R v Newcastle Upon Tyne City Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 05 September 2000 |
| Judgment citation (vLex) | [2000] EWHC J0905-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | 3020/00 |
| Date | 05 September 2000 |
[2000] EWHC J0905-3
IN THE HIGH COURT OF JUSTICE
CO QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Justice Collins
3020/00
MR C HOLLAND (instructed by Blake Lapthorn London agents for John O'Neill & Co, Newcastle Upon Tyne NE2 1QQ Newcastle Upon Tyne) appeared on behalf of the Applicant.
MR N PETERS QC (instructed by Legal Department, Newcastle Upon Tyne City Council) appeared on behalf of the Respondent.
MR A MILNE (instructed by Kay Tezler, London N15 5PD) appeared on behalf of Xsensual, an interested party.
There is due to be held this weekend in Newcastle at the Telewest Arena what is described as a sex exhibition. This is being organised by a company called Xsensual Limited.
In order to enable this event to go ahead, Xsensual applied on 25th of this year to the Newcastle Upon Tyne City Council for the grant of a licence to use the premises as a sex establishment. The application was made pursuant to Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982. That Schedule contains a code for the licensing of or, as the Act puts it, control of sex establishments.
A "sex establishment" is defined as "a sex cinema or a sex shop". We are not here concerned with a sex cinema, but with a sex shop which paragraph 4 of the Schedule defines to mean:
"…any premises, vehicle, vessel or stall 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 areassociated with sexual activity."
"Sex article" is defined by subparagraph (3) to mean:
"(a) anything made for use in connection with, orfor 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."
Subparagraph (4) 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 or vision or sound,
which-
(i) is concerned primarily with the portrayal of, or primarily deals with or relatesto, 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 protrayal of, or primarily deals with or relatesto, genital organs, or urinary or excretory functions."
The proposed arrangements, broadly speaking, are that Xsensual will hire the arena and will obtain the necessary licence. In the arena there will be a number of stalls which are manned by individuals who either sell or display items which might or might not come within the definition "sex articles". In addition there will be at least one, and possibly more than one stall which is engaged in the sale of videos which are described as R18. The importance of those is that it is against the law to sell any such videos unless from a licensed sex shop. That is provided for by section 12 of the Video Recordings Act 1984.
Xsensual's application was duly advertised in the local press, as it had to be in accordance with the schedule.
I do not need to go through the provisions in any detail; suffice it to say, there is a provision for advertisement and for the receipt by the local authority of objections, so those can be considered, provided they are received within 28 days of the application being made for the licence. Having received and considered such objections as there might be, the local authority will then decide whether it is appropriate to grant a licence.
So far as the application is concerned, it is very much up to the local authority what particulars it requires to be given in relation to an application for a licence. The only particulars that must be provided, by virtue of paragraph 9(3), where the application is made by a body corporate, as was the case here, are:
"(a) the full name of the body;
(b) the address of its registered or principal office; and
(c) the full names and private addresses of the directors or other persons responsible for its management."
There are by paragraph 12 some mandatory and some discretionary grounds for refusing a licence. The mandatory grounds for refusing are, that the Applicant is under 18 or is disqualified as a result of a revocation of a previous licence; is (so far as a body corporate is concerned) not incorporated in the United Kingdom or, if an individual, is not resident in the United Kingdom; or was not so resident throughout the period of six months immediately preceding the date when the application was made; or if there had been in the previous 12 months a refusal of the licence.
There are a number of discretionary grounds for refusal which are set out in paragraph 12(3). The first is:-
"12(3) (a) that the applicant is unsuitable… by reason of having been convicted of an offence or for any other reason"
That, of course, is a very wide power to refuse a licence.
"(b) that if the licence were to be granted, renewed or transferred the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant, renewal or transfer of such a licence if he made the application himself;"
Pausing there, that, no doubt, is to avoid the use of front people in order to obtain licences when the real person in charge is, for whatever reason, unfit.
"(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."
As subparagraph (4) indicates, the appropriate number may, in any given case, be nil.
"The relevant locality" is defined as meaning the locality where the premises are situated, which perhaps is not overly helpful and has led to a degree of litigation in the past.
Finally at (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; or
(iii) to the layout, character or condition of the premises, vehicle, vessel or stall inrespect of which the application is made."
It will therefore be apparent that the local authority is granted a very wide discretion by the provisions of the schedule in deciding whether or not a licence should be granted.
Furthermore, as I have already indicated, the details which the local authority require of an Applicant and the investigations that it chooses to make are very much a matter for it. There is nothing laid down in the schedule which determines precisely what steps should be taken in any given case by the local authority.
The Applicants in this case are a company registered by guarantee, known as the Christian Institute. They are a local organisation in Newcastle and, as their name suggests, they are concerned to promote the Christian ethic. They oppose, on moral grounds, the activities which are intended to be carried on in the course of this sex exhibition. It is a view which is, no doubt, held by many other people than themselves but, equally, it is a view which is not agreed to by many others.
So far as I and the local authority are concerned, in carrying out the provisions of this Act, approval or disapproval of sex shops is not a matter which can be put into the equation. It is a question only of applying the provisions of the Schedule.
Mr Holland has suggested that the provisions of paragraph 12(3)(c) and (d), do enable the authority and the Court to take account of what he has called the "moral case against the activities" but, in my judgment, it does no such thing. What it entitles the local authority to do is to have regard to the character of the relevant locality and, no doubt, to take into account, if it be the case, that there is a strong body of feeling in the locality which objects to the existence of a sex shop in that locality. Equally, paragraph (d) makes plain that, in addition to the character of the relevant locality, the use to which any premises in the vicinity are put is also a relevant consideration. Thus, for example, it might be perfectly reasonable to refuse a licence for a sex shop which is in the vicinity of a school or some religious building. That is a recognition that sex shops may attract a particular clientele whose presence may not be considered desirable in some areas and that is something again which can be taken into account, but it has nothing to do with the morality of sex shops as such. It is the effect on the locality and on those living nearby which has to be taken into account and that is the distinction which is drawn. Thus, straightforward objections on the ground that sex shops should not be allowed to exist have no part to play in my or a local authority's consideration of the case. Whether I approve or disapprove is nothing to the point. Whether the local authority approves or disapproves is equally nothing to the point, except insofar as the provisions of paragraph 12 are applicable.
The matter was considered by the relevant licensing committee on 7th August 2000. The Applicants were able to attend through a representative...
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