Portsmouth City Council (Plaintiff v (1) Brian James Richards (First Defendant (2) Quietlynn Ltd (Second Defendant (3) Tobyward Ltd (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,LORD JUSTICE MANN,SIR DENYS BUCKLEY |
| Judgment Date | 16 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1116-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0954 |
| Date | 16 November 1988 |
[1988] EWCA Civ J1116-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PORTSMOUTH DISTRICT REGISTRY
(MR. JUSTICE HUTCHISON)
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Mann
and
Sir Denys Buckley
88/0954
1987 P No.676
MR. ROGER TOULSON Q.C. and MR. IAIAN HUGHES (instructed by The City Secretary and Solicitor, Portsmouth City Council, Portsmouth P01 2AL) appeared on behalf of the Plaintiff (Appellant).
MR. ELDRED TABACHNIK Q.C. and MR. NIGEL PETERS (instructed by Messrs. Kaye Tesler & Co., Solicitors, London, N15 5NS) appeared on behalf of the First Defendant (Respondent).
MR. MARK WARWICK (instructed by Messrs. Kaye Tesler & Co., Solicitors, London, N15 5NS) appeared on behalf of the Second Defendant (Respondent).
This is an appeal from a decision of Mr. Justice Hutchison given on 9th March 1988. He refused an application by the Portsmouth City Council for an interim injunction which was then in the following terms:
"….to restrain the Defendants, and each of them, whether by themselves, their servants or agents or otherwise howsoever from using the premises known as The Private Shop at 62 Castle Road, Southsea for a business which consists to a significant degree of selling, hiring, exchanging, lending, displaying or demonstrating sex articles or other things within the meaning of Paragraph 4(1) of the Third Schedule to the Local Government (Miscellaneous Provisions) Act 1982 until the trial of this action or further order…."
The substantive relief claimed in the action is a permanent injunction in the same terms and costs.
The council now appeals from the refusal of its application. We have heard the appeal for several days under some pressure of time. It raises issues of general importance. We would have liked to have been able to put our judgments in writing, but for various reasons time does not permit this.
The first defendant, Mr. Brian James Richards, is the Managing Director and beneficial owner of the second defendant, Quietlynn Limited, in which he holds 99% of the issued share capital. He also controls an associated company, Sheptonhurst Limited, which figures in the history. Quietlynn and Sheptonhurst operate shops dealing in sex articles at many premises on a nationwide scale and have done so since before 1982. The third defendant, Tobyward Limited, is also effectively controlled by Mr. Richards. It enters into the history to the extent that it advertises the business of the other companies, but is not involved in this appeal.
The background to these and many other related proceedings is Part II of the Local Government (Miscellaneous Provisions) Act 1982. This is headed "Control of Sex Establishments" and came into force on 13th July 1982. It permits local authorities to resolve that Schedule 3 of the Act, with the same title, should apply in their area. In that event, among other consequences, it becomes an offence to carry on a sex shop in the area without a licence. I will refer to the legislation compendiously as "Schedule 3".
The background to this and numerous similar cases is concerned with attempts by Quietlynn and Sheptonhurst to overcome refusals of licences by local authorities by means of applications for judicial review and by appeals against convictions for continuing to use the premises as sex shops despite refusals. The latter aspect has recently become complicated by the fact that they have been successful in obtaining references to the European Court of Justice in Luxembourg on the ground that Schedule 3 is alleged to be invalid under Article 30 of the Treaty of Rome and Section 2 of the European Communities Act 1972. When this application was before the judge the European dimension had not yet arisen. But it is now of considerable importance.
I must begin by setting out the material provisions from the 1982 Act.
Section 2 relates to the control of sex establishments, and provides:
"(1) A local authority may resolve that Schedule 3 to this Act is to apply to their area; and if a local authority do so resolve, that Schedule shall come into force in their area on the day specified in that behalf in the resolution"….
(2) A local authority shall publish notice that they have passed a resolution under this section in two consecutive weeks in a local newspaper circulating in their area."
