Street Trading 1 MARKETS STREETS l The difference

Street Trading 1

MARKETS/STREETS l The difference – l Markets – Charter/Statutory l Street Trading – entirely controlled by legislation 2

Legislation l Local Government (Miscellaneous Provisions) Act 1982 l London Local Authorities Act 1990 l City of Westminster Act 1999 l London Local Authoriites Act 2012 3

Legislation l The legislation must be adopted both inside and outside London l Authorities must be able to prove the legislation has been adopted 4

Legislation l Outside London it is essential to have the actual newspaper with the press notice in l The London Local Authorities Act 1990 provides that a photocopy certified by an officer of the council is evidence of publication 5

AUTHORISED OFFICER l Section 2 London Local Authorities Act 1990 – “authorised officer” means an officer of a borough council authorised by the Council in writing in relation to the relevant provision of this Act l No mention of authorised officer in the 1982 Act 6

EUROPEAN SERVICES DIRECTIVE l The retail sale of goods is a “service activity” within the Directive l Street traders and pedlars are involved in the sale of goods so the directive applies 7

EUROPEAN SERVICES DIRECTIVE l Article 8 of the Directive requires that applicants for authorisations must be able to make them electronically l Article 9 requires that no one must be required to obtain an authorisation to trade unless: l a) the authorisation scheme does not discriminate against anyone 8

EUROPEAN SERVICES DIRECTIVE b) the need for the authorisation scheme is justified by an overriding interest relating to the public interest l c) the objective pursued cannot be obtained by means of a less restrictive measure in particular because inspection after the commencement of the service would take place too late to be genuinely effective (Regulation 14 Provision of Services Regulations 2009) l 9

EUROPEAN SERVICES DIRECTIVE l Article 11 – applications procedures and the way applications are dealt with shall be: l (a) non-discriminatory l (b) justified by an overriding reason relating to the public interest l (c) proportionate to that public interest objective 10

EUROPEAN SERVICES DIRECTIVE l (d) clear and unambiguous l (e) objective l (f) made public in advance l (g) transparent and accessible 11

EUROPEAN SERVICES DIRECTIVE l Article 16 – l Member states must not make access to or exercise of a service activity in their territory subject to any requirements which do not respect the following principles: l (a) non-discrimination 12

EUROPEAN SERVICES DIRECTIVE (b) necessity – the requirements must be justified for reasons of public policy; public security; public health or the protection of the environment l (c) proportionality – the requirement must be suitable for obtaining the objective pursued, and must not go beyond what is necessary to achieve the objective (Regulation 24 2009 Regulations) l 13

EUROPEAN SERVICES DIRECTIVE l Regulation 18 Provision of Services Regulations 2009 – Application procedures must be l (a) clear l (b) be made public in advance; and l (c) secure that applications for authorisations are dealt with objectively and impartially 14

EUROPEAN SERVICES DIRECTIVE l Regulation 18(2) – the procedures must not (a) be dissuasive l (b) unduly complicate or delay the provision of the service l Regulation 18(3) – authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must be easily accessible 15

EUROPEAN SERVICES DIRECTIVE l Regulation 19 – 2009 Regulations – l Authorities must ensure that applications are processed as quickly as possible and, in any event, within a reasonable period running from the time when all documentation has been submitted 16

What is Street Trading? l 1982 Act - selling or exposing or offering for sale of any article (including a living thing) in a street l 1990 Act – all the above plus “ the purchasing of or offering to purchase a ticket/the supplying or offering to supply any service in a street for gain or reward” 17

What is Street Trading? l The sale of cars in the street and the internet sale of cars kept in a street l City of Westminster Act 1996 l London Local Authorities Act 2012 18

Street l 1982 Act – any road, footway, beach or other area to which the public have access without payment or any part of a street 19

Street 1990 Act – road or footway, any other area, not being within permanently enclosed premises, within seven metres of a road or footway, to which the public have access without payment or any part of such road, footway or area l The effect of this addition of the seven metres is to extend the provision of the Act to cover forecourts or car parks within seven metres where the public may have access as of fact without payment but not necessarily as a legal right l 20

