Final Decision By Mrs Justice Patterson

Final Decision By Mrs Justice Patterson

Before :

MRS JUSTICE PATTERSON

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Between :

 

 

KEEP STREETS LIVE CAMPAIGN LIMITED

Claimant

 

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LONDON BOROUGH OF CAMDEN

Defendant

 

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David Wolfe QC (instructed by Leigh Day) for the Claimant

Clive Sheldon QC and Leo Charalambides (instructed by London Borough of Camden) for the Defendant

 

Hearing dates: 27th and 28th February 2014

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Approved Judgment

Mrs Justice Patterson :

Introduction

  1. This is a claim for judicial review of a decision of the London Borough of Camden (the Defendant) made on 11th November 2013 to adopt part V of the London Local Authorities Act 2000 and to approve a street entertainment policy (the policy) the effect of which is to licence busking in the area of Camden.
  2. The Claimant is a not for profit advocacy organisation which campaigns nationally and locally for policies that support the use of shared public spaces for informal performances of music and other forms of art. It seeks to offer advice, support and training to street artists and performers from a wide variety of backgrounds on the best way to interact with other users of shared public spaces and public officials. The claimant offers support also to local authorities who wish to develop co-operation with street artists and performers. It supports appropriate and focused action by authorities to deal with people and situations when entertainment in public places can be said to cross the thresholds of impermissibility as set by law.
  3. The challenge has been condensed into three grounds. They are

i)               that the definition of busking in the policy is too wide so that it is impossible to know with sufficient clarity and certainty whether a street entertainment licence is needed.

ii)             that the policy has been adopted on an unlawful basis

iii)            that the policy breaches the Human Rights Act in that it seeks to introduce a scheme which is disproportionate.

  1. To those grounds the Defendant contends

i)               that the definition of busking is in conformity with primary legislation;

ii)             that the claimant has misunderstood the statutory scheme. Section 33 of the London Local Authorities Act 2000 (the 2000 Act) does not set preconditions for licensing the whole of the Defendant’s area. But, in any event, the Defendant made its decision on sufficient evidence and had reason to believe that the inconvenience/nuisance caused by busking was, or was likely to be, borough wide.

iii)            that the licensing scheme adopted by the Defendant is an entirely proportionate means of addressing concerns raised by busking in the Camden area. It is a ‘light touch’ response which has minimal interference with the busker’s freedom of expression.

  1. The papers came before Mrs. Justice Carr on the 6th January 2014 when she gave case management directions. By consent, on the 10th January 2014, the parties agreed to vary that order to include provision for a rolled up permission and substantive hearing. That is how the case comes before me.
  2. For reasons set out below I grant permission to bring judicial review proceedings but dismiss the substantive application.

Factual background

  1. On the 23rd October 2013 the Director of Culture and Environment of the Defendant took a report on street entertainment to the Cabinet. The report was to go then before the Licensing Committee on the 29th October for consideration and full Council on the 11th November 2013 for determination. The report was summarised as follows,

“The report sets out a proposed approach to license busking in Camden through the adoption of relevant legislation and the creation of a new policy. It is intended to allow busking to continue but to reduce resulting negative impacts for residents, businesses and visitors. The report includes a proposal to adopt Part V of the London Local Authorities Act 2000, which will enable the council to licence busking and apply conditions to busking licences that are issued.

The draft policy responds to the Camden Plan priority of creating sustainable neighbourhoods by recognising residents need to enjoy their environment. The draft Policy also takes into account the priority of harnessing economic growth by creating a light touch regulatory framework that permits most street entertainment to take place, while taking a proportionate approach on necessary restrictions.”

  1. The Report makes it clear that the Defendant had received sporadic complaints in the past about busking in various areas of the borough which averaged about 6-10 each year. Between the 1st October 2012 and the 30th September 2013 there was an escalation in complaints received and the Defendant’s noise service logged some 100 complaints about busking.
  2. The Camden Town police and Safer Neighbourhoods Team recorded also an increase in the numbers, noise levels and regularity of busking activity. They sought assistance from the Defendant to address issues of associated criminal activity including pick pocketing and public safety. In response “busking patrols” were provided by noise enforcement officers on the part of the Defendant and the police working in partnership. Those started on April 29th 2013 and continued until the end of September 2013. Although effective the patrols were felt by both parties to be a short term measure only as they were resource intensive.
  3. As a longer term solution the Defendant has sought to introduce a policy under the 2000 Act which, when a Council has resolved to apply part V of the 2000 Act, provides a power for London Councils to license busking activities either across its entire area or in certain specified streets.
  4. On the 7th August 2013 a special meeting of the Licensing Committee was held to discuss the issue. It decided to carry out public consultation on a draft street entertainment policy. In general terms that required all buskers to be licensed unless they were in a class that was specifically excluded. Consultation on the draft policy took place between 30th August 2013 and the 4th October 2013.
  5. On the 18th September 2013 the draft policy was considered by the Culture and Environment Scrutiny Committee which recommended some amendments to the wording of classes of exempt entertainment. The original draft policy had contained an option for specific street designation. That was not pursued in the final draft. The better course was thought to be to obtain a resolution for Part V of the 2000 Act to cover the whole of Camden.
  6. The report reviewed the public consultation exercise. A total of 152 responses was received with mixed views on the proposals. Further responses were provided by the police.
  7. The report set out what it described as options for the decision makers –

i)                To adopt Part V of the 2000 Act and for this to apply to the whole borough.

ii)             To exempt entertainment that is unlikely to cause a nuisance or may need other forms of permission or approval.

iii)            To prescribe standard conditions that would include permitted hours and were intended to prevent nuisance and obstructions. To allow greater flexibility the conditions were not to limit where performance could be undertaken but to place the onus on the busker to ensure the location was suitable for their performance.

iv)            To prescribe an application process that was in two parts. Where an applicant was willing to meet the standard conditions he/she could be granted the licence quickly and at a low cost. Where an applicant sought to change the standard conditions that could be done but at a higher fee due to the increased level of work in determining the application.

v)             To set a licence fee on a cost recovery basis.

  1. The report noted the links to the Camden Plan Objectives. That is the Core Strategy for the borough and has as a priority, the creation of sustainable neighbourhoods by recognising residents’ reasonable expectation to enjoy their environment.
  2. The complaints about busking focused on Camden Town but extended to Russell Square, Finchley Road, High Holborn, Hampstead High Street, Kings Cross, Shaftesbury Avenue and Neal Street. The instruments used varied from an amplified electric guitar, amplified violin, drums and saxophone. The number of buskers varied also from a three-piece band with amplification to a couple of drummers and a single busker.
  3. Chief Inspector Penelope Mills, the partnership lead for Camden Police, wrote, as part of the consultation process, that she had been working with partners since August 2012 to understand the issues of street entertainers from the cultural and community aspect. As a result she wholeheartedly supported the licensing of buskers within Camden Borough. In her response to the consultation question about whether Camden should adopt the Act to regulate busking she said,