I then turn to Schedule 3. Paragraph 2 provides that "sex establishment" means a sex cinema or sex shop. It is the latter with which we are concerned.
Paragraph 4(1) reads:
"In this Schedule 'sex shop' means any premises….used for a business which consists to a significant degree of selling, hiring, exchanging, lending, displaying or demonstrating—
(a) sex articles; or
(b) other things intended for use in connection with, or for the purpose of stimulating or encouraging—
(i) sexual activity; or
(ii) acts of force or restraint which are associated with sexual activity."
(3) In this Schedule 'sex article' means—
(a) anything made for use in connection with, or for the purpose of stimulating or encouraging—
(i) sexual activity; or
(ii) acts of force or restraint which are associated with sexual activity; and
(b) anything to which sub-paragraph (4) below applies.
(4) This sub-paragraph applies—
(a) to any article containing or embodying matter to be read or looked at or anything intended to be used, either alone or as one of a set, for the reproduction or manufacture of any such article; and
(b) to any recording of vision or sound,
which—
(i) is concerned primarily with the portrayal of, or primarily deals with or relates to or is intended to stimulate or encourage sexual activity or acts of force or restraint which are associated with sexual activity; or
(ii) is concerned primarily with the portrayal of, or primarily deals with or relates to, genital organs, or urinary or excretory functions."
Paragraph 6, under the heading "Requirement for licences for sex establishments" reads:
"(1) Subject to the provisions of this Schedule, no person shall in any area in which this Schedule is in force use any premises….as a sex establishment except under and in accordance with the terms of a licence granted under this Schedule by the appropriate authority."
Paragraph 7:
"(1) Any person who—
(a) uses any premises….as a sex establishment; or
(b) proposes to do so,
may apply to the appropriate authority for them to waive the requirement of a licence."
The remainder of paragraph 7 deals with provisions concerning waivers of the requirement for a licence.
Paragraph 12(2) reads:
"….the appropriate authority may refuse—
(a) an application for the grant or renewal of a a licence on one or more of the grounds specified in sub-paragraph (3) below"
Then (3):
"The grounds mentioned in sub-paragraph (2) above are….
(c) that the number of sex establishments in the relevant locality at the time the application is made is equal to or exceeds the number which the authority consider is appropriate for that locality;
(d) that the grant or renewal of the licence would be inappropriate, having regard—
(i) to the character of the relevant locality or
(ii) to the use to which any premises in the vicinity are put."
I need read no more of that.
Sub-paragraph (4) provides:
"Nil may be an appropriate number for the purposes of sub paragraph (3) (c) above."
Paragraph 20 is headed "Enforcement" and reads:
"(1) A person who—
(a) knowingly uses, or knowingly causes or permits the use of, any premises….contrary to paragraph 6 above….
shall be guilty of an offence."
Paragraph 22 provides:
"(1) A person guilty of an offence under paragraph 20…. above shall be liable on summary conviction to a fine not exceeding [£20,000].
That figure had been £10,000 but in 1984 it was increased to £20,000 by an order under the Magistrates' Courts Act 1980.
Paragraph 26 is headed "Offences by bodies corporate" and
reads:
"(1) Where an offence under this Schedule committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence."
Finally paragraph 28, headed "Provisions relating to existing premises", reads:
"(1) Without prejudice to any other enactment it shall be lawful for any person who—
(a) was using any premises…. as a sex establishment immediately before the date of the first publication under subsection (2) of section 2 above of a notice of the passing of a resolution under that section by the lcoal authority for the area; and
(b) had before the appointed day duly applied to the appropriate authority for a licence for the establishment,
to continue to use the premises…. as a sex establishment until the determination of his application."
That provision appears to have been of importance to the defendants in a number of cases where they had operated before the appointed day and had then applied to the local authority for a licence before the publication of the resolution, as was their practice. They would then have the benefit of this provision so long as the final determination of their application could be postponed. The provision...
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