Court Case Report Dec 10th 1998.
Appeal Against the Abatement Notice in respect of Statutory Nuisance (ENVIRONMENTAL PROTECTION ACT 1990 (SECTION 80) )
Today was the hearing for my Appeal against the Noise Abatement Notice served upon me on Oct 9th by Mr. David Carter.
This date was set at my request for an early date, on the hearing of the 24th of November. This followed my letter of complaint, regarding the notice served, given to the court on the 29th October.
(The Notice was served on Oct 9th and a complaint must be registered within 21 days, the final day being 29th Oct.)
However, I had rang the court on Tuesday 8th asking if they could adjourn the case until early January.
I did this for the following reasons.
1) I approached several local solicitors regarding the case, but none had suitable experience of such a case. Eventually I contacted the Law Society, who gave me the name of specialists, all of whom were in London, and solicitors in Bristol who dealt with similar types of cases.
I contacted these, fairly local, Bristol solicitors, but again they didn`t have any previous experience of Noise Abatement Notices.
However, one of them, Mr. Andrew Greg was interested in taking the case on, but advised me to seek Legal Aid, as I simply wouldn`t be able to afford his fees. He was unsure though if Legal Aid would be granted. But he offered me some basic advice on the telephone.
His main advice was to appeal to the court "That in the Interests of Justice", the case be adjourned for me to apply for Legal Aid and either use his services or that of a specialist solicitor. Which I had been seeking.
2) After speaking to Mr. Andrew Greg, I rang the Actors Union EQUITY. While I was not a member they might be able to refer me to a Solicitor well-versed in cases of noise abatement.
I was put through to Mr. Chris Ryder, of the Cardiff Branch of EQUITY, that covers the South West area.
In my conversation with Mr. Ryder, he said that while he did know of Solicitors who could help, and are recommended to EQUITY members, he was not at liberty to divulge them to non-members.
He further added if I was to join, and he saw no problem of my application being rejected, as they are short particularly of Children’s Entertainers, that I would be entitled to free legal help.
He sent the application Forms through, which I received on Monday 30th November.
However, the time-scale of being accepted and enrolled and receiving the legal help required, would not have been possible by Dec 10th. Mr Ryder expressed that I should ask for the case to be adjourned until January, so that I could receive their help.
3) Realising I would need legal help, a major part of my livelihood had been affected by the ban, I again contacted Mr. Greg. This is when I asked him for his rate, to which £120 an hour was his response.
He then revealed that even if I raised the money, he was not available on Dec 10th, it was his mother's birthday. He again strongly advised me to press for the adjournment until January.
4) Two of my witnesses expressed to me on Monday 7th that it would be difficult for them to attend. One through sickness, the other through a prior commitment he had forgotten about. This latter person being an important character witness for me, it was Bath City Councillor Keith Lunt.
Keith Lunt had heard my performances over the summer and asked me to play at a concert at Royal Victoria Park, Bath, which I did on Sat. Aug 29th.
The Clerk of the Court contacted Bath City Council, who refused to agree to an adjournment. Though I could appeal to the Magistrates on the day.
The day before the court hearing (Dec 9th), I took a petition round the shops in the main Square where I normally busked. I asked them to sign if they felt the ban was unfair. These people had heard me play throughout the summer.
In collecting the petition I had an offer of a further witness, but they couldn`t attend at such short notice as they already had a staff shortage.
But if I received an adjournment he would gladly testify in January.
I got signatures from every business premises in the Square, including members of the Pump Room staff.
I was slightly delayed in coming to the court due to traffic conditions, and that my girlfriend offered herself as a last minute substitute witness and I had to pick her up. However I telephoned the court at one minute to ten (It was a 10:00am start) on my mobile to make them aware I would be there within five minutes.
On arrival I found they were dealing with licensing issues and the case hadn`t started. I met there my other witness Melt. He was someone who had seen my performances fairly regularly, and once requested me to serenade his girlfriend on her birthday at a TILLYS BISTRO, 2 North Parade, Bath as a surprise. This I did on Sat Aug 22nd, and received a round of applause from the whole restaurant.