“There has been growing concern from an increasing number of residents over the size and level of noise generated by those “busking” in and around Camden Town. To my knowledge from the summer of 2012 when I arrived at Camden but it may have been an issue before this time. It has meant designating officers’ time to deal with the issues which are at the heart of the community and diverting them away from the detection and prevention of crime in the town centre. In addition, serious concerns have been raised about the safety of the visitors to Camden Town throughout the day and night as a result of some of the “entertainment” which has included fire breathing and fire juggling… Since May 2012 police and partners have worked hard to deal with inappropriate busking within Camden Town Centre, the result of this work has seen buskers moving further away including locations in Hampstead and outside Holborn tube station which have never previously been a cause for concern. I therefore feel that it is imperative to prevent busking dispersal and that the whole borough is included in the legislation… The current situation regarding legislation to deal with buskers in Camden is inadequate. Officers are using such powers as highway obstruction to move buskers on and if there is no actual obstruction they are often limited to using good communication and being persuasive…. The growing presence of buskers and unlicensed street traders is changing the character and nature of the town centre and are attracting large crowds that have become a target of opportunistic criminals as well as organised criminal networks. On occasion pedestrians walking past such crowds have been forced to walk in the carriageway which is wholly unsuitable and dangerous in the line of oncoming traffic…. It is recognised that performing arts can bring diversity and richness to an area, but this has to be balanced against the risk posed to pedestrians moving in a confined space. The risk of injury to the public from a road traffic accident and the diminishing quality of life for local residents and businesses created by these unregulated acts and traders has led to the situation where police believe the implementation of the legislation is absolutely necessary and should not be delayed.”

  1. Police Inspector Brooker, the inspector with responsibility for neighbourhood policing within the central cluster of Camden borough, responded during the consultation process also. He said,

“I am aware of a large volume of public complaints for the Camden Town Centre area. These complaints have come from members of the community via email, letters or in person to my staff whilst out on patrol. They state that the noise disturbs their ability to sleep and impacts on their general quality of life. Complaints got to such a level that our partnership response was to instigate joint patrols with the council noise enforcement officers every week late into the night on Wednesday, Thursday, Friday and during the day on Sat/Sun. This is a short term solution that is extremely resource intensive… the impact of the joint patrols has been positive and has been well received by the community. I have had many emails thanking us for listening and reacting to their concerns. Since the joint patrols in Camden town centre we have noticed displacement to other parts of the borough, two recent examples being Kingsway WC1 and outside Barclays Bank in Hampstead High Street. Kingsway being the very southern part of the borough and Hampstead to the north. Such displacement I feel is evidence to support the need for this policy to be applicable across the whole of the borough.

The law – it is vital in any enforcement of any law that it is applied consistently and fairly. At present my staff work with the noise enforcement team and engage buskers but move on “extreme buskers”. The term “extreme buskers” has been adopted for those causing obstruction or making too much noise, by example, using amplification. This is a term open to interpretation and therefore what one police officer may see as extreme another may not which has led to some inconsistency and even complaints from the buskers about fairness. If buskers are licensed under this proposal an officer can request a copy of their licence and enforce the law as documented on that licence ensuring fairness and consistency.

10am-9pm– I support the times of this proposal which support the times at which members of the community feel are appropriate. I have had complaints that document antisocial behaviour from buskers in the early hours of the morning. 11 hours is sufficient time to enable our street entertainers to perform and crucially maintain the unique culture of Camden.”

  1. On the 29th of October 2013 the Licensing Committee met to consider the report on street entertainment. Mr Walker, the founding director of the Claimant, made a deputation on their behalf as did Mr Mann from the Musicians Union and three local residents. The Committee resolved to recommend to the full Council to adopt Part V of the London Local Authorities Act 2000 and to approve the policy.
  2. The report was considered by the full Council on the 11th November 2013. Mr Walker, again, had the opportunity to address members of the council about the proposed policy which he took up. There was a deputation also from a Mr Roy Walker in favour of street entertainment regulation. Members asked questions of both deputations and a response was given by the Cabinet member for Community Safety. The Council heard also from the Chair of the Licensing Committee. There was a full debate.
  3. The section of the report entitled Legal Implications (comments from the Borough Solicitor)  reads as follows:

“10.1 If Members wish to adopt the provisions of the Act, evidence would be needed to show that busking has been, is being or is likely to cause nuisance or an obstruction to the highway. Once adopted the Council would have grounds to refuse, cancel or revoke a licence and also to impose conditions and restrictions on a licence.

10.2 Any person who is refused a licence or is aggrieved by any term, condition or restriction on or subject to which a licence is held or their licence is revoked has a right to appeal to the Magistrates Court. Any person busking without a licence or in breach of a licence condition could have their equipment seized and would be guilty of an offence liable to a fine of up to £1000 if found guilty.

10.3 The Human Rights Act incorporates key articles of the European Convention on Human Rights under domestic law. Members are advised to consider the relevant rights that are summarised in appendix 4.

10.4 The Convention guarantees certain basic human rights. As far as possible, legislation (including the licensing laws) must be interpreted in conformity with Convention rights. Decisions on licensing matters are actions of a public authority and must be compatible with convention rights. Consequently members of the committee must be aware of the rights contained in the convention when making licensing decisions.

10.5 Members are advised to consider the relevant rights that are summarised in appendix 4.”

  1. Appendix 4 referred to what were seen as key articles which included Articles 8, 10 and 14 of the ECHR.
  2. The minutes of the meeting of the full council record that members had divergent views. A member stated that in his opinion busking was a significant benefit and whilst he acknowledged that there were concerns about the night time economy the policy proposed was counterproductive and too wide in its area of implementation. Another member stated that, having undertaken a walkabout in Camden Town, there was a significant problem that needed to be addressed. He supported the policy as he felt it protected local residents and businesses. Other members stated that busking was causing significant problems and direct intrusion for local residents so that there was a need to take action. They were clear that the Defendant was seeking only to regulate busking and not to ban it. Some members expressed the view that the policy was far too wide ranging and unenforceable whilst others thought that not implementing the policy would simply prolong the problems for local residents.
  3. The Chair of the Licensing Committee responded to the various concerns raised. His response was that it was not possible to use noise nuisance legislation as busking performances were normally ad hoc and did not occur in fixed locations. Restricting the policy to Camden Town only would simply shift the problems to other areas of the borough. Self regulation had not worked and the cost of a busking licence was very cheap compared to other forms of licence.
  4. Section 4 of the Policy was entitled “Entertainment that doesn’t need a busking licence”. It reads,

“4.1. Noise created by street music and amplification equipment is one of the principle reasons for Camden adopting the powers to licence busking. It is not considered necessary to regulate other forms of entertainment at present, although all performers are asked to consider Camden’s Code of Conduct set out in Appendix D.

4.2. Camden has determined that the following classes of street entertainment do not require a busking licence under the Act:

a) Performances of mime and similar performance, including living statues except where the performance incorporates musical instruments and/or amplification (amplifiers, loud speakers, megaphones or any similar equipment);

b) Performances of juggling (with balls, clubs or rings, but not knives, sharp objects or live flame) except where the performance incorporates musical instruments and/or amplification (amplifiers, loud speakers, megaphones or any similar equipment);

c) Performances of clowning except where the performance incorporates musical instruments and/or amplification (amplifiers, loud speakers, megaphones or any similar equipment);

d) Performances of theatrical and poetic recital and similar performances except where the performance incorporates musical instruments and/or amplification (amplifiers, loud speakers, megaphones or any similar equipment);

e) Performances of puppet shows including Punch & Judy and similar performance except where the performance incorporates musical instruments and/or amplification (amplifiers, loud speakers, megaphones or any similar equipment);

f) Pavement artists, except where the performance incorporates musical instruments and/or amplification (amplifiers, loud speakers, megaphones or any similar equipment);

g) Performances of magic tricks or magicians shows, except where the performance incorporates musical instruments and/or amplification (amplifiers, loud speakers, megaphones or any similar equipment);

h) Performances of Morris Dancing

I) Performances of Carol singing and other traditional seasonal festivities.

j) Any entertainment that is performed on a bandstand or similar site within a park or open space. For this exemption to apply, the site must be provided on a permanent basis by the landowner or person responsible for managing the park or open space.

k) Any entertainment that is performed as part of a street party, community festival, charitable fundraising event, protest march or similar event.

