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Unlawful seizure of a table and other bits


Yes, we do have a large backlog of cases to write up, thank you so much for noticing. We will get there, honest. Things have been very busy. In the meantime, a couple of snippets of interest.

On 5 December, a Newham Council officer, together with police, seized a table from the regular Saturday street campaign of Focus E15 – the housing rights protest group. The seizure was stated to be under London Local Authorities and Transport for London Act 2003. The trouble for Newham is that the relevant sections of the LLATLA provide, at Section 17:

(2)If the highway authority are satisfied that—
(a)things are deposited unlawfully and persistently on any part of the highway to which this section applies; and
(b)the depositing of the things is caused by persons having control of or an interest in a business carried on in premises in the vicinity of the part of the highway concerned,the highway authority may serve a notice under this subsection (“a subsection (2) removal notice”) on any person having control of or an interest in the relevant business.
(3)A subsection (2) removal notice shall—
(a)state the date on which it shall come into effect (which shall be no sooner than the date on which the period of 7 days beginning with the date of service of the notice expires);
(b)state the date on which it shall expire (which shall be no later than the date on which the period of 28 days beginning with the date on which it comes into effect expires);

It is hard to see any way in which Focus E15 could in any way be described as a business for the purposes of s.17(2). And it appears that no notice under s.17(3) was served, giving the seven days required. And I can’t see any argument that the table amounted to a thing “deposited on the highway so as to cause a danger” per section 149(2) of the Highways Act 1980, so as to allow immediate removal under s.17(7).

As far as I can see, this means that the seizure of the table was unlawful and would amount to a trespass to goods. The appearance given by Newham of bullying campaigners through unlawful actions is not attractive. Any explanation or response from Newham Council will of course be added here.

I am reminded of the moment when – while I was acting for Focus E15 Mothers pro bono over a year ago – Newham’s rather embarrassed solicitor called me to say that they had been instructed by the Council to tell me ‘to be careful what I tweeted because I was walking a fine line’. Of course, they couldn’t tell me which of my tweets were ‘walking a fine line’ (none were), or what the unspoken ‘or else’ was. I was hugely amused, but it was an unusual approach.

A petition has been launched, calling on Parliament to readdress legal aid funding and in particular the effects of LASPO. While the immediate prospects are far from good, it is important to keep the effects of LASPO visible, not least the extensive additional costs to central and local government that resulted from cutting early intervention advice funding amongst other things.

On a related note, the Court of Appeal overturned the three judge Admin Court decision on the unlawfulness of the legal aid residence test, in Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193. Bluntly, the Court of Appeal found that the residence test regulations were vires via s.9 read with s.41 of LASPO. And, while discriminatory under Article 14 and Article 6 ECHR, were not ‘manifestly without reasonable foundation’ as per the level of test in Stec v UK.

The Supreme Court probably beckons…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. Nick

    Well done Giles, it is refreshing to see those who allow a little power to go to their heads get reminded how the title “Public Servant” got it’s name.



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