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3 March 2016 - Oxford Summons withdrawn PDF Print E-mail

Oxford City Council issued a Summons to pedlar Adam *** for using a vehicle to travel to Oxford.

He wrote to pedlars.info for assistance and Oxford subsequently withdrew the Summons.

 

On 3 March 2016 pedlar Adam wrote to pedlars.info:

Hi I'm been taken to court by oxford city council

For street trading and not been a Pedlar for using my van to come to town..the case they use for that is

Jones v Bath & NE Somerset I said I will use in my defence

Sample v hulmes but is there a more up to date case that can help?!

 

On 29 March 2016 pedlars.info wrote:

Dear Adam

Summons Hearing 19 April 2016 Oxford City Council

Thank you for referring the pending Summons to pedlars.info for assistance.

We understand that the prosecution will rely on dubious case law Jones-v-Bath & NE Somerset.

You will be aware of Sample-v-Hulme at this link:

 http://www.pedlars.info/images/stories/roberts/1956sample-v-hulme.pdf

Jones-v-Bath & NE Somerset is at this link:

 http://www.pedlars.info/images/stories/roberts/2012jones-v-bathnes-council.pdf

The prosecution argument relies on the fact that prior to acting as a pedlar on any of the occasions cited, you sought a means of travelling to Oxford other than on foot. The court will need to consider the relevance of how a pedlar travels prior to beginning acting as a pedlar on any particular day. If the pedlar came to Oxford by train, bicycle or pogo-stick would that as a matter of evidential fact disqualify him from the pedlary exemption from the LGMPA Schedule 4 Street Trading Regulation.

We contend that how a pedlar as a civil person travels to a town before beginning certificated pedlary is irrelevant and that it is the trading activity of pedlary itself that requires scrutiny ie from the time that the person's pedlary begins to the time that the person's pedlary ceases.

We contend that it is unsafe for the prosecution to rely on Jones-v-Bath NES to argue that because you travelled to Oxford by motor car that that fact in itself disqualified you from claiming the pedlary exemption from prosecution.

One of our researchers recently wrote to his MP illustrating how Jones-v-Bath NES may lead to a miscarriage of justice:

1. First of all, may I congratulate you on your recent re-election to serve the good people of West Worcestershire with your increased majority.

2. I have recently been researching the legislation concerning pedlary and come across a deeply troubling piece of case law:

3. I am referring to: Jones V Bath and North East Somerset Council CO/7826/2010 before Mr Justice Mitting on 4 May 2012

4. This case refers to a Mr Jones, the holder of a Pedlar's Certificate, who was found guilty of a charge of illegal street trading by his local magistrates. He appealed against the conviction; the appeal was dismissed.

5. This judgement was perfectly correct according to the evidence which relied on the fact that Mr Jones remained stationary during much of his time trading selling his umbrellas and was, in fact, trading from a pitch. This made him a street trader, but he was acting illegally as he did not have the correct license. There is no dispute about this.

6. However, and this is of vital importance, before making judgement, the judge made several utterances which are worryingly factually incorrect: They did not form any part of the considerations of the judgement. However, some of these have been repeated out of context by legal authorities as if they had been material to the judgement. This will have potentially serious consequences for justice.

7. My first concern lies in Paragraph 13

 8. Mitting said: "… In the 19th century a trader who arrived in a town with a horse and cart carrying a significant quantity of goods for sale would not have have been within the statutory definition because he would have travelled with a horse or other beast bearing or drawing burden. In modern times someone who drives with his own van or car to a city to offer goods for sale, is not acting as a pedlar. He is not acting as a pedlar because he is not travelling there on foot. The requirement that he conduct his activities on foot applies to both travel and trade."

9. This utterance was (i) quite incidental, (ii) irrelevant, (iii) unhelpful and (iv) wrong. In the first place the means of arriving at the town didn't form a part of either the conviction or the appeal. Secondly, it is also completely wrong in law and can only have been stated by someone who had not carefully considered the Act.

10. The term ((a significant quantity of goods)) is irrelevant. A pedlar may sell as much or as little as he wishes or is able without prejudice. There is no stated need for a pedlar to be impoverished and capable of only affording a single morning's supply of goods to trade. He might be a man who toils for 10 months making 2000 lace parasols and spends 2 months peddling them to the good ladies on the south coast of England at an average rate of 33 a day. We learn much about the judge from this comment, but nothing correct about the law.

11. Secondly, if one reads the Pedlars' Act of 1871, the wording is quite plain.

Section 3 - Interpretation of certain terms in this Act. “Pedlar”.
The term “pedlar” means 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, or procuring orders for goods, wares, or merchandise immediately to be delivered, or selling or offering for sale his skill

12. I have highlighted certain words which show that the judge misunderstood the Act.

13. The wording plainly indicates that a pedlar is a person who travels and trades on foot. However it makes no statement about the means of travel from town to town.

14. It was open to Parliament to write ((travels and trades and goes from town to town on foot)), but they did not do so. The wording is quite plain: … travels and trades on foot and goes from town to town ... 