I) Any entertainment that is part of an event organised by Camden or has been organised in conjunction with Camden.”

  1. In a standard case the Defendant will grant a busking licence on standard conditions for a 12 month period at a fee of £19. The standard conditions include restrictions on hours of work which are from 10am to 9pm, and restrictions on certain types of instruments such as drums, wind instruments and amplification. Standard licenses can only be used by solo or dual performers.
  2. Other standard conditions include the following,

“B.1. The licence must be displayed when performing and shown to either an Authorised Officer or Police Officer on request.

B.2. The licence holder must adhere to the current Code of Conduct as annexed to Camden’s Street Entertainment Policy.

B.4. The licence only permits Busking by the performer or group named on the licence, and may not be used by, or transferred to, another person or group.

B.6. The use of amplification equipment is not permitted unless otherwise stated on the licence, such as amplifiers, loud speakers, megaphones and similar, including amplification equipment incorporated into an instrument.

B.8. Performances may only be carried on in a location with sufficient space for the performance, taking into account the number of performers and the expected audience size.

B.9. The location for performances must not be on or adjacent to pedestrian crossings, bus stops or station entrances/exits, or other doorways to residential or business properties.

B.l0. The performance must not be carried on in a way that causes an obstruction to pedestrians or traffic. This includes preventing any audience blocking the pavement so that pedestrians have to walk in the road to get past, with the space left for pedestrians being at least 1 .8m measured from the edge of the kerb to the area being used for the performance and any associated audience.

B.11. No naked flame, pyrotechnics, fireworks or similar shall be used as part of the performance.

B.13. The licence holder must comply with any direction given by an Authorised Officer or Police officer, which may include directions to stop performing or to move location to prevent a public nuisance or obstruction being caused.”

 

  1. A special busking licence is required where a performer seeks to amend or vary the standard conditions. That is available at the higher fee of £47 to reflect the greater amount of work involved in its issue.
  2. The Defendant resolved as follows:

i)               That the draft Street Entertainment Policy be approved;

ii)             That Part V of the London Local Authorities Act 2000 be adopted and that it should apply to the whole Borough from February 2014;

iii)            That entertainment exempt from needing a busking licence be defined as set out in Section 4 of the draft Policy;

iv)            That the Council adopt regulations prescribing the licence application and decision making procedure subject to amendment; and

v)             That licence fees be agreed at £19 for standard licences and £47 for special licences.

  1. The consequence is that the Policy was due to take effect on the 28th February 2014. During the course of the proceedings Mr Sheldon QC, on behalf of the Defendant, confirmed that the Defendant would suspend the implementation of the Policy to await this judgement.

The Claimant’s Challenge

Ground One – Is the Policy Insufficiently Certain?

  1. The Claimant submits that the definition of busking used in the policy is too wide. The exemptions carved out are too imprecise. As a result it is impossible to know with certainty and clarity whether, and in what circumstances, a licence is needed.
  2. The Claimant relies upon the fact that the scheme adopted by the Defendant creates new criminal offences of being in breach of a licensing condition or failing to hold a licence. The penalties involve revocation of a licence, a fine of up to £1,000 and the seizure of equipment, including musical instruments. With such sanctions the policy must be subject to a requirement that an individual is able to foresee with sufficient certainty whether a given course of conduct will constitute a criminal act: see R v Rimmington [2006] 1 AC 459 and R v Misra [2005] 1 CR App R 328.
  3. Accordingly, the definition of what is regulated activity needs to be clear, precise, adequate and based upon a rational and discernible principle.
  4. The Claimant submits that the following activities, namely, someone walking down a street whilst whistling, singing or telling a joke to another, a comedian, a harmonica player, a drum player, and a couple of singers in Lincoln’s Inn Fields are examples of activities where it is uncertain whether they are within or without the policy. A further area of ambiguity arises where the phrases “similar performances” or “similar event” are used. Although a charitable fundraising event is excluded does that mean that a students’ rag event or nurses raising money for their hospital with outdoor singers and accompanists are also excluded?
  5. The Defendant relies upon the statutory definition of busking within section 32 of the 2000 Act. That reads, where relevant:

“In this Part of this Act “busking” means the provision of entertainment in a street but does not include the provision of entertainment—

(a) of a class which from time to time is by resolution of a participating council excluded from the operation of this Part of this Act;

  1. Accordingly, the Defendant submits the policy applies to the provision of entertainment in a street. That phrase carries its ordinary meaning as commonly applied in every day language. The colour is taken from a public performance. The Defendant accepts that there will be hard cases such as the opera singer walking along with his friend who is inspired by the sunshine of the day to burst into song. Such is the quality of his singing that a crowd gathers so that what started as a spontaneous song for his friend has become a public performance. If there is such a transgression then it may not be expedient for the Defendant to enforce. It does not mean that the policy falls for lack of certainty or that it is in breach of Convention Rights.
  2. The Defendant submits that the exceptions to the policy when no licence is needed are for a wide variety of street entertainment. The list of exceptions is clear and sufficiently precise so as to enable members of the public to know in advance when a licence is required.
  3. The examples given by the Claimant of uncertainty are misconceived. Whistling, telling a joke to a friend, and singing whilst walking down the street do not carry the element of public performance.  There is sufficient certainty in the other examples to know, with advice, if necessary, whether the activity is within or without the policy.

Discussion and Conclusions on Ground One

  1. The requirement of certainty is not one of absolute certainty.  As Judge LJ said in R v Misra and Srivastava [2004] EWCA Crim 2375 at [34] “vague laws which purport to create criminal uncertainty are undesirable, and in extreme cases, where it occurs, their very vagueness may make it impossible to identify the conduct which is prohibited by a criminal sanction.  If the court is forced to guess at the ingredients of a purported crime any conviction for it would be unsafe.  That said, however, the requirement is for sufficient rather than an absolute certainty.”
  2. And at [37],

“Since the implementation of the Human Rights Act 1998 the issue of uncertainty has also been addressed on a number of occasions in this court…..…in each case the uncertainty argument was rejected. In Goldstein itself, at para 17, Latham LJ commented:

“The elements of the offence are sufficiently clear to enable a person, with appropriate legal advice as necessary, to regulate his behaviour…a citizen, appropriately advised, could foresee that the conduct identified was capable of amounting to a public nuisance.

In our judgment the incorporation of the Convention while providing a salutary reminder, has not affected any significant extension of or changed the “certainty” principle as long understood, in common law.”

