British Amusement Catering Trades Association v Westminster City Council
Jurisdiction | England & Wales |
Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE NOURSE,LORD JUSTICE SLADE |
Judgment Date | 26 March 1987 |
Judgment citation (vLex) | [1987] EWCA Civ J0326-3 |
Court | Court of Appeal (Civil Division) |
Date | 26 March 1987 |
Docket Number | 87/0386 |
[1987] EWCA Civ J0326-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice,
Lord Justice Slade
Lord Justice Nourse
and
Lord Justice Balcombe
87/0386
CHF/50/85
LORD A. A. M. IRVINE, Q.C., and MR. R. A. FIELD (instructed by Tarlo Lyons) appeared for the Appellants (Plaintiffs)
MR. D. BARKER, Q.C., and Mr. J. R. T. RYLANCE (instructed by R. A. Lanham Esq., Legal Branch, Greater London Council) appeared for the Respondents (Defendants).
This appeal raises a short question: does the operation of a video game constitute a cinematograph exhibition as defined by the Cinematograph Act 1909 as amended? Mervyn Davies, J answered this question in the affirmative sense. His judgment to that effect is reported in (1985) 1 WLR 840.
The appellants, who were the plaintiffs to an originating summons raising the question of the construction of the 1909 Act, are the British Amusement Catering Trade Association and First Leisure Corporation PLC. The Association is an association of employers engaged in the amusement catering industry, which is the business of operating amusement devices of all kinds in amusement arcades and other similar places; it also covers the business of manufacturing, dealing in and repairing such amusement devices. First Leisure is a member of the Association. It is the operator of an amusement arcade known as the Crystal Rooms in Cranbourn Street, London WC2. The amusements provided in the Crystal Rooms include coin-operated video games which are amongst the amusement devices with which the Association and its members are concerned. The Greater London Council was originally the defendant to the originating summons, as being the licensing authority under the 1909 Act for the area in which the Crystal Rooms are situate, and whose officers had taken the view that First Leisure required a licence under the Act for the Crystal Rooms, on the grounds that the video games operated there constituted a cinematograph exhibition. The GLC having ceased to exist, the Westminster City Council, as the current licensing authority for the area of the Crystal Rooms, was substituted as respondent for the purposesof this appeal.
Video games are games of skill. They are played with the aid of a screen on which are portrayed the objects or characters of the game The objects or characters move about on the screen. 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. Coin-operated video games are nowadays commonly found not only in amusement arcades but also in such places as public houses, the public rooms of hotels, leisure centres, the reception areas of swimming pools, railway waiting rooms, snack bars, cafe and restaurants.
Section 1 of the Cinematograph Act 1909, in its original form, provided:
"An exhibition of pictures or other optical effects by means of a cinematograph, or other similar apparatus, for the purposes of which inflammable films 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."
The references to "inflammable films" and "regulations…. for securing safety" are strong indications that the primary legislative purpose of the Act was to provide for the safety of persons attending cinematograph exhibitions, even though the licensing authority had power to impose conditions unrelated to safety considerations (see L.C.C. v. Bermondsey Bioscope Company Ltd. (1911) 1 KB 445.
The 1909 Act was amended by the Cinematograph Act 1952. Section 1 of the 1952 Act provided that, subject to certain exemptions the 1909 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 inflammable or non-inflammable films, or by means not involving the use of films".
"Cinematograph exhibition" was defined by section 9(1) of the 1952 Act as meaning "an exhibition of moving pictures produced on a screen by means which include the projection of light". As a result of these amendments section 1 of the 1909 Act was consequently amended to read as follows:
"No cinematograph exhibition (as defined in the Cinematograph Act 1952) shall be given unless the regulations ma.de by the Secretary of State under this Act 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".