The Court Usher asked if I wanted to see the Duty Solicitor, which I immediately accepted. This was Mr. James Morton of Mowbray Woodwards Solicitors.
I had recently spoken to one of his colleagues at the firm, Jo Robson on a number of issues. It was shortly after my consultation with her that I received the Noise Abatement Notice. I contacted her regarding this new matter, to be told that she was shortly going on Maternity Leave, and didn`t really have relevant experience in that area. She offered me the services of one of her colleagues, who though not experienced in the matter, might be able to give me some legal direction. I do not recall the name, but it could well have been James Morton.
Mr. Morton studied the documents I had collated, and agreed it was a specialist area, of which he had no expertise to advise me properly, and so I should press for adjournment, so I had chance to seek the proper legal help.
He voluntarily offered his services to help secure the necessary adjournment, outside his duties as the Duty Solicitor. At this point I believe the court was waiting for the outcome of our conversation. The Usher came in several times to get an indication of when proceedings would start.
Mr. Morton first wanted to check to see if Legal Aid would apply. He did this because to try and go for an adjournment on such grounds, for me to seek Legal Aid, and find it wasn`t available for such cases, would cause him embarrassment.
After studying his copies of "Stones", he remained unsure, so sent a message to the solicitor acting for Bath City Council, Mr. Simon Goacher to see if he knew whether I was allowed to apply for Legal Aid in such cases.
The reply received back via the Court Usher, was that "No", Legal Aid was not available.
QUESTION: WAS THIS A CORRECT ANSWER?
Mr. Morton decided to go into the courtroom and simply ask for an adjournment, on the basis of me needing specialist legal advice, that had only just become available, and the fact that important witnesses, and the solicitor who had been advising me (Mr. Greg), was unable to attend today.
Mr. Goacher, after some debate, seemed to agree, and the diaries were brought out to find a suitable date in January. The Magistrates adjourned to consider the new date.
At this point, Mr. Morton believing he had secured the necessary adjournment, left the court room.
The Magistrates returned, with a question for the Clerk of the Court.
Noting I was now un-represented, they asked "If we decide to press ahead today, but decided at a later stage that the case would in fact be best heard at another time, could we still adjourn?"
The Clerk replied that if they proceeded, they must try the whole case without adjournment.
It was obvious that the Magistrates had doubts, for the question even to have been raised. I was then somewhat surprised that they decided not to adjourn, but to hear the case. They came back and simply said "We're gonna go for it."
Though I didn`t keep particular track of time, these initial proceedings must have taken up over an hour.
It was decided that in fairness to me being un-represented, that Bath City Council should offer their case first.
Mr Goacher then quoted the 5 grounds where I had submitted an Appeal against the Notice
Being:
2: (a) "That the abatement notice is not justified by section 80 (3) of the 1990 Act (summary proceedings for statutory nuisances)
2: (c) "That the authority have refused unreasonably to accept compliance with alternative requirements, or that the requirements of the notice are otherwise unreasonable in character or extent, or are unnecessary"
2: (d) "that the time, or, where more then one time is specified, any of the times, within which the requirements of the abatement notice are to be complied with is not reasonably sufficient for the purpose"
2: (e) "where the nuisance to which the notice relates:-
(iii) is a nuisance falling within section 79(1)(ga) of the 1990 Act and is noise from or caused by noise emitted from or caused by a vehicle, machinery or equipment being used for industrial, trade or business purposes,
that the best practicable means were used to prevent or counteract the effects of, the nuisance."
