Just to keep folk up-to-date. The following letter is from me.

December 9 2003
Dear Councillor Ellis
Report for the members of the Licensing Committee:
Members of the public as 'performers' re S 182 of The Licensing Act 1964.

Just to confirm that on the 28 November 2003 a three-way meeting was held in the council offices between – you, myself and Helen Livesey – Council Legal Officer. It was agreed at this meeting that the officers would prepare a report to be submitted to the next (December) meeting of Weymouth and Portland Borough Council's Licensing Committee. No date has yet been given for this meeting.

The purpose of this report was to advise the Committee (as the local Licensing Authority) with a view to changing the current broad interpretation of the word 'performer' to a narrow one like- one paid to perform ( to an audience)

The officer's report for the meeting set for 9 February 2004 contains one recommendtion. To affirm the contents of a letter dated 18th December 2003 from Ian Locke, Corporate Director (Community Services) to Jim Knight MP.

This is a copy of that letter sent in reply to the following question from Jim Knight MP. "I would be grateful for your time in responding to my constituent's questions. Is the council willing to review its current policy regarding entertainment at the New Star?" I will leave you to judge whether this question has been answered. The point being is that if the Committee do as the officer's recommend and affirm Mr Locke's letter - the whole issue will have been cleverly side-stepped - yet again.

18 December 2003 Dear Jim

Your letter of 11th November 2003 has been passed to me by Tom Grainger and I am grateful to you for your forbearance which has allowed me to research the matter extensively.

It might perhaps assist if I firstly set out the provisions which currently apply to public entertainment licensing. As you may already know, current licensing of public entertainment is governed by Schedule 1 of the Local Government (Miscellaneous Provisions Act 1982.

The effect of paragraph 1 is to require a local authority to licence any place where public dancing, music or other public entertainment of a like kind occurs subject to certain exemptions (none of which relate to music being performed in a public house). It is therefore the premises and not the performers who require the licence and there is no exemption within the act for performances which are provided free of charge to the public.

Interestingly, one of the exemptions to the licensing requirement is in respect of public entertainment held on private land wholly or mainly in the open air. It is possible to sensibly conclude that Parliament enacted the licensing of premises, rather than performers, for the purpose of ensuring the safety of the public who are likely to be present in those premises when the public entertainment takes place, as opposed to public entertainment on open land where the public would have quick and easy opportunity to leave should any problems occur during the course of the entertainment.

Mr Gall makes reference to a court decision from 1899 where impromptu performances by customers were not licensable. However, the 1982 Act specifies the nature of the entertainment to be licensed and does not provide any exemption for "free" entertainment: if the activity proposed is within the statutory category whether it is free of charge to those attending is irrelevant.

He also refers to the "two in the bar rule" introduced by Section 182 of the Licensing Act 1964, exempting music and singing in licensed premises either solely by reproduction of recorded sound or no more than two performers. The Courts have interpreted this exemption extremely narrowly and in a 2002 decision (case of Sean Toye v Southwark London Borough Council, (extract of which is enclosed) held that even karaoke entertainment necessitated the premises to be licensed. Again, the question of payment for performance was irrelevant to the outcome of this case.

Mr Gall may be comforted by the fact that Section 177 of the Licensing Act 2003 will, (providing the requirements contained within sub-sections (1) and (2) of it are met) mean that unamplified live music or facilities to enable persons to take part in it, will not require to be licensed. However, the implementation of this Act has been greatly delayed and it is now expected that the earliest date the new licensing provisions will come into effect will be June 2004 and it may even be as late as September of that year.

As you will appreciate the Council has to act within its statutory powers and has no discretion to apply the legislation other than in the format which it is. As it currently stands enacted the playing of live music (amplified or not) which does not fall within the two categories contained within Section 182 of the Licensing Act 1964 will require the premises to be licensed and the Council would be acting ultra vires if it determined otherwise. I understand that this may be frustrating for Mr Gall but until Section 177 of the Licensing Act 2003 is brought into force, the Council can only proceed in accordance with existing statutory provisions and case law in respect of all premises within its district where public entertainment is proposed to occur.

