Mr Locke and the 'council's legal position' and dismisal of the 1899 case law.
8th October 2001

THE COVE HOUSE INN, PORTLAND

The Chief Executive has asked me to respond to your e-mail dated 13th September 2001. At the same time I am taking this opportunity to restate the Authority's legal position as regards the requirement to hold a Licence to provide public entertainment as it applies to folk music sessions at the Cove House Inn, Portland.

Licensing of Public Entertainment

As you know the general rule that public entertainment cannot be provided without a Licence is contained in Schedule 1 Paragraph 1 of the Local Government (Miscellaneous Provisions) Act 1982.

For the purposes of the Act the term entertainment applies to 'public dancing or music or any other public entertainment of a like kind'

The Exemptions

The Act contains a number of exemptions which have no application to folk music sessions. More relevant however are the exemptions contained in Section 182 of the Licensing Act 1964 for public entertainment by way of music and singing only which is provided … 'by not more than two performers …'. The Licensing Act does not offer a definition of performer.

Folk musicians at the Cove House Inn have not claimed the Section 182 exemption since they acknowledge that more than two musicians have been involved in the music sessions in question. [See the report, linked to above, where you will see that the council had used S182 exemption, counted, and found it did not apply due to the number of particpants]

It appears to me that the logical conclusion of your argument that folk musicians involved in jam sessions are not 'performers' is that the Section 182 exemption available for "not more than two performers" has no application to their music making which leaves us with the general rule that a Public Entertainment Licence is required.

Case Law

The legal principles that (I) a licence is required for public entertainment provided not only by paid performers but by individuals for their own amusement and (ii) that whether or not a charge is made for admission is immaterial were established in Clarke –v- Searle and Gregory –v- Tuffs (Tuss), respectively. Although both decisions considered statute which predates current legislation and on the facts dealt with public dancing I consider that they are of general application to public entertainment law, not just public dancing, and that they offer useful guidance for the folk music sessions in question.

The legal section has considered the case of Brearley –v- Morley to which, as I recall, you also made reference in your presentation to the Council's Social/Community Committee. The facts of this particular case were that a man was playing the piano in a public room in licensed premises as accompaniment for another man singing a song. A number of other men were sat around talking and listening. All were customers and received no remuneration for the entertainment.

In this appeal case the Court found that the Licensee had not kept or used the room for public entertainment since piano playing or singing by customers was "for the purpose of solacing themselves with music".
Clarke –v- Searle does not appear to have been cited in the case which is unfortunate since the two decisions appear to conflict.

Under current legislation on the same facts the S182 exemption would be available. Although I have not referred to Hansard it might be that the exemption was introduced under the Licensing Act with just such a situation of very small-scale music making in mind.

The advice of the Licensing Section is that this 1899 case, although again useful guidance, is not of itself justification for changing our decision on the requirement to hold a Licence, a decision which has been reached weighing up a number of factors missing from this particular case. [Which are?]

The Council's Position

Where it comes to the attention of the Council that public entertainment is being provided without the benefit of a Public Entertainment Licence on anything more than a one off, accidental basis the Council will intervene to explain and if necessary to enforce licensing legislation.

Having made extensive enquiries we have not identified any other Authority whose position differs from our own. In the context of activities at the Cove House Inn I consider that the action taken by this authority has been lawful, justified and proportionate.

In the absence of a fresh judicial decision or a change in primary legislation this sets the Council's legal position on the point. I must make clear that I am unable to enter into any further discussion on the legal arguments and questions as to the Licence itself must now be a matter between the Council and the Licensee.

I would however be pleased to hear further from you with any evidence you have concerning the impact of the legislation on live music in the Borough so that any representations which may be appropriate can be made to the Local Government Association inviting modernisation of licensing laws.

Ian Locke
Director of Tourism and Corporate Services