2: (g) "that, that in the case of a nuisance under Section 79(1)ga of the 1990 Act (Noise emitted from or caused by vehicles , machinery or equipment), the requirements imposed by the abatement notice by virtue of section 80(1)(a) of the Act are more onerous than the requirements for the time being in force, in relation to the noise to which the notice relates, of any condition of a consent given under paragraph 1 of Schedule 2 to the Noise and statutory Nuisance Act 1993 (Loudspeakers in streets or roads);
2 (h) that the abatement notice should have been served on some other person instead of the appellant, being
(i) the person responsible for the nuisance
2 (j) that the abatement notice might lawfully have been served on some other person in addition to the appellant, being:-
(i) a person also responsible for the nuisance
(iv) a person who is also the person responsible for the vehicle, machinery or equipment, and that it would have been equitable for it to have been so served.
Mr Goacher then proceeded as to preclude how I might be appealing on these grounds, and what his responses would be to those scenarios. He also more fully quoted the Acts mentioned in the Appeals Notice, of what they specifically referred to.
He made a special reference to 2 (e) (iii) suggesting that "busking" is not a business pursuit and that therefore my amplifier could not be classes as being used for business purposes.
I pointed out that I had an Honours Degree in business Studies, a Chartered Diploma in Marketing and that I had run several businesses in the entertainment field, from being a children's entertainer, mobile DJ and Karaoke compere. Busking had been a new string to my portfolio and used my developed performing talents. Getting £30 an hour in an enjoyable way and giving pleasure to others makes it in fact a very good business.
He then brought his first witness.
This was Kathy Brass of 39, Abbey Churchyard and who worked in offices above the cafe where most of my audience are seated when I play directly outside the Pump Rooms.
She said that her colleague had already moved offices because she couldn`t concentrate with my loud music, and she too had problems and headaches when I played.
She claimed that she once came out and asked me to turn down, and that I was abusive in my response, then told her to lodge her complaint with The Environmental Health Officer. She claimed that I played there most days and for most part of the day.
I then had the opportunity to cross-examine. I began by apologising to her for the grievance she obviously felt, and first asked about the abusive remark I was supposed to have said? I asked what words I had actually used? When further pressed for the exact words by the magistrates she admitted I had simply asked her to "Go away."
I asked her to clarify that she had heard me playing most days during the summer, to which she replied yes I had and that I also played in the evening, because her colleague had told her so.
I then expressed to the court that in fact, the vast majority of my concerts had been in the evening time. It was in fact quite rare I played during the day. That involved being at the square at 9:30am, to sort out with the other buskers who would play what hours in the square, normally up to 6pm.
While I didn`t express so in court, at this point I was acting the role of cross-examining prosecutor, there were reasons behind this.
After 6pm not only was the pitch usually free, but I could also park free of charge next to the coffee house adjacent the square. My amplifier is heavy so I prefer to park near the pitch, so that I don't have to carry it too far. During the day, the nearest parking is two streets away. With a fee of £1 per half-hour up to 6pm.
Therefore by playing the evenings "the pitch" was normally free, and I could park for free. It also allowed people who enjoyed my performance to come back the following evening and know that that's when I would be playing.
I normally played up until the 10pm limit, normally returning home quite late and extremely tired. Which is why I was rarely at the 9:30am meeting, and thus why I rarely played during the day.
Her complaint to Mr. Carter was noted to be 26th Sept. He later in evidence said that he had received a complaint on the 25th Sept from an un-named source.
In fact the evening of the 25th, in the evening, I met up with three other regular Bath buskers, and just for the fun of doing it, did a one-off performance for half an hour playing together.
This included a bass guitarist who was amplified, a flute and sax player who occasionally used my microphone to emphasise their solos, as well as my amplified guitar and voice.
This only came to light on returning home from the court case and was the first time I had known the date of the complaints. While I had no record, on checking her diary, my girlfriend has confirmed the 25th as being the evening we played together. This can be backed up with photographic evidence and witnesses.
I am much of the mind that the complaints aimed at me on 25th and 26th were in fact to the "Noise", (If someone who doesn't appreciate music wants to call it that), of four people playing.
Later on I offered my girlfriend M. Buchmann as a substitute witness,
In examination of her testimony, I asked her if she, having attended many of my summer concerts, sitting with the "audience of tourists", had she ever heard any complaints from the "audiences" she has listened with?
