“The issue in this case is whether he comes within the exception in the sense that he was truly to be described as acting as a pedlar under the authority of a pedlar's certificate. The authorities that relate to this, in particular the case of Jones v Bath City Council, I think it is, in which Mr Justice Mitting put it in this way, "Being a pedlar requires a person to be both peripatetic and ambulatory." Concretely, that means somebody who is transporting themselves during the process and ambulatory as that case, and the other authorities which are consistent on the point, confirm. This needs to be a small-scale and mobile undertaking.”
“On each occasion, the defendant was using a mobile stall. It had four wheels, at least some of them with a kickdown brake to keep it still. The defendant in fact agrees most of the alleged facts. First of all, in relation to 17 December, the CCTV stills that we have seen, and he confirms, show first of all that he's in one position for at least three minutes or so from 2.45 to 2.48 pm. He then moves his stall, if that is what we call it, for a distance of something like 30 yards or so, and it is in one position between 14:48 and 15:14; 26 minutes. The defendant says he was eating his lunch during that time, which may well be, but we know perfectly well you can eat your lunch whilst standing behind the counter. He does not agree the assertion that he was in one place near Primark between 3.30 and 3.55 on 22 December. On 18 December, his stall was set up. There was a brief interaction between him and the authorities. It was raining. As I say, he had just set up. It was there, on his account, for something like ten minutes. On 22 December, we accept that he was set up for 35 minutes.”
“He has given us a document which is the basis of his assertion that there is some kind of informal 15 to 20-minute rule that allows someone to remain in one place and to remain within the pedlars' exemption, if I can put it that way. We do not know the source of that document. It is plainly not a legal authority. It has some kind of discussion but has no authority so far as we are concerned, and it is central to his case. It simply does not reflect our view of the law. There is no such informal 15 to 20-minute rule. It may be that people sometimes do not enforce it, in the way that people do not enforce speed limits when people travel a couple of miles an hour over the limit, but it does not mean they are not breaking the speed limit. So, as I say, it has no formal value as far as we are concerned. But quite apart from that, the scale of what he was doing and his being in a fixed position for significant lengths of time take him outside the exception for pedlars, and he was a street trader and is, therefore, guilty of these offences and we dismiss the appeals.”
“1 The Summons charges were confusing and misleading on the grounds that the term street trading is not exclusive to the LG(MP)A Schedule 4 – Street Trading but covers also the lawful street trading activity of pedlary. Both street trading pedlary and Schedule 4 street trading are defined textually similar in the Pedlars Act and the LG(MP)A. 2 The Summons charge infers that the only authority permissible in Schedule 4 designated streets is a local authority issued licence or consent. The Summons charge ignores the fact that another authorisation exists outside of Schedule 4 licences and consents and regardless of Schedule 4 designations of streets. A Pedlars Certificate authorises a person to act as a pedlar throughout any part of the United Kingdom and is issued by police on behalf of the Crown. There is specific exemption from the whole of Schedule 4 for a person acting as a pedlar under the 1871 Pedlars Act. 3 I was prevented in Court from discussing interpretation and application of law beginning with the primary legislation the Pedlars Act and secondary legislation the LG(MP)A Schedule 4 but the prosecution was granted permission to outline three authorities each citing a stated but unproven definition of pedlary from Watson v Malloy 1988. 4 I was not given an opportunity to read my arguments into court that indicate the numerous anomalies in interpretation and application of law and was told that such matters would be discussed at the end but were not. As a litigant in person at the hearing, handicapped by severe dyslexia and difficulty with reading I was unable to defend myself competently. 5 I believed that I was entitled to judgment of the facts under primary and secondary legislation but the facts were judged entirely from within the context of a Schedule 4 offence of illegal street trading on the grounds of a definition from what I regarded to be unreliable case law Watson v Malloy. The judge said that the Court was bound by it and any attack on that legal ruling has to go to a higher Court. 6 I believe that the judge prejudiced the hearing on several occasions as evidenced early in the transcript by firstly proposing a difficulty he presumed I would have about how I travelled to Birmingham, then been rebuked on the facts and then been told it was not an issue in this case; secondly because I was not granted an opportunity to read my prepared arguments in to the court record concerning interpretation and application of primary legislation before hearing what I considered dubious case law, and thirdly that the facts as provided by the witnesses would only be considered under the anomalous definition of pedlary cited in Watson v Malloy that I consider undermines and circumvents the Pedlars Act. 7 I believe that the hearing was unfair, prejudiced against pedlary, wrong in law, and procedurally inept.”