  1. In the case of R v Rimmington [2006] 1 AC 459 Lord Bingham at [33] said, “There are two guiding principles:  No-one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no-one should be punished for any act which was not clearly and ascertainably punishable when the act was done.”
  2. Those common law principles were regarded as entirely consistent with Article 7 (1) of European Convention.  In dealing with the offence of public nuisance Lord Bingham accepted that “the offence as defined in Archbold was clear, precise, adequately defined and based on a discernible rational principal.  A legal advisor, asked to give his opinion in advance, would ascertain whether the act or omission contemplated was likely to inflict significant injury on a substantial section of the public exercising their ordinary rights as such:  if so, an obvious risk of causing a public nuisance would be apparent; if not, not”  at [36].
  3. Street entertainment is a performance art. Given the nature of street entertainment it would be impossible to come up with an absolute definition. The art will, in any event, evolve so any definition needs to have sufficient flexibility to cover that development. There will be, as the Defendant conceded, occasional cases that fall on the wrong side of the line. However, absolute certainty is not the test.
  4. The Claimant’s examples of whistling, singing or telling a joke to another person are not, in my judgement, examples of entertainment in a street. A dictionary definition of entertainment is “a form of activity that holds the attention and interest of an audience, or gives pleasure and delight”. The pleasure and delight when the entertainment is in a street, a place to which the public have access, is not just for the performer but to a wider audience. The audience may be passing along the street and be transient or it may gather to observe and enjoy but the objective of “entertainment in a street” is to provide entertainment by way of a performance to others. The use of the statutory phrase carries its ordinary meaning as commonly applied in everyday language.
  5. Further examples of the lack of clarity within the policy that the Claimant relies upon are contortionism, rapping and beat boxing.  The Claimant relies also on what is vague language in the exclusions when some refer to the primary performances such as puppet shows and “similar performances” and asks, rhetorically, what is similar to a puppet show?
  6. As the Defendant submits the puppet show exemption is not limited to children’s entertainment but to performances involving puppets.  That could, therefore, include a ventriloquist using his or her dummy.  Contortionism would be treated by the Defendant as a similar performance to mime and thus would be exempt from the requirement to obtain a licence. Rapping without any musical accompaniment would be a theatrical or poetic recital.  Beat boxing involves the use of vocal cords to mimic musical instruments.  It is neither a theatrical nor poetical performance and, therefore, does not fall within the exemption.
  7. Further ambiguity occurs, the Claimant contends, with the exclusion of carol singing and other traditional seasonal activities.  Again, as the Defendant observes, the London Borough of Camden is home to a diverse range of cultures and religions.  Carol singing reflects one aspect of that diverse range.  Other traditional seasonal festivities would reflect other aspects of that diversity and would, therefore, include, for example, the dragon dancers at Chinese New Year.
  8. There is thus sufficient clarity in the drafting of the policy for a concerned person, with advice if necessary, to know when there was likely to be a breach of licence conditions or a requirement to obtain a licence. That applies to the other examples given by the Claimant also. The requirement to obtain a licence in other areas of local administration is not unknown. Nor is an offence of failing to hold a licence or to adhere to its conditions. The constituent elements of the criminal offence are thus easily discernible.
  9. I accept the submissions of the Defendant that the policy is sufficiently comprehensible. It has to be recalled that where there is uncertainty a member of the public can take advice. That could be from an independent lawyer or from contact with the relevant officers at the Defendant.  However this issue is approached, therefore, the policy comes through as a being entirely consistent with the observations of Lord Bingham in R v Rimmington (supra) and Judge LJ in Misra (supra).
  10. Ground one fails.

Grounds Two  – Was the policy adopted on an unlawful basis?

  1. There are two issues here:-

i)               what is the correct interpretation of s33 of the London Local Authorities Act 2000?

ii)             was there sufficient evidence before the Defendant to enable it to pass a lawful resolution to adopt the policy?

  1. The Claimant submits that for the Defendant to adopt a licensing regime under the 2000 Act the conditions in section 33 of the Act need to be satisfied. That is the case whether the resolution is for the entire administrative area or part of that area.  The section reads,

“33. Application of Part V

(1)This Part of this Act applies in the area of a participating council as from such day as may be fixed in relation to that council by resolution, and the council may apply this Part to all their area or to any part identified in the resolution and notice under this section.

(2)The council shall not pass a resolution under this section in respect of any part of their area unless they have reason to believe that there has been, is being or is likely to be caused, as a result of busking—

(a) undue interference with or inconvenience to or risk to safety of persons using a street in that part of their area or other streets within the vicinity of that street; or

(b) nuisance to the occupiers of property in or in the vicinity of a street in that part of their area.”

 

  1. It is common ground that the Defendant was also under a duty to act compatibly with Convention rights.  Busking is a form of artistic expression within the ambit of Article 10 ECHR: see Muller v Switzerland [1988] 13 EHRR 212 at [27]. It is common ground also that Article 10 is engaged. Any interference with Article 10 rights, therefore, must satisfy the requirements of Article 10 (2).  That means that any interference must (i) be prescribed by law (ii) pursue a legitimate aim and (iii) be necessary and proportionate.
  2. The Claimant submits that activities which are exempted from being street entertainment do not count towards the compliance with the statutory requirements under Section 33 as they are exempted on the basis, inter alia, that they do not cause a nuisance.
  3. The Claimant submits that the Defendant has carried out no evaluation of the question as to whether the activities complained about constitute a statutory nuisance or are an undue interference with or inconvenience to or risk to the safety of persons using a street. No explanation has been given as to why the Defendant did not use its alternative statutory powers.
  4. The Claimant submits that a resolution to apply Part V cannot be passed in respect of any part of the administrative area including the whole unless there is reason to believe that restricted activities are causing or are likely to cause undue interference or inconvenience or risk to safety of persons using a street or nuisance to occupiers of property. That means there is no power to pass a resolution in respect of the whole borough unless there is a proper basis to conclude that busking has had, is having or is likely to have such effects. That is because the effect of adopting a resolution on the application of Part V is to identify those areas in which restricted activities are either banned completely or allowed only in accordance with a licence.
  5. The Defendant submits that where what is sought is a resolution to apply to the council’s entire area the statutory preconditions set out in S33 (2) do not apply.  That does not lead to any absurd result; it accords with the plain words of the statute. What is the council’s administrative area is well understood and does not need to be identified in a resolution or notice for members of the public. There is a clear distinction to be made, therefore, between a resolution dealing with part of the area which would be a targeted resolution and one dealing with the administrative whole.
  6. The Defendant submits that the first part of section 33 (2) takes it colour from the words in Section 33 (1). Only for a resolution which applies to part of its area is the evidential burden of Section 33 (2) (a) or (b) required to be satisfied.
  7. The Claimant counters that submission by saying that such an interpretation would lead to the absurd result of a council having unlimited discretion to ban busking and pass a resolution imposing a licensing scheme across the whole of the borough (the most restrictive option) but having to satisfy stringent evidential conditions to pass a resolution for part of the borough (a less restrictive option).  Such an outcome would be incompatible with Convention rights because it could permit a council to introduce a borough wide licensing scheme (which interferes with Article 10) with absolute discretion even in circumstances where it is neither necessary nor proportionate.
  8. The Claimant submits further that the statutory construction now argued for by the Defendant is not the same as it was when the council considered the policy. The legal advice is recorded in paragraph 10.1 of the Report (set out above). That is clear that the Council needed to be satisfied that busking has been, is being or is likely to cause nuisance or an obstruction to the highway. The Claimant agrees with the legal advice set out in the Report and submits that the whole area is the sum of its parts and, therefore, the same test applies when passing a resolution for the entire area.
  9. As an alternative to its primary submission the Defendant contends that, if the Claimant is right, and the statutory tests in section 33 (2) do apply, then they were satisfied here on the evidence before the Council.
  10. Further, from the Council resolutions passed on 11th November 2013, one can infer that it was satisfied that the statutory tests were met. The stepped approach to be followed, described as options in the Report, led the Defendant to ask itself the right questions and it could only pass the resolutions that it did if it was satisfied.
  11. The evidence before the Council was evidence of the complaints made, responses from the consultation exercise, evidence from the police and evidence given by individual Councillors during the debate.
  12. The complaints were logged and produced in Appendix 5 to the main report. Mostly, the log is of telephone calls to the Council. Some complaints were received by email. The Claimant contends that the complaints are insufficient evidence. Some are from the same complainants so that although over 100 complaints are registered they come from only 58 complainants. Most are unspecific as to location, the instrument used, what is meant even by the use of the word busker and, thus, whether what was recorded was from a person who would be exempt under the Council scheme is unknown. The only conclusion that the Defendant can be said to have reached is one about a potential problem with buskers which is not the statutory test.
  13.  The Defendant disagrees. It submits that the complaints are part of the picture from which the councillors can infer whether there is a problem. They show the geographic range across the Borough of incidents from busking such as complaint 24 that was logged as a “busker making loud noise can hear through double glazing o/s Waitrose-Finchley Road”, complainant 8 “2 drummers outside the Station – Kentish Town Road,” complainant 22 “band playing outside Starbucks – Camden High Street” and complainant 11 “busker playing violin o/s residence Inverness Street.”
  14. Another part of the overall picture was the consultation responses received on the draft policy. They were over 150 and provided evidence of nuisance caused to occupiers. One read “Accordions should be prohibited. I have had several accordion players regularly perform on the pavement across from my flat. Although they do not perform with an amplifier, their music was loud and caused me much distress. Please explicitly address the nuisance caused by accordions in this policy.” And another “I would support inclusion of all musical instruments – for example, we have had many evenings of torment of a solo violin player (with a limited repertoire of uniformly sad and mournful music) and the sound is surprisingly loud and carrying in a relatively quiet street.”
  15. The police consultation responses I have set out earlier. The Claimant submits that the response from Chief Inspector Mills does not show that the buskers are causing the problem. She groups them with unlicensed street traders and it is impossible to discern what she means by displacement. Inspector Brooker deals with potential displacement issues but does not provide evidence of actual problems. Where he refers to complaints from members of the public having difficulty getting to sleep there are powers under the Control of Pollution Act 1974 to deal with night time noise.
  16. The Defendant submits that the police observations tie in with the complaints log. Further, where Chief Inspector Mills refers to pedestrians on occasions being forced to walk in the carriage way which is unsuitable and dangerous in the line of oncoming traffic to avoid crowds watching buskers that is clear evidence of lack of safety on the streets. The one occasion when officers were required to move on a male breathing fire and fire juggling outside the tube station as he posed a clear risk to the people passing a few feet from his paraffin soaked props and flames was a further example of undue interference and inconvenience.
  17. In the discussion at the Council meeting members made it clear that many more members of the public were affected by noise than had complained and that there were problems for local residents.

