Parliamentary portcullis Session 2008-09
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Arrangement of Clauses (Contents)

City of Westminster—continued


 

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Assistants and Companies

39Employment of assistants
(1)A licence holder or a temporary licence holder may employ any other person to assist him or her in the conduct of street trading authorised by the licence.
(2)If any person employed by a licence holder or temporary licence holder, whether or not the licensed holder is present, fails to comply with the conditions of the licence in question, that failure shall be deemed for the purposes of this Act to be a failure by the licence holder.

40Companies
(1)The council may give permission in writing to a licence holder who is an individual for a company registered under the Companies Acts to carry on street trading in accordance with a street trading licence held by that licence holder.
(2)Permission may only be given under subsection (1) if—
(a)the licence holder holds a majority shareholding in the company; and
(b)the licence holder is a director of the company.
(3)If the council gives permission under subsection (1) then the company specified in the permission may carry on street trading in accordance with the terms and conditions of the licence.
(4)A company may only carry on street trading under subsection (3) while subsections (2)(a) and (b) apply in relation to it.
(5)If a company carrying on street trading under subsection (3) fails to comply with the conditions of the licence, that failure shall be deemed to be for the purposes of this Act a failure by the licence holder as well as the Company and the licence holder may be charged with and convicted of an offence by virtue of this subsection whether or not proceedings for the offence are taken against any other person.
(6)The council may require the licence holder to provide proof at any time that the provisions of subsection (2) apply in relation to the company.
(7)The council may charge a licence holder such reasonable fee as it may determine for giving a permission under this section.

Enforcement

41Offence of unlicensed street trading
(1)A person who is not a licence holder, a specified company that is carrying on street trading under section 40 (companies) or a temporary licence holder and who engages in street trading whether or not from a stationary position in the city shall be guilty of an offence.
(2)Any person who is a licence holder, a specified company or a temporary licence holder shall be guilty of an offence if he or she engages in street trading, whether or not from a stationary position in the city—
(a)on a day or in a place not specified in that licence without the council's specific permission in writing;
(b)during any period when the licence is suspended.
(3)A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4)For the purposes of this Act a person who is carrying on the activities mentioned in section 3(1)(a) to (d) (meaning of "street trading") in the city shall be deemed to engage in street trading in the city whether or not that person regularly carries on the business of street trading.
(5)Subsection (6) shall apply in respect of any proceedings for an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section where it is shown that—
(a)any item was displayed (whether or not in or on any receptacle) in any street;
(b)any other item of a similar kind to any item referred to in paragraph (a) was in the possession of or under the control of any person who was displaying an item;
(c)any receptacle or equipment was used in the display of any item in any street; or
(d)any receptacle or equipment used in the provision of any service was available in any street in such circumstances that a service was being offered.
(6)Where this subsection applies, the item, receptacle or equipment in question shall be deemed to have been used for purposes for which a street trading licence was required unless it can be proved to the satisfaction of the court that it was brought into the street for some purpose other than street trading.
(7)Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to the same maximum penalty as the body corporate.

42Other offences
(1)A person shall be guilty of an offence if he or she—
(a)without reasonable excuse contravenes any of the conditions of a street trading licence or a temporary licence; or
(b)makes a statement which he or she knows to be false in a material particular—
(i)in connection with an application for a street trading licence; or
(ii)in connection with an application for a temporary licence; or
(iii)in completing a notice in accordance with section 44(5) (seizure notices: receptacles for refreshments); or
(c)resists or intentionally obstructs an authorised officer in the execution of his or her duties under this Act; or
(d)in the case of an individual licence holder, fails on demand without reasonable excuse to produce to an authorised officer or to a constable—
(i)his or her licence or other approved form of identity issued by the council for the purposes of this Act; or
(ii)proof of any third party insurance as may be required by the conditions of the licence; or
(e)in the case of an individual carrying on ice cream trading under a licence granted to a company incorporated under the Companies Acts or to a partnership or unincorporated association, fails to produce the photograph required by section 16(4) (photographs) of this Act; or
(f)uses a receptacle in contravention of a requirement imposed by a condition under section 14(1)(d) (conditions of street trading licences); or
(g)is the holder of a street trading licence and without reasonable excuse fails to inform the council, before it takes place, of any change in circumstances that would result in a company in respect of which permission was given under section 40 (companies) no longer complying with the provisions of subsection (2) of that section.
(2)A person guilty of an offence under subsection (1)(a), (c), (d), (e), (f) or (g) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3)A person guilty of an offence under subsection (1)(b) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4)Proceedings for an offence under subsection (1)(b) may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge; but no such proceedings shall be brought by virtue of this subsection more than 3 years after the commission of the offence.

43Seizure
(1)Subject to subsection (2) and section 49 (seizure of perishable items), if an authorised officer or a constable has reasonable grounds for suspecting that a person has committed an offence under sections 41 (offence of unlicensed street trading) or 42(1)(a) (other offences) he or she may seize—
(a)any item being offered for sale, displayed or exposed for sale; or
(b)any other item of a similar nature to that being offered or exposed for sale which is in the possession of or under the control of any person who is displaying an item; or
(c)any receptacle or equipment being used by that person.
(2)An item may only be seized under subsection (1) if it may be required to be used in evidence in any proceedings in respect of the offence in question, or may be the subject of forfeiture under section 47 (forfeiture of seized items by court).
(3)An authorised officer or constable may also seize, for examination purposes, any item which he or she has reasonable cause to suspect may be an item which is prohibited by a specifying resolution. Unless the item is required for evidential purposes it shall be returned as soon as possible to the person from whom it was seized.
(4)An authorised officer or constable may also seize any receptacle or equipment (other than a motor vehicle) which—
(a)is in a street; and
(b)the authorised officer or constable has reasonable cause to suspect is intended to be used in connection with an offence under the said section 41 involving the sale, offer for sale, display, or exposing for sale of refreshments.
(5)An authorised officer shall produce his or her authority if required to do so by the person having control or possession of anything seized in pursuance of the powers in subsections (1) to (4).

