The Live Music Forum

Hamish Birchall Bulletin

Tuesday 29th May 2007 - Licensing Act - Better a prostitute than a singer?

Under the Licensing Act 2003, a landlord allowing entertainment on his premises, or a singer organising their own gig, could get a harsher punishment than someone who keeps a brothel or works in one; someone who wastes a police officer’s time or even assaults him or her, or assaults someone else; or a drunken driver, or one who steals a car or burgles a home.

Last December I warned that the maximum penalty of a £20,000 fine and six months in jail under the Licensing Act 2003 was greater than the penalties for arson, violent disorder, bigamy and bomb hoax, among others. With the help of m’learned friends and the Home Office, I can now put this more precisely. The theoretical maximum penalty for arson is a life sentence; for violent disorder, five years; for bigamy, seven years; and for a bomb hoax, two years.

However, this is not the full story. Maximum sentences are rarely given. It is still resoundingly clear that those concerned in the management or organisation of performances of live music face potentially draconian and disproportionate penalties. And where local authorities discover unlicensed gigs, they often threaten licensees with the maximum penalty while those convicted of serious offences will often receive a lesser penalty.

A £20,000 fine and six months in jail is greater than the maximum penalty for many serious offences, such as:

1. Assaulting a police officer in the execution of his duty [six months and a £5,000 fine].

2. Driving with excess alcohol in the blood, breath or urine [six months and/or £5,000 fine, disqualification and 3-11 penalty points].

3. 'Taking and driving away'; taking a motor vehicle without the owner's consent [six months and a £5,000 fine].

4. Wasting police time [six months or a fine of up to £2,500].

The system of maximum penalties is not the product of a rational and consistent scheme, but rather the result of piecemeal legislation over more than a century … (Advisory Council to the Penal System 1978). With the Licensing Act we have an extraordinary example of piecemeal legislation leading to the clear likelihood of injustice.

Under the Act, offences are tried in the magistrates’ court. Magistrates courts generally have limits of 6 months OR £5000 as a maximum (see Note 1 below). Thus it is entirely possible and, indeed likely, to be convicted of a great many other offences and to receive less than six months sentence and almost certainly to receive a fine less than £20,000. The Government set a higher maximum possible sentence for unlicensed performance than the magistrates courts can usually impose because the offences are considered to be "commercial in nature". When applied to an individual for whom profit is not the motive, however, the penalties are altogether personal in nature.

In 2005 the average fine imposed by the magistrates for all offences was about £140 whereas the average fine imposed for commercial offences was £950 (see Note 2). Under the Licensing Act offences will fall under this latter category. Fines are therefore likely to be six times the norm for the magistrates’ court.

In 2005 only 4.1% of all and any offenders tried in the magistrates court were imprisoned at all and the average custodial sentence was 3 months (Note 3). Yet this Act allows up to six months imprisonment for allowing performances in public, and even for performers if the performers are also concerned in the organisation or management of the event.

The average sentence for theft from shops was 2 months, for driving whilst disqualified was 3.5 months, for burglary from a dwelling was 5.5. months and burglary other than in a dwelling was 3.5 months (Note 4)

The majority of offences against the person are tried in the magistrates court and have a sentence of six months or less, or a fine of £5000 or less. There are a staggering number cases of assault on a police officer, before magistrates, ALL of whom receive the same or a lesser sentence or fine.

The majority of cases of soliciting by a woman, cases of soliciting by a man, cases of kerb crawling and brothel keeping are fined – and all at a significantly lower level than £20,000.

NOTES

(1) Home Office Statistical Bulletin page 159

(2) Home Office Statistical Bulletin page 78

(3) Home Office Statistical Bulletin page 33

(4) Home Office Statistical Bulletin page 122

Sources: Home Office Statistical Bulletin, Sentencing Statistics 2005 and maximum theoretical sentences, Home Office. A list of the maximum theoretical sentences for all the offences on my original list is available on request.

Hamish Birchall

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