Her honest reply was, yes, just once. When the lady who does the Ghost Walk, which starts from the same Square. She had complained to her that evening when the four of us played together.
She quoted her as saying "When it`s just him there`s not a problem, but I can`t compete against four of them."
My girlfriend at the time assured her it was just a one-off, spur of the moment thing, which it was.
Mr. Goacher, Senior Legal Advisor for Bath City Council, then introduced his second witness, Mr. David Carter. The Senior Environmental Health Officer, who had issued me with the actual Noise Abatement Notice.
His testimony included the following:
That he had a Diploma in Noise Abatement, been in the position for three years, and that part of his duties was to monitor sound pollution and the antics of the buskers. Lest they be a nuisance to the public and investigate any complaints that came to him.
He testified that he had received four complaints about me.
1) On Sept 25th, from an un-named resident of Abbey Churchyard
2) On Sept 26th, from Ms. Kathy Brass of 39 Abbey Churchyard
3) On Oct 1st, from an un-named complainant, who was a fellow busker.
4) On Oct 9th, from an un-named resident in Church Street.
(Re those complaints: On two occasions he had investigated and on notifying me of the complaint I had swiftly offered to turn the amplifier down to a level he deemed suitable. I did this at the time out of respect, because I actually disagreed that the volume was excessive.
One he decided to notify me of the complaint, but he himself felt it was unjustified.
However, with the complaint on Oct 9th he simply issued me with a "Noise Abatement Notice", banning the use of my amplifier, with no prior warning. This was served after I had finished playing, not during my performance.)
In his testimony, Mr. Carter expressed that, when in investigating one of the complaints, that he went to the premises and could hear me distinctly singing the song "Streets of London."
However, when investigating the complaint of the 9th Oct, that on going to the premises of the complaint, he could hear me playing the song "American Pie"
Under cross-examination from myself, he agreed, knowing the material I perform, "American Pie" is the loudest song I perform.
It is the song I use as my encore and quite normally the crowd sing along with chorus. It is one of only 3 songs I play where I strum the guitar, the rest being in the quieter finger picking style.
Knowing that the different styles need different volume control, my guitar is such that it has a volume control. When I strum I decrease the volume. Otherwise I would drown out my own voice.
He claimed initially in court, that I was playing alone.
Under cross-examination he admitted that on investigating the complaint, on Oct 9th, at the premises he hadn`t heard any flute, but when coming to issue the Notice, realised I was playing with flute accompaniment.
The fact is, Mr. Carter wouldn`t have heard amplified flute on "American Pie." The song is purely vocal without an instrumental break. My flute-playing companion doesn't use the microphone on that song, as it is mainly a vocal song with no instrumental.
But the flute player had amplified his flute via my microphone on instrumental breaks on several occasions for solos on songs such as "Annie's Song", "Wonderful Tonight", "Knocking on Heavens Door", "Jamaica Farewell", "Streets of London" and several of my own songs which were performed in the same set.
I made this known to the court. This proved two people were responsible for the complaint about the amplification, two Notices had to be legally served.
Mr. Carter in his testimony said that, in investigating the complaint, the un-named complainer stated I had been playing for an hour and a half.
If that had been true, it would have been even later a time for Mr. Carter to investigate the complaint and issue the Notice. Which included having my name printed on the notice.
Firstly, we are restricted by the Busker Code to one hour at any one place, with no return, or within 50 meters of it, for 2 hours. The set I play is 1 hour of music, and I have several tapes of me consistently playing the same 1-hour sets of music.
Secondly, buskers book up the pitch on the hour. We normally have someone following us wanting to busk and earn their income. On this occasion the saxophone player was there ready to take over at the time we had agreed an hour earlier.
Thirdly, "American Pie" is my encore. Mr. Carter presented me with the notice just after I had finished playing it.