The removal of the reference to "inflammable films" and "regulations….for securing safety" indicate that safety was no longer the primary legislative purpose of the Act; other factors, which might include the content of the exhibitions, were matters which might be relevant for consideration when deciding whether premises should be licensed under the Act. This indication is confirmed by the provisions of sections 2 to 4 (inclusive) of the 1952 Act. Section 2 provided that the matters for which provision might be made by regulations under the 1909 Act should be (a) safety and (b) "the health and welfare of children in relation to attendance at cinematograph exhibitions". Section 3 specifically required the licensing authority, in granting a licence under the 1909 Act as respects any premises, to consider the position of the showing of works unsuitable for children. Section 4 was concerned with cinema exhibitions organised wholly or mainly as exhibitions for children.
The 1909 act was further amended by the Cinematograph (Amendment) Act 1982. Section 1 of the 1982 Act provided that, again subject to certain exemptions,
"the 1909 Act and (except so far as they otherwise provide) any regulations made under it shall apply as respects all exhibitions of moving pictures which are produced otherwise than by the simultaneous reception and exhibition of television programmes broadcast by the British Broadcasting Corporation or the Independent Broadcasting Authority or distributed by a system licensed by the Secretary of State under section 89 of the Post Office Act 1969".
Section 1 of the 1909 Act was consequentially amended to read as follows:
"1(1) Subject (to certain exemptions), no premises shall be used for cinematograph exhibition unless they are licensed for the' purpose in accordance with this Act.
"(2) Subject to these provisions, no cinematograph exhibition shall be given unless the regulations made by the Secretary of State under this Act are complied with.
"(3) In this Act 'cinematograph, exhibition' means any exhibition of moving pictures which is produced otherwise than by the simultaneous reception and exhibition of television programmes [which are defined in the same was as by section 1 of the 1982 Act]."
Since the judgment at first instance the 1909, 1952 and 1982 Acts have been repealed and consolidated by the Cinemas Act 1985. This Act uses modern language and refers to a film exhibition instead of to a cinematograph exhibition, and by section 21(1) defines "film exhibition" in terms similar to the definition of "cinema exhibition" contained in section 1(3) of the 1909 Act as amended. However, it is with this last definition that this case is concerned.
Lord Irvine, who appeared for the appellants before us as he did below, accepted that the object of the 1982 Act was to bring video films, that is moving pictures produced by electronic means which do not include the projection of light, within the ambit of the 1909 Act. He further accepted, that a video game involves a display of moving pictures which are seen by the player (and possibly by others as well). His principal contention was that a video game is not an exhibition of moving pictures. He submitted that there can only be an exhibition where that which is shown on the screen has, in advance, been conceived by its creator as an end in itself, for its own merit: where the function of the viewer isexclusively receptive. In a video game, on the other hand, the moving pictures are merely a means to an end, which is to play, and possibly win, the game. In a video game the content and sequence of the pictures is essentially determined by the choice and actions of the player. He further relied on the use of the word "given" in relation to "exhibition" in a number of the provisions of the 1909 Act, as amended. Although Lord Irvine elaborated on, and repeated in different words, the contention set out above, in essence this remained his principal submission. I am unable to accept it. I know of no warrant for the proposition that the use of the word "exhibition", whether or not used in conjunction with the word "given", requires the assumption of a passive recipient of that which is exhibited. That does not accord with my understanding of the meaning of "exhibition", nor is it supported by the definition in the Shorter Oxford English Dictionary (3rd ed.) to which we were referred. There "exhibit" is definined as including: "To expose to view, to show; especially to show publicly for the purpose of amusement or instruction, or in a competition"; while "exhibition" is defined as including: "The action of...
To continue reading
Request your trial-
Oxfordshire County Council v Oxford City Council
...illustrate, convincingly in my opinion, his point. The two cases which seem to me particularly pertinent are British Amusement Catering Trades Association v Westminster City Council [1989] AC 147, where Lord Griffiths, at p 157, construed the term "cinematograph exhibition" as excluding vid......
-
British Amusement Catering Trades Association v Westminster City Council
...displays moving objects there was therefore an exhibition of moving pictures within the meaning of the Act. Balcombe L.J. said at [1987] 1 W.L.R. 977, 981: "I know of no warrant for the proposition that the use of the word 'exhibition,' whether or not used in conjunction with the word 'giv......
- R v Vladic, ex parte Secretary of State for the Home Department