Therefore, that legislation
is the statutory basis of the control, which can be
exercised by members and officers. All references in this
report are to paragraphs in Schedule 3 of the 1982 Act.
In order to discuss some of the issues, it is
necessary to set out some of the basic definitions.
2. Definitions
(a) Sex Establishment means a sex cinema or a
sex shop
Sex Cinema
means: any premises, vehicle, vessel or stall used to a
significant degree for the exhibition of moving pictures,
by whatever means produced, which:
(a)
are concerned primarily with the portrayal of, or primarily
deal with or relate to, or are intended to stimulate or
encourage -
(i) sexual activity; or
(ii) acts of force or restraint associated with
sexual activity; or
(b) are concerned primarily with the portrayal
of, or primarily deal with or relate to, genital organs or
urinary or excretory functions;
but does not include a dwelling house to which
the public is not admitted.
Sex Shop means: any premises, vehicle, vessel or stall used
for a business which consists to a significant degree of
selling, hiring or exchanging, lending, displaying or
demonstrating:
(a) sex articles, or
(b) other things intended for use in connection
with, or for the purpose of stimulating or encouraging
-
(i) sexual activity; or
(ii) acts of force or restraint which are associated with
sexual activity.
Sex Article means:
(a) anything made for use in connection with, or
for the purpose of stimulating or encouraging:
(i) sexual activity; or
(ii) acts of force or restraint which are
associated with sexual activity; and
(b) anything to which sub-paragraph (4)
below applies.
(4) This sub-paragraph applies:
(a)
to any article containing or embodying matter to be read or
looked at or anything intended to be used, either alone or
as one of a set, for the reproduction or manufacture of any
such article; and
(b) to any recording of vision or sound,
which
-
(i)
is concerned primarily with the portrayal of, or primarily
deals with or related to, or is intended to stimulate or
encourage, sexual activity or acts of force or restraint
which are associated with sexual activity; or
(ii)
is concerned primarily with the portrayal of, or primarily
deals with or relates to, genital organs, or urinary or
excretory functions.
A useful
layman's summary of these terms is set out in the case of
Westminster City v Croyalgrange Ltd (House of Lords)
as:-
Paragraph 2 defines 'sex establishment' as meaning a 'sex
cinema' or a 'sex shop', which are then elaborately defined
by paras 3 and 4. I think it will be sufficient for
present purposes to say that 'sex cinema' means premises
'used to a significant degree for the exhibition' of what
the layman would call pornographic films and 'sex shop'
means premises 'used for a business which consists to a
significant degree of selling, hiring, exchanging, lending,
displaying or demonstrating' what the layman again would
call pornographic material generally, including
pornographic books, magazines, video cassettes and records
and articles designed for use as stimulants in the course
of sexual activity.
The word
"significant" requires further consideration as it's
meaning is a fundamental aspect of the definitions of sex
cinema and sex shop.
3. "Significant"
In the
context of this legislation the only real guidance is the
case of Lambeth LBC-v-Greval (1985). The High Court
stated:
The word
'significant' has more than one meaning. It is capable, in
some contexts of meaning 'more than trifling'. It does not
have this meaning in the present context. A higher
standard is set; how much higher cannot be prescribed by
any rule of thumb. The ratio between the sexual and other
aspects of the business will always be material. So also
will be the absolute quantity of sales. Since the
fundamental question is whether the establishment is a 'sex
shop' (albeit as defined by para 4), the court will no
doubt find it appropriate to consider the character of the
remainder of the business. The nature of the display can
be a relevant factor, and the nature of the articles
themselves will also be material, since the definition in
para. 4 which I have not quoted in full, covers a wide
spectrum of offensiveness. It would be wrong to say that
in law any single factor is decisive. It is up to the
court of trial to decide which considerations are material
to the individual case and what weight is to be attached to
them'.
This means
that the "significant degree" could be based on any one or
more of the turnover, profit, stock levels, floor area or
display area or any other means of measuring the business
in sexual articles.
4. When is a Licence required?
This is set out in Para 6
6 (1) Subject to the provisions of this
Schedule, no person shall in any area in which this
Schedule is in force use any premises, vehicle, vessel or
stall as a sex establishment except under and in accordance
with the terms of a licence granted under this Schedule by
the appropriate authority.
