Court of Appeal (Lord Justice Roch and Lord Justice Ward). 16 March 1995.
A basement peep-show, in which the customer watched through the window of a booth a sexually explicit display by one or more naked women against a background of loud pop music, did not constitute the "music or public dancing" for which it was licensed and should instead have been licensed as a "sex encounter establishment".
The Court of Appeal dismissed an appeal by the plaintiff, Willowcell Ltd, against the dismissal by Sheila Cameron QC, sitting as a deputy High Court judge on 18 February 1994, of its application for summary judgment with damages to be assessed, for an alleged trespass by the defendant, Westminster City Council.
The plaintiff was tenant of premises at 24 Great Windmill Street, Soho, in the basement of which it operated a peep-show. It had a music and dancing licence, issued under section 52 and Schedule 12 to the London Government Act 1963.
Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 (as amended by the Greater London Council (General Powers) Act 1986) provided by para 3(A) that, "no premises which are (i) licensed under Schedule 12 to the London Government Act 1963 ... and which are for the time being used for a purpose for which a licence is required under that Act ... shall be regarded as a `sex encounter establishment'."
A "sex encounter establishment" was defined in para 3(A) as including: "(c) Premises at which entertainments which are not unlawful are provided by one or more persons who are without clothes, or who expose their breasts or genital, urinary or excretory organs during the entertainment".
In this case Westminster's licensing and enforcing officer, exercising powers conferred by para 25 of Schedule 3, entered the plaintiff's premises with a warrant and seized certain items of property which he intended to ask the court to forfeit.
The plaintiff argued that issue and execution of the warrant were unlawful and the officer was trespassing, because no offence was or had been committed: the premises having a music and dancing licence, by virtue of the proviso to para 3(A) of Schedule 3, they did not require a sex establishment licence.
Charles Salter (Wilson Barca) for the plaintiff; Jeremy Carter-Manning QC and John Greaves (Colin T Wilson) for Westminster.
LORD JUSTICE ROCH considered the evidence of what took place in the plaintiff's basement. There were booths from which a customer, having put coins into a meter, could look through a window on to a small stage area where one or more young women, normally naked above the waist and sometimes also naked below, gyrated while caressing themselves and caressing in particular their breasts and vaginas. Whilst these movements were made, loud music was played. As more coins were placed in the box, the display became more explicitly sexual. The officer had described the young women sitting on chairs or stools and either masturbating themselves or simulating masturbation.
It was argued that these activities, considered in their entirety, were within the definition of "music or public dancing or public entertainment of the like kind" in the 1963 Act and therefore permitted by their licence.
But in his Lordship's judgment, looking at the realities of the situation, the activities of these young women, in the context of how they were viewed did not fall within the licence obtained by the plaintiff, because they were neither music nor public dancing nor public entertainment of the like kind.
Accordingly, the plaintiff's premises were not then being used for a purpose for which their music and dancing licence was required. They were being used as a sex encounter establishment for which no appropriate licence had been granted, contrary to para 20 of Schedule 3. The warrant and its execution were lawful.
LORD JUSTICE WARD concurred.
Paul Magrath, Barrister