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European law requires fair play for lap dancing and sex shop licencees
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 | 9th July 2012
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| See article from woodswhur.co.uk
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An interesting newsletter from a law firm discussed legal issues arising Leeds City Council considering the lap dancing licences for the 7 clubs in the area. First of all it noted that an existing licence is consider in law as a protected
possession in human rights law: It has been accepted that a licence is classed as a possession capable of protection under Article 1 of the First Protocol of the European Convention on Human Rights.
This clearly states that a person has a right to peaceful enjoyment of his possessions and the case of Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR classifies a licence as something capable of protection.
Not
something that can councils can take away on a moralist or feminist whim. Secondly there are European requirements imported into UK law that impose standard conditions on councils when considering licence applications:
The Provision of Services Regulations [S.I. 2009/2999]. Regulation 24(1) imposes three important tests highlighting that any refusal must be:
- Non discriminatory
- Necessary
- Proportionate
Surely this would allow failed applicants to ask a court 'exactly how necessary was it for a council to refuse a license for a venue 200m away from a school where the operating hours don't overlap?' The law firm noted that
all 7 clubs in Leeds got their licences despite a high level of opposition from MPs, councillors and Object. ...Read the full article
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So how many other local authorities are overcharging for sex shop licence fees?
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5th July 2012
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| See article from
thisisscunthorpe.co.uk
See also gosschalks.co.uk
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Gosschalks Solicitors in Hull city centre acted for successful claimants in a case that saw Westminster City Council come under scrutiny after it was revealed it had been charging too much for granting and renewing licences to trade to operators of
sex shops in its area. Stephen Dillon, partner at Gosschalks Solicitors said: Since December 28, 2009, Westminster had been illegally charging licensees, through their annual fee, for costs incurred by
Westminster Council taking action against unlicensed sex shops. As a result, the lawful licensed sex shops were being charged far too much in their licensing fee to trade.
The case has also now created more work for Gosschalks. Dillon
said there will be about 40 other local authorities to investigate and reminded people who are required to have a local authority licence to trade to consider whether they have been, or are being, overcharged. Dillon suggested that licensees could take
advantage of the Freedom of Information Act to find out more details on how councils have arrived at their licence fees. Gosschalks will now be making requests to other local authorities. Dillon said: We will be asking how the figures have been
calculated. It may be that they are legitimate but until we ask, we won't know. Since the ruling in May, Westminster City Council asked for permission to appeal but it was rejected.
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17th May
2012 | | | High court judge finds that sex shop licence fees should be limited to just the administration
costs to the council, (and not include London Beautification costs for the Olympics)
| See
article from huffingtonpost.co.uk
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Sex shop owners have won a High Court victory over licensing fees which could see them claw back an estimated £ 1 million. A judge has ruled that Westminster City Council unlawfully used licence fee income to
enforce against illegal sex shops. Mr Justice Keith declared that a recently introduced European directive did not permit the determination of a reasonable licence fee to include the costs of enforcement. Tony Devenish, the council's
Cabinet member for licensing and public health, spouted: Naturally we are disappointed at this decision, which we intend to appeal. Westminster City Council has always maintained that the use of
licence fee income to enforce against illegal sex shops is a proper use of public money, protecting the quality of life for our residents and visitors, including the global reputation of London. Enforcing against the illegal sex
trade actually benefits those who are legitimate operators in the sex industry. With millions of extra visitors about to descend on London to celebrate the Jubilee and Olympics, it is critical people see the best face of our city.
The landmark ruling was a victory for Simply Pleasure Ltd and six other long-standing licensees of 11 sex shops in London's Soho and two others in Covent Garden and the West End selling adult sex toys, DVDs, and books and magazines.
The judge said that in the past the cost of enforcing the licensing system was often reflected in the licence fee. But in 2009 new regulations were introduced to implement EU Directive 2006/123/EC, which was aimed at creating a free and
competitive market for services within the European Union . The judge said that whatever domestic law had permitted in the past , the directive did not allow the licence fee to exceed the administrative costs covering the steps which an
applicant for a licence has to take if he wishes to be granted a licence or to have his licence renewed. The judge said: The fact that the council has preferred over the years to use the licence fee to charge the
operators of sex establishments for enforcing the system does not affect the proper interpretation of the 2009 regulations. For all these reasons, therefore, I have concluded that since the year beginning February 1 2010 the
council has not been permitted, when determining the reasonable licence fee for sex establishments, to reflect the fee which it determines the costs of enforcing the system.
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Indecent Displays (Control) Act 1981
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| 1st January
2001
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| See Indecent Displays (Control) Act 1981 from
legislation.gov.uk |
As amended by:
This article 1 Indecent displays. (1) If any indecent matter is publicly displayed the person making the display and any person causing or permitting
the display to be made shall be guilty of an offence.
(2) Any matter which is displayed in or so as to be visible from any public place shall, for the purposes of this section, be deemed to be publicly displayed.
(3) In subsection (2)
above, “public place”, in relation to the display of any matter, means any place to which the public have or are permitted to have access (whether on payment or otherwise) while that matter is displayed except— (a) a
place to which the public are permitted to have access only on payment which is or includes payment for that display; or
(b) a shop or any part of a shop to which the public can only gain access by passing beyond an adequate warning notice;
but the exclusions contained in paragraphs (a) and (b) above shall only apply where persons under the age of 18 years are not permitted to enter while the display in question is continuing.