STREET l Trafalgar Square is a road for the purposes of the Road Traffic Act 1988 (Sadiku v DPP – The Times 3 December 1999) 21

STREET l. A trader displayed T –shirts on a Kwik-Fit car park with the manager’s consent. The High Court held that he was street trading even though on private land as he had no right of control over the area; no right to exclude people from the land had no right over the land (O’Gorman v Brent London Borough Council (1994) 91 LGR 555) 22

STREET l West Berkshire District Council v Paine (2009) LLR 381 – Mr Paine’s van was parked in a car park reserved for office workers. The car park was adjacent to a consent street. No physical barrier between the car park and street. Mr Paine said he was on private land did not need a consent. The Magistrates agreed with him. 23

STREET l The High Court held l A) “Street” includes any road, footway, beach or other area to which the public have access without payment l B) The words “access without payment” qualify not only “other areas” but also roads, footways and beaches 24

STREET C) On the natural meaning of the words “to which the public have access” includes potential access rather than just use l D) Any area to which the public have access without payment is a wide definition. There is no reason to narrow it down by introducing the concept of public place from other legislation. What is relevant is the ability of the public to go there. Mr Paine was unlawfully street trading l 25

Types of Street l 1982 Act – a council can designate streets as prohibited, licence or consent streets l 1990 Act – London Authorities can only designate streets as licence streets 26

Planning Permission l The fact that a person has planning permission does not automatically give them the right to street trade (Cartwright v Merthyr Tydfil County Borough Council) (R (on the application of Davies and Atkins) v Crawley Borough Council (2002) LLR 68) 27

Types of Street l 1982 Act – prohibited street – no street trading can take place at any time l 1990 Act – street not designated as a licence street – no street trading 28

Re-designation of a Street l Under all relevant legislation a street can be re-designated, e. g. from licence to consent, or consent to prohibited 29

Re-designation of a Street l Before re-designation can take place, the authority must follow the same procedure as for adoption of the legislation and should also consult any existing street traders who may be affected by the proposed change 30

Street Trading Licence l Applications must be made in writing to all authorities - required information includes name and address, the street in which and the days and times the person wants to trade, the articles they want to sell and any additional information requested by the council 31

Street Trading Licence l In London there is a requirement for the applicant, if they are an individual, to provide their date of birth and also two photographs 32

Temporary Licence l Section 31 of the 1990 gives London authorities the power to issue temporary street trading licences l The licence is valid only for the day or period specified l Conditions can be attached to the licence 33

Temporary Licence l If the holder of the temporary licence does not take advantage of it the council can grant a temporary licence to another person for the same pitch 34

STREET TRADING LICENCE l West Berkshire District Council v Paine (2009) LLR 391 – Talking about the purpose of licensing street traders Scott Baker LJ said “Local authorities are concerned not only with consumer protection but also with the suitability of those who are street traders, what they sell and also any nuisance and inconvenience or obstruction they may occasion to those using the streets in question. ” 35

Refusal of an Application l 1982 Act/1990 Act There are 3 categories: 1) Mandatory grounds – the council has no discretion and must refuse the application 2) General grounds 3) Grounds relating to the suitability of the applicant 36

The Licence l The licence must specify the street, the days on which and the times during which the licence holder can trade and specify the articles to be sold 37

REVOCATION OF A LICENCE l. A licence can be revoked if l (a) there is no longer sufficient space in the street for the holder to trade without causing undue interference or inconvenience to persons using the street l (b) the licence holder is unsuitable because of a conviction or any other reasons 38

REVOCATION OF A LICENCE l (c) has not paid their fees l (d) without reasonable excuse has failed to avail themselves of the licence to a reasonable extent l In London there additional grounds for revocation relating to storage of receptacles used for trading when they are not being used 39