“Hawker”: “A person who goes from place to place selling goods, or who cries them in the street. In modern use technically distinguished from pedlar: see quot. 1895.” “Tinker”: “A person who makes a living by mending pots and other metal household utensils, esp. on an itinerant basis. Now chiefly historical.” “Petty Chapman”: “A man whose business is buying and selling; a merchant, trader, dealer. Obsolete or archaic.”
“Street trading 45.—(1) Insection 3 of the Pedlars Act 1871 (1) (interpretation)— (a) the words “mender of chairs” are omitted; (b) the words “or selling or offering for sale his skill in handicraft” are omitted.”
“10.-(1) A person who- (a) engages in street trading in a prohibited street; or (b) engages in street trading in a licence street or a consent street without being authorised to do so under this Schedule; or (c) contravenes any of the principal terms of a street trading licence; or (d) being authorised by a street trading consent to trade in a consent street, trades in that street- (i) from a stationary van, cart, barrow or other vehicle; or (ii) from a portable stall, without first having been granted permission to do so under paragraph 7(8) above; or (e) contravenes a condition imposed under paragraph 7(9) above, shall be guilty of an offence.”
“(2) The following are not street trading for the purposes of this Schedule- (a) trading by a person acting as a pedlar under the authority of a pedlar's certificate granted under thePedlars Act 1871 ;”
“The question was whether they were acting as pedlars and, with all respect to the strenuous argument of counsel for the appellants, I should not have thought there was the smallest doubt about it. The Pedlars Act, 1871, S. 3 provides: ... As the word “or” is disjunctive, the section reads in this way: “without any horse … travels and trades on foot and goes ... to other men’s houses carrying or exposing goods for sale”
“As we said earlier in this opinion, the essence of the activity which is the subject of the charge in this case was that of placing a stall to which customers were invited to come, rather than moving from place to place to find customers in order to sell to them. This seems to us to be a clear case of street *277 trading to which the exception does not apply, The respondent was not carrying on any activity in respect of which the pedlar's certificate had been granted to him, because he was not acting as a pedlar at the time. It does appear that there may be some overlap between the two provisions. It is not inconceivable that a person may be a pedlar one day and a street trader another. But this does not mean that, when he is properly to be regarded as a street trader, he is exempted from the need to have a street trader's licence. As we have said, the question must always be whether the particular activity being carried on at the particular time falls within the definition of the expression “pedlar” and is therefore sufficiently covered by the pedlar's certificate.”
“The questions which Mr Bird says are to be answered in a case such at this are: '(i) What is the nature of the trading practice of the seller, and (ii) what is the nature of his 'conduct whilst he is stationary for the purpose of the selling?' To answer those questions one must consider the length of time for which the person concerned is in one place and what he does whilst he is in that place. For my part, I do not derive much direct assistance from aphorisms about travelling to trade. Mr Bird attempts one such when he says that “it was the trade in this case that was passing, not the trader”
“During the period the Respondent was stationary, for as least an hour, at the entrance to Westgate Arcade. Whilst in this position [he] was selling wrapping paper from a large shopping bag which was at his feet.”
“The picture is, as this finding of the justices established, of a man conducting his business from one position, rather than of someone carrying and selling goods as he moves around.”
“This does appear then to be a case where he positioned himself in the public place waiting for customers to come to him, rather than moving around from place to place seeking his customers.”