(4)
Nothing in this section applies in relation to any matter— (a) included by any person in a television broadcasting service or other television programme service
(b) included in the display of an art gallery or
museum and visible only from within the gallery or museum; or
(c) displayed by or with the authority of, and visible only from within a building occupied by, the Crown or any local authority; or
(d) included in a performance of a play; or
(e)included in a film exhibition—
(5) In this section “matter” includes anything capable of being displayed, except that it does not include an actual human body or any part thereof; and in determining for the
purpose of this section whether any displayed matter is indecent— (a) there shall be disregarded any part of that matter which is not exposed to view; and
(b) account may be taken of the effect of juxtaposing
one thing with another.
(6) A warning notice shall not be adequate for the purposes of this section unless it complies with the following requirements— (a) The warning notice must
contain the following words, and no others—
“WARNING Persons passing beyond this notice will find material on display which they may consider indecent. No admittance to persons under 18 years of age.”
(b) The word “WARNING” must appear as
a heading.
(c) No pictures or other matter shall appear on the notice.
(d) The notice must be so situated that no one could reasonably gain access to the shop or part of the shop in question without being aware of the notice and it must
be easily legible by any person gaining such access.
2 Powers of arrest, seizure and entry (2) A constable may seize any article which he has reasonable grounds for believing to be or to
contain indecent matter and to have been used in the commission of an offence under this Act.
(3) In England and Wales, a justice of the peace if satisfied on information on oath that there are reasonable grounds for suspecting that an offence
under this Act has been or is being committed on any premises and, in Scotland, a sheriff or justice of the peace on being so satisfied on evidence on oath, may issue a warrant authorising any constable to enter the premises specified in the information
or, as the case may be, evidence (if need be by force)
4 Penalties
(1) In England and Wales, any person guilty of an offence under this Act shall be liable— (a) on summary conviction, to a fine not
exceeding the statutory maximum; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.
(2) In Scotland, any person guilty of an offence under this Act shall
be liable— (a) on summary conviction— (i) in the district court, to a fine not exceeding £200;
(ii) in the sheriff court, to a fine not exceeding the statutory maximum;
or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.
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Prohibition on sending certain articles by post
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| 16th March 2000
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| From House of Commons Hansard
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Alan Duncan (Rutland and Melton): The clause governs the posting of indecent or obscene material. Over the years, it has become clear that a blind eye is turned in the case of some vulgar articles. Although I
have sympathy with the intention of the clause, I must say that subsection (3)(a) is almost redundant in practice, in terms both of the law and of real life. No end of obscene material, including videos, magazines and, one might argue, devices, can be
bought by mail order and delivered by post, but that rarely leads to prosecution. I shall not argue about whether such laxity is a good thing—that is for another time. I am interested in the practical question of how the law will be enforced. What
standards will be set for the enforcement of the clause? Should the clause not be revised to make it more specific? What is Government policy on the availability of material that might come through the post and might,
technically, cause offence, but in fact no longer does? Does the Minister accept that there may be a call for the clause to be studied further and amended, in order to bring it up to date, adjust it to actual practice or simply make it more realistic? We
should be grown up about what really happens. Frankly, lots of things happen that might be offences under the clause, but for which the law is never invoked. What would be the proper enforcement of the clause? Alan
Johnson: The hon. Member for Rutland and Melton has raised an important point. However, he did not mention one aspect that, I think, should be mentioned, which is that the Public Order Act 1986 imposes controls on the
publication, possession and distribution of racist material. The controls cover instances in which there is an intention to stir up racial hatred, or it is likely that such hatred will be stirred up. That means that such material is outlawed on the basis
of a threat to public order. We are discussing with the Home Office whether specific offences relating to the sending of racist material through the post should be included in the clause. We shall also discuss the hon.
Gentleman's specific point with the Home Office. Obviously, it is not a matter for this Committee. We are bringing across provisions that exist already. It is fair to ask how rigorously the provisions will be enforced, and we will raise that issue.
Certainly, the Post Office is concerned about it. My final point is that the clause will strengthen the law, because it extends the prohibition on sending such material through the post, which currently applies only to
material handled by the Post Office, to postal packets handled by all operators. Consequently, obscene material and so on cannot be sent in postal packets, whether they are handled by the Post Office or by any other postal service provider.
Alan Duncan: What is the principle governing that? If selling something in a shop is legal, should not posting it be legal? At the moment, it may be legal to sell in a shop something that it is illegal to post.
Alan Johnson: I shall check that out, as I am not equipped to answer at the moment. However, the Obscene Publications Act 1959 and the Protection of Children Act 1978 cover such matters. I am not
aware of any disparity between laws governing material that may be sold and laws governing material that may be sent through the post. However, we shall return to such matters later, as we have not completed discussions with the Home Office on whether a
specific provision on material that stirs up racial hatred is needed. Prohibition on sending certain articles by post. 83. - (1) A person commits an offence if he sends by post a postal packet which
encloses any creature, article or thing of any kind which is likely to injure other postal packets in course of their transmission by post or any person engaged in the business of a postal operator.
(2) Subsection (1) does not apply to postal
packets which enclose anything permitted (whether generally or specifically) by the postal operator concerned.
(3) A person commits an offence if he sends by post a postal packet which encloses-
(a) any indecent or obscene print,
painting, photograph, lithograph, engraving, cinematograph film or other record of a picture or pictures, book, card or written communication, or
(b) any other indecent or obscene article (whether or not of a similar kind to those mentioned in
paragraph (a)).
(4) A person commits an offence if he sends by post a postal packet which has on the packet, or on the cover of the packet, any words, marks or designs which are of an indecent or obscene character.
(5) A person who commits an
offence under this section shall be liable-
(a) on summary conviction, to a fine not exceeding the statutory maximum,
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding twelve months or to both.
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