Queen's Bench Divisional Court (Lord Justice Balcombe and Mr Justice French).
30 March 1995.
A licence permitting public entertainment at premises may include conditions which regulate the sexual content of any entertainment performed at the premises.
The Divisional Court dismissed the defendant's appeal by way of case stated from the metropolitan stipendiary magistrate's decision that the council's Rule of Management No 4 was lawful.
The defendant was granted an entertainment licence for public dancing and music, subject to rule 4 which provides that no form of performance should take place which would require that the premises to be licensed as a sex establishment as defined in paragraph 3A(a)-(d) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, as amended. He was charged with breaches of rule 4.
The defendant appealed on the ground that the rule was unlawful and outside the powers of the London Government Act 1963 as amended, by which public entertainment was licensed.
Jonathan Harvie QC and Charles Salter (Wilson Barca) for the defendant; Jeremy Carter-Manning QC and John Greaves (City Solicitor) for Westminster City Council.
LORD JUSTICE BALCOMBE said that the 1982 Act dealt with the control of sex establishments.
It was a term of the defendant's music and dancing licence that no form of performance or service entertainment should take place which would include any of the activities listed under paragraph 3A(a)-(d) of Schedule 3 to the 1982 Act as amended.
Those activities included the matters to which the defendant in the case had pleaded guilty - young women masturbating themselves on stage or simulating masturbation - but would also include mere nudity on stage.
The defendant submitted that under the 1982 Act premises licensed for public entertainment were exempted from the requirements of a sex establishment licence and Parliament accepted that some nudity was acceptable and permissible in the course of a performance for which an entertainment licence was necessary, so that by prohibiting all the matters listed in paragraph 3A, rule 4 was ignoring the intention of Parliament.
His Lordship did not agree. The plain purpose of the proviso to paragraph 3A was that Parliament considered that a licence under the 1963 Act gave the local authority sufficient control over the purposes for which the premises were used, and therefore not only was it unnecessary that they should also be licensed as a sex establishment, but it was undesirable that one set of premises should be the subject of two con- current licensing regimes. Where an entertainment license was in force, the conditions attached to that licence could properly regulate the sexual content of any entertainment performed at the premises.
The magistrate was right in ruling that rule 4 was neither unlawful nor ultra vires the 1963 Act.