Discussion and Conclusions

  1. On the question of statutory interpretation I propose to start by examining whether the evidence before the Council on the 11th November 2013 was capable of meeting the statutory tests under s 33(2).  If it is, then the Defendant was pursuing a course that was prescribed by law and pursuing a legitimate aim whatever the correct statutory interpretation. Whether it was necessary and proportionate and the other arguments under Article 10 I deal with under ground 3.
  2. In determining whether a nuisance has occurred, as is necessary under s 33 (2) (b) of the 2000 Act, as Thesiger LJ observed in Sturges v Bridgman (1879) 11 Ch D 852 the question “is to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances”, and “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” As Lord Neuberger observed in Coventry and others v Lawrence and another [2014] UKSC 13 “ whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity concerned is carried out” [4]. In short a determination of nuisance is contextual.
  3. Liability for nuisance is kept under control by the principle of a reasonable user. Reasonableness is to be judged objectively: see Coventry (supra) [5] and [179].
  4. It is quite correct that the complaint evidence is mixed. Complaints were logged in a crude way. Some complaints are unspecific in terms of location, time of day and instrument complained about. In some it is difficult, if not impossible, to discern whether the complaint related to an excluded activity. However, that does not apply to all complaints and, in my judgement, it was open to the Council to place some reliance upon the complaints received as part of the overall assessment of the impact of buskers within and across the borough. The degree of weight to be attached to the complaints was, of course, a matter for the Councillors.
  5. Examples of the recorded complaints are “an ongoing problem with buskers outside, a man with guitar which has an amplifier on Neal Street,” “street busking with amplifiers and drum kits – o/s Camden Tube Station – street busking with amplifiers and drum kits. This has been happening every day and is very loud noise”, “The customer reports a street busker with a saxophone – Russell Square – outside Russell Square Gardens, Woburn Place end, just by the gate”, “report of street buskers with drums, tambourines and guitar on Camden High Street junction with Inverness Street, on the public pavement”  and “Barclays Bank, 28 Hampstead High Street, ONGOING ISSUE buskers playing with amplifier Additional comments busker there about 4-5 times a week on court yard of Barclays Bank with amplifier.”  They provide evidence of the geographical spread of activity across the borough and the general nature of the activity.
  6. The responses to the consultation exercise are, likewise, varied. But, again, they are capable of playing a role in contributing to the council’s eventual judgement. The majority of Camden’s residents who responded (64%) supported the policy whilst the main opposition was from buskers or visitors to the borough.
  7. The responses from the police are based upon their direct experience within the Borough. They include observations that buskers have relocated to Hampstead and to outside Holborn Tube Station as a result of the joint patrols by police and local authority enforcement officers. Their evidence provides an evidential basis for concluding that increased dispersal of buskers was occurring throughout the borough. The observations on fire juggling and the size of the watching crowd forcing pedestrians onto the road in the face of oncoming traffic provide clear evidence of a risk to safety, to say nothing of inconvenience,  of persons using a street in that part of the borough.
  8. Consultee responses from residents included remarks that “over the summer Camden kept buskers/musicians away. It was peaceful, lovely for us residents….We would beg you to take into account that this area is also a residential one, and consider residents as well as tourists and the demands of Camden Lock Market.” “The noise is intolerable and impossible to carry on normal conversation in our flat now. Do not allow any more source of noise.” Other responses about the effect of accordion and violin playing provided an evidential basis from which the councillors could conclude that nuisance to occupiers of property was caused by the busking activity.
  9. Councillors’ own evidence given to the full Council meeting about their experience with buskers contributed to the overall picture.
  10. Having set out what was seen as the appropriate legal test to be complied with at paragraph 10.1 of the Report it was not incumbent upon officers to sift the evidence to illustrate to councillors what could or could not meet those tests. The purpose of the report is not to decide the issue but to inform the councillors of the relevant considerations. The report was written for an informed decision making body familiar with the area concerned and one that was capable of evaluating the evidence presented.  If councillors were not satisfied with the adequacy of what was presented they were quite capable of making that view clear to the presenting officers.
  11. Overall, the totality of the evidence before the Council entitled it to conclude that the requirements of s 33(2) of the 2000 Act were complied with. The Claimant contends that the Council reached no such conclusion. I disagree. The structure of the Council report and the sequence of the resolutions passed demonstrate that the decision making body of the Council approached the decision to be taken by asking itself the correct questions. Absent any evidence to the contrary it can be reasonably assumed that Councillors followed the process set out in the report. Only having answered the questions posed could they pass the resolutions that they did. The fact that it was able to do so enables it to be inferred that the Council was satisfied that the statutory requirements under s 33 were complied with.
  12.  Further, the introduction to the policy itself says,

“Camden believes that nuisance has been caused to local residents and businesses, and that there is potential for nuisance to be caused in any part of the borough. Camden also believes that on some occasions there is a risk to safety of people using the street, and that increased opportunities have been created for crime to occur, such as pick pocketing.”

