Onasanya v London Borough of Newham

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.

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.”

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.

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.”

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 … ”

“Street trading” means

“(a)

the selling or exposure or offer for sale of any article …

in a street for gain or reward.”

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.”

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.”

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?”

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?”

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.

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.

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.

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.

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.

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.

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.

I agree for the reasons given.