BETWEEN:

 

KEEP STREETS LIVE CAMPAIGN LIMITED

Claimant

-and-

 

LONDON BOROUGH OF CAMDEN

Defendant

_____________________________________________________________

CLAIMANT’S SKELETON ARGUMENT

For rolled up permission and substantive hearing 27-28 February 2014

_____________________________________________________________

 

KEY DOCUMENTS

References to documents are to the tabs and pages of the bundle; LM is the legal materials bundle

• Report of the Director of Culture and Environment, Street Entertainment (and its Appendices) [B8-B188]
• Minutes of Full Council meeting of Camden Council of 11 November 2013 [B189-B201]
• Camden Street Entertainment Policy [B20-B39]
• Letter before claim 20 November 2013 [C3-C15]
• Reply to letter before claim 03 December 2013 [C16-C21]
• Witness Statement of Jonathan Walker, Founder of Keep Streets Live Campaign Ltd. [A29-A34]
• Second witness statement of Jonathan Walker [??]
• Claimant’s Background and Grounds of Claim [??]
• Defendant’s Grounds of Resistance [??]
• Witness statement of Anthony Hawkes [??]

 

 

OVERVIEW

1. At a meeting of its Full Council on 11 November 2013, Camden adopted resolutions for the purposes of Part V of the London Local Authorities Act 2005 which put in place a scheme of licensing of busking across the whole of its area (making busking without a licence, in general, a criminal offence).
2. It did so in response to a small number of complaints, many of which were so unspecific that it is impossible to have any sufficient idea of what was being complained about (including whether the complaint related to something which will even be within the licensing scheme), and which almost entirely related to one small area of the borough (the Camden Town area).
3. The Claimant challenges the legality of that decision and the scheme, as below. Specifically the Claimant seeks permission for judicial review and (this being a rolled up hearing) asks the court to quash the decision and the scheme.

THE CLAIMANT

1. As described in the first witness statement of its founder Jonathan Walker [A29-A34], 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.
2. The Claimant believes that public spaces should be places of spontaneity that allow for serendipitous experiences, in which a sense of urban community prevails.
3. The Claimant 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, seeking to empower street artists and performers to make a positive and life-affirming impact upon the public spaces that they animate with art and music.
4. While offering support to local authorities who wish to develop relationships of cooperation and mutual respect with street artists and performers, the Claimant actively campaigns against policies which have a detrimental impact upon the ability of people to use public space as a legitimate forum for grassroots culture. The Claimant wants to play a part in reclaiming and preserving public spaces for informal community uses, and to resist the privatisation of public space.
5. The Claimant nonetheless – of course – fully supports appropriate and focussed action by (say) local authorities to deal with any tiny minority of people, situations and times when entertainment in public places can genuinely be said to cross thresholds of impermissibility set by the law.

THE SCHEME

1. Under Camden’s scheme, which is due to come into effect on 28 February 2014, anyone who busks in Camden (other than when undertaking an “excluded” activity, as below) without the required licence (or in breach of the terms of their licence) will be committing a criminal offence and liable for a fine of up to £1,000 and/or the seizure of any instrument or equipment.
2. Applicants will have to pay a fee of £19 for a standard licence, and £49 for a “special licence” (which is required if an individual wants to use wind instruments, drums or amplifiers, and then only if the Council specifically agrees to those things in the particular “special licence”).
3. Importantly, it is not the Claimant’s contention that anyone busking (which includes singing a song, telling a joke or whistling) should do so without regard to their impact on others. Indeed, the Council, like all other local authorities, has a range of powers (including those relating to “statutory nuisance”) to deal with such matters, and the Claimant would support them being used in appropriate cases to deal with instances of concern. Indeed, as considered below, the Council is under a statutory duty to take action against statutory nuisances of which it is aware.
4. In that context, it is notable that, in the 12 months leading up to its decision, the Council received a total of 4,243 noise-related complaints [C1-2] of which it linked just 104 to “busking”.
5. Those 104 (which were set out to councillors for the 11 November 2013 meeting) are considered further below. But, by way of summary introduction: only 3 had any detail, and even then very little (as considered below); almost all of them related to just one small part of the total area of Camden, namely Camden Town; it was not possible to tell whether they related to activities which Camden intends to exempt from its scheme in their entirety (such that, in turn, they cannot be relied on to justify the scheme); and there was nothing before councillors to explain why, if what was complained of was indeed  considered problematic, action had not been taken at the time against it using existing statutory powers (and indeed potentially pursuant to the Council’s duty to act against statutory nuisances where identified).
6. And yet by 27 votes to 16 [B198], the Council voted at its meeting on 11 November 2013 for a scheme of licencing across the whole of Camden which (other than in a range of exempt situations, as considered below) all but precludes (among other things) the use of drums and wind instruments, or singing in groups, or the use of even modest amplification of a kind without which, say, singing with a guitar is likely to be inaudible above the background street noise.

SUMMARY OF THE CHALLENGE

1. The Council’s decision to introduce the licensing scheme was unlawful because:

a)    The scheme creates criminal offences without sufficient clarity as to what is, and is not, prohibited conduct;

b)    The material on the basis of which the decision was taken was not capable of meeting the statutory pre-conditions for imposition of such a scheme in any “part” of Camden let alone across the whole borough (and indeed, the Full Council did not actually make a decision that the statutory conditions were met); and

c)    The scheme is incompatible with Convention rights for the purposes of the Human Rights Act 1998 because the interference with rights under Article 10(1) of the ECHR [D23] is neither necessary nor proportionate.

1. When it comes to the court assessing the legality of the decision of 11 November 2013, the only relevant material is that which was considered by all the councillors for the purposes of the meeting in question.
2. That means only the material provided to the councillors for the purposes of that meeting, or any other material which they were specifically asked to consider for that purpose: R (Hunt) v North Somerset Council [2013] EWCA Civ 1320 [79-87].
3. The entirety of that material here is the documents at [B8-B188] and the information provided in the course of debate at that meeting (as to which see Jonathan Walker’s 2^nd Statement [??]).
4. It follows that much of what is referred to in the Council’s Grounds of Resistance [??] (and put in evidence here by Anthony Hawkes’s witness statement and its exhibits [??]) is simply irrelevant to this judicial review challenge. That includes: the individual knowledge of specific councillors unless specifically shared at the Council meeting on 11 November; the information Mr Hawkes now provides about joint patrols (paragraph 8 of the witness statement [??] – contrast this with the police consultation responses at [B184-188]); the minutes of the Licensing Committee’s meeting of 7 August 2013, the Hillingdon busking policy the minutes of the Culture and Environment Scrutiny Committee meeting on 18 September 2013; the minutes of the Cabinet meeting on 23 October 2013; the minutes of the meeting of the Licensing Committee on 29 October 2013 (all exhibited with Mr Hawkes’ statement: [??]). None of that can be relied on by the Council to defend the legality of its 11 November 2013 decision.
5. Nonetheless, the Council has suggested, at page 7 of its Response to the Claimant’s Request for Further Information [??], that because:

a)    The minutes of the various committee meetings are available on the Council website, and

b)    the fact of those meetings was referred to in the Street Entertainment Report which was before the Council on 11 November; and

c)    The Chair of the Licensing Committee (supported by the Cabinet Member for Community Safety) made a report to the 11 November meeting –

the minutes themselves can be taken to have been before the Council. That is simply wrong in law. In Hunt, the Court of Appeal made clear that mere availability of or reference to material is not enough for knowledge of that material to be imputed to a decision maker [Hunt paras 83-84]. The court cannot take those matters into account in assessing the legality of the decision taken by the Full Council on 11 November 2013.