The words directly address the jurisdictional requirements of s 33 by finding that there has been nuisance and a risk to the safety of people using the street. The reference to “potential” is to the likelihood of further incidents occurring, not, as the Claimant has contended, to the application of the wrong statutory test.

  1. Having concluded that, if the statutory tests applied they were complied with on the evidence before the Defendant, there is no need to determine the Defendant’s alternative argument, namely, that the tests do not apply at all if the decision is to pass a resolution which applies Part V of the 2000 Act to the entire Borough. As a matter of statutory construction though I see the strength of that argument. It accords with the plain language used in the statute which differentiates between an entire administrative area and the requirements for part of the area which may need to be distinguished in character from the rest of a borough.
  2. As a matter of legal interpretation the Defendant is entitled to raise the contention now, even though different in approach to the one set out in the report to members. The Claimant’s argument that the effect of such an interpretation would be to allow the Defendant absolute discretion outwith considerations of necessity and proportionality I do not accept as any interference with Article 10 rights requires consideration of those factors. The fact that the statute is silent about any preconditions if a resolution is to be passed for the entire administrative areas supports the Defendant’s alternative submission. If I needed to do so, I would hold that to introduce a scheme for an entire administrative area was a matter within the discretion of a London authority subject to conventional public law safeguards and article 10 requirements and without the requirement to satisfy any statutory preconditions.
  3. For those reasons ground 2 fails also.

Ground 3 – Is the Street Entertainment Policy necessary and proportionate?

  1. The Claimant submits that for there to be any interference with Article 10(1) the policy must be prescribed by law, pursue a legitimate aim and be both necessary in a democratic society and proportionate. For an interference to qualify as prescribed by law there must be a specific legal regime that authorises the interference, the citizen must have adequate access to the law in question and it must be formulated with sufficient precision.
  2. The specific legal regime here is provided by the 2000 Act. I have found that its requirements have been complied with and that the contents of the policy have been formulated with sufficient precision.
  3. The Claimant accepts that the prevention of nuisance or undue interference and the preservation of public safety would fall within a legitimate aim. The Claimant submits that the absence of any evidence that restricted activities were causing a risk to public safety or a risk to the health or rights of others means that the policy cannot be said to be in pursuit of a legitimate aim.
  4. As I have found that there was sufficient evidence before the Defendant to enable it to conclude as it did, it follows that the implementation of the policy would be in pursuit of a legitimate aim.
  5. The question then remains as to whether the policy was necessary in a democratic society.
  6. The Claimant submits that there are many less restrictive measures available to the Defendant to deal with genuinely problematical busking. The Defendant has not given appropriate or any consideration to alternative ways of dealing with any problems that busking causes.
  7. The use of existing powers provides a suitable and less restrictive solution. Those powers include s 79 of the Environmental Protection Act 1990, s 62(1) of the Control of Pollution Act 1974, and s 137 of the Highways Act 1980 to say nothing of powers available under the Public Order Act 1986 and the Anti Social Behaviour Act 2003.
  8. Alternatively, if contemplating a scheme under the 2000 Act, the Defendant should have imposed a less restrictive policy. The current scheme is excessive because it applies across the borough, applies to many activities which could reasonably be exempt, and it applies a sweeping presumption against certain forms of street entertainment (notably any involving drums, wind instruments ( other than flutes or recorders)) or amplification without lawful justification.
  9. The Defendant accepts that street entertainment is a form of entertainment justified by Article 10: see A v United Kingdom App No 10317/83, but it cannot be interpreted as a right to entertain in a particular public place.
  10. Further, the right under Article 10 operates at a low level. If the Defendant has exercised its licensing powers lawfully it would require very unusual facts for it to be a disproportionate restriction on Convention Rights: Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19.
  11. The policy, it is submitted, does not prohibit busking: indeed large varieties of busking are untouched, there is no restriction on the content of any busking and the fees are low for a standard licence. For a special conditions licence the process is not unreasonably onerous or expensive. The interference that there is, is slight and justified.
  12. The policy aims to promote busking whilst ensuring that the activity does not undermine the interests of other users of public space and those that live and work alongside such areas. It is necessary in a democratic society to have a policy such as that proposed in the interests of public safety, for the prevention of public disorder or nuisance.
  13. As to a “pressing need” there is a margin of appreciation within which the domestic state can operate and there was ample evidence before the Defendant upon which it could conclude that unregulated busking was interfering with the rights of others through nuisance and inconvenience.
  14. Only a borough wide scheme was appropriate and viable and there were no less restrictive measures available. The powers which the Claimant refers to are of general application, mostly reactive and not specific to the issues caused by busking.

Discussion and Conclusions

  1. In A v United Kingdom (supra), “the applicants had complained of English law on obstruction of the highway and trespass which allegedly prevents them exercising their profession as street musicians. Their principal contention is that this state of law unjustifiably interferes with their freedom of expression ensured by Art 10 of the Convention….The Commission observes that limiting manifestations of freedom of expression which cause a genuine obstruction of the highway or trespass to property or a nuisance can, in principle, be said to be a justified interference with the manifestor’s freedom of expression in the interests of public safety or the prevention of disorder or crime, or for the protection of the health or rights of others. Moreover the Convention cannot be interpreted as guaranteeing a right to entertain in a particular place”.
  2. Further, in Belfast City Council v Miss Behavin’ (supra) Lord Hoffman said at [16],

“The Court of Appeal, as I have said, did not decide whether refusal of a licence was a violation of the respondent’s Convention rights or not. Weatherup J decided that it was not. I agree. If article 10 and article 1 of Protocol 1 are engaged at all, they operate at a very low level. The right to vend pornography is not the most important right of free expression in a democratic society and the licensing system does not prohibit anyone from exercising it. It only prevents him from using unlicensed premises for that purpose. Even if the Council considered that it was not appropriate to have a sex shop anywhere in Belfast, that would only have put its citizens in the same position as most of the rest of the country, in having to satisfy their demand for such products by internet or mail order or going to more liberally governed districts like Soho. This is an area of social control in which the Strasbourg court has always accorded a wide margin of appreciation to member States, which in terms of the domestic constitution translates into the broad power of judgment entrusted to local authorities by the legislature. If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights. That was not the case here and I would therefore allow the appeal and dismiss the application for judicial review.”

