The Live Music Forum
Hamish Birchall Bulletin
Friday 12th May 2006 - TOTP - private v public - council discretion
This morning's BBC Radio 4 Today programme covered the TOTP story. It is also covered in The Times:
The entertainment licensing requirement was described by Today presenter Jim Naughtie as a 'fandango'. But the general tone was light-hearted and shed no light on the underlying issues, in particular on the question of what is private (exempt) and public (licensable) under the new law.
The BBC news website included this comment from DCMS which also avoided the key question:
"Some types of entertainment in front of public audiences have needed to be licensed since at least 1963 in London and 1982 in the rest of the country. The Licensing Act 2003 has not changed that. Whether or not a licence is required in any particular set of circumstances is rightly a matter for the local licensing authority."
In fact most public music and dancing has been illegal unless licensed in England since 1752. The law and the courts ultimately determine whether or not a licence is required. Local authorities have some discretion in enforcing the law. If an offence has been committed they must decide whether or not it is in the public interest to prosecute.
Experts in licensing law, and officials at Westminster and Hammersmith & Fulham councils have repeatedly told me that the new Licensing Act is obscure and confusing. This lack of clarity meant that council legal officers were forced to look to case law going back to 1991 and 1961 when deciding if the Coldplay Abbey Road gig and TOTP should be licensed. In both cases the public audience were free ticket-holders. It would seem that Lunn v Colston-Hayter, 1991, is the precedent that suggests such free ticketing arrangements may not be sufficient segregation to qualify as a private event for licensing purposes.
However, during the past 40 years local authorities have rarely enforced entertainment licensing at private events in bars, clubs or restaurants where members of the public could not just walk in off the street.