1. Related to that, a theme of the Council’s Grounds of Resistance [??] is that there was “sufficient” information before the Council for it to be (for example) satisfied that the statutory preconditions to the adoption of a scheme were satisfied. But even if that were the case (which is disputed, as above and in detail below), it is notable that the Council did not actually reach a decision that the statutory preconditions were met (nor does it claim to have done so). The court is concerned only with what the Council decided, not with what it might have decided or could have decided.

PART V OF THE LONDON LOCAL AUTHORITIES ACT 2000

1. As considered further below, Part V of the 2000 Act is concerned with the “provision of entertainment in a street”.
2. By operation of section 3 of the Human Rights Act 1998, Part V must be interpreted compatibly with Convention rights.
3. As accepted by the Council (Grounds of Resistance [42], [??]), the provision of entertainment is a form of expression protected by Article 10 ECHR: Müller v Switzerland (1988) 13 EHRR 212 at [27] [LM??].
4. By ECHR Article 10(2) [??] any interference with it must:

a)    Be prescribed by law;

b)    Pursue a legitimate aim; and

c)    Be necessary in a democratic society (i.e. it must be both necessary and proportionate).

1. That requires that there is a “pressing social need” for the interference: Sunday Times v UK (1979–80) 2 EHRR 245 [[LM??].
2. The provisions of Part V must be construed by the court (per section 3 HRA) and should have been applied by the Council (section 6 HRA) accordingly.
3. Section 33(1) of the 2000 Act provides as follows [LM??]:

“This Part [Part V] 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.”

1. By section 32 [LM??]:

“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;

(b) under and in accordance with a premises licence under Part 3 of the Licensing Act 2003, or a temporary event notice having effect under Part 5 of that Act, which authorises the provision of regulated entertainment (within paragraph 2(1)(e) to (h) or 3(2) of Schedule 1 to that Act (music and dancing));

(c) which is authorised specifically to take place in a street under any other enactment; or

(d) consisting of music performed as an incident of a religious meeting, procession or service;

and “busk” and “busks” shall be construed accordingly”.

1. “Entertainment” is not defined in the 2000 Act. But “street” is defined by section 32 to include [LM??]:

“(a) any street or way to which the public commonly have access, whether or not as of right;

(b) any place, not being within permanently enclosed premises, within 7 metres of any such street or way, to which the public commonly have access;

(c) any area in the open air to which the public commonly have access;

(d) any street, way or open area within any housing development provided or maintained by a local authority under Part II of the Housing Act 1985;

but does not include any land in respect of which there are byelaws in force which regulate the provision of entertainment and which are made by London Transport Executive or London Regional Transport” [D26-D27].

1. In any event, when it comes to the application of Part V overall (by operation of a section 33(1) resolution), section 33(3) sets out that [LM??]:

“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. Plainly (and not disputed by Camden), anything of a class which has been excluded from the definition of busking (by operation of section 32 as above) cannot, in turn, form part of an assessment for the purposes of section 33(3).
2. So the focus of the section 33(3) pre-conditions when making a section 33(1) resolution and restrictions which flow from it is on activities which have not been excluded by operation of section 32 (henceforth, “restricted activities”).
3. The general scheme of Part V is then that restricted activities are prohibited in any street to which Part V has been applied by a section 33(1) resolution. For example, section 42 makes it an offence to busk “in any street to which this Part of this Act applies” without, or in breach of, a licence. But, notably, licenses are only available (see section 37(2)) in streets which are “designated” for that purpose under section 34.
4. The overall statutory scheme thus requires focus on the areas within a London Borough where the section 33(2)(a) or (b) pre-conditions are met (i.e. any proven problem areas), and restricted activities are then prohibited in those areas other than in specified streets on specified conditions. Areas where the pre-conditions are not met are to remain untouched (i.e. are to remain outside the requirements of Part V), including by any requirement for licensing (which is itself a restriction for Article 10(1) purposes).
5. So the purpose of the section 33(2) pre-conditions (as considered further below under Grounds 2 and 3) is to set the threshold for identifying any genuinely problematic areas (to which Part V is to apply); not as the entry point for a general licencing regime across the whole of a local authority’s area.
6. Camden’s approach is the latter. In particular, Camden has resolved to apply Part V across the whole of its area and implicitly resolved to designate every street in its area as a licensed street (thus imposing a requirement for a licence for restricted activities across the whole Borough). See thus:

a)    the resolution as set out in the minutes of the 11 November 2013 meeting [B189-201] at [B198-199] along with

b)    Part 3 [B24] “Streets where a licence is needed” (i.e. the whole of Camden) and

c)    Part 4 [B25] “entertainment that doesn’t need a busking licence”, to which the resolution refers.

1. But, as considered further below, it has done so without there being a lawful basis (in relation to the section 33(2) pre-conditions) for that approach.
2. Nor is it an answer (as Camden asserts) to say that imposing a licence requirement across the whole borough is a generally proportionate way of dealing with any issues that have arisen in part of the borough (most particularly the Camden Town area). That is simply not how the statutory scheme works.
3. But, as noted above and as considered below, the problem here starts at the even earlier stage of the analysis: namely consideration of what is to be considered “busking” for the purposes of the section 33(2) pre-conditions and operation/application of Part V itself. What follows starts with that issue.

GROUND 1: INSUFFICIENT CERTAINTY OF THE CONDUCT PROHIBITED

The need for certainty

1. As above, the scheme adopted by Camden creates new criminal offences for breach of the licensing regime.
2. These offences are committed by a person who busks without the appropriate licence, or performs in breach of the conditions of a licence. The possible penalties include revocation of any licence, up to £1,000 fine, and the seizure of equipment including musical instruments. Of course, a conviction for these offences results in a criminal record.
3. As such, the policy is subject to the requirement (under the common law and ECHR) that an individual must be able to foresee with sufficient certainty whether a given course of conduct will constitute a criminal act: R v Misra [2005] 1 Cr App R 328 [LM??], R v Rimmington [2006] 1 AC 459, Article 7 ECHR [LM??].
4. Accordingly, the definition of what constitutes regulated activity must be clear, precise, adequate and based on a rational discernible principle so that it satisfies the certainty and predictability requirements (see e.g. Lord Bingham at paragraph [36] of Rimmington [LM??]).  (The same issues of foreseeability also arise when it comes to consider whether the scheme is ‘according to law’ for the purposes of Article 10 ECHR, as below).

What is excluded/prohibited?

1. As above, Camden has excluded various “classes” of entertainment for the purposes of section 32(a) [B25]:

“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 magician’s 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.

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

1. The necessary implication of excluding those things is that, but for the exclusion, those activities would otherwise be “busking”. The framing of the exclusions thus shows the sheer breadth of what falls within “busking” here.
2. In particular, it is plainly apt to catch any form or performance or similar, however informal or spontaneous. In particular, it is not limited by reference to (for example) its content, collecting money, or having (or hoping for) an audience. Simply singing a song, whistling a tune or telling a joke in a “street” could be busking.
3. The Council says “it is absurd for [the Claimant] to suggest that the Council’s approach, or that of the 2000 Act, brings within its ambit ‘simply walking down the street while singing or telling a joke to another person’” [C18]. But the Council gives no reason at all for that view, let alone reasons based on the definition of busking or the exclusions.
4. A plain reading of the definition and exclusions as set out above would clearly include such activities – and the Council’s observation at [22] of its Grounds of Claim [??] that ‘the provision of entertainment in a street’ “carries the ordinary meaning of that phrase as commonly applied in everyday language” also clearly encompasses such activities.
5. Far from the Council’s assertion at paragraph [23] of its Grounds of Resistance [??] that the list of exemptions in the policy is “clear and precise”, it actually contains entirely amorphous categories such as “carol singing and other traditional seasonal festivities” [underlining added] [??]. There are obvious ambiguities to this including what qualifies as “traditional” or “seasonal”, and who is the arbiter of that.
6. The example of Chinese New Year Dragon Dancers given at paragraph [32i] of Anthony Hawkes’ statement [??] raises more questions than it answers: it suggests that “traditional” and “seasonal” can relate to the traditions or seasons of any culture and thus extends the category into even greater vagueness.
7. As well as containing ill-defined categories, the list also includes a recurrent catch-all provision: “and similar performance”. This obviously creates scope for subjectivity over what would qualify as “similar”.
8. At paragraph [26] of its Grounds of Resistance [??], the Council attempts to address the question of ambiguity in the phrase “and similar performance”:

“This language is commonly used in licensing schemes, and the Claimant acknowledges that the use of the language ‘similar’ means that the definition takes its colour from the preceding sentence or clause. The classes of exempt entertainment are set out at para 4.2 of the SEP (CB/B25) these are: mine [sic], living statues, juggling, clowning, theatrical and poetic recital, puppet shows, pavement artists, and magic tricks and shows – it is unclear what if any ambiguity is had in the appreciation of similar entertainment to these listed. …” [underlining added]

1. But simply denying the ambiguity does not remove it.
2. By way of examples:

a)    Would a performance of contortionism be “similar” to mime? On one approach, it is a similar use of the body in performance but on another they stem from different traditions and the effect of the performance is quite different. And Anthony Hawkes at paragraph [32] of his statement [??] says that acrobatics displays would need a standard licence: so is a contortionist more similar to an acrobat or to a mime artist?

b)    The Council’s response to the Claimant’s observation about rapping [Grounds of Resistance [27] at [??]] does not settle the ambiguity (indeed the Council seems to have internal uncertainty: Anthony Hawkes says at [35] of his statement [??] that without a backing track rap would be exempt as similar to poetic recital; the Grounds of Resistance approach it as if rap is “music” and so would need a licence – this difference cannot be based on the dictionary definitions provided in the Grounds [??] which refer to a backing track since all theatrical and poetic recitals and similar performances are only exempt if they do not incorporate musical instruments or amplification which would include a backing track). So what is the position here? The Council itself seems confused by the fact that rap is a spoken word form of artistic expression, just as poetry or theatre, but stems from a musical tradition.

c)    Would a performance of beat-boxing be “similar” to a poetic recital? Again, it is a spoken performance – but sounds rather than words are used. At what point does the cut-off of similarity come? Who decides whether the use of proper words is required?

d)    What is “similar” to a puppet show? Would any form of “children’s entertainment” qualify or does it specifically need to contain the use of puppets (in which case, why include the “or similar” provision at all)? Perhaps a ventriloquist would be similar, but what if his performance included chunks of song? Would he need a standard licence on that basis?

e)    What is a “similar event” to a protest march? A static protest is potentially “similar to” a protest march as there is no reason why the key similarity need be movement. In which case, would the singing of protest songs also be exempt? Or the singing of songs wearing a protest placard or protest t-shirt? And if so, could those things be done with or without amplifiers and regardless of instruments and so on? Certainly, given that a protest march (such as the annual “May Day” march in Camden) can involve many people including with instruments and amplification, a single person protest with an amplified guitar cannot obviously be ruled out of the exemption. But the point is not clear.

1. Accordingly, the Council’s decision to implement the scheme is unlawful since it creates categories of criminal offence that an individual cannot foresee with sufficient certainty for the Council’s obligations under the common law and Article 7 ECHR to be fulfilled. (And see also the issue of foreseeability in the context of Article 10 ECHR, as below.)

GROUNDS 2 & 3: UNLAWFUL BASIS FOR ADOPTING THE SCHEME

Section 33 of the 2000 Act

1. As above, in order for a London Local Authority to adopt a licensing regime in respect of busking under the 2000 Act, the conditions in section 33 of the Act needed to be satisfied [LM??]:

“(1) This Part of this Act applies in the area of the 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. By section 6(1) HRA, the Council was also – in deciding whether to adopt a scheme and in the design of the scheme – required to act compatibly with Convention rights. The Act itself also has to be interpreted compatibility with the ECHR pursuant to section 3 of the HRA [D24-D25].
2. Busking is a form of artistic expression falling within the ambit of Article 10(1) ECHR (Müller v Switzerland (1988) 13 EHRR 212, para 27 [LM??]).
3. So any interference with it must satisfy the requirements of Article 10(2) [D23] and must thus (i) be prescribed by law, (ii) pursue a legitimate aim, and (iii) be necessary in a democratic society (i.e. it must be both necessary and proportionate).
4. Necessity means there must be a “pressing social need” for the restriction, which is convincingly established by the public authority (Sunday Times v UK (1979–80) 2 EHRR 245 [LM??]). Proportionality means that the interference must be no more than necessary.
5. A restriction is unlikely to be proportionate where a less restrictive, but equally effective, alternative exists: Informationsverein v Austria (1994) 17 EHRR 93 [LM??].
6. A number of requirements flow from those things as follows.

Activities which are exempted from ‘busking’ do not count

1. Undisputed by the Council, any evidence relied on to support a claimed satisfaction of the statutory requirements (section 33 of the Act) must relate to activities which have not been excluded from the definition of busking (by resolution of the Council). Only restricted activities are relevant.
2. Thus, for example, evidence of a particular incident cannot be relied on as the basis for a resolution unless it is clear that the incident was not (for example) arising from “seasonal activities” or an event “organised in conjunction with” Camden.

The evidence relied on must be capable of meeting the statutory test

1. A lawful scheme under the 2000 Act must be based on evidence which is legally capable of showing that what is to be covered by the scheme is having or is likely to have the effects set out in 33(2)(a)/(b) LLAA [D27].
2. As above, the material under consideration for the purposes of this judicial review is that which was considered by all councillors comprising the Full Council for the purposes of the 11 November 2013 meeting.
3. That does not include the additional material in Anthony Hawkes’ witness statement, nor the other documents and reports which he exhibits, which were not part of the materials in question and so cannot be relied on by the Council in relation to the legality of the decision.

The requirements must be met for any area to which Part V is to be applied

1. By section 33(2), a resolution cannot be passed in respect of any part of the area unless there is reason to believe that restricted activities are causing or are likely to cause the stipulated effects in that part of the area.
2. Therefore evidence that the restricted activities are having or are likely to have such effects must relate to each part of the borough in respect of which the licensing scheme is to apply. Thus, there is no power to pass a resolution in respect of the whole borough, unless there is a proper basis to say that busking is having such effects, or is likely to have such effects, throughout the whole borough.
3. That is because, as explained above, the effect of adoption of such a resolution is to identify those areas in which restricted activities are either banned altogether or only allowed in accordance with a licence.
4. That is why, in order lawfully to impose the scheme on the whole borough, there needed to be a proper evidential basis (i.e. in material before and considered by the councillors who made the decision) on which they could decide, and did in fact decide, that those restricted activities were having (or were likely to have) s33(2)(a) or (b) effects in every part of the borough.
5. The Council’s response on the point is entirely unsustainable: Grounds of Resistance paras 32-34 [??]:

“32. … As a matter of syntax, the latter words [of s 33(1)] do not apply where the resolution is for ‘all their area’, and would make no sense if they did. What falls within all of a council’s ‘area’ is well understood, and would not need to be ‘identified’ in a resolution or notice for members of the public to know the ambit of the council’s resolution. The same is not true of a ‘part’ of a council’s area. Where a council was resolving to apply Part V to a ‘part of their area’ only, it will only be if that part is identified in the resolution and notice that members of the public will know the ambit of the council’s resolution.

1. Section 33(2) refers to ‘any part of their area’. This refers back to the second category in section 33(1) – where a council is making a resolution with respect to ‘part of their area’ only, and not the whole of the area. It is only for a resolution applying to ‘part of their area’ that the evidential burden of section 33(2)(a) or (b) needs to be satisfied.