REVOCATION OF A LICENCE l City of Westminster Act 1999 has a ground for revocation on the grounds that in the vicinity of the pitch undue disturbance has been caused by the activities of the street trader 40

Street Trading Consents The granting of a consent is a matter within the discretion of the authority l They may grant the application “if they think fit” l Cannot grant the consent to anyone under 17 l Can attach any conditions they consider reasonable l 41

Applications for a Consent l Application must be in writing l The information required from an applicant is at the discretion of the local authority 42

Street Trading Consents l. A consent can be revoked at any time l There are no laid down procedures but the rules of natural justice must be followed 43

Offences l People who engage in street trading in a prohibited street or without an appropriate licence or consent or contravene any conditions attached to a street trading licence can be guilty of an offence l In London only – Makes a false declaration in an application/obstructs an authorised officer/fails to produce his licence 44

Offences l It is a defence to show that they took all reasonable precautions and exercised all due diligence l To do this they must show they have done something. To sit back and do nothing is not sufficient 45

FEES l The authority can charge such fees as they consider for the grant or renewal of a licence l Different fees can be set for different locations l There is a discretion to charge for the collection of refuse and the cleaning of streets 46

FEES l Fees can include enforcement costs incurred taking action against licence holders 47

FEES l Under the 1990 Act the authority can require the full fee to be paid with the application or by instalments l The 1999 Act enables Westminster to accept a lower fee if it is paid by standing order or direct debit 48

FEES l General points – l The fees should only cover the cost of running the service l Councils cannot make money for general council purposes out of licence fees 49

FEES l Article 18(4) 2009 Regulations – Any charges provided for by an authority which applicants may incur under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities 50

FEES Hemming (t/a Simply Pleasure) v Westminster City Council (No 1) (2012) LLR 616: l (1) The wording of Regulation 18(4) suggested the council could only set fees to meet the costs of administering the licensing system and not the costs of enforcement, such as those incurred in investigating and prosecuting people who operated without a licence l 51

FEES l (2) As a result of the Regulation and the European Services Directive there had to be a proportionate relationship between the licence fee charged and the costs of the authorisation procedures, and the fee could not exceed the costs of those procedures. The procedures were the steps the applicant had to take to have a licence granted or renewed and the costs of those procedures meant the administration costs involved with those steps. 52

Exemptions a) pedlars b) anything done in a statutory or charter market c) trading in a trunk road picnic area under the Highways Act 1980 d) trading as a news vendor 53

Exemptions e) trade carried on at a petrol filling station f) trade carried on in a shop or in a street adjoining a shop and used as part of the business of the shop g) rounds men 54

Exemptions h) Trading from a kiosk placed on a highway i) refreshment facilities provided under the Highways Act 1980 j) street collections 55

EXEMPTIONS l Other exemptions under the 1990 Act: l Selling articles or things to occupiers of premises adjoining any street, or offering or exposing them for sale from a vehicle which is used only for the regular delivery of milk or other perishable goods to those premises 56

EXEMPTIONS 1990 Act: l Selling or offering to sell articles or the provision of services on private land adjacent to a shop provided that the selling or the exposure or offer for sale of the articles or the provision of the services l 1)Forms part of the business of the owner of the shop or a person assessed for uniform business rate in respect of the shop l 2) Takes place during the period during which the shop is open to the public l 57

Pedlar l. A pedlar obtains a certificate from the Police l Must be over 17 years of age l Must have resided in the particular police area for one month prior to the application l Must be of good character l Must, in good faith, intend to carry on the trade of a pedlar 58

PEDLAR l A pedlar is defined as: “any hawker, pedlar, petty chapman, tinker, caster of metals, mender of chairs, or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot and goes from town to town or to other men’s houses, carrying to sell or exposing for sale any goods, wares, or merchandise immediately to be delivered, or selling or offering for sale his skill in handicraft (Section 3 Pedlars Act 1871) 59

PEDLAR l. A pedlar’s certificate granted under the Pedlars Act 1871, shall during the time for which it continues in force authorise the person to whom it is granted to act as a pedlar within any part of the United Kingdom (Section 2 Pedlars Act 1881) 60

