Published by IndyRikki on 11th March 2014.
See the IndyRikki article here.
If you sing in the street or a park in the London Borough of Taliban, and a passer-by appreciates your voice, the authorities can surgically remove your vocal tract and sell it on the black market. Ok, that may be a marginally excessive interpretation of the law, but it’s not far off!
Camden’s new powers define busking as ‘provision of entertainment in the street’, so if you haven’t applied and paid for a busking licence and you ARE singing, you’re OK as long as it’s awful and no-one is entertained, but the moment a passer-by enjoys it you have actually stepped over the legal threshold and will be committing a criminal offence. If you have an instrument, they CAN seize and sell it if you don’t pay up to £1000 fine. The barrister representing the joyless Labour council agreed in court that this interpretation of the law was accurate. After a legal challenge, this morning’s decision by Judge Mrs. Justice Patterson, means the laws will now be in force throughout the Borough.
The hearing took place at the High Court on the 27th and 28th Feb, and was a ‘rolled-up hearing’ which means the judge decides whether there are grounds for a Judicial Review, and then if so, decides the outcome of that JR at the same time.
The case was brought against Camden Council by professional busker and founder of the Keep Streets Live campaign, Jonny Walker, who, through crowd-funding, managed to raise much of the money needed to ensure he’d be able to pay agreed ‘protected costs’ in the worst possible outcome of a failed challenge and costs awarded against him.
Leigh Day solicitors hired the services of barrister David Wolfe QC, and Camden turned up in court with their legal team and two barristers, led by Clive Sheldon QC.
I sat in court both days, and heard the legal arguments, which I’ll try to distill down here. At the end of the first day, I was not very optimistic, because the judge, Mrs. Justice Patterson, seemed to be quite combative with David Wolfe, very accommodating with Mr. Sheldon, and was concerned to know how long they’d each need on the second day because she was “mindful that Camden wanted to get on and implement the legislation” and she was hoping to be able to give them a verdict before the weekend!
As it turned out, David Wolfe took his time on the Friday, and also gave her rather a lot to think about, so the hand-down was postponed a further week.
Camden’s proposed licensing scheme is based on powers given them under the London Local Authorities Act 2012. This Act allows London authorities to issue penalty notices, create licensing schemes, and gives them other powers to combat identified public nuisance.
Camden Council claim that they have identified busking as causing serious public nuisance in the Borough, and that they have brought in a “light touch” licensing regime which will “encourage” busking in the area while controlling situations that have been identified as causing problems.
Their scheme is Borough-wide, and forces buskers to apply for a license. If the musician intends to use any amplification, they have to jump through all sorts of hoops, pay a higher fee, and wait for weeks. Otherwise, they pay a £19 fee several days in advance, and are still subject to all manner of conditions. Breach of conditions, or busking without a licence, is a criminal offence, with up to £1000 fine, and Camden also have the power to seize musical instruments and/or amplification equipment, and sell it if any fine is unpaid.
The challenge had two main aspects. First, David Wolfe questioned whether Camden had provided enough evidence to trigger the legislation in the first place. Second, he questioned whether the legislation was compatible with human rights convention requirements over freedom of expression.
Camden mainly relied on a log of over a hundred telephone complaints received by the Council, but Mr. Wolfe went through these in detail, questioning whether they showed evidence that busking had been, is being, or is likely to cause ‘undue nuisance’. Camden’s scheme exempts certain groups and activities, including, for instance, morris dancers and Hare Krishna drummers. He pointed out that most entries on the log provided unsatisfactory information to be able to reach any conclusion about ‘undue nuisance’, and that one of the complaints was about morris dancers, and so won’t be resolved, and others spoke of ‘drummers’ which may well have been the exempt Krishnas given the absence of any other info.
He spoke at length about possible absurd scenarios raised by the rules. ‘Busking’ is defined as ‘provision of entertainment in the street’ (not necessarily for gain), so he gave example of someone singing a song on a sunny day on the way to work. If singing to himself, he is free to carry on, but if a fellow pedestrian starts enjoying the song and is entertained by it, then the singer starts to commit a criminal offence, and would have to either stop singing, or ask the other person to go away. A similar scene might be a young lad singing and playing the guitar in Lincoln’s Inn Fields. No problem there, and no licence required. As he’s particularly talented though, he draws a small crowd. He’s now become a criminal! Mr. Wolfe pointed out that under the human rights convention it was imperative for any criminal transgression to be “sufficiently foreseeable” which clearly it was not.
Although, Camden of course said they wouldn’t enforce the law in that situation, and a judge wouldn’t convict even if they did, the obvious response from the challengers is, why make it law then?
In terms of human rights, the argument is whether the restrictions are proportionate, respond to a pressing need, and that no less restrictive means are available to control the problem.
Camden claimed that it’s not over-restrictive because people can still busk in the rest of the country!
Mr. Wolfe referred to case law to show that supervision should be strict over ANY restriction, and that just because SOME singers MAY have caused genuine NUISANCE in a certain AREA at a PARTICULAR TIME, this couldn’t give rise to a restriction on ALL singers throughout the whole Borough at all times.
Camden stuck by their complaints log to show a ‘pressing need’, and they claimed other laws were not adequate to combat problems.
Mr. Wolfe pointed out that “less restrictive means” didn’t necessarily mean other already available law, and that Camden had framed bad legislation which could be rewritten to be far less restrictive. He asked also why the complaint log hadn’t contained an “action taken” column. This might have provided further evidence, but its absence suggested Camden may have actually breached an existing Section 79 requirement to respond to complaints, instead writing new legislation that may have been entirely unnecessary.
The hearing finished at around 3.30 on the Friday, and Mrs. Justice Patterson said she had plenty to ponder, was away the following week, and so would not be able to hand-down her verdict until this week.
This morning, the High court delivered its verdict backing the Council’s new policy. Jonny’s solicitors will lodge an appeal.
Statement by the Keep Streets Live Campaign:
“The generous support of many hundreds of people enabled to bring an historic High court challenge against Camden’s decision to introduce compulsory licenses for any person wishing to sing or play music in a public space within the borough.
We believe that the scheme is too wide in its definition of busking, that it has been introduced in response to inadequate evidence, to apply across the entire geographical area of the borough, and that it is disproportionate for the purposes of the Human Rights Act by interfering with the right to Freedom of Expression in a way which is neither necessary nor proportionate.
In the light of these points, which were convincingly argued in the High Court, we are disappointed that Mrs. Justice Patterson has seemingly taken at face value Camden’s argument that people making music on the streets have a low level of protection under Article 10 of the Human Rights Act, and has ruled that Camden’s sceme is necessary, proportionate and lawful.
We profoundly disagree with her judgement and will now seek to have this case heard by the Court of Appeal and to ask Camden not to enforce their policy unitl the case is heard by a higher court.
Informal and spontaneous performances of music are a vital part of Camden’s rich and diverse cultural heritage and need to be protected. Under Camden’s policy, even singing a protest song without a licence could be a criminal offence. From our perspective this makes the excessive interference with Article 10 rights clear and unambiguous. In a democratic society, singing in the streets should never be a potential criminal offence.
On behalf of the Keep Streets Live campaign I would like to re-iterate our desire to work alongside Camden Council and residents to address their genuine concerns and to develop a collaborative ‘best practice’ guide for busking, if they will withdraw their contentious policy.
In Liverpool, which like Camden, is a city famous for music and grassroots culture, we are working alongside the local council to develop practical guidance for street entertainment that works for all parties.
We invite Camden to learn from this approach and work with us, and not against us.”