34. This construction not only accords with the plain words of the statute, but also makes sense. A resolution by a council that applies Part V to ‘part of their area’ only is a ‘targeted’ resolution – it is differentiating one ‘part of’ the council’s area from another. Where that is to be the case – in other words, you can only ‘busk’ in this ‘part of’ the council’s area if you have a licence, but can ‘busk’ anywhere else without needing a licence – particular justification would be required.”

1. The Council’s interpretation is plainly wrong.
2. Both the ordinary meaning of the words and syntax in section 33, as well as the effect the provision would have under each interpretation, support the Claimant’s analysis of the statute.
3. In relation to s 33(1), even though the whole of a council’s area is clearly defined, it is still necessary to identify to which area the regime will apply. This is just as true for a scheme being imposed on the whole of an area as part of an area: the resolution must specify which it is in order for the scope of the scheme to be clear.
4. As such the link the Council makes in respect of s 33(2) “back to the second category in section 33(1)” is misplaced. “Any part of their area” necessarily encompasses the situation of a scheme applying to every part of their area i.e. the whole borough. Evidence of the matters set out in s 33(2) is necessary in relation to each and every part of their area on which the Council intends to impose a licensing scheme.
5. If this were not the case (i.e. if the Council’s interpretation were right), it would lead to the absurd result of a council having unlimited discretion to ban busking and pass a resolution imposing a licensing scheme on the whole of the borough (the most restrictive option), but having to satisfy stringent evidential conditions in order to pass a resolution imposed on only part of the borough (a less restrictive option).
6. Such an interpretation would clearly be incompatible with Convention rights because it could permit a council to introduce a borough-wide licensing scheme (which interferes with Article 10, as below) as a measure of absolute discretion, and thus in circumstances where it is neither necessary nor proportionate.
7. As well as being clearly wrong, the statutory construction now argued for by the Council is not even the same as was considered by the Council when it made its decision. At [B14] paragraph ¹, the Street Entertainment Report sets out (without mentioning anything about the “get out clause” it is now suggested borough-wide application provides) that:

“The Council cannot adopt Part V of the Act unless they have reason to believe that there has been, is being, or is likely to be caused, as a result of busking:

i.     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

ii.     Nuisance to the occupiers of property in or in the vicinity of a street in that part of their area”.

Section 33(2)(a)

1. Section 33(2)(a) could only have been satisfied if Councillors on 11 November 2013 had before them proper and sufficient evidence on the basis of which councillors could conclude (and did in fact conclude):

a)    There was (or has been or is likely to be) interference, inconvenience or risk to safety

b)    It was undue

c)     And was in relation to persons using a street.

1. Interference, inconvenience and risk to safety must be read according to the everyday meaning of the words. That is uncontroversial. But the requirement that they be undue plainly adds to what must be established in order to justify the adoption of Part V of the 2000 Act.
2. An Article 10 [D23] compliant reading of “undue” obviously requires evidence of more than mere annoyance or the discomfort of a few individuals. This stems from the fact that any interference with Article 10(1) must be “necessary” in that the local authority must convincingly establish a “pressing social need” for the restriction which is proportionate to the legitimate aim pursued (Sunday Times v UK (1979–80) 2 EHRR 245 [LM??]).
3. In addition, to determine whether an interference under Article 10(2) is necessary, the court will look at all the circumstances of the case (Handyside v UK (1979-1980) 1 EHRR 737 at [50] [LM??]). This requirement will equally apply to consideration of whether interference (etc.) is undue and the court should examine the context in which the events complained of occurred: the time, place, background activities, etc.
4. Finally, the undue interference (etc.) must bear on persons using a street. The public authority asserting such undue interference (etc.) must have evidence that it is street users who are affected and not, for example, occupiers of property (for whom a different threshold – nuisance – is relevant, as discussed below).
5. All of these factors should have been (but were not) actively considered by the Council when making their decision, to determine whether, in respect of the evidence on which they relied, the s 33(2)(a) threshold was met (see more below).

Section 33(2)(b): “Nuisance to the occupiers of property”

1. To meet the requirements of section 33(2)(a) there would have needed to be before Councillors for the 11 November 2013 meeting (on the basis of which they in fact reached a conclusion), proper and sufficient evidence of nuisance as experienced by occupiers of property (e.g. a complaint must be clearly attributable to an occupier) and arising from restricted activities.
2. What constitutes “nuisance” here requires closer scrutiny.
3. The Council contends for its own local definition:

“nuisance may include a private nuisance, public nuisance, statutory nuisance (including harm to human health), along with undue interference and inconvenience.” [B33]

1. But it is unclear on what basis the Council purports to adopt this novel definition of nuisance, since the 2000 Act does not give councils the power to formulate their own “nuisance” concept and even if it did it is unclear how Camden would justify the expansive approach suggested by the quotation above.
2. The test is in the statute and not for the Council.
3. In the absence of a definition of nuisance in the Act, and to ensure a uniform and consistent approach to the concept of nuisance, it must be the common law definition that prevails (i.e. public and private nuisance: material interference with the reasonable comfort and convenience of residents, or substantial and unreasonable interference with the use and enjoyment of land).
4. Moreover, a determination of whether something amounts to “nuisance” requires consideration of the context in which it occurs. As the House of Lords famously explained in Sturges v Bridgman [1879] 11 ChD 852 at 856 [LM??]:

“whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of the thing itself but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” (See also Gillingham Borough Council v Medway (Chatham) Dock Co Ltd and Others [1993] QB 343 [LM??], and Halsey v Esso Petroleum [1961] 2 All ER 145) [LM??].

1. Accordingly, evaluation of whether any particular conduct at any particular time of day constituted nuisance in (say) Camden Town required consideration of (among other things) the nature of that part of Camden Town at that time of day, including the fact that the streets in Camden town are notably characterised by many sources of noise and other activity from shops, the street, and crowds of people.
2. Moreover, in determining whether the evidence shows (or is capable of showing) that a nuisance exists or is likely to exist Halsey v Esso Petroleum [1961] 2 All ER 145 at [152] [LM??]:

“the standard of discomfort …is that of the ordinary reasonable and responsible person who lives in this particular area…This is not necessarily the same as the standard which the plaintiff chooses to set up for himself”

1. So the assessment need to be objective: without more, the mere fact of a complaint from an individual could not suffice.

The Council’s decision on 11 November 2013

1. The materials the Council claims constitute evidence for the purposes of s 33(2), and were before them when they made their decision on 11 November, are the complaints and consultation responses.
2. But it is notable that there is no evidence of the Council actually considering how the information in question related to the requirements of section 33(2) – certainly the officers’ report provided no assessment of the point, nor any recommendation or evaluation that might have assisted councillors.
3. So, even if the Council were right (which it is not) that there was evidence to support a section 33(2) decision, there is no evidence of such a decision actually being taken. The section 33(1) resolution and the scheme that followed were not even underpinned by any decision as required by section 33(2).
4. But even if (for some reason) we put that crucial failure aside, the sum total of the potential evidence of s33(2) issues before the Councillors was a list of the 104 complaints made by 58 people between October 2012 and September 2013 [Appendix 5, B58-65] along with a summary of the consultation responses (from members of the public and the police)  [Appendices 6C, 6D(i) and 6D(ii), B80-188]. In combination, these would have to provide a sufficient evidential basis for the adoption of the scheme. As below, they do not.

