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Belfast City Council v Miss Behavin' Ltd

Belfast City Council v Miss Behavin' Ltd

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Case Copied 25 April 2007 63 min read

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HOUSE OF LORDS

SESSION 2006–07
[2007] UKHL 19

on appeal from: [2005] NICA 35

OPINIONS

OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE

Belfast City Council (Appellants) v. Miss Behavin’ Limited (Respondents) (Northern Ireland)

Appellate Committee

Lord Hoffmann

Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Mance
Lord Neuberger of Abbotsbury

Counsel

Appellants: Respondents:

Richard Gordon QC John F Larkin QC

John O’Hara QC Mark Reel

David Scoffield (Instructed by Fox & Associates, Belfast)

(Instructed by Director of Legal Services,

Belfast City Council)

Hearing date:

26 February 2007

ON
WEDNESDAY 25 APRIL 2007

HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE

Belfast City Council (Appellants) v. Miss Behavin’ Limited
(Respondents) (Northern Ireland)
[2007] UKHL 19

LORD HOFFMANN
My Lords,
1. The end of the Chatterley ban and the Beatles’ first LP marked a sudden loss of confidence in traditional British prudishness by legislators and jurors which made the law against obscene publications very difficult to enforce. As a result, the distribution of all but the most hard core pornography became, at least in practice, a lawful trade. This gave rise to unexpected social and environmental problems. It was unacceptable for vendors of pornography to flaunt their wares before the public at large. Ordinary newsagents who sold soft porn avoided outraging sensitive customers by putting it on high shelves. Shops which specialised in pornographic publications and videos, together with sex aids and other such articles, tended to have opaque windows, as much to protect the privacy of customers as the sensibilities of passers- by. They congregated in run-down areas of large towns, usually near the railway station, clustering together on the same principle that people carrying on similar businesses have always traded in close proximity to each other. But the other inhabitants of the locality, both commercial and residential, often objected to the proliferation of sex shops on a mixture of environmental, social, aesthetic, moral and religious grounds: fears about the kind of people who ran them and the customers they attracted; distaste or moral or religious objection to what was going on inside; concern that they lowered the tone of the neighbourhood and attracted other even less desirable trades such as prostitution and organised crime.
2. All these concerns bubbled to the surface in the debate in the House of Commons in 1981 on the second reading of the Local Government (Miscellaneous Provisions) Bill, which contained elaborate provisions dealing with the licensing of premises supplying meals or refreshments, tattooing and ear-piercing (the piercing of other parts of the body does not appear to have been contemplated), acupuncture and electrolysis, but said nothing about sex shops. Honourable members wanted to know why not. The strength of feeling was such that the government brought forward amendments at the report stage, introducing the system of local authority licensing which is now contained in section 2 and Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982. The Act applied only to England,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] UKHL 19
Decision Date: 25 April 2007

CaseChat Overview and Summary

Miss Behavin’ Limited sought to operate a sex shop in Gresham Street, Belfast. It applied for a licence under the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985. The Belfast City Council refused the application. Miss Behavin’ brought judicial review proceedings in the High Court against the Council’s decision. The High Court dismissed the application. The Court of Appeal allowed an appeal and quashed the decision of the Council. The Council appealed to the House of Lords.

The central issue before the House of Lords was whether the Belfast City Council’s refusal of the licence was unlawful under the Human Rights Act 1998. The Court of Appeal had held that the Council’s decision was flawed because it did not sufficiently take into account the applicant’s rights under Article 10 (freedom of expression) and Article 1 of the First Protocol (peaceful enjoyment of possessions). The House of Lords rejected this approach, holding that it was sufficient to consider whether the refusal of the licence had actually infringed the applicant’s rights, not whether the Council had properly considered them.

The House of Lords held that the Council’s decision was not unlawful under the Human Rights Act 1998. The applicant’s right to freedom of expression was engaged at a low level, as the business involved selling pornographic books and videos. While the right to freedom of expression could be restricted for the protection of health, morals and the rights of others, the Council’s decision did not interfere disproportionately with the applicant’s rights. The decision was based on the Council’s determination that no sex shops were appropriate in the locality. The applicant had not shown that this was an unlawful interference with its rights. The House of Lords also held that the applicant’s right under Article 1 of the First Protocol was not infringed, as the refusal of the licence did not amount to an unlawful deprivation of the applicant’s possessions.

The House of Lords allowed the appeal and restored the decision of the High Court dismissing the applicant’s judicial review proceedings.

Orders