The Live Music Forum
Hamish Birchall Bulletin
Saturday 3rd May 2008 - Nigel Kennedy performance tests licensing experts
On Wednesday morning 09 April, Nigel Kennedy performed the Dr Who theme tune on the steps outside the Royal Albert Hall. With the Tardis behind him, a smoke machine, and some hefty amplification for his electric violin, the event was obviously well planned. But was it legal?
The event was organised and broadcast by the BBC that day as part of the promotion for this year's Proms. On 27 July Kennedy will be performing there for the first time in 20 years. The BBC also put their broadcast on YouTube:
The camera stays close to Kennedy during the performance, and no audience is visible, although whoops and applause can be heard at the end.
Unbeknown to the BBC at the time, another video of the event was taken by a student at the Royal College of Music. The college is located only yards away on Prince Consort Road. This video was also put up on YouTube. Unlike the BBC footage, it was taken from further back and shows press photographers clustered in front of Kennedy, and, crucially, spectators:
A spokesperson for the BBC said that the event was not licensable because it was for the invited press only and the land belonged to the Royal Albert Hall. But Westminster City Council, which has licensing responsibility for the area, said that the Hall's premises licence did not cover the area in question, and that no Temporary Event Notice (TEN) authorised Kennedy's performance. They added, however, that they thought the event was for BBC filming purposes only and there would be no investigation unless a complaint was made.
I asked two other council licensing officers and an experienced licensing lawyer for their view. On viewing the YouTube videos, Selina Steel of Oxford City Council said:
' I have discussed with my colleague and we agree that you would need to apply for a TEN as this wasn't an incidental event as it was pre-planned.'
Lionel Starling of Swindon council said he had foreseen problems about whether spectators counted as an audience:
" On 31 December 2002 I wrote a letter to Julia Drown MP, which was passed to Dr Kim Howells MP [responsible for introducing the legislation at the time] and answered by him. What I said was 'As an aside, the associated reference to "spectators" will be very troublesome. Are parents waiting to take their children home or shoppers wandering past "spectators"?' The answer from the Minister was 'Mr Starling also questions the definition of spectators or audience in the Bill. To clarify this, if the public are admitted then all performances will be licensable regardless of their location. If they are not, licences will generally only be needed if those attending are charged to attend, with the aim of making a profit, including raising funds for charity.' My belief has always been that the word "spectators" is there to cover the semantic distinction between 'audience' at a play and 'spectators' at a boxing match. I could of course be wrong about that but I was certainly right about the 'troublesome' part."
The licensing lawyer concluded:
"... this was clearly a performance which fell within the remit of the Act. I understand that the steps of the Royal Albert Hall do not fall within the scope of the Hall's existing licence, yet they were obviously made available for the performance to take place. The performance itself was in a public area and attracted spectators and was this a performance before an audience. The fact that the spectators were uninvited or even if they were unwanted, makes no difference, they watched and the performance did not stop when they arrived. What is the difference between this performance and a busker playing in the same place tomorrow, or even Nigel going to a pub tomorrow (which doesn't have the benefit of an entertainment licence) and playing for pleasure whilst having a pint but attracting an audience? Would those situations be ignored by the licensing enforcement authority? I think not! This episode, or rather the licensing authority's tolerance/ambivalence towards it illustrates the inherent difficulties of having an Act which attempts to treat all musical events (subject to even more ambiguous exemptions) as equal."