A response to Graham's analysis of 19 December 05, 09.09am, concerning whether or not musicians may be liable to prosecution under the Licensing Act 2003.

Graham, you are wrong on several counts. Musicians having an organisational and/or managerial role in the provision of regulated entertainment can be prosecuted in certain circumstances. This possibility was the case under the old legislation, and was deliberately preserved in the new Act.

Apart from the descriptions of regulated entertainment, and the necessary licensing conditions for same set out in Schedule 1, the relevant sections of the Act are not 16 or 200 but s.136 'Unauthorised licensable activities' and s.139 'Defence of due diligence'.

Under s.136(1) you will see that 'a person commits an offence if - (a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or (b) he knowingly allows a licensable activity to be so carried on.'

The expression 'licensable activity' is defined right at the start of the Act in s.1. It includes the provision of regulated entertainment [s.1(1)(c)].

S.136(2) states that 'Where the licensable activity in question is the provision of regulated entertainment, a person does not commit an offence under this section [i.e. under s.136] if his only involvement in the provision of the entertainment is that he - ... (d) performs live music...' [Note that I have omitted the full list of activities in which someone may participate without committing an offence].

Clearly, a musician who helps to organise and manage a gig, liaising with the venue, other performers and so on, is doing more than 'only' performing live music. In those circumstances the possible s.136(2) defence would not apply.

There is of course the 'due diligence' defence in s.139 which, in summary, excuses potentially culpable persons if they have taken 'all reasonable precautions' to avoid committing an offence. This might mean, for example, that they had phoned the venue and local authority to double check that the necessary authorisations were in place, but they were given the wrong information.

Moving on to Schedule 1, admittedly it can get a little tricky here, but given that you are already familiar with this part of the Act, suffice it to say that a musician having an organisational and/or managerial live gig role is doing much more than is set out in para 1(6). In other words, they cannot claim they are 'not concerned in the organisation or management of the entertainment' under this sub-paragraph.

Inevitably, therefore, there are many likely scenarios where musicians who organise, or who help to organise, live gigs may commit a criminal offence if they don't first 'take all reasonable precautions' to establish whether or not the venue is appropriately licensed.

The rationale for this approach was, I think, simple. The organisation and management of regulated entertainment is often shared between the venue, agent and performer. It therefore makes sense that all concerned may face prosecution, if you accept the government argument that licensing regulated entertainment is necessary to prevent crime and disorder, control noise, ensure public safety, and to protect children from harm.

Hamish








In s.136 you will