Davis v Westminster City Council

Registration of a publication under the Newspaper Libel and Registration Act 1881 does not determine whether it is a newspaper for a different statutory purpose. The expression “newspaper” in the City of Westminster Act 1999 bears its ordinary meaning. Whether an item is a newspaper depends principally on its content, including whether it contains news, rather than its physical form, size or shape. A court hearing an appeal by way of case stated must respect the facts found by the magistrates, but may inspect the articles where necessary to decide whether their conclusion was outside the range of reasonable conclusions. A street-trading licence requirement restricting the sale of articles does not, without more, engage the freedom to publish under article 10 of the Convention.

The appellant was convicted by the Justices for Central London on 5 October 2011 of street trading at Marble Arch without a licence, contrary to sections 8 and 27(1) of the City of Westminster Act 1999. He relied on the statutory exemption for a person trading only as a newsvendor, whose articles were current newspapers or periodicals.

The articles consisted of a lanyard containing printed material about football leagues and festivals. The appellant argued that registration under section 1 of the Newspaper Libel and Registration Act 1881 meant that the articles had to be treated as newspapers. The central issues were the effect of that registration, the meaning of “newspaper” in the 1999 Act, the court’s approach to the case stated and an article 10 challenge.

1. Appeal dismissed. The magistrates were entitled to conclude that the articles were not newspapers and that a street-trading licence was required.

2. Registration under section 1 of the Newspaper Libel and Registration Act 1881 did not compel the magistrates to treat the articles as newspapers for the purposes of the City of Westminster Act 1999. The 1881 Act’s definition was confined to that Act. Registration involved no relevant scrutiny of the articles for the separate statutory purpose of controlling unlicensed street trading. The court followed the approach in Snushall, Dalby & Robinson v Customs and Excise Commissioners [1981] VATTR 150.

3. Whether “newspaper” was used in an ordinary or unusual sense was a question of construction and therefore law. The word was used in its ordinary sense in section 3(a) of the 1999 Act. The decisive consideration was content. A list concerning football leagues and festivals could rationally be found not to contain news, irrespective of whether it was printed on paper or plastic, or of its shape and size. The court relied on the Queen’s Bench decision in Snushall, Dalby & Robinson v Customs and Excise Commissioners [1982] STC 537.

4. An appeal by way of case stated remains confined by the findings and reasons contained in the case stated. However, while observing that obligation, the court could inspect the articles to assess whether the magistrates’ conclusion was outside the range of reasonable conclusions. The magistrates’ statement was deficient because it gave almost no reasons for the finding, but the conclusion was nevertheless open to them. The approach in Skipaway Ltd v The Environment Agency [2006] EWHC 983 (Admin) was explained in that context.

5. The article 10 argument failed. The case concerned only the liberty to sell the articles on Westminster’s streets without a licence, not the liberty to produce or publish them. Gaweda v Poland [2004] 39 EHRR 4 was distinguishable because it concerned registration as a condition of lawful publication.

6. The appellant was ordered to pay £1,500 towards the respondent’s costs.

• Justices for Central London: convicted the appellant on 5 October 2011 of unlicensed street trading contrary to sections 8 and 27(1) of the City of Westminster Act 1999.
• High Court (Administrative Court): dismissed the appeal by way of case stated and ordered the appellant to pay £1,500 towards the respondent’s costs.