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The following case is a by product of the (Dereham v Strickland) case of (1911) where a bye-law prohibited touting for hackney carriages in any public thoroughfare, it was held in that case that the respondent committed an offence though he stood at the time on a private piece of land adjoining the street and belonging to private persons.
This case highlights the wide application of the law with regard to touting even though these two cases involved byelaws.
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[1949] Mcquade v Barnes
KING'S BENCH DIVISION
LORD GODDARD CJ, HILBERY AND BIRKETT JJ
30 NOVEMBER 1948
Street – Touting – Prohibition – Touting “in any street” – Touting from forecourt of shop – Construction of bye-law – Intention of local authority.
By a byelaw made by the corporation of the borough of Blackpool it was provided: “No person shall in any street within the borough of Blackpool, to the obstruction, annoyance, or danger of any person, either verbally or by the distribution of handbills, circulars, or advertisements, tout or importune any person for the purpose of selling any article to or of obtaining the custom of such last mentioned person.”
On 5 June 1948, the appellant stood on the forecourt of shop premises known as No 25, The Promenade, Central Beach, Blackpool, calling out in a loud voice to persons passing along the promenade: “Come inside. This way for your fish and chips. No waiting.” Fried fish and chipped potatoes were being sold on the premises which were occupied by the appellant. The cries were audible on the other side of the promenade, and they annoyed several persons walking on the promenade who deviated from their path to avoid the appellant's shouting. The carriageway and footpath of the promenade together constituted a public thoroughfare. The forecourt where the appellant was standing was private property, but it immediately adjoined the public footpath and normally was not enclosed or divided from the footpath, being open to the public for the purposes of approaching the premises.
Held – The byelaw must be so construed as to give effect to the intention of the authority which made it, and, so construing it, the appellant had committed an offence although he, himself, had not been standing in the street.
Dictum of Lord Alverstone CJ in Dereham (Derham) v Strickland (1911) (75 JP 300; 104 LT 821), applied.
Cases referred to in judgment
Derham v Strickland (1911), 104 LT 820, sub nom Dereham v Strickland, 75 JP 300, 42 Digest 862, 144.
Case Stated
Case Stated by Blackpool justices.
The appellant was convicted on an information preferred by the respondent, the chief constable of Blackpool, charging that he in a street “unlawfully and to the annoyance of persons did tout for the purpose of obtaining the custom of persons, contrary to the borough byelaws.” It was contended for the appellant that the forecourt of shop premises where he stood was not part of the street. The justices were of the opinion that the offence was proved and convicted and fined the appellant. The Divisional Court dismissed the appeal. The facts appear in the headnote and the judgment of Lord Goddard CJ.
R Lambert for the appellant.
Vernon Gattie for the respondent.
30 November 1948. The following judgment was delivered.
LORD GODDARD CJ.
This is a Case stated by justices for the borough of Blackpool by whom the appellant was convicted of “unlawfully and to the annoyance of persons” touting “for the purpose of obtaining the custom of persons, contrary to the borough byelaws.” The byelaw in question provides:
“No person shall in any street within the borough of Blackpool, to the obstruction, annoyance, or danger of any person, either verbally or by the distribution of handbills, circulars, or advertisements, tout or importune any person for the purpose of selling any article to or of obtaining the custom of such last-mentioned person.”
The appellant was employed by the owner of a shop which adjoins the street. There is no physical division between the shop and the street, nor do I think it would make any difference for the purpose of the present case if there were a rope or a fence dividing them. The appellant stood on the forecourt of his shop and touted to people in the street to come in and have some fish and chips. If the true construction of the byelaw is that persons in the street shall not be touted, then the appellant committed an offence although he did not actually stand in the street, and, in my view, that is the obvious meaning of the byelaw. It is possible to read it in one of two ways—either, that the tout must be standing in the street or that he must be touting people in the street. We must so construe a byelaw as to give effect to the intention of the authority which made it just as we must construe a statute so as to give effect to the wishes of Parliament, and if we gave to this byelaw the meaning for which the appellant contended it would mean that to a great extent the byelaw would be waste paper.
I cannot distinguish this case from Derham (Dereham) v Strickland, where the same thing happened except that the piece of land on which the man who was touting stood and which was open to the public and had been declared part of the highway belonged to an owner who had given him permission to stand there. Lord Alverstone CJ (delivering the judgment of the court), said (75 JP 300):
“They [the justices] must consider whether the respondent was touting in the street. There seems to be no doubt about it, for he stood on a piece of ground adjoining the street. If he was standing practically at the corner of the pavement, the fact that the title to the land on which he stood was in private hands does not prevent what he did from amounting to touting in the street.”
That is exactly what happened in the present case. The decision in Derham (Dereham) v Strickland gave to the byelaw there exactly the same effect as we are giving to the byelaw in this case by reading it as meaning: **“No person shall tout or importune any person who is in any street.” In the present case such persons were importuned.** The justices find that they were annoyed, and, therefore, in my opinion, the justices came to a right decision and this appeal should be dismissed with costs.
HILBERY J.
I agree.
BIRKETT J.
I also agree.
Appeal dismissed with costs.
Solicitors: Bentleys, Stokes & Lowless agents for Baden Barnes & Co Blackpool (for the appellant); Sharpe, Pritchard & Co agents for Trevor T Jones, Blackpool (for the respondent).
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