(2)
Sub-paragraph (1) above does not apply to the sale,
supply or demonstration of articles which -
(a)
are manufactured for use primarily for the purposes of
birth control; or
(b) primarily related to birth
control.
Referring
back to the earlier definitions this means that a sex
cinema or sex shop must be licensed. In turn to be a sex
shop the business must to a significant degree, sell, hire
etc sex articles or other things used for stimulating or
encouraging sexual activity or acts of force or restraint
associated with sexual activity.
A Local Authority may waive the requirement of a
licence in any case where they consider that to require a
licence would be unreasonable or inappropriate.
Licences are granted for a one year period or for
a shorter period as the Local Authority may think fit.
Licences may be granted subject to terms and
conditions.
5. The Application
Paragraph 10 lays down conditions as to the application
itself. These are some:-
- must be in writing and contain any particulars
reasonably required by the authority
- public notice must be given
- notice in all cases must include publishing an
advertisement in a local newspaper
- where premises are to be used, a notice must be
displayed for 21 days on or near the premises where the
notice can conveniently be read by the public.
- the police must be informed
- any person objecting to an application for the
grant, renewal or transfer of a licence, under this
Schedule shall give notice in writing of his objection to
the appropriate authority, stating in general terms the
grounds of the objection, not later than 28 days after the
date of the application.
- where the appropriate authority receive notice
of any objection, under sub- paragraph (15) above, the
authority shall, before considering the application, give
notice in writing of the general terms of the objection to
the applicant.
- The appropriate authority shall not without the
consent of the person making the objection reveal his name
or address to the applicant.
- In considering any application for the grant,
renewal or transfer of a licence the appropriate authority
shall have regard to any observation submitted to them by
the chief officer of police and any objections of which
notice has been sent to them under sub-paragraph (15)
above.
- The appropriate authority shall give an
opportunity of appearing before and of being heard by a
committee or sub-committee of the authority
-
(a) before refusing to grant a licence, to the
applicant;
(b) before refusing to renew a licence, to the holder;
and
(c)
before refusing to transfer a licence, to the holder and
the person to whom he desires that it shall be transferred
- Where the appropriate authority refuse to grant,
renew or transfer a licence, they shall, if required to do
so by the applicant or holder of the licence, give him a
statement in writing of the reasons for their decisions
within 7 days of his requiring them to do so.
6. Refusal of licences
This is
set out in Para 12:
12 (1) A licence under this Schedule shall not be granted
-
(a) to a person under the age of 18; or
(b)
to a person who is for the time being disqualified under
paragraph 17(3); or
(c)
to a person, other than a body corporate, who is not
resident in the United Kingdom or was not so resident
throughout the period of six months immediately preceding
the date when the application was made; or
(d)
to a body corporate which is not incorporated in the
United Kingdom; or
(e)
to a person who has, within a period of 12 months
immediately preceding the date when the application was
made, been refused the grant or renewal of a licence for
the premises, vehicle, vessel or stall in respect of which
the application is made, unless the refusal has been
reversed on appeal.
(2) Subject to paragraph 27 below, the appropriate
authority may refuse -
(a)
an application for the grant or renewal of a licence on
one or more of the grounds specified in sub-paragraph (3)
below;
(b)
an application for the transfer of a licence on either
or both of the grounds specified in paragraphs (a) and (b)
of that sub-paragraph
(3) The grounds mentioned in sub-paragraph (2) above
are -
(a)
that the applicant is unsuitable to hold the licence by
reason of having been convicted of an offence or for any
other reason;
(b)
that if the licence were to be granted, renewed or
transferred the business to which it relates would be
managed by or carried on for the benefit of a person, other
than the applicant, who would be refused the grant, renewal
or transfer of such a licence if he made the application
himself;
(c)
that the number of sex establishments in the relevant
locality at the time the application is made is equal to or
exceeds the number which the authority consider is
appropriate for that locality,
(d)
that the grant or renewal of the licence would be
inappropriate, having regard -
(i)
to the character of the relevant locality; or
(ii) to the use to which any premises in the
vicinity are put; or (iii) to the layout, character
or condition of the premises, vehicle, vessel or stall in
respect of which the application is made.
(4) Nil may be an appropriate number for the purposes
of sub-paragraph(3)(c) above.
