NO MORE than lewd Sexual Displays.
Willowcell Ltd v Westminster City Council
(1995) The Times, 14 AprilCourt of Appeal
The Facts
The facts are taken from the judgment of LORD JUSTICE ROACH who said that inside the premises were booths and when customers put money in a coin meter they could see through a window one or more young women who were normally naked above the waist and who might have been naked below their waists, gyrating while caressing themselves with their hands and caressing in particular their breasts and vaginas.
While those movements were made loud music of a modern and popular kind was played. As more coins were placed in the meter the display became more explicitly sexual.
The Law
His Lordship said that but for Counsel for Willowcell's argument, one would have no hesitation in concluding that the activities did not fall within the terms of the entertainment licence obtained by Willowcell for "music or public dancing or other public entertainment of the like kind'..
Counsel for Willowcell submitted that the activities of the young women, considered in their entirety came within the definition of music and dancing. He argued that many types of dance were sexually stimulating both to the dancers and to observers.
It was wrong, he said, to look at old Victorian authorities such as Fay v Bignell [1883] Cab and El 112 where it was laid down that "it is not every movement of the legs and feet which constitutes dancing. It must be a graceful and rhythmical motion."
Counsel for Willowcell placed great reliance on the unreported decision of the Divisional Court of July 12. 1994 in Sammut v Westminster City Council. There indecent displays of scantily clad young women moving about in response to music, fondling their breasts, rolling about on the bed in a provocative fashion, opening their legs, masturbating and sometimes simulating intercourse.
The owners of the premises in that case had appealed against convictions for inter alia, using those premises for the purpose of public entertainment without a licence contending that their activities disclosed did not constitute a public entertainment requiring a licence.
In the course of dismissing that appeal Mrs Justice Smith had said that there was no doubt that the women's activity "was something construed "in its modern sense, which included a wide variety of human movements not necessarily rhythmic and not necessarily related to music". There was, she concluded, evidence that those activities "were of a like kind to dancing".
His Lordship said that while accepting that the concept of dancing had changed fundamentally between Victorian times and the present day, authorities such as Fay v Bignell and Quaglieni v Matthews [1865] 29 JP 439 were still of guidance: for an entertainment to be a musical entertainment, the music had to be essential to the performance and not merely incidental to it.
It was for the court to look at the realities of the situation. Here it had to look at the activities of the women in the context of how they were viewed, the payments made for the viewing as well as the fact that if the viewing continued long enough the activity came to have even less to do with dancing, becoming"a sexually explicit display.
Those parts of the activities were neither music nor public dancing nor public entertainment of a like kind. In so far as Mrs Justice Smith in Sammut expressed a contrary view she had been wrong.
The premises were a sex establishment within the extended definition in paragraph 2 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 because they were a "sex encounter establishment" unless proviso (i) to paragraph 3A excluded them from being so regarded.
By that proviso no premises which were "licensed under Schedule 12 of the London Government Act 1963 ... and which are for the time being used for a purpose for which a licence is required under that [Act] . . . shall be regarded as a "sex encounter establishment'."
The premises were licensed under Schedule 12 to the 1963 Act but they were not at the relevant time being used for a purpose for which their music and dancing licence was required, that was to say for "public dancing or music or any other public entertainment of the like kind".
The Decision
Lewd sexual displays by young naked, or semi-naked, women that included gyrating to loud music while caressing their breasts and vaginas with their hands were not "music and dancing or a like public entertainment". Under section 12 of the Greater London Council (General Provisions) Act 1986 and Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, premises used for such displays required a sex establishment licence and the fact that a music and dancing licence had been granted in respect of them under the provisions of Schedule 12 of The London Government Act 1963 did not exempt them from that requirement.
The Court so held dismissing the appeal by Willowcell Ltd holding that its use of premises at 24 Great Windmill Street, Soho was unlawful and refusing to order the local authority, Westminster City Council, to pay compensation for seizure/damage of its property.
The judge sitting as a deputy judge of the Queen's Bench Divisional Court had been correct when she decided that those words did not cover those performances described, which were no more than a lewd sexual displays.
COMMENT
Per, The Times, 12 November 1992, Lord Rees-Mogg is quoted saying that, "viewers have a well balanced and moderately liberal attitude", towards sex and sexuality on TV. The discussion was centred on moving the 9 pm. watershed to 10 pm. It certainly should not need a court of law to tell us that lewd displays of this nature are not "music and dancing"; should it?
Rob Jerrard