The Complaints

1. At paragraph [39] of its Grounds of Resistance [??], the Council offers three “examples” of complaints which it says provide evidence of “nuisance or inconvenience” (although it does not say which, and has refused a request to clarify this).
2. The Council has asserted in its Response to the Claimant’s Request for Further Information [??] that these three examples are not the only examples of nuisance and undue inconvenience (etc.) that were before the Council on 11 November. It also points to the entire Street Entertainment Report, the draft policy with appendices, and the deputations from Roy Walker, Johnny Walker, the Chair of the Licensing Committee, the Cabinet Member for Community Safety, and the legal advisor. However, the Council gives no indication of what within any of those reports or deputations is said to evidence nuisance or undue inconvenience (etc.) capable of satisfying the statutory preconditions. In truth there is only the three ‘examples’.
3. In terms of the three ‘examples’ all that the councillors knew was this [??]:

“CB/B59, Complainant 39 – noise from band (buskers) – location not recorded – can just about put up with the man with the megaphone shouting nonsense for hours on end, even the beat boxer who repeats the same three songs all day long, but today I have reached the end of my tether with the band of people who have been hammering out the same tune with whistles drums and cowbells for over three hours straight. I cannot hear myself think over the racket. Sorry to rant but I have quite simply had enough.”

 

“CB/B60, Complainant 48 – Busking Kings Cross Road – My enquiry is The street musicians outside Kings Cross station (where King’s Cross square will be) are playing their drums very loudly. This disturbs our team in our office environment. Over the last few weeks, they have become a constant workday nuisance.”

 

“CB/B63, Complainant 35 – buskers, loud music opp 191 Camden high street – Caller reports music is so loud that they are unable to communicate with customers in the store.”

1. But, as addressed below, the Council cannot be sure that any of those were incidents that amounted to nuisance or undue inconvenience (etc.).

Specifics of Complainant 39

1. It is not possible to tell whether the complainant is an occupier of a property or a user of a street. S/he could well be neither and therefore the complaint cannot contribute to the evidential basis for the adoption of Part V.
2. Even if s/he is either an occupier or a user of the street, it is crucial to know which so that the correct legal threshold can be applied to the busking about which the complaint is made.
3. There is also no information about what the man with the megaphone was shouting. His shouting could have been a political protest, or a means of charitable fundraising, and therefore not a restricted activity (and unable to provide evidence to support the policy’s adoption).
4. There is no suggestion that the beat boxer was amplified and he might also not be a restricted activity (if he is ‘similar’ to a poetic recital – see above).
5. It is also possible that the band complained of were making music as part of a religious ceremony or procession. Councillors on the 11 November simply did not know, and therefore they could not lawfully have relied on the complaint as evidence in support of the scheme.
6. In any event, it is impossible to say on the basis of the information in the materials before councillors on 11 November 2013 whether any of these three busking incidents referred to by complainant 39 amounted to nuisance or undue inconvenience (etc.): all that is certain is that there was a subjective displeasure on the part of the complainant. That is not enough, as explained above.
7. Even if the matters did relate to a ‘nuisance’ in the requisite sense then Camden would appear to be relying on breach of its own duty to act under the Environmental Protection Act 1990. In particular, on receipt of the complaint, Camden could have sent a noise enforcement officer to attend the scene and if the busking did amount to nuisance (pursuant to s 79(ga) of the Environmental Protection Act 1990 [??]), it would be required by s 80(1)(a) EPA to issue a notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence. Breach of such a notice is an offence.
8. Indeed, even if the busking did not yet amount to nuisance, a noise abatement notice could be pre-emptively served under s80(1): the local authority need only be satisfied that the nuisance is likely to occur or recur, not that it is currently occurring, in order for the obligation to serve a notice to arise.
9. Alternatively, if there was reasonable cause to believe that the band with their cowbells have caused members of the public to be intimidated, harassed, alarmed or (more plausibly) distressed, and that behaviour (i.e. the busking) was a persistent and significant problem in the area, the police have powers to insist on the group’s dispersal under s 30 of the Anti-Social Behaviour Act 2003 [??].
10. There were therefore ample powers with which the busking complained of by Complainant 39 could have been appropriately dealt with (and indeed, if it amounted to a nuisance the Council had a duty to use those powers under the EPA).
11. Certainly, it is clear that the complainant saw what they referred to as a persistent problem. This was not “ad hoc” and unpredictable as alleged by the Chair of the Licensing Committee when contending that existing powers were thought to be ineffective at the 11 November meeting [B198].

Specifics of Complainant 48

1. The complaint about the effect of busking on “our office environment” was made by an occupier of a property, and so the issue was whether it fell within section 33(2)(b).
2. But even then it is not possible to tell whether this was a restricted activity or excluded. It is entirely possible that the drummers were Hare Krishnas and would fall within the religious ceremony exemption.
3. But even if it was a restricted activity it is not possible to tell whether there has been substantial and unreasonable interference with the use and enjoyment of land (let alone by reference to the urban context in which it took place) so there is no way to tell whether the nuisance threshold was crossed.
4. What does emerge is a persistent issue: “Over the last few weeks, they have become a constant workday nuisance”, again negating the suggestion (from the Chair of the Licensing Committee at the 11 November meeting [B198]) that other powers could not have been deployed.
5. Again, if the busking could have been considered to amount to a nuisance, then the Council would again have been under a duty to issue a noise abatement notice (and could even have done so pre-emptively).
6. The same criminal provisions referred to above would also be available to the Council to control the busking complained of by complainant 48. Overall, the matter could have been adequately dealt with by the Council and/or police under powers they already possessed to address noise control.

Specifics of Complainant 35

1. Complainant 35 appears to an occupier of property.
2. But it is not possible to tell whether the music complained of was a restricted activity (or in an excluded class – e.g. as part of a religious ceremony).
3. But even if it was a restricted activity and it was causing a nuisance (because of the volume which apparently rendered the complainant “unable to communicate with customers in the store”), then the Council would have been under a statutory duty to act under its EPA powers and would thus have been relying on this example in the face of its own breach of duty.

The Consultation responses

1. As pieces of evidence, the consultation responses relied on by the Council in support of adopting the scheme suffer from the same problems as the list of complaints.
2. For example, it is simply not possible to tell whether the things being referred to were restricted activities or busking at all.
3. Nor is it possible to tell whether the consultation responses describe interference or inconvenience that was undue and directed at users of the street, or whether they amounted to nuisance to occupiers of property, or whether they fell entirely below this specific legal threshold.

 

 

Response from the Police

1. And the consultation responses from the police [B184-188] provide no stronger evidential basis for the scheme.
2. The police simply explained in the most general terms a “growing concern from an increasing number of residents over the size and level of noise generated by those ‘busking’”, but even then in only one specific part of the borough “in and around Camden Town” and without information to show whether what was mentioned were restricted activities, let alone anything which would enable evaluation against the requirements of section 33 [B184].
3. Alongside this, police raised “safety” concerns which were either appropriately dealt with using existing powers (the fire juggler) or which are not necessarily attributable to restricted activities (criminal activity e.g. pickpocketing – which would be just as much of a risk in a crowd watching a magic performance as in a crowd watching a saxophonist). And they went so far as to conflate buskers and unlicensed street traders [B186] when discussing potential sources of crime, when unlicensed street traders fall under an entirely separate regime and (along with any effects they may have on safety or other matters) are a totally irrelevant consideration for the purposes of adopting this scheme.

Overall: Excluded activities do not count

1. As above, it is simply not possible for councillors on 11 November 2013 to tell whether what was being complained of were restricted activities at all.
2. The musicians in complaint CB/B59, for example, may have been Hare Krishnas and therefore exempt as “music performed as part of a religious meeting, procession, or service” [B25 4.3b]; the beat boxer may not have been using amplification and therefore could be exempt as a theatrical and poetic recital or similar performance [B25 4.2d]).

Overall: Nuisance or undue interference?

