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A
BILL
To confer powers on Leeds City Council for the better control of street trading in the city of Leeds.
WHEREAS—
| (1) | The city of Leeds (hereinafter called "the city") is a district under the management and local government of Leeds City Council (hereinafter called "the council"): |
| (2) | Certain powers relating to street trading in the city are exercisable by the council under the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) and for their better enforcement it is expedient to amend that Act in its application to Leeds and supplement those powers: |
| (3) | The objects of this Act cannot be attained without the authority of Parliament: |
| (4) | In relation to the promotion of the Bill for this Act the requirements of section 239 of the Local Government Act 1972 (c. 70) have been observed: |
May it therefore please your Majesty that it may be enacted, and be it enacted, by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Introductory
This Act may be cited as the Leeds City Council Act 2008.
In this Act—
"the 1982 Act" means the Local Government (Miscellaneous Provisions) Act 1982 (c. 30);
"authorised officer" means an officer of the council authorised by the council in writing to act for the purposes of this Act;
"the chief constable" means the Chief Constable of the West Yorkshire police force;
"the city" means the city of Leeds;
"the council" means the Leeds City Council;
"equipment" means equipment used for the purposes of street trading;
"perishable item" means an item which is of perishable nature;
"the police" means the West Yorkshire police force;
"proper officer" has the same meaning as in section 270(3) of the Local Government Act 1972 (c. 70);
"receptacle" includes—
| (a) | any vehicle, trailer or barrow; and |
| (b) | any basket, bag, box, vessel, stall, stand, easel, board, tray or other thing, |
which is used (whether or not constructed or adapted for such use) as a container for or for the display of any article;
"a relevant offence" means an offence—
| (a) | under paragraph 10 of Schedule 4 to the 1982 Act; or |
| (b) | of aiding, abetting, counselling or procuring the commission of an offence under that paragraph, |
committed on or after the day on which this Act came into force.
This Act applies so long as any resolution by the council under section 3 of the 1982 Act remains in force.
Application of 1982 Act
| (1) | In their application to the city, the provisions of Schedule 4 to the 1982 Act shall apply with the following modifications. |
| (2) | In paragraph 1(1), for the definition of "street trading", there is substituted— |
""street trading" means, subject to sub-paragraph (2) below—
| (a) | the selling or exposing or offering for sale of any article (including a living thing) in a street; or |
| (b) | the supplying of or offering to supply any service in a street for gain or reward; and". |
| (3) | In paragraph 3(2)(c) after "articles" in both places where it appears there is inserted "or services". |
| (4) | In paragraph 3(6)(b) after "goods" there is inserted "or services". |
| (5) | In paragraph 3(7)(b) after "goods" there is inserted "or services". |
| (6) | In paragraph 4(1)(b) after "articles" there is inserted "or services". |
| (7) | In paragraph 5(2)(b) after "goods" there is inserted "or services". |
| (8) | In paragraph 9(2)(c) after "articles" there is inserted "or services". |
In their application to the city, the provisions of Schedule 4 to the 1982 Act shall apply as if—
| (a) | in paragraph 1(2)(a) of that Schedule there were inserted, after the reference to the Pedlars Act 1871 (c. 96), the words "provided the trading is carried out in accordance with sub-paragraph (2A) below"; and |
| (b) | after paragraph 1(2) of that Schedule, the following sub-paragraphs were inserted— |
| "(2A) | Trading is carried on in accordance with this sub-paragraph if— |
| (a) | it is carried out only by means of visits from house to house; or |
| (b) | all items used for any purpose connected with the trading are carried, without any other means of support, by the holder of the certificate during the time in which the trading takes place. |
| (2B) | For the purposes of sub-paragraph (2A)(b) above, "trading" includes the display or offer of items for sale." |
Seizure and forfeiture
| (1) | Subject to the following provisions of this section, if an authorised officer or a constable has reasonable grounds for suspecting that a person has committed a relevant offence, the authorised officer or constable may seize— |
| (a) | any article in relation to which he suspects such an offence has been committed and which is being offered or exposed for sale or displayed; or |
| (b) | any other article which— |
| (i) | is in the possession of or under the control of any person who is offering or exposing for sale or displaying an article; and |
| (ii) | is of a similar nature to the article being offered or exposed for sale or displayed, as the case may be; or |
| (c) | any receptacle or equipment being used by that person. |
| (2) | No article, receptacle or equipment shall be seized under subsection (1) unless the conditions of subsection (3) apply. |
| (3) | The conditions are that the article, receptacle or equipment may be— |
| (a) | required to be used in evidence in any proceedings in respect of the suspected offence; or |
| (b) | the subject of forfeiture under section 9. |
| (4) | An authorised officer shall produce his authority if required to do so by the person having care or control of anything seized in pursuance of the powers in subsection (1). |
| (5) | An authorised officer or a constable shall, forthwith after seizing any article, receptacle or equipment under subsection (1), give to the person from whom the article, receptacle or equipment was seized a document containing the following information— |
| (a) | the name and address of the person who the authorised officer or constable suspects has committed the suspected offence; |
| (b) | if different from the name and address of the person mentioned in paragraph (a), the name and address of the owner of the article, receptacle or equipment; |
| (c) | the type of article, receptacle or equipment seized; and |
| (d) | information about section 9(2). |
| (6) | If an authorised officer or constable is unable, after reasonable enquiry of the person who he suspects has committed the suspected offence, to ascertain the name or address of— |
| (b) | the owner of the article, receptacle or equipment, |
or has reasonable cause to suspect that a name or address provided to him is incorrect, he need not comply with paragraph (a) or (b), as the case may be, of subsection (5).