44Seizure notices: receptacles for refreshments
(1)This section applies in relation to any receptacle used in the sale, offer for sale, display, or exposing for sale of refreshments (in this section referred to as a "relevant receptacle").
(2)An authorised officer or a constable—
(a)may give a notice under this section to the person from whom a relevant receptacle was seized under section 43(1) or (3) (seizure) (but no such notice may be given under this paragraph in respect of a motor vehicle);
(b)shall give a notice under this section to the person from whom a relevant receptacle was seized under the said section 43(4).
(3)Any notice under subsection (2) must be given as soon as reasonably practicable after the item was seized.
(4)A notice under subsection (2) shall be in such form as the council may prescribe, and shall—
(a)explain that unless the recipient of the notice completes it in accordance with subsection (5) and then returns it to the council in accordance with subsection (6), the council may dispose of the relevant receptacle in question in accordance with section 46 (disposal of seized objects by council); and
(b)set out—
(i)the address to which the completed notice should be returned;
(ii)the date by which it must be returned (which must be no earlier than the date on which expires the period of 14 days beginning with the date on which the notice was given under subsection (2)).
(5)A notice under this section is completed by writing, in the appropriate place on the notice—
(a)the name and full postal address of the recipient of the notice under subsection (2); and
(b)(in the case of a notice given in accordance with subsection (2)(a)) confirmation that that person—
(i)intends to contest any criminal proceedings brought in respect of the alleged offence in respect of which the item in question was seized; or
(ii)if not, that he requires the council to make a complaint for a disposal order under section 51 (disposal orders) in respect of the relevant receptacle in question; and
(c)(in the case of a notice given in accordance with subsection (2)(b)) confirmation that that person requires the council to make a complaint for a disposal order under the said section 51 in respect of the relevant receptacle in question; and
(d)the signature of that person; and
(e)the date on which it was signed.
(6)A notice under this section, once completed, is returned by delivering it or sending it by post to the address set out on the notice as mentioned in subsection (4)(b)(i) on or before the date as mentioned in that subsection.
(7)If a notice given in accordance with subsection (2)(b) is completed and returned in accordance with subsections (5) and (6) the council must, no later than the date on which the period of 28 days beginning with the date on which the notice was received by them expires—
(a)make a complaint to the magistrates' court for a disposal order under the said section 51 in respect of the relevant receptacle in question; or
(b)return the relevant receptacle in question to the person whose name and address are written on the returned notice,

unless, before the expiry of that period, an information has been laid and not withdrawn in respect of any alleged offence in respect of which the item was seized.

45Return of seized items
(1)The provisions of this section shall have effect where any item is seized under section 43(1) (seizure) or is seized and retained because it is required for evidential purposes under the said section 43(3). References in the provisions of this section to proceedings are to proceedings in respect of the alleged offence in relation to which the item is seized.
(2)Subject to subsection (7), following the conclusion of the proceedings the item shall be returned to the person from whom it was seized unless—
(a)the court orders it to be forfeited under section 47 (forfeiture of seized items by court); or
(b)any award of costs to the council by the court, which may include removal, return and storage costs, have not been paid within 28 days of the making of the order.
(3)Where after 28 days any costs awarded by the court to the council have not been paid to the council in full—
(a)the item may be disposed of in any way the council thinks fit; and
(b)any sum obtained by the council in excess of the costs awarded by the court shall be returned to the person to whom the item belongs; and
(c)when any item is disposed of by the council under this subsection the council shall have a duty to secure the best possible price which can reasonably be obtained for that item.
(4)Subject to subsection (5), where a receptacle seized under the said section 43(1) is a motor vehicle used for ice cream trading, the council or the Police Commissioner (as the case may be) shall, within three days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit him or her to remove it.
(5)Subsection (4) shall not apply where the circumstances mentioned in subsection (6) apply and—
(a)the owner or registered keeper of the vehicle has been convicted of an offence under this Act or Part III of the London Local Authorities Act 1990 (c. vii); or
(b)the owner or registered keeper of the vehicle is being prosecuted for a previous alleged offence under this Act or Part III of the said Act of 1990; or
(c)the vehicle has been used in the commission of such an offence or previous alleged offence.
(6)The circumstances are that the offence or previous alleged offence was committed or is alleged to have been committed no more than three years before the seizure and (in the case of an alleged offence) the proceedings are continuing.
(7)Subject to subsection (10), the item shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry, to identify that person or ascertain his or her address and—
(a)no proceedings are instituted before the expiry of the period of 28 days beginning with the date of seizure; or
(b)any proceedings instituted within that period are discontinued.
(8)In a case falling within subsection (7)(a) the item shall be returned at the expiration of the period of 28 days mentioned in that subsection and in a case falling within subsection (7)(b) it shall be returned on the discontinuance of the proceedings.
(9)Subsection (10) applies where the item is not returned because—
(a)it has not proved possible to identify the person from whom it was seized or ascertain his or her address; or
(b)the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it.
(10)Where this subsection applies, the council may make a complaint to the magistrates' court for a disposal order under section 51 (disposal orders) (whether or not proceedings for an offence under this section have been commenced).
 

 
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Prepared 26 November 2008