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Busker counts cost of appearance on the Tube

The normally staid surrounds of the High Court in London were enlivened by the sound of music yesterday in a challenge to the ban on busking at London's underground stations.

A motley band gathered in the Strand to back fellow musician Franco de Cristofaro, a 48-year-old Italian saxophonist, drummer and member of the Magic Circle. Funded by the London Public Entertainers' Collective, de Cristofaro was asking for a conviction at Bow Street magistrates court for breaching London Transport (LT) by-laws to be overturned.

Mr Justice Newman, sitting with Lord Justice Pill, dismissed the appeal, but despite the defeat de Cristofaro and his supporters were heartened when LT announced it was examining the by-laws which prohibit the playing of musical instruments, gramophones and wireless apparatus on the tube network.

The High Court heard how de Cristofaro was found playing the drums with a four-piece band at Piccadilly Circus station in March last year. Tim Clerk, for the musician, said an offence was caused if the general public were annoyed, but there was no evidence of this. A separate by-law prohibited begging or "soliciting for reward", but de Cristofaro had not asked for any money, although two people were spotted dropping coins in his open drum case and a colleague had been shaking a tin, in the manner of a maraca.

The band was simply playing music and "if people are pleased enough with it, people give money", Mr Clerk said. But Peter Ader, for British Transport Police, said an explicit request did not have to be made for soliciting to take place.

Afterwards, de Cristofaro, of Camden, north-west London, said: "I'm very sad because we are genuine buskers. We never harass people for money. We play our music, we are good entertainers." He would return to busking to pay the pounds 2,000 or more he still owed in fines.

Two other buskers, Mike Kay and Jeremy Helm, will argue at the European Court of Justice in Strasbourg that the LT ban on busking is a breach of the human right to artistic expression.