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

City of Westminster—continued


 

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46Disposal of seized objects by council
(1)The council may, in such manner as it thinks fit, dispose of—
(a)any relevant receptacle (within the meaning of section 44 (seizure notices: receptacles for refreshments)) seized under section 43(1) or (2) (seizure) if, in respect of the alleged offence in question—
(i)a fixed penalty is paid in accordance with section 16 of the London Local Authorities Act 2004 (c. i) before the expiry of the period mentioned in subsection (2) of that section; and
(ii)the fixed penalty notice contained or was accompanied by written notice that the recipient could require the council on or before the time when the fixed penalty was paid to make a complaint for a disposal order under section 51 (disposal orders) in respect of the relevant receptacle in question; and
(iii)no such requirement was made of the council on or before that time; or
(b)any such relevant receptacle seized under the said section 43(1), (3) or (4) if—
(i)a notice was given under the said section 44 as soon as reasonably practicable after the item was seized; and
(ii)the notice was not completed and returned to the council in accordance with subsections (5) and (6) of that section.
(2)The council may recover their costs of disposing of a relevant receptacle under subsection (1) from the person from whom the object was seized.
(3)Where a requirement of the sort mentioned under subsection (1)(a)(ii) was made on or before the time when the fixed penalty was paid, the council must make a complaint for a disposal order under the said section 51 in respect of the relevant receptacle in question.

47Forfeiture of seized items by court
(1)Subject to subsection (3), the court by or before which a person is convicted of any of the offences mentioned in subsection (2) may order anything produced to the court, and shown to the satisfaction of the court to relate to the offence, to be forfeited and dealt with in such manner as the court may order.
(2)The offences are—
(a)an offence under section 41 (offence of unlicensed street trading);
(b)an offence under section 42(1)(a) (other offences); and
(c)an offence of aiding, abetting, counselling or procuring the commission of an offence under either of those sections.
(3)The court shall not order anything to be forfeited under subsection (1) where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him or her to show cause why the order should not be made.
(4)In considering whether to make an order under subsection (1) a court shall have regard—
(a)to the value of the property; and
(b)to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).
(5)The court may order forfeiture notwithstanding that the value of the item exceeds the maximum penalties referred to in the said sections 41 and 42.

48Seizure: compensation
(1)This section shall have effect where—
(a)an item is seized under section 43 (seizure); and
(b)the circumstances in subsection (2) apply or either of the following applies—
(i)not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under sections 41 (offence of unlicensed street trading) or 42(1)(a) (other offences) in respect of the act or circumstances which occasioned the seizure;
(ii)in the case of a relevant receptacle (within the meaning of section 44 (seizure notices: receptacle for refreshments)) seized under the said section 43(4), the council has failed to comply with the said section 44(7).
(2)The circumstances mentioned in subsection (1)(b) are that proceedings for an offence under the said sections 41 or 42(1)(a) have been brought and either—
(a)the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought; or
(b)the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought.
(3)When this section has effect, a person who has or at the time of seizure had a legal interest in the item seized may recover compensation from the council or (where it is seized by a constable) the Police Commissioner by civil action in the County Court in respect of any loss suffered by him or her as a result of the seizure. Any such compensation shall not be included in the computation for calculating charges under section 34 (charges: street trading licences);
(4)The court may only make an order for compensation under subsection (3) if satisfied that seizure was not lawful under the said section 43.
(5)Any sums accruing to the council arising out of this section shall be included in the computation for calculating charges under the said section 34.