1. But even if that uncertainty could somehow be overlooked, when they made their decision on 11 November 2013 councillors failed even to make any assessment of whether what was complained of amounted to actual nuisance or undue interference (taking into account the character of the area to which each complaint relates) for section 33(2) purposes.
2. The Council now says that: “The Council can reasonably assume that if a complainant has made the effort to notify his or her concerns, then it is likely that there has been undue interferences and/or inconvenience to the complainant as a result of busking” (pg. 4, Letter of 3 December 2013 at [C19]).
3. But there is no evidence that the councillors ever even made that assumption at the 11 November meeting. Nor could they properly have done so. There are many reasons an individual might make a complaint, but it seems highly unlikely that a consideration of whether a busker crosses the particular legal threshold of undue interference or nuisance would be one of them – much less that it would so uniformly and specifically inform a member of the public’s decision to complain that the Council could rely on the legal assessment having already taken place.
4. And indeed there is no evidence that councillors gave any consideration to the context of what was being complained of, in particular the nature of Camden Town to which the vast majority of complaints related. Camden Town is characterised by its vibrant musical scene and busy, noisy street life. Indeed, the Council itself has described the Camden Town area as follows:

“Camden Town is one of London’s most well-known areas. It is home to a vibrant and diverse local community, as well as a thriving economy with a focus on music, design, creative media, arts and culture. This rich mix of activity has made Camden Town a world famous visitor destination, with over 10 million people coming to enjoy the town centre every year”.[1]

1. It is by reference to that character, and the circumstances of the particular time, that the Council needed to evaluate the incidents complained of in Camden Town to see if they could amount to “undue interference” (etc.) let alone “nuisance to occupiers”. There was no such consideration and therefore no lawful basis on which to adopt Part V of the 2000 Act.
2. The Council says at paragraph [38] of its Grounds of Resistance [??] that “for the Claimant to succeed on this point…he would have to demonstrate that the Council’s decision was irrational: that there was no reasonable basis upon which it could have had ‘reason to believe’”. This is not right. Although the Claimant could argue that, it does not have to argue that. Indeed, the ground advanced is prior to any consideration of rationality on the council’s part: the policy is unlawful because there simply was not material before the Council even capable of amounting to evidence that could satisfy the statutory pre-conditions of adoption of the scheme (because the required details of time/location/type of activity/status of complainant simply are not present in the record of the complaints or in the consultation responses).

Overall: Geographical spread

1. In addition, councillors on 11 November 2013 failed to consider whether the complaints provided evidence for the adoption of the scheme across the whole borough. In respect of areas outside of Camden Town, there was almost no evidence before Councillors relating to instances of restricted activities (or even excluded activities) at all, let alone that constituted undue interference (etc.) or nuisance.
2. At paragraph [6] of the Grounds of Resistance [B??] (taken from paragraph [7] of the witness statement of Anthony Hawkes [??]), the Council refers to a list of twelve locations for which there had been what is alleged to be a busking-related complaint. But three of those locations received only a single complaint in the twelve-month period (Regent’s Park Road, Finchley Road and Kings Cross) and a further three only attracted two complaints (Shaftesbury Avenue, along with Camden Road Overground station and Kentish Town Road station – of which the latter two are only c.300m and c.450m respectively from Camden Town station and therefore could be caught by a small licensed zone focused on Camden Town if there were evidence of undue interference (etc.) in Camden Town).
3. The remaining cited locations were complained of three times in the course of the year, except for Neal Street which attracted eight complaints; and none of the complaints specify whether it was an occupier or a street user who made it nor whether it could (and in fact did) amount to nuisance or undue interference (etc.).
4. This is not proper evidence of geographically widespread nuisance or undue interference (etc.) – in fact it is not evidence at all. And in any event the Council did not even consider whether it amounted to evidence that met the s 33 threshold.
5. Perhaps in recognition of the fact that there was no evidence of problem busking in respect of every area of the borough, the Council has also attempted to justify the borough-wide application of the scheme by reference to the possibility of displacement of problem busking if the policy were adopted in respect of only certain areas (see [36] in Grounds of Resistance [??]). But there is no evidence that councillors on 11 November actually even made any assessment (as required by the Act) of whether nuisance or undue interference (etc.) was “likely to be caused” in those currently unproblematic areas. (It is not good enough to say that they could have done, even if there was material before them which would have enabled to do so, which there was not.)
6. The Council claims (at p.3 of the Response to Request for Further Information [??]) that the evidence of the risk of displacement was:

a)    The police consultation responses [??]

b)    The considered view of the Licensing chair [B198]

c)    The consultation response of one busker [??].

1. But, in relation to the two examples of busking outside of Camden Town that the police provided (one in Hampstead and one in Holborn), there is no evidence that either of those was a restricted activity or was causing a nuisance or undue interference etc., nor that the buskers were in those locations as a result of “displacement” rather than for other reasons.
2. And the simple opinion of the Licensing chair that “restricting the policy to Camden Town only would simply shift the problems to other areas of the Borough” [B198] does not amount to evidence of the matters set out in s 33(2).
3. Nor does one consultation response that identifies the redevelopment of Kings Cross as “a great opportunity to encourage busking” assist the Council in meeting the exacting threshold of section 33(2) (not least because it says nothing about what sort of “busking” the respondent had in mind – it could well have been an something which would be excluded from the scheme and thus not require a licence in any event).

 

Overall on Grounds 2&3

1. Accordingly, the material considered by the members of the full Council for the purposes of the resolution of 11 November 2013 simply did not and could not meet the statutory preconditions for the making of a section 33(1) resolution at all, let alone across the whole of Camden.

GROUND 4: THE SCHEME IS DISPROPORTIONATE

1. As above, by Article 10(2), any with interference with Article 10(1) (which the Council accepts to be engaged here) must:

a)    Be prescribed by law;

b)    Pursue a legitimate aim; and

c)    Be necessary in a democratic society (i.e. it must be both necessary and proportionate).

Prescribed by law

1. In order for an interference to qualify as “prescribed by law”:

a)    there must be a specific legal rule or regime which authorises the interference;

b)    the citizen must have adequate access to the law in question (Sunday Times v United Kingdom (1979-80) 2 EHRR 245 at [49] [LM??]); and

c)    the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984) 7 EHRR 14 at [66] [LM??], approving the definition in Sunday Times at [49] and [87-88] [LM??]).

1. The specific legal regime which creates the power to interfere here with Article 10 ECHR is the London Local Authorities Act.
2. The fact that, as above, the statutory requirements were not here met means that the scheme is not “prescribed by law”.
3. Moreover, the “adequate access” and “foreseeability” requirements means that “the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case” (Sunday Times v UK, para [49] [LM??]). For all the reasons set out at Ground 1 in relation to the lack of precision in what is allowed and not makes it impossible for a citizen to know which legal rules (the normal licence conditions? The special licence conditions? No licence at all?) apply.

Legitimate aim

1. The legitimate aims for which an interference with Article 10 can be justified are set out at Article 10(2) [??]:

“… in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

1. It is accepted that prevention of nuisance or undue interference (etc.), or prevention of criminal activity, would fall within these legitimate aims (in particular, public safety, the prevention of disorder or crime, the protection of health and the protection of rights of others).
2. However, as above, in the absence of any evidence that restricted activities were causing a risk to public safety or the health or rights of others, or were in any way linked to disorder or crime, the Council’s policy cannot be said to be in pursuit of a legitimate aim. It is not a legitimate aim to address a problem that it has not been established even exists.