Pedlar l. A pedlar is someone who trades as he travels rather than travels to trade l When not selling they must keep on the move l No reason why a pedlar cannot have a small means of assistance to transport the goods, e. g. a trolley (Shepway District Council v Vincent (1994) COD 451) 61

PEDLAR A pedlar may stop to make sales, he may not set up or pitch or stand to trade from a stationary position for too long. l The purpose in moving is essential l South Tyneside MBC v Jackson (1998) EHLR 249) – a street trader was held not to be a pedlar as the purpose of moving his wheeled unit was not to seek the attention of other potential customers but rather to avail himself of the “pedlar” defence l 62

PEDLAR l Croydon LBC v Burdon (2002) EWHC 1961 - trader was stationary for periods in excess of 30 minutes and did not stop to sell to one particular person – these were considered the characteristics of a street trader, not a pedlar 63

PEDLAR l. A trader who sold wrapping paper from a large shopping bag at his feet for up to an hour at a time was held to have committed an offence of unlawful street trading (Stevenage Borough Council v Wright (1997) 95 LGR 404 64

PEDLAR l Tunbridge Wells Borough Council v Dunn (1997) 95 LGR 775 – trader holding a pedlars certificate travelled from town to town carrying goods, had no stand never stopped for more than 20 minutes was held to have a defence of acting as a pedlar 65

PEDLAR Chichester District Council v Wood (1997) EWHC Admin 270 – the following points are relevant when considering if a person is acting as pedlar: l 1) Each case depends on its own facts l 2) A pedlar goes to customers rather the allowing them to come to him l 3) A pedlar trades as he travels rather than travels to trade l 66

PEDLAR 4) A pedlar is a pedestrian l 5) If a pedlar is a seller, rather than a mender, he sells reasonably small goods l 6) He is entitled to have some small means of assisting his transport of goods, such as trolley l 7) It is necessary to consider his whole apparatus of trading and decide if it is of such a scale to take the person concerned out of the definition of pedlar l 67

PEDLAR 8) The use of a stall, or stand, or barrow, may indicate an intention to remain in one place or in a succession of places for longer than is necessary to effect the particular sale or sales indicating that he is a street trader not a pedlar l 9) If he sets up a stall or barrow and waits for people to approach him rather than approaching them, that is an indication that he is a street trader and not a pedlar l 68

PEDLAR l Stevenage Borough Council v Wright (The Times 10 April 1996) – “Essentially a pedlar, acting as such, is travelling when he is not trading. So the length is important of those periods during which he is stationary and not selling but is prepared to do so. The use of a stall or stand may indicate an intention to remain in one place or in a succession of different places for longer than is necessary to effect a particular sale or sales” 69

PEDLAR l Wrexham Maelor Borough Council v Roberts (8 th July 1996) - “Counsel submits that as a pedlar is entitled to stop to trade, and that entitlement being limited to a pause for the purpose of effecting an individual sale, any other form of pausing is automatically outside the scope of the Pedlar’s Certificate and not part of the proper conduct of a pedlar. I for my part cannot accept that the conduct of a pedlar is to be so narrowly prescribed. (con. ) 70

PEDLAR l What if he were to bend down to tie his shoes laces or stop to speak to somebody he knew or to buy something to eat? It is a matter for the magistrates to consider not only the length of those pauses but their purpose. ” 71

Stopping unlawful street trading 1) prosecution 2) local act powers to seize goods 3) injunctions 72

Stopping unlawful street trading l Section 38(4) of the 1990 Act gives London authorities the power to seize goods if a person is suspected of unlawful street trading l No perishable items can be seized 73

Stopping Unlawful Street Trading l On the conviction of the trader the magistrates can order anything produced to the court to be forfeited 74

CAUTIONING A SUSPECT l Cautions must be given when there are grounds for suspecting a person has committed an offence l Why should you caution? l Verbal or written caution? 75