49Seizure of perishable items
(1)No item which is of a perishable nature (in this section referred to as a "perishable item") shall be seized under the provisions of section 43 (seizure) unless the council gives a certificate under subsection (2) to the person from whom the item is seized.
(2)Where a perishable item is seized under the said section 43(1), the person from whom it is seized must be given a certificate—
(a)stating the effect of subsection (5) and section 47(3) (forfeiture of seized items by court);
(b)giving the address from which the item may be collected;
(c)informing the recipient that if he or she is not the owner of the item, then he or she should give the owner the information referred to in paragraphs (a) and (b).
(3)If the person from whom a perishable item was so seized fails to collect it within 48 hours of the seizure the council may dispose of it.
(4)When any perishable item is disposed of by the council under subsection (3), the council shall have a duty to secure the best possible price which can reasonably be obtained for it.
(5)Section 45(1) to (4) (return of seized items) and the said section 47(1) and (3) shall apply to a perishable item seized under the said section 43 only in cases where the item concerned has not been disposed of by the council at the conclusion of the proceedings in respect of the alleged offence in relation to which the item was seized.
(6)The said section 45(7) and (9) shall apply to a perishable item seized under the said section 43 only in cases where the item concerned has not been disposed of by the council at the expiration of the period mentioned in the said section 45(7); otherwise subsections (8) to (11) shall apply.
(7)Section 48 (seizure: compensation) shall apply with the omission of subsection (4) in respect of a perishable item seized under that section in cases where the item concerned has not been disposed of by the council by the time the circumstances mentioned in subsection (1)(a) of that section arise otherwise subsections (8) to (11) shall apply.
(8)Subsection (11) shall have effect where the council have disposed of a perishable item under subsection (3) and any of the following conditions apply.
(9)The first condition is that no proceedings in respect of the alleged offence in relation to which the item was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the item, or any such proceedings instituted within that period are discontinued.
(10)The second condition is that—
(a)not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under section 41 (offence of unlicensed street trading) or section 42(1)(a) (other offences) in respect of the acts or circumstances which occasioned the seizure; or
(b)proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought.
(11)When this subsection has effect a person who has or at the time of seizure had a legal interest in the item seized may recover compensation from the council or (where it is seized by a constable) the Police Commissioner by civil action in the County Court in respect of any loss suffered by him or her as a result of the seizure. Any such compensation shall not be included in the computation for calculating charges under section 34 (charges: street trading licences).

50Motor vehicles
(1)Subsection (4) applies where the following conditions are met.
(2)The first condition is that where, in ascertaining the identity of the person from whom a vehicle was seized under section 43(1) or (2) (seizure), the council has, before the expiry of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars.
(3)The second condition is that those particulars have not been supplied to the council before the date after which the council would, but for this section, have to return the vehicle in accordance with section 45(7) (return of seized items).
(4)Where this subsection applies, the council must return the vehicle to its owner if—
(a)no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or
(b)any such proceedings instituted within that period are discontinued,

at the expiry of that period or on the discontinuance of the proceedings, as the case may be.

(5)If the council seeks to return a vehicle in accordance with the said section 45(1) or (2), but the person to whom the council seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the council may make a complaint for a disposal order in respect of the vehicle under section 51 (disposal orders).
(6)In this section, "relevant particulars" are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994 (c. 22).
(7)The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept.
(8)In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the said Act of 1994.

51Disposal orders
(1)This section applies to a complaint made by the council for a disposal order under—
(a)section 44(7)(a) (seizure notices: receptacles for refreshments);
(b)section 45(10) (return of seized items); or
(c)section 46(3) (disposal of seized objects by council); or
(d)section 50(5) (motor vehicles),

and items that are the subject of the complaint are referred to as "seized items" in this section.

(2)On a complaint to which this section applies, a magistrates' court, if satisfied that the council has made reasonable efforts—
(a)to identify the person from whom the seized item was seized or its owner, as the case may be, or
(b)to return the seized item,

may make an order under this section.

(3)An order under this section is an order authorising the council—
(a)to dispose of the seized item in question; and
(b)after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the council as mentioned in section 34(1) (charges: street trading licences).
(4)The court shall not make a disposal order under this section where a person claiming to be the owner of or otherwise interested in the seized item applies to be heard by the court, unless an opportunity has been given to him or her to show cause why the order should not be made.
(5)Subsection (6) applies where—
(a)a person appears before the court under subsection (4) to show why the order should not be made; and
(b)the court makes a disposal order under this section authorising the council to dispose of the item; and
(c)the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and
(d)the court is satisfied that the person mentioned in paragraph (a) was the owner of the seized item in question or was the person from whom it was seized, as the case may be.
(6)Where this section applies, the court may order that the person mentioned in subsection (5)(a) pay the expenses, or the balance of the expenses, reasonably incurred by the council in seizing and storing the seized item in question.
(7)In considering whether to make a disposal order under this section a court shall have regard—
(a)to the value of the seized item;
(b)to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making); and
(c)any other circumstances considered to be relevant.
(8)The court may make a disposal order under this section notwithstanding that the value of the seized item would exceed the maximum penalty for the offence in respect of which the seized item had originally been seized had the said offence been prosecuted to conviction.
(9)For the purposes of this section, "owner" in respect of a vehicle, has the same meaning as it has for the purposes of the said section 50.

