OVER-ZEALOUS COUNCIL

London's Newham council has been criticised by the High Court after prosecuting a motorist for putting 'for sale' signs in his car windows. Johnson Onasanya was dragged through the courts charged with 'unlawful street trading' for advertising his cars without a licence in two separate cases.

But Lord Justice Maurice Kay, sitting with Mr Justice Mitting, said the legal action had been "a graphic illustration of what can happen when a prosecutor becomes over-zealous". The two appeal hearings both involved cases brought against Mr Onasanya, from Forest Gate, despite the fact there had been no evidence he was "a professional street trader".

The council first took the motorist to court when he put signs in the rear window of his Volvo advertising the car for sale in February 2005. The case was brought before Statford magistrates under the 1990 London Local Authorities Act, which prohibits unlicensed street trading and the council secured a conviction.

This was despite the fact the court was told that Mr Onasanya's wife had just driven him to see his GP in the car at the time of the alleged offence. The second case involved a blue Rover which had been spotted with 'for sale' signs in a London high street less than a mile from Mr Onasanya's home, between November 2004 and January the following year.

The court heard warning notices had been fixed by council street enforcement officers to the Rover but Mr Onasanya said he was out of the country at the time and had loaned his car to a Mr Ahyde, expecting that he would keep it in a garage. The car owner claimed he did not know warning notices had been fixed to the vehicle.

Lord Justice Kay ruled the prosecution had offered no evidence to contradict Mr Onasanya's account, and the district judge had been right to acquit him during the first hearing. The prosecution had argued car owners who place a 'for sale' sign inside the vehicle could only avoid conviction "if the vehicle is in the street entirely for a purpose unrelated to street trading".

The judge ruled, "I have no hesitation in saying that, in my judgement, this approach is simply wrong. It is abundantly clear on the findings of fact that the Volvo was in Greengate Street because Mr Onasanya was attending an appointment with his GP in that street. It is equally clear, on the findings of fact, that the Rover was in the high street because Mr Onasanya had lent it to Mr Ahyde, who had parked it for convenience virtually outside his house."

Ms Susan Palmer, appearing for Newham council legal services, claimed Mr Onasanya had seen his Rover car parked in the high street with the 'for sale' notices displayed and that was sufficient to "fix him with liability". But rejecting the argument, Lord Justice Kay added, "There is nothing in the London Local Authorities Act which deems the registered keeper to be responsible for his car when it is in the possession and control of someone else. It seems to me that this is another example of just how zealously Newham seeks to approach this particular legislation."

The judge said street trading laws were important for "for the public good" and acknowledged councils had a difficult job dealing with "some of the manoeuvrings of the more unscrupulous street traders". And the court was told the law is not limited to professional street traders, while legal case law stated an offence could be committed by a private individual selling a single item.

But the judge ruled that where "a person puts forward a credible explanation against which there is no contradictory evidence it seems to me that prosecution is an excessive response". In the Volvo case, the judges quashed Mr Onasanya's conviction and costs of £400. They also ordered the council to pay costs, which could reach £5,000. Lord Justice Kay ruled that Mr Onasanya was "wrongly convicted in respect of the Volvo but rightly acquitted in respect of the Rover". (Source: Daily Mail, Jul/06)