Davis v Westminster City Council [2012] EWHC 2303 (Admin)

Case No CO/507/2012

[2012] EWHC 2303 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 1 May 2012

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE MOSES

MR JUSTICE BURNETT

Between

DAVISAppellant

Between

WESTMINSTER CITY COUNCILRespondent

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

The Appellant appeared in person for in person

Mr P Sharkey (instructed by Westminster City Council Legal Services) appeared for Respondent

J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an appeal by way of case stated against a conviction by the Justices for Central London in the Local Justice Area of Westminster of 5 October 2011. On that date, they convicted the appellant of being engaged in street trading at Marble Arch whilst not being the holder of a street trading or temporary licence granted by Westminster City Council contrary to section 8 and 27(1) of the City of Westminster Act 1999.

[2]The sole question was whether the appellant was selling newspapers on that date. The reason that that was the sole question is that by virtue of section 3 of the City of Westminster Act 1999, exemption is afforded to those who are trading only as a newsvendor (see section 3(a)). By section 3(a) of the 1999 Act, that exemption is granted to one who is trading only as a newsvendor "provided ... that the only articles sold, exposed or offered for sale are current newspapers or periodicals ...". The essential question for the magistrates was, therefore, whether they were sure that that which the appellant was selling (and did not dispute that he was selling) was a current newspaper or periodical.

[3]The appellant said that that which he was selling was a newspaper because he had registered it as a newspaper for the purposes of section 1 of the Newspaper Libel and Registration Act 1881. That is a statute which is not generally familiar, requiring registration by newspaper proprietors but only provided they are not a company formed and registered under the Companies Act 2006 or incorporated in another EEA state (see section 18).

[4]Under that Act, there is an obligation to make annual returns for the time being of every newspaper pursuant to section 9 and a penalty for wilful misrepresentation or omission from a return pursuant to section 12. The registrar is under an obligation to register every return made. Not surprisingly, Mr Davis says that, since he had registered the articles as newspapers, the magistrates were bound to regard that which he was selling as a newspaper.

[5]As a matter of law, I would hold that the magistrates were correct in rejecting that argument. The fact of registration under the 1881 Act is no warrant, still less does it compel those charged with fact-finding, from being bound to reach the conclusion that that which has been sold and which has been registered under the 1881 Act is a newspaper.

[6]The definition in the 1881 Act itself defines "newspaper" as meaning "any paper containing public news, intelligence, or occurrences, or any remarks or observations therein printed for sale, and published in England or Ireland periodically, or in parts or numbers at intervals not exceeding 26 days" (see section 1). But it is plain that that interpretation is confined to the 1881 Act. There appears, apart from questions of wilful misrepresentation or omissions, no scrutiny of the article registered, and in any event, the City of Westminster Act 1999 is dealing with a quite separate consideration and evil, namely the problems of unlicensed street trading. In those circumstances, the magistrates were not bound to hold that that which was being sold was a newspaper merely by reason of the fact that Mr Davis had registered the articles under the Newspaper Libel and Registration Act 1881.

[7]If authority were needed for such a proposition, it is to be found in a decision of the VAT Tribunal Snushall, Dalby & Robinson v Customs and Excise Commissioners [1981] VATTR 150 at page 7, where the question was raised for the purposes of considering whether the article which had been registered under the 1881 Act was subject to VAT duty on the basis that it was not a newspaper. The Tribunal took the same view as I have done in relation to registration.

[8]The next question therefore arises whether in fact that which Mr Davis was selling was a newspaper. The only description of what he was selling is contained in paragraph 1 of the case stated in which the magistrates found that the facts were almost entirely undisputed. They say:

"The Appellant is the vendor of a product that consists of a lanyard containing articles printed on paper (slightly larger than the size of a credit card) in relation to football leagues and festivals"

. That is the only finding of fact before the magistrates reached the conclusion under paragraph 5(c) that those articles were not a newspaper or periodical and that accordingly a street trading licence was required.

[9]In my view, the case as stated by the magistrates is deficient. They should have at least in a few sentences set out their reasons for finding this was not a newspaper. It was canvassed by Mr Sharkey that the articles were not printed on paper but rather on plastic. For my part, I doubt whether that matters; there is certainly no finding about it. The real question is whether these articles were a newspaper.

[10]Mr Davis said that, since there were no further findings of fact, it was not open to us to look at the articles in question. He, in his excellent submissions, relies upon the authority of Skipaway Ltd v The Environment Agency

[2006] EWHC 983 (Admin)

, amongst other cases, as imposing the stricture that courts such as these are confined to the four corners of the case stated and are not entitled to look at evidence, or what is suggested to be evidence, to be found elsewhere.

[11]Whilst strictly complying with that important obligation, it nevertheless seems to me perfectly appropriate for this court to look at the articles in question in order to ask itself whether the conclusion of fact of the magistrates was outwith the range of reasonable conclusion.

[12]It is plain that "newspaper", as used in section 3(a) of the City of Westminster Act 1999, is used in the ordinary sense of the words. That it is so used is a question of law: see in particular the judgment of Webster J in Snushall once the case had moved to the Queen's Bench Division

[1982] STC 537

at page 540. He said:

"As I understand it, it is authority for the proposition that the meaning of a word is the question of a fact only when no question arises whether the word is being used in an unusual sense or when that question has been considered and answered in the negative; but that question, namely whether the word is used in an ordinary or in an unusual sense, is itself of course a question of construction and therefore one of law."

