British Amusement Catering Trades Association v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Fraser of Tullybelton,Lord Lowry,Lord Griffiths,Lord Ackner |
| Judgment Date | 03 March 1988 |
| Judgment citation (vLex) | [1988] UKHL J0303-1 |
| Court | House of Lords |
[1988] UKHL J0303-1
House of Lords
Lord Bridge of Harwich
Lord Fraser of Tullybelton
Lord Lowry
Lord Griffiths
Lord Ackner
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Griffiths. I agree with it and for the reasons he gives I would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Griffiths. I agree with it and for the reasons which he has given would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Griffiths. I agree with it and for the reasons which he has given would allow the appeal.
My Lords,
The first appellant, British Amusement Catering Trades Association, is a trade association, and the second appellant, First Leisure Corporation Plc., is a member of that trade association. The second appellant operates an amusement arcade known as the Crystal Rooms, Cranbourn Street, London, which contains a number of machines known as video amusement games. In recent years video games have become a familiar feature not only in amusement arcades but in many other places such as waiting rooms, public houses, cross-channel ferries, shops, clubs and so forth. There can be few of us who have not tried our hand at one time or another at "space invaders" or some similar game. The operation of such a machine is described in one of the appellant's affidavits:
"Video games are games of skill. They are played with the aid of a screen on which are electronically portrayed the objects or characters of the game. The objects or characters move about on the screens. Some of these objects or characters are controlled by the player; the rest are controlled by a computer programme. In essence, the game is a contest between those objects or characters exclusively in the control of the machine and those objects or characters in the control of the operator."
On 18 January 1983, an inspector employed by the Greater London Council (G.L.C.), the predecessor of the respondents, informed the management of the Crystal Rooms that they should obtain a licence for the premises on the grounds that the video games were "cinematograph exhibitions" within the meaning of the Cinematograph Acts 1909 and 1952 as amended by the Cinematograph (Amendment) Act 1982. Perhaps not surprisingly the appellants disagreed with the view that a video game was a "cinematograph exhibition." They thought that a cinematograph exhibition was a film show, something quite different from a video game. It appears that the G.L.C. threatened to prosecute and the appellants therefore took out an originating summons in the Chancery Division to determine whether on the true construction of the Cinematograph Act 1909 as amended by the Cinematograph Act (Amendment) Act 1982, the operation of an amusement game was a "cinematograph exhibition" within the meaning of the Act.
The learned judge, Mervyn Davies J. and the majority of the Court of Appeal (Balcombe and Slade L.J.) applied a construction to the definition of a "cinematograph exhibition" which led them to the conclusion that a video game is a "cinematograph exhibition" albeit both Lords Justices acknowledged that it was unlikely that Parliament contemplated such a result. Nourse L.J., who dissented, expressed himself shortly and forcefully. He said at [1978] 1 W.L.R. 977, p. 983:
"Anyone who was not a lawyer could be forgiven for thinking that a video game is an electronic machine which is operated by one or more players; that an exhibition of moving pictures is a film show; and, the two things being different in kind, that an Act of Parliament which is expressed to apply only to the latter cannot apply also to the former. Notwithstanding that the contrary view has been taken by Mervyn Davies J. and the two other members of this court, I am of the clear opinion that this simple and straightforward view of the statute is correct."
My Lords, I find myself in complete agreement with this view of the statute which I shall seek to support in a short historical review of the legislation.
In the early days of the cinema films were highly inflammable and this, coupled with the heat generated by the intense light required to project the images from the film on to the screen, created a serious fire risk. There can be no doubt that it was with this risk primarily in mind that Parliament enacted the Cinematograph Act 1909 which required that premises used as a a cinema should comply with safety regulations made by the Secretary of State and be licensed by the local authority. It will be sufficient to set out the long title and sections 1 and 2(1) of the Act:
"An Act to make better provision for securing safety at Cinematograph and other Exhibitions.
1. An exhibition of pictures or other optical effects by means of a cinematograph, or other similar apparatus, for the purposes of which inflammable film are used, shall not be given unless the regulations made by the Secretary of State for securing safety are complied with, or, save as otherwise expressly provided by this Act, elsewhere than in premises licensed for the purpose in accordance with the provisions of this Act.
2. (1) A county council may grant licences to such persons as they think fit to use the premises specified in the licence for the purposes aforesaid on such terms and conditions and under such restrictions as, subject to regulations of the Secretary of State, the council may by the respective licences determine."
I am left in no doubt that in the phrase "an exhibition of pictures … by means of a cinematograph" the word "exhibition" is being used in its primary sense as a show to an audience and the entire phrase means a film show. The principal object of the Act of 1909 and of the regulations made thereunder which were published contemporaneously with the Act was to provide for the safety of the audience at such an exhibition and in particular to eliminate the fire risks. The word "exhibition" used in this sense appears throughout the Act of which a good example appears in section 7(2) in which an exception is provided to the requirement of a licence if:
"… the occupier thereof has given to the county council and to the chief officer of police of the police area, not less than seven days before the exhibition, notice in writing of his intention so to use the premises …"
In Attorney-General v. Vitagraph Co. Ltd. [1915] 1 Ch. 206, Astbury J. refused to construe "exhibition" to include those occasions when films were shown to trade buyers and held that the Act should be construed as referring to places of public entertainment where an exhibition of a cinematograph picture takes place. In the course of giving his judgment he shortened the phrase "an exhibition of pictures … by means of a cinematograph" and used the phrase "cinematograph exhibitions."
The Act of 1909 only applied to film shows in which inflammable film was used and by 1952 the technology of the film industry had advanced. Film shows could now be given using non-inflammable film and also by means of television. By section 1 of the Cinematograph Act 1952 the 1909 Act was extended to include both these means of giving a film show:
"1. Subject to the provisions of section 7 of the Act of 1909 and to the exemptions hereinafter provided, the said Act and (except so far as they otherwise provide) any regulations made thereunder shall apply as respects all cinematograph exhibitions, whether given by means involving the use of...
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