CAUTIONING A SUSPECT l Cautions are not needed : l To establish identity l To obtain information in accordance with any relevant statutory requirement l To seek verification of a written record 76

REGULATORS COMPLIANCE CODE l Came into force 6 April 2008 l Regulators should consider the impact their regulatory interventions may have on economic progress l Regulators should ensure that risk assessment proceeds and informs all aspects of enforcement activity 77

REGULATORS COMPLIANCE CODE In considering the likelihood of noncompliance consideration should be given to l A) Past compliance records and potential future risks l B) The existence of good systems for managing risks l C) Evidence of recognised external accreditation l D) Management competence and willingness to comply l 78

REGULATORS COMPLIANCE CODE Regulators should ensure that their sanctions and penalties policies should: l A) Aim to change the behaviour of the offender l B) Aim to eliminate any financial gain or benefit from non compliance l C)Be responsive and consider what is appropriate for the particular offender and regulatory issue l 79

REGULATORS COMPLIANCE CODE l D) Be proportionate to the nature of the offence and harm caused l E) Aim to restore the harm caused by regulatory non-compliance and l F) Aim to deter future non-compliance 80

PROSECUTIONS l Must you prosecute? l Do you consider the Code of Conduct for Crown Prosecutors? l What about the Regulators Compliance Code? 81

PROSECUTIONS l Crown Prosecutors Code: l 1) Each case must be considered on its merits l 2) There should be no bias, improper or undue pressure l 3) The right person should be prosecuted l 4) The interests of justice must be served, not just the obtaining of a conviction 82

PROSECUTIONS l Evidence: l Is there enough evidence to provide a realistic prospect of conviction l Can the evidence be used? l Is it reliable? 83

PROSECUTIONS l THE PUBLIC INTEREST l “It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution” l The seriousness of the offence must be weighed 84

PROSECUTIONS l Do you consider the other options available: l Verbal warning l Written warning l Verbal caution l Formal caution l WHAT WOULD YOU TAKE INTO ACCOUNT BEFORE DECIDING WHAT ACTION TO TAKE? 85

STATEMENTS l Make sure the statement sets out evidence in a logical form l Make sure it is signed l Refers to exhibits l Make sure it does not contain hearsay unless one of the exemptions applies 86

STATEMENTS l How would you start your statement is prosecuting for l A) Unlawful street trading l B) A pedlar allegedly street trading 87

IN COURT l Be prepared l Know you case l Know the defences l Have you got all necessary documents/notebooks l PRIOR PLANNING PREVENTS PISS POOR PERFORMANCE 88

PRACTICAL EXERCISE Fred is seen selling newspapers in a licence street Is he committing an offence 89

PRACTICAL EXERCISE l Fred is seen selling newspapers in a street from a stall adjacent to the pavement but in the carriageway. l Is Fred committing an offence? 90

PRACTICAL EXERCISE l Fred is selling newspapers from a stall on the pavement. The stall is two metres in length and two metres high. l Is he committing on offence? 91

PRACTICAL EXERCISE l Fred is selling newspapers from a stall on the pavement. The stall is one metre in length and two metres high but is in the middle of the pavement and people cannot get past. Is Fred committing an offence? 92

PRACTICAL EXERCISE l Fred is standing in a licence street selling Christmas wrapping paper l This is the first time he has been seen doing this l What action would you take? 93

PRACTICAL EXERCISE l Fred is seen a week later selling the same items in the same street l What would you do? 94

PRACTICAL EXERCISE Fred has a Pedlars Certificate. l He is seen in the town centre selling Christmas Cards l He stands still for 10 minutes doing nothing but stamping his feet. He moves 10 yards and stops again to sell card to a customer. He then stays in the same place, not selling anything. Is he acting as a Pedlar? l Would you prosecute? l 95

PRACTICAL EXERCISE l Fred has purchased a newspaper shop. l He often puts newspaper/magazines outside his shop and sells them from a stall adjacent to his shop. One day he also sells fruit and vegetables. Is he committing an offence? 96