Necessary in a democratic society

1. As above, establishing necessity requires the local authority to convincingly demonstrate a “pressing social need” for the restriction (Sunday Times v UK (1979–80) 2 EHRR 245 [LM??]).
2. It is not enough to simply assert, as the Council does at paragraphs [46-47] of its Grounds of Resistance [??], that there is “ample evidence” that the policy is necessary “in the interests of …public safety, for the prevention of disorder or crime, …for the protection of health …[and/or] the rights of others…  ‘limiting manifestations of freedom of expression which cause a genuine obstruction of the highway … or a nuisance, can in principle, be said to be a justified interference with the manifestator’s freedom of expression’”.
3. Of course, the Claimant takes no issue with the quoted proposition of law. But there was no evidence before the Full Council that showed either that genuine obstruction or nuisance had been caused by restricted activities (as opposed to other things), or that there is or had been any actual threat to public safety, crime prevention, health or the rights of others (ditto), or more generally to establish a pressing social need for restricting busking in the borough.
4. And in any event, the decision on which the Respondent relies, above, predated the introduction of the Environmental Protection Act 1990, which (in its sections 79-82) provided the mechanism to address the point being made by the Commission. So the case does not provide any basis, or justification, for additional restrictions as being imposed by Camden now.
5. The Council alleges that “the right under Article 10 of street entertainers to perform operates at quite a low level” and cites Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [LM??] as authority for the proposition that the court should examine whether the Council has exercised its licensing power “rationally and in accordance with the purposes of the statute”; if so “it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights” – which the Council asserts do not exist here (Grounds of Resistance paragraph 43 [??]). But the points in Miss Behavin’ were made in an entirely different context. Lord Hoffman’s comment about Article 10 operating at a low level was in relation to “the right to vend pornography” (paragraph [16] of the judgment) and not about busking at all; and his concomitant observation that unusual facts are required to constitute a disproportionate interference with Article 10 is, again, in the context of interfering with the right to operate or use a sex shop. It simply cannot be read across to the very different situation of street entertainment.
6. The Council has simply failed at the first hurdle to justify its interference with Article 10.
7. Taking into account all the circumstances of the case (Handyside v UK (1979-1980) 1 EHRR 737 at [50] [LM??]), the Council simply has not demonstrated that there is even a problem with busking in Camden let alone that the adopted scheme is the appropriate way to address it. There is no evidence that the steps the Council has taken are necessary.
8. But even if it had (which it has not), that would not be enough.
9. Alongside the necessity requirement, proportionality requires that the interference must be no more than necessary. Accordingly, if a less restrictive but equally effective alternative exists, the interference is unlikely to be proportionate: Informationsverein v Austria (1994) 17 EHRR 93 [LM??].

“No more than necessary”

1. Whether the adopted scheme is no more than necessary depended on the context in which it is adopted and the evidence in support of it. Ultimately it should be the least intrusive means of achieving the legitimate aim.
2. The background to the adoption of the policy in this case was, apparently, concerns that members of the Council had about residents’ dissatisfaction with busking (see e.g. paragraphs [5] and [10] of the Statement of Anthony Hawkes [??]). There were 104 formal complaints in the 12-month period from October 2012 to September 2013.
3. However, in relation to these complaints, it is worth noting that:
4. They represent only 2.45% of the general noise complaints received by the Council in that same period, so busking cannot be said to be a significant contributor to noise problems in Camden;
5. They were made by 58 people, in a borough with a resident population of over 220,000[2] alongside over 190,000 non-resident workers[3].
6. Whether the scheme was no more than necessary to achieve a legitimate aim must therefore be considered in light of this context: it is the Claimant’s submission that, given the scant evidence, it was not necessary at all, let alone no more than necessary such that it would be proportionate.
7. The paucity of evidence of a problem was compounded by the lack of evidence that the scheme which was adopted was also the least intrusive means of regulating what the Council perceived to be problem busking. There was simply no consideration of alternatives, which overlooked the existence of several potentially effective and much less restrictive alternative approaches.

Less restrictive alternatives

The use of pre-existing powers

1. Notably, the Council gave no specific consideration at the 11 November 2013 meeting to the particular statutory powers available to it to deal in a focussed way with issues which arose (rather than imposing a requirement for licensing across the whole borough).
2. However, without even identifying them, the Council’s Borough Solicitor acknowledged (in an oral answer to a question at the Council meeting [B198]), that the Council already has available to it a range of powers to deal with any genuinely problematic instances of busking in Camden on an individual and targeted basis.
3. The minutes of the meeting report him as saying that [B198]: “the legislation did allow options but that the report set out the reasons why it was recommended that the policy should apply across the whole Borough”. He offered no analysis or explanation of how or why additional blanket restrictions (as imposed here) were needed.
4. The specific powers available to the Council to deal with any particular problematic incidents include:
5. Public nuisance – where it arises – is a criminal offence as well as a civil tort (R v Rimmington, R v Goldstein [2006] 1 AC 549 [LM??]). Therefore, any individual causing a public nuisance through busking could be dealt with through police enforcement.
6. Section 79(1)(ga) of the Environmental Protection Act 1990 [D6-D15] creates a statutory nuisance for “noise that is prejudicial to health, or a nuisance, and is emitted and caused by a vehicle, machinery, or equipment in the street”. Under section 79(1) it is the: “duty of every local authority to cause its area to be inspected from time to time to detect statutory nuisances which ought to be dealt with under section 80 below, and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint”. Where the local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, it “shall” serve an abatement notice under section 80 [D16-D19].  So the Council is in fact under a duty to investigate complaints of noise nuisance said to arise from buskers and to serve abatement notices on buskers if they are creating a statutory nuisance. It follows that if any busking in Camden were in fact causing statutory nuisance (which the Claimant considers the materials before the Council do not establish), the Council would be in breach of its duty under the EPA in failing to deal with this.
7. Section 62(1) of the Control of Pollution Act 1974 [D1-D3] makes it an offence to operate a loudspeaker between 9pm and 8am. The Council could use this to prevent the use of any amplification equipment after 9pm.
8. Under section 137(1) of the Highways Act 1980 [D4-D5], it is an offence to wilfully obstruct the free passage along a highway. This could be (and is) used to prevent buskers from causing any obstructions.
9. There are also a range of powers under the Public Order Act 1986 and the Anti-Social Behaviour Act 2003 [??] that could deal with any anti-social busking.
10. Indeed, at paragraph [45] of its Grounds of Resistance [??], the Council states that “in many respects, the Policy places no extra limits on a busker’s existing rights (to perform without committing a nuisance, for instance)”. That implicitly recognises that any problematic/nuisance-causing street entertainment is already regulated i.e. they already have powers to address it.
11. And the evidence of successful “busking patrols” by the Council and Police corroborates that (see e.g. the Street Entertainment Report at [B12-13] and Chief Inspector Mills’ consultation response at [B186]).
12. A less restrictive option for the Council to take would be continued enforcement under the pre-existing powers.
13. Although the Council complains about the resources involved in using its existing powers, it had no specific evidence on the point before it at the time (what Mr Hawkes now says at e.g. paragraph 8 of his statement [??] was not before Councillors) and, in any event, as above, in large part the Council’s failure to take action where merited would have been in breach of its duty in any event.
14. At the 11 November meeting, the Chair of the Licensing Committee dismissed use of the existing powers contending that: “it was not possible to use noise nuisance legislation as busking performances were often ad hoc and did not occur in fixed locations” [B198]. However that ignores:

a)    The success that the joint busking patrols had had;

b)    The package of other enforcement options available for problematic busking (not just “noise nuisance legislation”);

c)    The fact that what the Council relies on as evidence of problem busking, far from not occurring in fixed locations, is consistently in clearly identified (and small) areas of the borough: essentially, the area around Camden Town. And the complaints noted the repeat nature of the busking they complained of.