  1. There is a divergence between the parties as to the level at which the Article 10 right operates. The Defendant submits that Article 10 operates at a low level because a significant amount of the busking is for gain. The Claimant contests that and is of the view that, for example, the freedom to sing a song for pleasure in a public park is a fundamental right. What is clear is that busking, whether commercial or not, is not the most important right of free expression in a democratic society. It is not akin to political speech. Applying the jurisprudence it is clear, in my judgement, that, although Article 10 is engaged, it operates at a low level.
  2. In principle, as the Claimant accepts, limiting busking to prevent obstructions of the highway or the creation of a nuisance is an acceptable interference with Article 10 rights. The licensing system which it is proposed to operate has been arrived at by the Defendant exercising its powers rationally and in accordance with its statutory purposes. The policy does not stop people busking in Camden. It simply prevents people from busking without a licence unless they are within a class which is exempt from a licensing requirement.  Other than that, and compliance with the licence conditions, there is no restriction.
  3. Further, dealing with buskers is an area of social control in which the Strasbourg court has always accorded a wide margin of appreciation to member states. That applies to whether there is a pressing social need and to whether the least restrictive method was followed by the Defendant.
  4. In carrying out my assessment, I am not bound by what was before the Council, I am obliged to look at the decision in the context of the case as a whole to determine whether the interference at issue was “proportionate to the legitimate aim pursued.” I take into account, therefore, the witness statements of Mr Hawkes, a Senior Licensing Officer and Ms Masterson a Principal Environmental Health Officer, both with the Defendant authority as well as the other evidence.
  5. The Claimant relies upon the decision in Informationsverein Lentia v Austria  [1994] 17 EHRR 93 with its emphasis on the necessity that any restriction must be convincingly established [45]. The Defendant emphasises the need for an alternative solution to be equivalent and stresses that part of the judgement where it says “above all, it cannot be argued that there are no equivalent, less restrictive solutions.” [39]
  6. The issue of pressing social need has to be looked at in all the circumstances of the case and allowing Camden a margin of appreciation. Taking that approach the Defendant decided that

i)               doing nothing was not an option as that would continue the current situation where police were not able to tackle the problem other than moving buskers along which would then disperse buskers to other parts of the Borough;

ii)             by introducing the policy it enabled the  police to effectively manage criminal and public order issues;

iii)            the type of busking that was most likely to cause complaint was that by musicians, percussive instruments, amplification and larger groups of buskers;

iv)            concerns about busking had increased as evidenced by the numbers of complaints in the last 12 months;

v)             there had been an increased geographical spread of busking across the borough as evidenced by the location of the complaints;

vi)            there was scope for a further increase in busking activity with the redevelopment around Kings Cross.

  1. The Defendant was well aware of the other legislative options. But, the powers available do not provide an equivalent solution. The policy will introduce a scheme which is a tailor made borough wide licensing scheme. Its implementation will enable the police to concentrate on their law enforcement issues. It will be more resource efficient than the pilot scheme of joint patrols involving council officers and police officers.
  2. I have not found the limited evidence that there was before the court of the situation in Hillingdon, where a limited licensing scheme has been introduced, and Liverpool, where there is a voluntary code which has been developed with the Musicians Union, of assistance as, inevitably, the circumstances in each administrative area will be fact and location sensitive.
  3. As to the other legislative options. The Environmental Protection Act 1990, as Ms Masterson sets out, provides a reactive tool which is cumbersome and is difficult to administer. A complaint about busking needs to be assessed by an officer as to whether the activity constitutes a statutory nuisance. By the time the officer has attended at the scene the busker has frequently moved on thus leaving the pitch available for other buskers to take up and the complainant may not want to allow access to his/her premises.  If the busker is still present and ascertainable he/she may not wish to co-operate: many have given their name as Mickey Mouse and a false address.
  4. In the event that a statutory nuisance is established an abatement notice can be served but that can be appealed and there is nothing to prevent the busker relocating his pitch so as to continue undeterred elsewhere in the borough. If the notice is not appealed or is upheld then its breach is a criminal offence but that is subject to a defence of best practicable means. Although an abatement notice can be served where the nuisance is likely to recur its service is personal upon the recipient and so it does not catch someone else moving onto the vacated area where the offending busker had previously been performing.   The procedure is thus protracted, not straightforward, and does not achieve the outcomes that the Defendant wants to achieve.
  5. S 62 of the Control of Pollution Act 1974 operates to prevent a loudspeaker from used upon a street between the hours of 9 pm and 8 am the following morning for any purpose but it would not be sufficient to deal with singers or groups of musicians not using amplification.
  6. S 137 Highways Act 1980 can be used to move people on who are wilfully obstructing a highway. That cannot deal with persons busking in open spaces and there may be difficulties in establishing whether there has been an obstruction at all and whether it is wilful.
  7. The Public Order Act 1986 and the Anti Social Behaviour Act 2003 are imperfect tools for the purpose. It is stretching the words of s 5 of the Public Order Act to say that a busker is displaying threatening or abusive words or behaviour. Whilst there may be the odd occasion the vast majority of buskers will not be behaving in such a manner.
  8. S 30 of the Anti Social Behaviour Act 2003 can be used to remove  groups under the age of 16 to their residence where the public have been intimidated, harassed, alarmed or distressed or to disperse groups of 2 or more persons in public. It is thus a reactive power, and of limited utility when dealing with the issues raised by buskers.
  9. Taken individually or in combination the alternative means suggested do not address the issues that have been experienced by the growth of busking within the Borough of Camden. I have no hesitation in holding that the alternative measures are not less restrictive and, certainly, are not equivalent to the powers under the 2000 Act for dealing in a comprehensive way with buskers.
  10. The further alternative suggested is a less restrictive version of the policy, in terms of its application to part of the administrative area only or in the way that it deals with conditions to be attached to the policy.
  11. The policy originally proposed was for a limited part of Camden. However, as Mr Hawkes sets out, there are a number of benefits in having a borough wide scheme:

i)               “it is non discriminatory in that it applies with equal force across the borough;

ii)             a borough wide scheme enable a response that speaks to and is justified and proportionate to the public interest of the whole borough rather than isolated patches and pockets;

iii)            a borough wide scheme ensures uniform regulation by a regime primarily designed to directly respond to busking.

iv)            a borough wide scheme designed to meet local circumstances is suited to ensure that this regime is the less restrictive approach designed to directly respond to the regulation of busking;

v)             a borough wide scheme is clear and unambiguous;

vi)            a borough wide scheme achieves greater objectivity

vii)          a borough wide scheme ensures greater transparency and accessibility.”