While I didn't express so in court, but certainly intimated, was this means that Mr. Carter must have received the complaint, gone to the premises, heard me playing "American Pie", gone back to his office, printed my name on the Noise Abatement Notice, walked from his office to the square, then waited for me to finish the same song, before serving me with the Notice.
I`m sorry, I only actually know two verses of "American Pie", as the tapes I recorded of several busking sessions will testify. The song as I perform it takes about 5 minutes in total.
Mr. Carter testified to having received the complaint at 4:10pm, investigating the complaint at 4:20pm and issuing the notice at 4:40pm.
I don`t recall performing a 30 minute encore version of "American Pie."
I even explained to Mr. Carter, at the time, that I wasn`t playing anymore that day. There was no reason for the Notice for me to stop and that I would have turned down if I`d been notified of the complaint.
My proof that he was serving me the notice AFTER I had finished performing was I had a pre-arranged meeting in Bristol, which was special as I was introducing my girlfriend to my parents for the first time, which all would testify was arranged prior to me busking.
On serving me the Notice, I asked him to clarify that the Notice was purely being served on me, not the flute player who had accompanied me on the same amplifier. He stated clearly the Notice applied purely to me.
The flute player and the saxophone player (Who had arrived to perform in the square for his booked hour) witnessed this statement.
They also witnessed me pointing out to Mr. Carter that my name had been printed on the form, while the rest of the added details were hand-written at the scene. I pointed out there and then, it all seemed a bit "Pre-ordained".
On making this comment Mr. Carter made the remark that he had also had two other complaints from "A couple of evenings ago."
Complaints he never came out to investigate, to see if justified as being purely against me. Though these complaints he'd received seemed to add to his conviction in issuing the Noise Abatement Notice.
Having recently moved house, the flute player was unavailable to be a witness on Dec 10th. I did not think the saxophone player a relevant witness at the time.
On cross-examination I asked how many people he believed were in the Square when he served the notice? His reply was about half-a-dozen.
In fact there were half-a-dozen when we had started, but was nearer 40 people seated around the square as we finished our performance and when he arrived to issue the Notice.
I mentioned that I was surprised Mr. Carter failed to remember. Because when I announcing to them over the microphone, about the "Notice" that had been served on me by him, they booed him out of the square.
I then asked Mr. Carter to confirm that 3 of the complaints were from people who refused to reveal to him their name. Yet he was able to cite one as "a fellow busker"?
I indicated to the court that he had earlier testified that in his job, he gets to see and hear, and comes into contact with Baths Buskers on a regular basis. That in fact the regular buskers are very well known to him.
Yet, under cross-examination, he confirmed that a fellow busker had made a complaint, yet did not leave their name, but claimed he was unable to identify which one had made the complaint when I asked him in court.
(Where he has sworn to tell he truth, the whole truth and nothing but the truth, as did I.)
How then did he know this person were a fellow busker? If he really did know all the buskers in Bath through his work, how come he wasn`t able to place the voice of the complainant and tell the court?
Mr Carter again said he was unable to put a name to the voice.
I made it fairly plain to the court that Mr. Carter indeed did know the person concerned, but was with-holding the information from the court.
I put it to Mr. Carter, that as I was quite successful at busking, and there is a certain amount of rivalry, did he not feel that a complaint from a fellow busker may be tinged with a little bit of hypocrisy?
Then Mr. Carter in his testimony stated that the other buskers in Bath did not use amplifiers.
I pointed out that the majority of regular buskers in Bath use an amplifier and HE KNEW IT!
From the viola players, the saw player and the saxophonist, who even has exactly the same type of amplifier as the one I was banned from using.
Mr. Carter expressed that these buskers weren`t using the amplifier in the same way. They were using the amplifier to provide backing music from tape players.
With this comment I asked him if "Amplified tape backing music", isn't "Amplified Music", for which I am banned from doing by the Notice, then what exactly was it? What was his "Professional" subjective definition?
There was no response to this question from Mr. Carter.