(5) In this paragraph 'the relevant locality'
means-
(a) in relation to premises, the locality
where they are situated; and
(b) in relation to a vehicle, vessel or
stall, any locality where it is desired to use it as a sex
establishment.
For all
but (3) (c) and (d) an applicant may appeal to the
Magistrates Court. This means that a refusal or
non-renewal arising from the appropriate number of sex
shops or appropriateness of the grant or renewal taking
into account the character of the relevant locality, use of
premises in the vicinity or characteristics of the shop
itself must be challenged by an application to the High
Court by way of Judicial Review.
An
authority can therefore conclude that the number of sex
shops in a locality is equal to or exceeds the number which
the authority consider is appropriate for that locality.
The authority can conclude that nil is the appropriate
number.
However,
that decision must be taken when the application in
question is made taking into account all relevant
considerations. For that reason alone, I am of the opinion
that a "quota" cannot be fixed. Each application must be
considered on its merits when it is made. Any number must
be considered for the "relevant locality". A dictionary
definition of "locality" is
- a district or neighbourhood
- the site or scene of something in relation to
its surroundings
- the position of a thing where it is.
Ordinary
useage of the word "locality" suggest a district or part of
a Town. Therefore, I am of the view that the whole of
Rotherham Borough Council could not be one locality. Even
within central Rotherham there will be more than one
locality although it may be possible to determine a Town
Centre locality.
7.
Non-Renewal of licences
The
provisions set out above apply to above renewals as they
apply to new applications. There are a limited number of
cases on renewals notably for cases heard together by the
Court of Appeal in 1989. These involved Birmingham,
Rushmoor, Bury and Norwich. It was held that the
legislation made no distinction between grant and renewal
of a licence. Therefore, although the Council's had to
give weight to the fact that a licence had been granted in
previous years, they were still entitled to take a fresh
look. Councils were entitled to refuse to renew a sex shop
licence on the basis of the locality's character even
though there was no change in it provided they gave
rational reasons for the refusal.
In the
Birmingham case a sex shop had operated in the Bull Ring
for several years. An application for renewal was not
granted because the sub-committee took the view that it was
inappropriate for a sex shop to be located in a shopping
area where families, including children would be present
and because of the presence of a church nearby.
On the
other hand, Bury's decision was overturned as the Court
considered that an assertion that the character of the
locality had changed because 26 houses had been built was
irrational.
A more
recent case in 1999 involved the London Borough of
Wandsworth. In this case the licence was not renewed
because of the change in the locality brought about by
improvement initiatives. This decision was upheld despite
the fact that the applicant had improved his premises.
8. Human Rights and Licensing
As with
any other discretionary process, an applicant is entitled
to a fair hearing. On renewal applications it should be
borne in mind that a licence is a "property" and therefore
Article 1 : Protection of Property will be engaged.
This
article is a qualified right:
"Every
natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The
preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
Interference with the use of premises will engage Article 1
but the question is whether the interference is justified.
Justification is assessed by looking at whether the
interference is in accordance with the law, whether the
interference is in the general or public good and whether
the interference strikes a fair balance between the general
interests of the community and the protection of the
individual's rights.
The same
considerations may apply when a person objects to the grant
of a licence on human rights grounds. Here Article 8:
Right to Respect for Private and Family Life may be
engaged. Again this is a qualified right.
1. Everyone has the right to respect for his private
and family life and his correspondence;
2. There shall be no interference by a public
authority with the exercise of this right except such as in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others.
Case law,
suggests that the decision to grant a licence will only
infringe the rights of objectors where the decision to
grant a licence will lead to an inevitable and serious
violation of their convention rights.
9.
Policy
In R-v-Birmingham City Council ex parte Quietlynn
Ltd. the Court of Appeal assented to the proposition that a
local authority might adopt a policy for the determination
of applications, provided that such policy does not
preclude the individual consideration of application. The
policy may specify areas where applications are more or
less likely to succeed and/or establish location criteria
relating to the character of a locality.
Application for the Grant of a Licence to use premises as a
Sex Shop (64kb)
Licensing Section
Howard Building
College Lane
Rotherham
S65 1AX
Tel: 01709 823163; 01709
823173
Fax: 01709 823154
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