15. (A directly analogous statement might be about a person who: ((holidays and shops by bicycle and commutes from Brighton to London.)) This doesn't mean that he commutes from Brighton to London by bicycle. In fact, it tells us precisely nothing about his commute.)

16. The judge therefore was plainly incorrect when he uttered the words: " … He is not acting as a pedlar because he is not travelling there on foot. The requirement that he conduct his activities on foot applies to both travel and trade." as reported in the last 3 lines of Paragraph 13.

17. A, clear understanding of English is sufficient to realise that the judge is mistaken. He is conflating ((travel and trade on foot)) with ((go from town to town)) where no such conflation exists. There is no stipulation in the Act as to how a pedlar should go from town to town.

18. A simple consideration of how a pedlar operated in those times and today shows that it could not possibly have been the will of Parliament to put such a restriction of going from town to town on foot on the trade of pedlary.

19. A pedlar is quite simply a trader who walks around a town selling goods from a tray or a small trolley to passers by. That is to say; he is a person who travels and trades on foot. He doesn't carry his goods in panniers on a horse or donkey or on a horse-drawn cart and walk alongside. He is, in the words of the Act: a person who, without any horse or other beast bearing or drawing burden, travels and trades on foot. The conflation of ((travels and trades)) is vital to the description of a pedlar since it means that the pedlar cannot set up a pitch and trade from a single site. Rather, he must travel up and down the streets in search of his customers. It isn't difficult to imagine such a person either in the time of Dickens selling matches or in our own modern days selling balloons.

20. After a few days the pedlar might move on to another town to ply his trade. It might be the next town along the road, it may be at the other end of the country. It is hardly the concern of Parliament whether he goes there on foot, in a stage coach, on a train or by pogo stick if he so wishes. The important consideration is that a pedlar goes from town to town.

21. And thirdly, in Paragraph 14 - in which judgement is given (and which has been misquoted with possible serious consequences)

22. Mr Mitting continued: "...,the appellant arrived in Bath with a car full of umbrellas for sale. That fact alone, in my view, put him outside the definition of pedlar."

23. This utterance is appallingly wrong and shows that his view is completely in error. It is difficult to imagine that he did not consider this when coming to his judgement.

24. There was a judgment in the 1956 case of Sample v Hulme in which the judge stated that a person's method of arriving in a place was immaterial to deciding whether or not he was a pedlar. The sole criterion was that he behaved as a pedlar when in the town. The judgement included: "… It seems to me impossible to say that because a man arrives at a fixed point  and there leaves his vehicle and proceeds to walk through the town … he is not travelling on foot. … The man is travelling on foot as soon as he has left the car ..." This judgement was plainly correct and accords with the wording of the Act and the overwhelmingly probable will of Parliament at the time that the Act was written.

25. Thus, I ask you to refer my concerns about the validity of Mr Mitting's utterances to the correct authorities and seek a judicial review so that these incorrect readings and interpretations of the 1871 Act cannot and will never be allowed to be quoted and/or used in any court of law as any means of deciding a case.

26. There needs to be an absolutely clear and up-to-date authoritative statement or ruling that a pedlar may

(a) go from town to town by whatever means he wishes (as Sample V Hulme, 1956),
(b) carry his goods with him from town to town by whatever means he wishes and in any quantity he wishes or
(c) procure his goods upon arrival as and when he sees fit.

And that the specific details of these things are not properly the concern of the Act.

27. It is VITAL that this review is undertaken.Not only were Mr Mitting's utterances in Paragraphs 13 and 14 quite wrong, they are being quoted by other legal authorities as statements of case law. The web site of the London Criminal Courts Solicitors' Association  has (at the following URL:  https://www.lccsa.org.uk/jones-v-bath-north-east-somerset-council-2012/)  the following completely incorrect information:

28. ****************************************************************************
JONES v BATH & NORTH EAST SOMERSET COUNCIL (2012)
04/05/2012 0 COMMENTS
[2012] EWHC 1361 (Admin)

A person who travelled by car with goods to a town or city to offer those goods for sale was not acting as a pedlar under the Pedlars Act 1871 s.3 since the Act defined a pedlar as a person who both travelled and traded on foot.

QBD (Admin) (Mitting J)
****************************************************************************

29. The above information is totally without legal authority or precedent! Even Mr Mitting realised this as it didn't form the basis of his judgement. But other lawyers have now misread his misreading and miscomprehended his miscomprehension and come up with an incorrect statement of case law. This will inevitably lead to miscarriages of justice.

We contend that based upon the above information there is "No Case to Answer" and the prosecution should be invited to withdraw the Summons to avoid a waste of Court time and public money.

We are content that you invite the prosecution to consider the content of this email and to take direct enquiries to seek resolution.

Yours sincerely

Robert Campbell-Lloyd

 

On 31 March 2016 Adam wrote:

Hi Robert I received a reply today and it good and bad

I won't be taken to court but not for the reason I wanted

 

It seems they do believe the use of a van is prohibited 

I attach the email and attachment 

Do you think I should leave it till next time they 

Take me to court or fight to prove a point ?!

In any case I want to thank you for your help

Couldn't done it without pedlers info

 

 

 

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