“The correct approach is to examine the nature of the activity which is being carried on, at the time and in the place to which the charge relates. The question must then be, when looking at that activity, whether it is an activity which can be described as falling within the term 'pedlar', or whether it is an activity which falls outside that expression and thus requires a street trader's licence. As we said earlier in this opinion, the essence of the activity which is the subject of the charge in this case was that of placing a stall to which customers were invited to come, rather than moving from place to place to find customers in order to sell to them.”
“6. Analysis of Magistrates' Conclusions In the present case the justices, having carefully considered Watson v Malloy , found it to be distinguishable "in that this respondent did not sell from a static position". It is only right to point out that the justices were not referred to the other authorities which I have cited in the course of this judgment. Had they been so referred it seems to me that they would not have concluded that on either occasion this respondent was acting as a pedlar as defined by section 3 of the 1871 Act. True it is that he did not sell from a static position in that at fairly frequent intervals he moved his unit (which many people might describe as a sort of street barrow or stall). But his purpose in moving was not to move on with his tapes so as to bring them to the attention of other potential customers. It was simply an attempt to take advantage of the statutory defence. From a trading point of view the reality was that on each occasion, for several hours, his stall was set up in King Street, and by singing and playing he sought to induce passers-by to come to him and buy his tapes. Clearly the respondent carried on his trade in many places other than King Street, South Shields, and the justices were entitled to have regard to that fact, but the same could be said of many a market trader who sells from a stall on market days, and who would certainly not be described as a pedlar. In the present case the justices also considered, as they put it "the mischief that the street trading legislation was intended to address". That can be a useful approach when a court has to construe an ambiguous word or phrase used in a statute, but it cannot be a valid approach here because of the format of the legislation. Unless the respondent could show that he was a pedlar acting under the authority of a pedlars certificate granted under the 1871 Act he contravened paragraph 10(1)(a) of 1982 Act, because what he was doing was undoubtedly street trading, as defined by that Act. The definition of "pedlar" in the 1871 Act was formulated to indicate when a pedlars certificate would be required, and, except perhaps incidentally, the object of that legislation does not seem to have been "to protect traders who pay the costs associated with running a permanent shop from unfair competition from street traders whose overheads would necessarily be substantially less". Furthermore, because of the way in which the statutes inter-act it would not be possible for a defendant to take advantage of the statutory defence only so long as he sold goods not offered by shops in the vicinity where he was operating. As I have tried to indicate, when deciding whether a defendant is or is not a pedlar a court has to look at what he is and how he behaves. The nature of his merchandise is largely irrelevant, and it is wholly irrelevant whether or not that merchandise is being sold by others with permanent premises nearby.”
“The next case that we were referred to was the Westminster City Council v Al Elmasoglu (unreported)14 February 1996 . The facts of this case related to the sale of hot dogs from a barrow which was moved from time to time. There the learned Stipendiary Magistrate's opinion was cited by Forbes J. in his judgment at page 6. The relevant part reads: “I (Stipendiary Magistrate) was of the opinion (a) although the appellant moved his barrow every few minutes this did not of itself bring this within the definition of a pedlar acting under the authority of a pedlar's certificate; (b) the appellant did not stop his barrow to serve customers who asked for his wares; he stopped and then waited for customers to come to him whilst he was stationary in this place.”
“in my judgment, while it is plain not only that the pedlar must be a pedestrian but also that the goods which he sells must be in essence small goods, there is nothing in the definition given in Section 3, nor in my view in the ordinary view of the term “pedlar”, to exclude a person who has some small means of assisting the transport of his goods, such as the trolley in the present case. Of course it is possible to conjure instances where someone travels from place to place using a much larger piece of equipment for the carriage of his goods. Where any such instance arises it will be a matter of fact for the magistrates to decide whether the whole apparatus is of such a scale as to take the respondent in question out of the definition of the term “pedlar”.”