1. As well as this, the point made by the Council in paragraph [53] of its Grounds of Resistance [??], namely that current powers only allow for enforcement measures after a breach had occurred which is “a worse policy for those who will be disturbed before enforcement can take place, for the police who will have to devote resources to the enforcement, and for a busker who might breach the provision through ignorance and thereby be subject to police action” simply does not stand up to scrutiny. Even the new policy will need enforcement and will suffer very similar constraints to those described in [53] (indeed, at [55] the Council accepts that in terms of enforcement against problem buskers “this is unlikely to be more burdensome than the action that would need to be taken to deal with such an occurrence under any other measure” i.e. it is likely to be very similar to the current burden) – but its impact will be compounded by a need for resources at the permission stage, as well.
2. And there will be new enforcement requirements relating to the display of licences and respect of conditions of licenses which the Council seems simply to dismiss as having minimal resource implications and being addressed by the unsubstantiated assumption that “there is likely to be a high degree of self-enforcement” (Grounds of Resistance, [55], [??]).
3. The material before the Council on 11 November 2014 did not show how (as asserted at [55] of its Grounds of Resistance [??]) the costs of administration and enforcement would be recouped through the licence fee. And at no point has the Council taken into account that the consideration of licence applications under the new scheme imposes time as well as financial consequences which will exacerbate the impact it has on Council resources in general.
4. Overall, the Council’s aim of eliminating problem busking was eminently achievable through the use of pre-existing regulatory and enforcement powers. The new scheme is simply not proportionate.

A less restrictive licensing scheme

1. Alternatively, even if contemplating a scheme under the 2005 Act, the Council could have imposed a less restrictive licensing policy.
2. The current scheme is excessive because, in particular:

a)    It applies to the whole borough;

b)    It applies to many activities which could reasonably be exempt;

c)    It applies a sweeping presumption against certain forms of street entertainment (notably any involving drums, wind instruments (other than flutes and recorders) or amplification).

1. There is no lawful justification for the breadth of these restrictions in the scheme.

The borough-wide adoption of the scheme is disproportionate

1. In relation to the borough-wide imposition of the policy, the Council entirely failed to consider whether the evidence before them justified the adoption of the scheme across all the borough, and indeed the evidence did not (as above).
2. The Council in part based its decision that the scheme should be borough-wide on a suggestion that, if it were not, displacement of problem busking would occur to other areas in Camden. The Chair of the Licensing Committee asserted at the Council meeting that, “Restricting the policy to Camden Town only would simply shift the problems to other areas of the Borough” [B198], and the police in their consultation response noted two examples of busking in areas other than Camden Town (although there was no evidence that these locations were chosen by buskers due to ‘displacement’ rather than for other unrelated reasons) [B184 & 188]. In combination, these two considerations still fall far short of providing evidence on which the Council could lawfully decide that borough-wide licensing is justified as no more than necessary to combat a proven problem. There was no evidence of the problem, let alone that the selected response was proportionate.
3. And the Council failed to consider whether a scheme that was not borough-wide would be appropriate. Although the Claimant requested further information on this point, the Council in its Response (which purports to address the point at page 4, [??]) fails to give any evidence that other options were considered or any decision was taken as to the necessity or proportionality of a borough-wide scheme.

Disproportionate to require licensing of certain unproblematic busking

1. It is a disproportionate interference with Article 10 to apply the policy to certain forms of busking about which there is no evidence that justifies restriction, and which should properly fall into the exempt category.
2. Indeed, there seems to have been a degree of arbitrariness in the decision about which forms of entertainment to exempt and which to restrict. For example, while a solo, unamplified singer would need to apply for a licence, a troupe of actors performing a theatrical recital would not need to. There is simply no evidence to suggest that the former has presented a problem where the latter has not, and there is therefore no proportionate legal basis on which to make a distinction between the two (nor any proportionate basis on which to regulate a solo, unamplified singer at all).
3. The Council has failed to show why unamplified music (or even quiet amplification) should not have been exempt.
4. At [56] of its Grounds of Resistance [??], the Council attempts to justify this by saying that “…Limiting the policy to ‘loud or amplified busking’ would not address all of the concerns associated with “busking”: in particular, the concerns expressed by the police about the ‘associated crime activity including pickpocketing and public safety’. Nor would this be easy, or sensible, to define on a general, across-the-board basis whether applied to ‘singing’ or amplification.”
5. But that argument founders on several fronts.
6. First, it simply wasn’t the basis on which the Council took its decision. Councillors on 11 November 2013 did not consider the alternative of a less-restrictive policy that did not restrict all music. Post hoc reasoning of this sort cannot render the policy lawful.
7. Secondly, as addressed above, there was no actual evidence of criminal activity associated with restricted activities to justify imposition of the scheme on those types of busking. (The “additional evidence” of crime referred to in the Response to the Request for Further Information, pages 5 and 6, [??], namely a single consultation response that mentions “criminal activity”, and the fact that the Equalities Impact Assessment states that busking creates opportunities form “crime to occur” does not amount to evidence – they are unsubstantiated statements). Indeed, the Claimant has specifically tried to establish whether there is any such evidence (by way of Freedom of Information requests to the Council and the Metropolitan police): see paragraphs 6-9 of the second witness statement of Jonny Walker [??]). But nothing has been provided which shows any giving no causal link between busking of any sort (let alone specifically restricted activities) and crime.
8. And thirdly, the law does not allow a public authority to interfere with Article 10 rights more than is necessary because the less restrictive option would not be easy or sensible. In any event, defining ‘loud or amplified music’ would in fact be straightforward: the Council could simply specify a decibel level over which busking would not be allowed. But even if it is true that the adopted policy is “easier” than the alternative, that does not mean it is proportionate. Indeed, the existence of a less restrictive alternative means that the selected approach cannot be proportionate.

Disproportionate to impose a presumption against “special conditions” busking

1. Finally, the scheme is disproportionate because there is no proper basis for the presumption against “special conditions” busking i.e. against all groups of more than two performers, amplification equipment, wind instruments (other than flutes and recorders), and drums.
2. There was no justification for the selection of particular activities to which the more onerous conditions apply: there was no evidence before the Council (let alone a decision by it on any explained or justified basis) that one person playing the guitar and harmonica would be problematic where a guitar duo would not be. And there was no consideration by the Council of the less restrictive but equally effective approach of placing general limits on volume and timing of performances.
3. Not only is the imposition of the special conditions licence on certain forms of busking disproportionate; but the process for obtaining such a licence is also excessive. The markedly higher fee and long approval period (including public consultation) is a significant and unwarranted restriction of those forms of expression.
4. In response to this, the Council remarks at [59] of its Grounds [??] that it “adjudged that it would be far more sensible to consider [amplification/wind instrument/drum] use on a case by case basis”.
5. But there is no evidence that councillors on 11 November 2013 did make any such judgment when it made its decision – this is an attempt at impermissible after the event reasoning.
6. And far from simply introducing a case-by-case assessment, the policy imposes a presumption against the use of that equipment, which the performer is required to displace in order to obtain the licence (see [59] of the Council’s Grounds [??] and ² of the Street Entertainment Policy at [B30]).

Overall on Ground 4

1. The Council has entirely failed to show that the regulation of busking in Camden is necessary.
2. Following that, it has also failed to show that the particular scheme it has selected is necessary and no more than necessary such that it is a proportionate interference with the Article 10 rights that are agreed to be engaged.
3. In particular, the imposition of restrictions across the whole borough, the inclusion of certain types of busking which should be exempt, and the presumption against “special conditions” busking are manifestly disproportionate restrictions on performers. Various less restrictive options could have been pursued.
4. As such, the imposition of the scheme is unlawful.

OVERALL

1. Overall, the Claimant submits that the Council’s decision to introduce the licensing scheme was unlawful as above.
2. The Claimant asks the court to grant judicial review permission and then:

a)    Declare that the Council has acted unlawfully, and

b)    Quash the decision to adopt Part V of the 2000 Act (and the licensing scheme that flows from that).

 

David Wolfe QC

MATRIX

14 February 2014