ABUSE OF PROCESS ARGUMENT ON BEHALF OF DEFENDANT

Published: 31st January 2011 at 16:01:33

In East Cornwall Magistrates' Court                                                 Case Number

The Crown

V.

A PEDLAR

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ABUSE OF PROCESS ARGUMENT ON BEHALF OF DEFENDANT

1.      INTRODUCTION       ( Stones  Para 1, 447A  Para 1 and Para 3(end))

1.1              The allegation of Obstructing the Highway contains a provision that it is not to be obstruction if it is done with lawful excuse.

1.2              The allegation of Illegally Displaying a 'Show Board' is an alternative to 1.1 as , it is  submitted, the Crown are  aware that the Defendant, having a valid Pedlars' Licence, could be acquitted of obstructing  the highway.

2.      RATIONALE

2.1              The Rationale behind these allegations has nothing to do with enforcing the criminal law - See the 42 photographs admitted in these proceedings. If the criminal law was to be administered fairly and without oppression many if not all of those displaying 'Show Boards' in the public places of Newquay town centre would be facing similar prosecutions. They are not.

2.2              The true Rationale behind these prosecutions is as determined by East Cornwall Magistrates sitting in Liskeard in 2006, namely that commercial concerns are inappropriately sought to be enforced by the improper use of the criminal law. In an identical case on Obstructing the Highway but involving a different defendant with a pedlars' licence the case was dismissed without trial following a finding on this preliminary point.

2.3              In the current case it is submitted that the same result should be achieved for the allegation of Obstructing the Highway.

2.4              It is submitted that the second allegation in this case should similarly be dismissed for the same reason: it is an additional device to try and achieve the same commercial expedient and is not a genuine attempt to enforce the criminal law.

2.5              For a complete statement of the true reason for the prosecution please  refer to the statement of the Chairman of the Newquay Chamber of Commerce, 'Commerce' being a particularly significant word in the context of this case

3.      ADDITIONAL FACTORS

3.1              The Obstructions alleged occurred in a public place that was a pedestrianised area of the town. Traffic is permitted access but there is no clearly defined concept of 'road' and 'pavement'. It is therefore disingenuous of the police to allege that mothers with prams and young children had to divert into the 'road' to avoid the alleged obstruction. The pedestrians were entitled to walk in the pedestrianised 'road' in any event and it is for the traffic to proceed with the utmost care in these situations. The 42 photographs clearly show a whole variety of people walking all over the 'highway'.

3.2              The alleged 'Show Boards' are not 'Show boards'. The Defendant has only a trolley containing Henna and braiding products which is on wheels and portable. Its colourings and design are an integral part of the trolley and are not a separate 'Show Board'. For the true display of what are 'Show Boards' please see the 42 photos referred to.

3.3              The statement from the Chairman of the Chamber of Commerce also confirms that the Trolley regularly moves and changes its location within the town in accordance with the Pedlars' Licence and approved Pedlars' practice.

3.4              Stones 1  447A Para 4 - 'It is for consideration whether there is a primary motive and one which is so unrelated to the proceedings that it  renders them a misuse or an abuse of process.'

The Chairman's statement graphically illustrates the Commercial Rationale behind these prosecutions.

3.5              If Parliament had intended to make Peddling or Street Vending illegal it would have so provided and it most certainly would not have legislated for the provision of Pedlars' Licences which by definition provide for an element of highway obstruction,  'highway' including both road and pavement areas.

3.6              The police have previously stated they would find some way of preventing street trading in Newquay. They are making a value judgement on what is appropriate for the town of Newquay without consideration of the views of the public, including holidaymakers, who enjoy the henna tattoos and hair braiding offered, which is clear from the numbers using the facility. These prosecutions, alleging some form of obstruction of the highway, are devices to attempt to eradicate the pedlars from Newquay and the motivation is purely pecuniary/commercial and does not derive from any genuine concern for the safety of the public in these pedestrian areas.

C. Nicholls     October 2010