, that some agreement might have been reached as it.

MR RULE: My Lord, I appear for Onasanya, as I did before. My learned friend Mr Ohringer appears in place of Miss Palmer (who is unavailable today) for the London Borough of Newham. We have attempted discussions at court this morning to resolve all the costs issues. Some have been resolved and some have not. Should I at this stage indicate the extent of the agreement?

LORD JUSTICE MAURICE KAY: Yes.

MR RULE: In relation to the costs incurred in the administrative court prior to his application for legal public funding and assessment for Mr Onasanya, those costs of £2,933.05 are agreed between the parties.

LORD JUSTICE MAURICE KAY: So Newham are agreeing to pay that sum to Mr Onasanya in respect of his non publicly funded costs in this court?

MR RULE: Yes. My Lords, in relation to the defence of the Volvo trial, if I can continue to call it that, before the District Judge of which he was convicted, of course he was not permitted to recover his costs in that case, he was not legally aided in the court below and paid privately those costs and the schedule that is in existence from the solicitor who then acted for him is in the sum of £2,276.76 but unfortunately in the absence of the solicitor with conduct of the case the London Borough of Newham are not able to agree that figure and that will have either to be agreed or I am afraid it remains unresolved.

LORD JUSTICE MAURICE KAY: So far as those costs are concerned, are you seeking them against Newham?

MR RULE: Yes.

LORD JUSTICE MAURICE KAY: Yes. What do you say about that?

MR OHRINGER: My Lord, my instructions are that no schedule has been provided setting out those costs and I ask that an order be made for the costs to be assessed unless agreed.

LORD JUSTICE MAURICE KAY: Are you accepting responsibility for those costs in principle?

MR OHRINGER: In principle, yes.

LORD JUSTICE MAURICE KAY: In the Magistrates Court.

MR OHRINGER: That is right, in the Volvo case, yes.

LORD JUSTICE MAURICE KAY: Yes. Very well. As they are not agreed they will have to be assessed.

MR RULE: They may yet be agreed. So can the order please be to be agreed or failing that to be subject to assessment?

LORD JUSTICE MAURICE KAY: Yes.

MR RULE: We have in fact a draft order. I do not know if I should hand that up now.

LORD JUSTICE MAURICE KAY: Is that a replacement one?

MR RULE: There is one amendment that I have been asked to consider on the draft which came on Mr Onasanya's side which is simply to add to number 1 that the appeal be allowed and to number 2 that the appeal be dismissed. I am perfectly content with that and I hand up that version.

LORD JUSTICE MAURICE KAY: If you hand up what you have. (Handed) So paragraph 5, like paragraph 4, should be in a sum to be agreed, failing which to be the subject of detailed assessment, should it?

MR RULE: Yes.

LORD JUSTICE MAURICE KAY: Could we just raise a question because it has been raised by Newham in relation to paragraph 3. We saw an email from Newham observing that if Mr Onasanya has in fact paid that £500 he will have paid it to the Magistrates Court and it may not yet have found its way to Newham.

MR RULE: It may not have done, but it seems to me, my Lord, that the appropriate way is for Newham to pay the £500 and then receive it from the Magistrates Court if that mechanism is set in motion. Mr Onasanya's instructions are that he has paid that, as he was ordered to do, but it was costs not by way of a fine but by way of costs for the London Borough of Newham, so it will make its way at some stage to them and on that basis it seemed appropriate that he recover the cost from Newham.

LORD JUSTICE MAURICE KAY: Are you content with that?

MR OHRINGER: I am.

LORD JUSTICE MAURICE KAY: We have added to paragraph 5: "In a sum to be agreed, failing which to be subject to detailed assessment", but otherwise we approve the order. Paragraph 4 should have the agreed sum in it now, should it not?

MR RULE: My Lord, yes, £2,933.05. My Lord, can I raise one issue in relation to the Rover case? There was an order made at the conclusion of that case that costs incurred by Mr Onasanya be recovered from central funds. That assessment, contacting the Magistrates Court directly, has not been done pending the outcome of the appeal. It is now to be done. It seems in those circumstances that I should not seek to vary that in any way. The only concern I would have is if they assessed him at less than he had actually paid to the solicitors he would be out of pocket but I do not know whether --

LORD JUSTICE MAURICE KAY: I do not think you can expect Newham to pay more than the agreed amount.

MR RULE: No, my Lord. In relation to the -- indeed. Can I raise the last issue which is today's hearing and the costs incurred in today's hearing.

