Onasanya v London Borough of Newham

For the statutory presumption concerning articles displayed in a street, the relevant question is why the article was brought into that particular street. The defence is available where it was brought there for a purpose other than street trading, even if a further purpose connected with sale existed. The vehicle need not have been brought there entirely for an unrelated purpose. A registered keeper is not automatically liable where another person had possession and control of the vehicle. Where an interview contains both inculpatory and exculpatory material, the whole interview is evidential, and the tribunal of fact may rely on uncontradicted exculpatory material.

These were cross-appeals by way of case stated arising from prosecutions of Johnson Onasanya for unlawful street trading under the London Local Authorities Act 1990 (as amended).

In the Volvo case, the magistrates’ court convicted him after finding that he had displayed a sale notice while attending a medical appointment. In the Rover case, the magistrates’ court dismissed three informations after finding that the vehicle had been lent to another person and parked near that person’s home. The issues were the construction of the statutory defence and whether the Rover findings were open to the magistrates’ court.

The court allowed Onasanya’s appeal and dismissed the appeal of London Borough of Newham. The answers to the questions stated were “No” in the Volvo case and “Yes” in the Rover case.

1. Construction of the statutory defence. Under section 38(2) of the London Local Authorities Act 1990, the question is why the article was brought into “that street”. The defendant does not have to prove that the article was there entirely for a purpose unrelated to street trading. A duality of purpose does not prevent reliance on the defence.
2. Application to the Volvo. The vehicle was in Greengate Street because Mr Onasanya was attending his general practitioner’s surgery there. The statutory defence was therefore established, notwithstanding the continuing visibility of the sale notice. His conviction was wrongly entered and was quashed.
3. Application to the Rover. The vehicle was in High Street because it had been lent to Mr Ahyde, who had parked it near his address. The magistrates’ finding that it was there for a purpose other than sale was open to them, and the acquittals were correct.
4. Evidential burden. The interview was relied on by both sides. Its inculpatory and exculpatory parts were all evidence, with their weight being a matter for the tribunal of fact. It was open to the magistrates to rely on the exculpatory parts because there was no contradictory evidence. This approach was consistent with Duncan (1981) 73 Crim App R 359 and Aziz [1995] 2 Crim App R 478.
5. Possession and control. Independently, the Rover prosecution could not establish that Mr Onasanya had engaged in street trading when Mr Ahyde had possession and control of the vehicle. The Act contains no deeming provision making the registered keeper responsible in those circumstances.

The court noted that the offence can be committed by a private individual selling a single item, referring to Haringey London Borough v Michniewicz [2004] EWHC 1728 (Admin). That did not enlarge the statutory control beyond its terms. The Volvo conviction and associated costs order were quashed. Costs were dealt with by agreement or assessment as appropriate.

• Stratford Magistrates’ Court: Mr Onasanya was convicted in the Volvo case and acquitted in the three Rover proceedings.
• High Court (Administrative Court): The Volvo conviction was quashed and the Rover acquittals upheld on appeals by way of case stated.