Thursday, 25 November 2010

More mobile advertisements

Shortly after the Tile Wise case about advertising on a vehicle (on which I commented on 21 October), the Divisional Court heard another appeal by way of case stated on precisely the same point. This time the appeal was by the prosecutor against the dismissal by magistrates of a prosecution alleging several offences involving the display of mobile advertisements on a farm, so as to be readily visible from the M62. This was the case of Calderdale MBC v. Windy Bank Dairy Farm Ltd and Steve Quinn [2010] EWHC 2929 (Admin). On 12 November, the Court gave its reasons for dismissing this appeal and upholding the acquittal of the defendants by the magistrates.

It is fair to say that this case turned primarily on the factual evidence or, to be precise, on the inadequacy of that evidence. The magistrates had concluded that they could not be satisfied beyond reasonable doubt that the offences as charged had actually been committed. The High Court could find no grounds for saying that this was a conclusion which no reasonable bench of magistrates could reach on the facts before them, and so the prosecutor’s appeal must necessarily fail.

The magistrates had received evidence of several visits made by the LPA’s staff who had taken photographs of the number, type and position of several vans and lorry trailers on the land, adjacent to the M62 motorway. The dates of the taking of these photographs were stated as 20 October 2006, 9, 13 and 31 March 2009, and 13 and 22 June 2009. On cross-examination, the Applicant's main witness accepted that there had been no measurements taken of the precise position of the vehicles, nor any notes made of licence plate numbers or trailer markings. The magistrates were not therefore satisfied beyond a reasonable doubt that these vehicles had not been moved between the various visits undertaken by the witness.

The witness further stated that in his view at least in respect of one vehicle the wheels were immobilised, such that it could not be considered to be a vehicle normally employed as a moving vehicle, but rather one that could not be used for any other principal purpose other than advertising, as it was in effect static. In cross-examination, he accepted that he did not have any engineering or mechanical qualifications to hold this view nor could he be certain of his view. The magistrates did not find this to be evidence upon which they could rely to the required standard.

The magistrates upon considering the photographs produced found as a fact that the vehicles and trailers were not the same ones shown in the pictures on all the dates on which they had been taken. In all the photographs there was a 40-foot trailer, but in the earlier photographs it appeared to be white whereas in later ones it was blue. In other photographs, some of the vehicles and trailers were clearly different.

The prosecuting authority provided no evidence upon which the magistrates could make a finding of fact as to whether the 40-foot trailer had or had not been moved during the period of time covering the charges before the Court. Against this, the second defendant when giving his evidence produced documents, which were not successfully challenged, detailing a trailer being exchanged with another from its Shrewsbury base.

The magistrates’ conclusion was that, on the balance of probabilities, both defendants had satisfied the requirements of the exemption from the requirement to obtain consent for the display of the advertisements on the side of the lorries and trailers. They accordingly dismissed the prosecutions.

Although counsel for the appellant prosecutor sought to rely on the decision in Tile Wise, it is clear that the case in Calderdale did not turn on the interpretation of the exemption in the first schedule to the Control of Advertisements Regulations (as it did in Tile Wise); it simply came down to a question of fact and degree. The prosecuting authority had simply failed to prove its case on the facts. The magistrates were therefore entitled to dismiss the prosecutions.

This case may serve to explain why so few prosecutions seem to be brought by LPAs against this type of unauthorised advertising. It is clear that in order to be sure that a conviction will be secured, the LPA will have to be very thorough in gathering its evidence, and must be able to prove that where the photographic or other evidence covers two or more different dates, that evidence does refer to one and the same vehicle, and that if the charges relate to a period of time during which the display of advertisements is alleged to have continued, the vehicle was not moved within that time. This may place an almost impossible burden on LPA enforcement staff seeking to prosecute this type of infringement, but it does underline the fact that prosecutors must prove their case in the Magistrates’ Court or the Crown Court beyond reasonable doubt.


1 comment:

  1. Impossible for planning enforcement staff to garner sufficient evidence to prove the case beyond a reasonable doubt? Well, I think that is perhaps a little insulting. These officers have the power of entry to investigate breaches of planning control and could have reasonably obtained evidence that these vehicles were not normally moving by use of a small amount of paint or chalk on the tyres of the vehicles concerned.