[13]So, as a matter of law, I would rule that "newspaper" is used in its ordinary sense in section 3(a).

[14]The question then arises as to whether that which was sold was as a matter of fact a newspaper or, more accurately, whether the magistrates were entitled so to find. In my view, they were entitled to find that that which was being sold, which consisted of a list of football leagues and festivals, did not contain news and was therefore not a newspaper. In my view, the question depends not so much on what that which was printed was printed, nor indeed its shape or size, but upon its content. Indeed, in my view, any other conclusion would have been absurd.

[15]Mr Davis rightly draws attention to the importance of

Article 10 of the European Convention on Human Rights

and the obligations of the magistrates to apply that Article in ensuring the freedom of the press enshrined in that Article by the force of section 3 of the Human Rights Act 1989. But, in my view, the view that the magistrates have reached has nothing to do with an inhibition on the exercise of that right. The 1999 Act was an Act which allowed the City of Westminster to control street trading and the obstructions and difficulties that would be caused to the public should such street trading be unlicensed, and has nothing, in my view, to do with the freedom of the press. For those reasons, I would dismiss this appeal.

[16]MR JUSTICE BURNETT: I agree. I would add only this in respect of the Article 10 argument advanced by Mr Davis. He drew to our attention the decision of the European Court of Human Rights in Gaweda v Poland

[2004] 39 EHRR 4

. That case is distinguishable at many levels, not least this: the issue before the court concerned the requirement in Polish law that a periodical be registered; absent registration, it would not be lawful to publish it. The circumstances here are entirely different. Mr Davis is at liberty to produce and publish his cards. The only restriction that this case engages is his liberty to sell them on the streets of Westminster without a licence.

LORD JUSTICE MOSES: Yes. Anything else?

[18]MR SHARKEY: My Lord, yes, there is an application for costs. Could I please hand up the schedule?

LORD JUSTICE MOSES: Has Mr Davis had this?

[20]MR SHARKEY: My Lord, no, he has not. I was only able to see Mr Davis at 9.55 am this morning, so I ask that a copy be passed to him also.

LORD JUSTICE MOSES: Do you want to have time to look at this?

[22]MR DAVIS: Not really. I've seen the headline figure.

LORD JUSTICE MOSES: What do you want to say? There are two issues: first of all, have you anything to say as to why you should not pay the costs of today?

[24]MR DAVIS: There's two things, sir: one is I think you yourself have been slightly critical of the way that they've presented their case.

LORD JUSTICE MOSES: Yes.

[26]MR DAVIS: Perhaps I would like you to bear that in mind when assessing the costs, or even whether I should pay them. I have acted in very good faith. I'm trying to publish a newspaper; I'll continue publishing hopefully till I'm older than Rupert Murdoch. I'm in the business long-term. I've operated in very good faith to bring out what I believed was a lawful newspaper. I will change the contents of my product to contain much more news so that I'm lawful in the future. I've noted your comments that the shape and size doesn't matter, it's the contents of whether it's news that matter, and I'll re-adjust the contents applicably.

[27]I'm acting in good faith. At the moment I'm very small in business. Every penny is absolutely crucial. I'm virtually skint, to be honest. I'm hoping to do well in the future, but I'm not really in a very good position at the moment. I find it onerous on me to have an order like this against me.

LORD JUSTICE MOSES: Well, thank you very much.

[29]Can I just ask, Mr Sharkey. Work done on documents: 9.12 hours. How can this case have taken 9 hours to work on the documents? What documents?

[30]MR SHARKEY: Would your Lordship excuse me for a moment? I will take instructions. (Pause). My Lord, that relates principally to, upon receipt of the case stated, reading the case stated --

LORD JUSTICE MOSES: Well, that took ten minutes. Yes?

[32]MR SHARKEY: Draft case stated, make any comments.

LORD JUSTICE MOSES: Did Westminster draft the case stated?

[34]MR SHARKEY: My Lord, no, I do not believe so. It was drafted by the magistrate's clerk, but in the main it relates to the compilation of the bundles provided to the court.

LORD JUSTICE MOSES: Photocopying some authorities, yes, and your skeleton. Right. Anything else?

[36]MR SHARKEY: My Lord, no.

LORD JUSTICE MOSES: At the moment, Mr Davis, we think you ought to pay something towards the costs. We are prepared to knock them down to £1,500.

[38]MR DAVIS: I presume it's not a negotiation --

LORD JUSTICE MOSES: Negotiate away.

[40]MR DAVIS: I would have thought a figure of perhaps £800 to £1,200. If I was paying their bill for their side, I'd (Inaudible) for what they have done and the way they have done it.

LORD JUSTICE MOSES: I think, I am afraid, Mr Davis, you have done this case very well and we are very sympathetic, but we think you ought to pay £1,500 towards the costs.

[42]MR DAVIS: Yes. I think I find your comments might be very useful for me to keep (Inaudible) in the future.

LORD JUSTICE MOSES: I would not take them as gospel; they will get you for not being a newsvendor. I am not giving advice; my advice costs more.

[44]MR DAVIS: Hopefully I'll be able to afford it one day, sir.