Touting

52Touting
(1)The council may designate, in accordance with subsection (3), any of the following places, or any part of such places, in the city as places to which this section applies for any of the purposes mentioned in subsection (2)—
(a)a public off-street car park, recreation ground, garden or other park, pleasure ground or open space under the management and control of the council;
(b)a street or way to which the public commonly have access, whether or not as of right.
(2)Any person who, in a place designated under this section importunes any person by touting for a hotel, lodging house, restaurant or other place of refreshment, for a shop, theatre or nightclub or other place of amusement, entertainment or recreation, or for a boat or other conveyance shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3)Before designating any place for any of the purposes of subsection (2) the council shall give notice of its proposal by advertisement in a newspaper circulating in the city, and by posting it in the places to which it relates, stating that objections to the proposal may be made to the proper officer of the council within a time, not less than 28 days after the giving of the notice, specified in the notice.
(4)After taking into consideration any objections made in accordance with subsection (3), the council may by resolution designate as places to which this section applies for any of the purposes of subsection (2) all or any, or any part, of the places specified in the notice given under that subsection.
(5)A resolution under subsection (4) shall come into force on such day as shall be specified by a notice given in the same manner as a notice given under subsection (3), being a day not less than 28 days after the day on which notice is given under this subsection.
(6)This section shall not prohibit the doing of anything on land by the owner or occupier of the land, or by any person with the consent of the owner or occupier, or the doing of anything on land forming part of a highway by the owner or occupier of land fronting that part.

Miscellaneous

53Protection for transport undertakers
(1)Nothing in this Act shall affect the sale or exposure or offer for sale of refreshments by Transport for London, London Underground Limited or (as the case may be) any of their subsidiaries at any shelter or other accommodation provided by either of them under section 65 (refreshment shelters etc.) of the London Passenger Transport Act 1938 (c. xcii).
(2)This Act shall not apply in respect of any land owned by Network Rail (Infrastructure) Limited, Transport for London or London Underground Limited unless the land forms part of a highway for which the council or Transport for London is responsible as highway authority.

54Saving for offences

Nothing in this Act shall afford a defence to a charge in respect of any offence at common law or under an enactment other than this Act.

55Provision as to notices
(1)Any notice, summons or other document required or authorised to be served or given in writing under this Act may be served or given either—
(a)by delivering it to the person on whom it is to be served or to whom it is to be given; or
(b)by leaving it at the usual or last known place of abode or business of that person, or, in a case where an address for service has been given by that person, at that address; or
(c)by sending it by ordinary post addressed to that person at his or her usual or last known place of abode or business, or, in a case where an address for service has been given by that person, at that address; or
(d)in the case of a company or body incorporated in England or Wales, by delivering it to the secretary or clerk of the company or body at their registered or principal office, or sending it by ordinary post addressed to the secretary or clerk of the company or body at that office.
(2)The delivery, in the absence of a licence holder from the licensable area or part of the licensable area in which he or she is authorised to trade, of a document or notice to a person appearing to be an assistant employed by that licence holder shall be deemed to be delivery of that document or notice to the licence holder under subsection (1)(a).
(3)A notice required by this Act to be given shall be deemed to be given on the date it is delivered, left, affixed, or posted in accordance with this section.

56Proof of resolution

In any proceedings which require proof of the passing of a resolution under this Act it shall be presumed, unless the contrary is proved, that the said resolution was duly passed and that any requirements relating to the passing of the resolution and the giving of any notices or information before or after the passing of the resolution were properly complied with.

57Exercise of powers

The council's powers under this Act may be exercised by a committee, sub-committee, officer or panel of officers.

58Amendments

Schedule 10 (which sets out minor and consequential amendments) shall have effect.

59Repeals

The enactments set out in Schedule 11 are repealed to the extent specified.

60Transitional provisions

On the date on which this Act comes into effect, all—

(a)applications made;
(b)licences issued;
(c)standard conditions prescribed;
(d)fees and charges set;
(e)designating, specifying and prohibition resolutions passed;
(f)regulations for determining applications made; and
(g)appeals made,

under the City of Westminster Act 1999 (c. i) shall be deemed to have been made, issued, prescribed, set or passed under this Act.

 

 
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