I trust I have set out the Council's position clearly but if you require further information, please do not hesitate to contact me.

Yours sincerely

IAM LOCKE CORPORATE DIRECTOR (COMMUNITY SERVICES)   

Hamish Birchall has sent the following letter to Jim Knight MP and copied this to Mr Locke.

Dear Jim

I refer to your letter to Roger Gall dated 14 January 2004, and Ian Locke's letter to you, ref DCS, dated 18 December 2003.

I am sorry to see at this advanced stage of debate that both you and Mr Locke persist in fundamental misunderstandings about the present and future law relating to the performance of live music. Mr Locke's errors are the more serious because they appear to be the basis for an active council policy, and may have mislead councillors and the public, albeit unintentionally.

Mr Locke is quite simply wrong to say that the council has 'no discretion' in its application of the existing law. I attended the Toye case at the High Court on 21 February 2002. Toye v Southwark has not determined that s.182 of the Licensing Act 1964 means only the same two performers are allowed (whether paid or not). After the judgement, one of the two judges made 'obiter' comment supporting that particular nuance of interpretation. The other judge did not share that view. In any event, obiter is not persuasive, or indeed necessarily relevant to the question about whether members of the public automatically count as 'performers' under s.182 if they sing or play music together informally in a pub.

Nor indeed has the Toye case determined that 'even karaoke necessitated the premises to be licensed'. The reason karaoke is licensable (and the courts had pronounced on this some years before Toye) is simply because s.182 explicitly and unambiguously disallows the combination of a live singer and the reproduction of recorded sound.

What the Toye case principally considered was whether the use of digitally encrypted instructions (i.e. MIDI) constituted 'the reproduction of recorded sound'. Against all the expert testimony, the court found that MIDI did constitute the reproduction of recorded sound, and the entertainment was thus licensable. Incidentally, the judges' interpretation of the expression 'recorded sound' is so broad that it covers even sheet music. Sheet music is without question a form of 'recorded sound'. It can be played by a PC equipped with a scanner and the appropriate software. This in turn means that one musician reading sheet music is a combination of live performance and the reproduction of recorded sound. Such entertainment in liquor licensed premises is, therefore technically licensable. Since Mr Locke is so keen to enforce the law 'as it is' I wonder why he is equally keen to enforce this effect of the Toye judgement?

Mr Locke is wrong again about the 1899 precedent in which a licensee was found not guilty of providing unlicensed public entertainment (Brearley v Morely). The law report did not refer to 'impromptu' music sessions. It clearly states that the music was a regular, weekly (and sometimes twice weekly) event. This very important point was brought out very clearly by Robin Allen QC in his opinions about the incompatibility of s.182 and Article 10 of the European Convention on Human Rights.

So, Mr Locke's arguments and conclusions are based on basic misunderstandings about the present law. In spite of the Toye case, s.182 remains open to interpretation. Moreover, as Mr Locke well knows, where there is a potential conflict with European Convention rights, the council is bound by the Human Rights Act to read and give effect to the existing legislation so far as possible compatibly with those rights. In other words, the council has a statutory obligation to adopt the more relaxed interpretation.

Lastly, both you and Mr Locke have made a fundamental mistake about s.177 of the Licensing Act 2003. It does not exempt premises from being licensed to host performances of live music, whether amplified or unamplified, professional or amateur. All it does is offer a limited alleviation from potential licence conditions in certain circumstances. Before this concession may be applied, the premises must still obtain the licensing permission to host performances, or they will be illegal. You of all people should remember this, Jim. You participated in the Commons licensing committee and took a close interest in the debate.

There might be some progress with Weymouth council if Mr Locke would say whether he can specify any risk arising from the performance of informal, unamplified live music in a pub that cannot be addressed by subsisting legislation, irrespective of entertainment licensing. Perhaps you might write to him putting that question.

Yours sincerely
Hamish Birchall

I will inform you of the outcome of this meeting - but I am not very hopeful.