I pointed out that the instruments these buskers use have a higher natural volume then my guitar. My guitar is a semi-acoustic. It is designed to be played with an amplifier. It has volume, bass, middle and treble controls on the guitar.
I explained my voice is not a strong one. I use the amplifier to find a suitable level, balanced with the amplified guitar. Just as these other buskers play the tapes at a volume they can play over with their un-amplified instruments. But some also amplify their instrument as well, using small microphones attached to the instruments.
This brought out a further point. That when I was playing in the Square on Oct 9th, I had the accompaniment of a flute, which while amplified for solos, merely augmented un-amplified.
I thus had to play at a level which the flute could be heard by the audience, which I felt gave an indication to the actual volume I was playing that day.
Mr Carter was asked how he came to measure that I was playing at an excessive level?
(The Busker Code states that Music or voice should be not amplified to a level or is so loud, that it can be plainly heard at a distance of 50m. Busking must not be intrusive or a nuisance in nearby premises, or affect the use of the public phone boxes.)
He said it was purely subjective and according to his experience. That doing a decibel test wasn`t practical due to the background noise in the square.
The very noise I use an amplifier to be heard over.
Mr. Carter also expressed in his testimony, and agreed with me in cross-examination, that the acoustics of the square changes according to weather, amount of people in the Square, and other activities going on in the square.
The next thing that happened really surprised me.
I was called to give my own evidence. My defence is shown in the "Court Document" in the same folder as this file.
When I got up, gave my name I also gave my occupation as "An Entertainer", pointing out I was far better known as "Happy Graham Childrens Entertainer."
On saying this one of the magistrates suddenly stood up and apologised to the court that he couldn`t continue, he knew me and had a conflict of interests! With that he got up and walked out of the court!
I must admit to not recognising him and to this day am not sure how he knows me. But that left me with 2 magistrates, who from the start were unsure about proceeding.
I gave my evidence, (Shown in "Court Document") and had two character witnesses, Melt and my girlfriend. They had both seen several of my performances and not witnessed any complaints, nor personally thought I`d ever played too loudly.
I offered also to the court a supportive letter from Councillor Keith Lunt, who had asked me to play at Royal Victoria Park, Bath.
However, he got it all wrong again, calling me "Graham Flower" in the letter, and my stage name as "Grod Grodlin". This made it totally in-admissible evidence.
I then offered to the court the petition signed by every business in the Square, which they looked at briefly and put to one side.
My defence/complaint against the notice was mainly that I was playing at levels Mr. Carter had previously said were OK. That if a notice was to have been served, there should have been 2 notices, as I was playing with someone who was using the same amplification. That there was no warning or chance given to rectify the situation. He just served with the "Notice" with my name printed on it, making it rather pre-ordained.
To my amazement, the magistrates came back with a verdict, that they felt I had "No Grounds of Appeal."
Only they know how they came to that decision. Even Mr. Carter had admitted that when he came to serve the notice that he discovered two people were playing, when he thought it was only me.
It`s in black and white on the back of the notice that the notice is wrongly served if it could have been served on someone else as well responsible for causing "The Noise".
I stand also by my testimony and defence. That I was never played at an intrusive volume, just a volume that Mr. Carter had told me was acceptable.
The Bath Chronicle reported I was going to appeal to the Crown Court.
This could be way beyond my expenses. However, such was the farce of my original trial I am first going to seek a judicial review for a re-trail in the magistrates court.
If you think I have received fair justice, then please write to the council.
BUT IF YOU FEEL THAT I HAVE RECEIVED ANYTHING BUT JUSTICE, PLEASE WRITE TO ME. ALL DONATIONS AND OFFERS OF LEGAL & ACCOUNTING HELP WILL BE GLADLY RECEIVED.
Because I`m not really looking for Trouble, "Trouble" was my dog, and this CD was named so before any of this ban farce.
I am trying to spread the word of love and happiness and forgoing greater financial returns from my qualifications, because I know what I do is appreciated by the vast majority. Please help me.
Grod Groddler