  1. The scheme itself does not require any audition process or a system to allocate buskers to pitches at certain times or certain days. Rather, the system operates for a standard licence by way of a written application which can be done on line. 5 working days is the time within which a standard application is to be determined. The application is to be accompanied by a passport sized photograph of the applicant and the licence fee of £19. The information to be provided is the name and address, contact details, type of entertainment to be performed and description of equipment to be used, whether an applicant has previously been refused a busking licence (in Camden or elsewhere) or had a busking licence revoked and, if the application is made by a group, the numbers of performers in the group is to be specified. A consultation will be carried out with the police and the Environmental Team of the Defendant before any grant but any objections from those parties are expected to be made within 5 working days of the application being received. Once a licence is granted it covers performances across the entire Borough for up to 12 months after its grant. The standard licensing system is thus not time consuming for an applicant nor unduly expensive.
  2. All licensees are required to comply with a Code of Conduct for Street Entertainers. That balances the freedom to busk with the quality of life for residents and businesses, in accordance with the stated priority of the Camden Plan to promote sustainable neighbourhoods for residents to enjoy their environment and to harness economic growth by promoting a light touch regulatory framework which permits most street entertainment to take place. It demonstrates that a proportionate approach has been taken by the Defendant.
  3. Even for a Special Licence the further information to be provided is set down in the policy with a time period of 20 working days to be allowed for its determination. On that application the conditions to be varied are to be identified with any proposals for alternatives, the location where the entertainment is proposed, the times of the performances, duration of the performances, likely frequency of the performances and, if amplifiers are to be used, details are to be supplied about the nature of the equipment. Public consultation will be conducted through the Defendant’s website with objections expected to be made within 10 working days. Standard conditions are only to be removed if a good reason to do so is provided by the applicant and where the applicant has provided proposals to prevent or limit potential public nuisance to nearby occupiers or to address other relevant concerns. Each such application will be considered on a case by case basis. The cost of such applications is to be covered on a cost recovery basis of £47. Although involving a more detailed procedure it is still one that is transparent and easily followed. It cannot be said that such a process is unduly onerous.
  4. The claimant submits that to place the burden on the applicant seeking to vary the standard conditions is disproportionate. I disagree. The applicant is the performer and will know what the performance will entail or is likely to entail. Only when that is known can there be any adjudication upon appropriate conditions. It is not disproportionate in those circumstances to ask him/her to provide justification for any alteration from the standard conditions based upon their likely activity.
  5. It follows that the Defendant has adopted a policy which, in my judgement, is both necessary and a proportionate response to the issue of busking. It has striven to introduce a policy which holds the ring between promoting economic growth through fostering dynamic busking activity across the Borough but balancing that with the requirements of its residents and other economic activity which contributes to the well being of Camden. It has done so in a way which, in my judgement, is lawful.
  6. It follows that this ground fails also and so the substantive application is dismissed.

I invite further submissions on the wording of the final order and costs.

This post was written by
Singer-Songwriter/Professional Street Performer/Campaigner/Wandering Minstrel

2 Comments on "Final Decision By Mrs Justice Patterson"

  • I speak as a ‘jobbing’ StreetPerformer in Birmingham and Stratford upon Avon for 3 years now.

    Banning of amplification ( ‘real’ or ‘suggested’ ) is certainly ‘not’ fair and proportionate policy ( nor ‘thinking’ ) in relation to busking so I’m afraid the law is an ass in this context and I find Mrs Justice Pattersons attitude on this matter particularly blinkered and dismayingly inane.

    In fact, on the whole issue of Camden Council/Police definitions of ‘extreme’ buskers including those who use ‘amplification’, I repeat myself when I say that I’ve never heard such petty-minded stupidity.

    Luckily many cities and towns across the country ( including my main street performance area Birmingham ) does not have any such restrictions, and it is a policy that when well ‘policed’ ( or better still civilly ‘mediated’ ) works just fine i.e. any ‘nuiscance’ performers, such as those who go into noise excess are quickly identified, told to turn down or moved on by a responsive, intelligent, well versed and well-managed team of city-centre wardens.

    For this ‘tried and tested’ policy to work as well as it does in my home town ( and elsewhere ) it does it seems to be down to a simple matter of common-sense understanding and goodwill between city management, performer and public. In other words straightforward open and honest communication between all ‘interested’ parties ( no need here for draconian measures nor wasting taxpayers money on unneccessary beauracratic byelaw ).
    All that is required is a simple ‘faith’ and honest belief in the value of liberal balance and plural liberal democracy together with ‘true’ light touch enforcement

    ( * Nb. Sometimes certain ‘nuisance’ individual actions do have to be confronted and their unruly behaviour challenged often by ‘officials’ though more and more these days Wardens acting as ‘civic’ mediators. )

    Thankyou the borough authorities of Camden, London for successfully putting into place busking conditions that could see the throwing out of the baby(s) with the bathwater what with proposed amplification bans and behind the scenes council ‘selection’ commitees. This point is especially pertinent when Councillors and Commitees themselves are not scrutinised enough and form part of a political culture that is still neither open nor transparent in its political decision making process.

    Personally if Birmingham City Council in their wisdom did follow suit and introduce busking licensing here ( though at ‘present’ I don’t think they will, theres a ‘rational’ workable scheme already in place under a Tory/Liberal administration! ) in one sense it would’nt much bother me. In fact it could theoretically give publicly defined ‘good’/upand comingly ‘self-employed’ performers like myself full freedom of the city. However if you are a ‘travelling’ performer, playing many places, throughout the country during the year, then ‘local’ licencing could prove an ‘unfair’ obstruction, a ‘complicated’ beauracratic hindrance inhibiting ‘freedom’ of movement.

    A final point is, that I personally, am someone me who percieves themselves as a ‘wealth creator’ not merely wealth taker in their role as a ‘serious’ Street Performer and in this context may not mind making ‘extra’ reasonable contributions to public finance on the grounds that we may need better trained civic police/mediators and that needs paying for.

    However what justifies paying for the kind of licence proposed in Camden?. Is it not just a further tax on many low paid Street Performers. Can Camden Council provide an ‘economic’ argument that legitemises buskers licencing given that the existing police and city/town wardens are already paid for out of council tax, general tax revenues etc ? ( Or again is ‘licencing’ merely being used here, by Camden Council as a ‘control’ measure, which currently it looks like it is. A policy which in this context I would currently reject because of the ‘oppresive’ manner in which busking licences are be processed ( ‘selection’ by council commitee behind closed doors ) and the ‘interference’ of freedom it poses for travelling musicians, one national ‘cultural’ tradition that I do support and would like to see preserved.

    Anyway, recogniton to Jonny Walker and all at Streetslive.org for demonstration of much courage and bravery in the field. If the decision is made, and the go-ahead is given ( I state this as a ‘fellow traveller’ not a formal member ) lets see what the High Court appeal brings in terms of a challenge to Camdens licensing scheme ?.

    I’m not sure if this point, the ‘licencing’ issue is winnable in the High Court because councils and political administrations up and down the country run ‘licence’ schemes and they have the right to do so as legetimate ‘representative’ bodies. Their job is to raise taxes, run and control infrastructure. If voted into power they can more or less pass what laws they want if vetoed in the council chamber, whether you like them or not.

    You can claim ‘freedom of expression’ others can claim ‘ rights to peace and comfort’. In this context what might be important in the long-term is not statute law as a resolution but ‘just’ resolution in the form of a good old political balance of intersts within a liberal plural frame. To achieve this you need the right people in power, proper liberal democratic progressives capable of understanding the complexities of both sides of the argument and setting in motion ‘truly’ rational balanced cultural public policy. What you don’t need are a bunch of ‘knee-jerk’ power obsessed control freaks.

    Nigel Snookes aka Romanza Rose

  • G Barlow says

    This is a late comment but it is a raw subject of importance.
    First Camden Councils attitude is draconian and self serving – it is their duty to provide street marshals or police to mange their streets. They allow one could say an outrageous market set up which they decide is “OK” as it brings huge numbers of people into the area thus booming economic activity. Yet they do not want anyone about unless they contribute to their economy and like sweeping powers of control buskers in line with their prejudices. In fact their powers will not help to achieve the ends they seem so keen to gain and of course the back room deals will be rampant now they have the powers behind closed door to decide who or what is acceptable.
    The Judge, from a privileged elite has set out the situation with some competence – something someone with her capabilities should be able to do for sure. It would be a mistake to assume she has done so even handedly. When it comes to decisions she has simply swallowed the councils bigotry as it presumably is in line with her own. Then in an outrageous act of what can only be described as gross prejudice she refuses leave to appeal her decision which seems to be simply in line with her cronies ways of managing the nation – in areas she probably will never frequent.

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