LORD JUSTICE MAURICE KAY: Yes. You are covered by your legal aid but you are wearing your legal aid hat and seeking to recover the costs from Newham, are you?

MR RULE: My Lord, yes. In my submission I know my learned friend will wish to address the court on this, we discussed it outside, but in my submission it would have been perfectly possible for the hearing not to have required attendance had the order been agreed within the timeframe the court set. Since the last hearing letters have not been responded to by Newham seeking to agree matters and since 12th July contact that has not resulted in an answer. I understand an answer came after 5 o'clock yesterday, which was simply too late, the court had to know at 4 o'clock when the case was listed. In those circumstances, in my submission my attendance was required. So far as my legally aided appeal is concerned that would be in the sum of £470 inclusive of VAT and as far as my solicitor who has attended, their attendance, I take it, is not covered by legal aid and their attendance was deemed necessary because of the history that we wished to be able to negotiate directly at court to actually find some finality if possible with the figures that were to be accepted. We have had some success with that --

LORD JUSTICE MAURICE KAY: Give me those two figures.

MR RULE: £470 is counsel's fee.

LORD JUSTICE MAURICE KAY: That seems out of line with the fees we have seen for the actual hearing. You are talking about coming here for 10 minutes this morning.

MR RULE: My Lord, there has not been a fee submitted for the substantive hearing, the legal aid fees. They have been fees for the Magistrates Court and those tend to be split across the two cases, as it were, and they were of course at the level of a Magistrates Court and therefore not perhaps --

LORD JUSTICE MAURICE KAY: Yes, and the solicitors' costs for attending today are what?

MR RULE: I have divided it into two, my Lord. Yesterday's attempts at trying, there were a number of phones calls, I have all the file notes, to deal with the matter, came to £77.50 using effectively the legal aid type of expenses, and for the legal aid attendance today the figure is £392.50 plus VAT. The total is £552.25, that being the same fee bracket in fact as was in the Magistrates Court.

LORD JUSTICE MAURICE KAY: You say if we do not make an order against Newham the solicitor would not be paid for that?

MR RULE: That is my understanding.

LORD JUSTICE MAURICE KAY: Unless the court gave an indication.

MR RULE: Yes, that legal aid should cover it.

LORD JUSTICE MAURICE KAY: Very well. Thank you.

MR OHRINGER: My Lord, I can ask that no order be made as to costs. Our attendance today perhaps could have been prevented if there had been better communication between our solicitors respectively, but the lack of communication, the fault of lack of communication, in my submission, falls on both sides. Although there had been some discussions to try and agree the costs, my instructions are that a draft order was not sent to those instructing me until just past 2 o'clock yesterday afternoon. At that time Susan Palmer, counsel who had conduct of the case, was engaged in another court. She received that draft order yesterday, soon after 4 o'clock when she returned to chambers. A few suggested amendments were sent to Newham and then sent on to Mr Onasanya's solicitors yesterday afternoon, shortly before 5 o'clock I am instructed, and no response was received to that communication. My Lord, I submit that the reason we are here today, or the reason an order has not been agreed is largely down to the fact that the appellant's solicitors left it to the last minute to forward their draft order for our consideration.

LORD JUSTICE MAURICE KAY: We have been told not just this morning but previously that Mr Onasanya's solicitors were simply getting no response out of Newham.

MR OHRINGER: My Lord, I do understand that the solicitor primarily responsible was on holiday or has been on holiday for the last few days and therefore emails sent to him, and communications sent to him, have been picked up by other members of staff which has caused some delay inevitably.

LORD JUSTICE MAURICE KAY: Just pause there for one moment.

(Pause)

Mr Rule, we do not need to trouble you any more. We take the view that Newham have not behaved with reasonable efficiency in this matter, but a point has been made by the orders for costs that have been made on the substantive matters. We are not going to make any specific order about today, although we do indicate that in our judgment when Mr Onasanya's publicly funded costs are assessed, solicitor and counsel should be paid reasonable sums incurred in seeking to agree costs and for attendance today. We have been given figures of £470 for counsel and a total of £552.25 for solicitors. We are quite unable to say whether they are reasonable or not, but we do indicate our view to the costs judge, if he should need to become involved, that in our judgment whatever the reasonable sums are for this part of the proceedings they should be compensated.

Accordingly, we will direct that a transcript be prepared of these remarks and that can go to the parties and can be produced to the Costs Judge. Thank you both very much.