| (7) | The authorised officer or constable shall, before the end of the period of 14 days beginning with the date of seizure, give or serve a copy of the document to or on any person who is named on the document under subsection (5)(b) at the address shown on the document. |
| 7 | Seizure of perishable items |
| (1) | No perishable item shall be seized under section 6 unless the authorised officer or constable gives a document under subsection (2) to the person from whom the item is seized. |
| (2) | Where a perishable item is seized under section 6, the person from whom it is seized must be given a document— |
| (a) | stating the effect of subsection (4) and of section 9(2) and (3); |
| (b) | giving the address from which the item may be collected; |
| (c) | informing the recipient that if he is not the owner of the item, then he should give the owner the information referred to in paragraphs (a) and (b). |
| (3) | The council or the police shall store any perishable item seized under section 6 at an appropriate temperature. |
| (4) | If the person from whom a perishable item was so seized fails to collect it within 48 hours of the seizure the council or the police may dispose of it. |
| (5) | When any perishable item is so disposed of by the council under subsection (4), the council shall have a duty to secure the best possible price which can reasonably be obtained for it. |
| (6) | Section 8(1) and (2), and section 9 shall apply to perishable items seized under section 6(1) only in cases where the item concerned has not been disposed of by the council prior to the conclusion of the proceedings in respect of the alleged offence in relation to which the item was seized. |
| (7) | Section 8(3) and (5) shall apply to perishable items seized under section 6(1) only in cases where the item concerned has not been disposed of by the council at the expiration of the period mentioned in section 8(3)(b); otherwise subsections (9) to (12) shall apply. |
| (8) | Section 10 shall apply with the omission of subsection (3) in respect of perishable items seized under that section only in cases where the item concerned has not been disposed of by the council by the time the circumstances mentioned in section 10(1)(b) arise; otherwise subsections (9) to (12) shall apply. |
| (9) | Subsection (12) shall have effect where the council have disposed of a perishable item under subsection (4) and any of the following conditions apply. |
| (10) | 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. |
| (11) | 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 a relevant offence 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. |
| (12) | Where 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 chief constable by civil action in the county court in respect of any loss suffered by him as a result of the seizure. |
| (13) | The court may only make an order for compensation under subsection (12) where subsection (11)(b) applies if satisfied that seizure was not lawful under section 6. |
| 8 | Return and disposal of seized items |
| (1) | The following provisions of this section shall have effect where any article, receptacle or equipment is seized under section 6(1) and references in those provisions to proceedings are to proceedings in respect of the alleged offence in relation to which the article, receptacle or equipment is seized. |
| (2) | Subject to subsections (3) to (5), following the conclusion of the proceedings the article, receptacle or equipment shall be returned to the person from whom it was seized unless the court orders it to be forfeited under section 9. |
| (a) | a fixed penalty notice has been given to a person under section 11 in respect of the alleged offence and the fixed penalty is paid before the expiration of the period mentioned in section 12(2); or |
| (b) | at the end of the period of 56 days beginning with the date of seizure— |
| (i) | no proceedings have been instituted; or |
| (ii) | any proceedings instituted within that period have been discontinued; or |
| (c) | at any time after the end of that period any such proceedings are discontinued, |
the article, receptacle or equipment shall, at the appropriate time, be returned to the person from whom it was seized unless it has not proved possible, after reasonable enquiry, to identify that person and ascertain his address.
| (4) | In subsection (3), "the appropriate time" means— |
| (a) | in the case of paragraph (a), as soon as practicable after the date on which the fixed penalty is paid; |
| (b) | in the case of paragraph (b), the end of the period of 56 days mentioned in that paragraph; |
| (c) | in the case of paragraph (c), the time when proceedings are discontinued. |
| (5) | Where the article, receptacle or equipment is not returned because it has not proved possible to identify the person from whom it was seized and ascertain his address, the council or the chief constable (whether the article or thing was seized by an authorised officer or a constable) may apply to a magistrates' court for an order as to the manner in which it should be dealt with. |
| 9 | Forfeiture of seized items |
| (1) | Subject to subsection (2), the court by or before which a person is convicted of a relevant offence may order any article, receptacle or equipment— |
| (a) | produced to the court; and |
| (b) | shown to the satisfaction of the court to relate to the offence, |
to be forfeited and dealt with in such a manner as the court may order.
| (2) | The court shall not order any article, receptacle or equipment 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 to show cause why the order should not be made. |
| (3) | In considering whether to make an order under subsection (1) a court shall have regard— |
| (a) | to the value of the article, receptacle or equipment; and |
| (b) | to the likely financial and other effects on— |
| (ii) | the owner of the article, receptacle or equipment, |
of the making of the order (taken together with any other order that the court contemplates making).
| 10 | Compensation where seizure unlawful |
| (1) | Subsection (2) shall have effect where— |
| (a) | any article, receptacle or equipment is seized under section 6(1); and |
| (b) | any of the following applies— |
| (i) | not less than six months have passed since the date of the seizure, no information has been laid against any person for a relevant offence in respect of the act or circumstances which occasioned the seizure and, in the case where a fixed penalty notice was given under section 11 in respect of such an offence, no fixed penalty has been paid in accordance with the notice; |
| (ii) | proceedings for a relevant offence have been brought and 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; |
| (iii) | proceedings for a relevant offence have been brought and the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the proceedings were brought. |
| (2) | Where this subsection has effect a person who has or at the time of seizure had a legal interest in the article, receptacle or equipment seized may recover compensation from the council or (where it is seized by a constable) the chief constable by civil action in the county court in respect of any loss suffered by him as a result of the seizure. |
| (3) | The court may only make an order for compensation under subsection (2) if satisfied that seizure was not lawful under section 6. |
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