PRESS RELEASE: no embargo
5 Dec 2009

BIS CONSULTATION ON PEDLARY

Peldars vehemently oppose BIS proposal for fixed penalty notices.

There is every indication that the government is preparing to follow the urging of the
police and local authorities to make pedlary a fixed penalty offence, carrying a penalty of
£300. Stakeholder pedlars in consultation with BIS strongly oppose this proposal.

Penalties for illegal street trading, which pedlars support, are for black and white matters
of objective fact. A person trading without a valid Certificate or Licence or was acting
disorderly as a beggar, rogue or vagabond. Not acting as a pedlar is entirely different; it is
a subjective matter of judgement whether a person’s actions were so removed from those
of a lawful pedlar that they undermined the protection from interference granted by the
Pedlars Act and instead are judged to be an offence of illegal trading. The Magistrates’
Association believes strongly that matters that require a judgement to be made, are
matters that should be brought to court for the purpose.

The administrators of www.pedlars.info said,
“Enforcement officers may have seen the incident themselves, in which case they will be
acting as witness, prosecutor, judge and jury, deciding on guilt and then sentencing the
offence. Alternatively, they will be relying on the evidence of others, which the pedlar
may not have the opportunity to challenge properly, and they may be deciding whether or
not to issue a fixed penalty in the highly charged atmosphere of the immediate aftermath
of observing the activities of the person. The Magistrates Association believe that such a
decision should be made in the calmer conditions of a court hearing, when the evidence
for each side can be presented and considered by those trained and experienced in doing
so.”

Pedlars who choose to appeal against the fixed penalty by going to court would risk
deprivation of their Certificate and a very much higher fine, so there would be quite
disproportionate pressure not to dispute the penalty notice, regardless of whether they
really accept their guilt. Pedlars who may have a reasonable defence should not be
coerced in this way; it is simply unjust.

Perception of ‘failing to act as a pedlar’ and therefore ‘acting as an illegal trader’ covers a
wide range of behaviour from minor inattention to remaining in one place whilst involved
in conversation to that of flagrantly setting up a static pitch for the day, and the penalties
available in court reflect this, having a wider range than those for any other trading
offence. The Government itself has said that that prosecuting pedlars involves a heavy
burden of paperwork and is resource-intensive for the police and local authority officers,
resulting in an unwillingness to prosecute. Faced with the choice between the heavy
burden of taking the matter to court and the simplicity of issuing a fixed penalty, it is
certain that many enforcement officers will opt for a fixed penalty, however bad the
alleged offence may be. No one will know if this happens in a particular case, as the
offender is hardly likely to complain. Regrettably, recent experience with out-of-court
disposals shows that enforcement officers cannot be relied on to use them appropriately
or as intended. Once they have been given these powers, the enforcement agent will
misuse them, that is a certainty, and pedlary will generally be treated as a perceived
offence.

This is a proposal that places the convenience of councils and police above what is right
in principle, may coerce innocent pedlars into accepting a fixed penalty, and is certain
generally to target lawful pedlars.

The Department for Business Innovation and Skills is well aware of pedlars often
repeated and consistent view that the allegation of ‘failing to act as a pedlar’ is an
unsuitable offence for the offer of a fixed penalty. It is therefore very disappointing that
this was ignored in the BIS consultation paper in November 2009, with a statement made
that “a recent survey by LGA found that 51 out of 57 LA’s surveyed consider pedlars to
be a problem”. How BIS could rely on a heavily prejudiced LGA media press release
without any supporting evidence is not stated. To rely on an unreferenced and frankly
meaningless survey by an organization representing those whose expressed aim is to
prohibit pedlary [NABMA] is seriously to mislead readers of the document, and it is
difficult to regard this as anything other than deliberate.

END

www.pedlars.info
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This article was based on a Press Release 17 August 2009 by The Magistrates Association on the subject of “Careless Driving as a fixed penalty offence”