Private vices

An attempt to bring a private prosecution against Ann Summers for being an unlicensed sex establishment has failed. Danielle Williamson outlines how the district judge decided that the prosecution was an abuse of process and judicial review was instead the appropriate remedy.

A private criminal prosecution bought by Large Cause (Licensed Adult Retail Group Encourage Councils Abolish Unlicensed Sex Establishments) against retailer Ann Summers has recently been stayed by the Westminster Magistrates' Court as an abuse of process.

Large Cause laid information before the Court on 11 August 2009, alleging that on three separate occasions in 2009, Ann Summers had knowingly used or permitted the use of premises at 26 Brewer Street as an unlicensed sex establishment contrary to paragraph 20 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 (the "1982 Act").

Paragraph 6 of Schedule 3 of the Act provides for the requirement for a "sex establishment" to have a licence issued by a local authority and to comply with the conditions of that licence, which could include conditions as to location, signage (e.g. blacked out windows) and who can enter the shop (e.g. no minors). A "sex establishment" is defined by paragraph 2 as a "sex shop" or a "sex cinema". A "sex shop" for the purposes of the 1982 Act is any premises which consist to a significant degree of selling sex articles, namely, anything made for use in connection with or for the purpose of stimulating or encouraging sexual activity.

Paragraph 20 of the 1982 Act provides that a person who knowingly uses, or knowingly causes or permits the use of, any premises, vehicle, vessel or stall contrary to paragraph 6 shall be guilty of an offence. Anyone found guilty could be liable to a fine of up to £20,000. The cost of a licence is a matter for the local authority to determine but can be as much as £30,000 per licence.

The prosecuting company purported to be an action group comprised of licensed sex shop owners who brought the prosecution in protest at the fact that Ann Summers is not required to have a sex establishment licence in respect of any of its 143 stores nationwide.

The Summonses were issued on 26 August 2009 and on 14 October 2009 Ann Summers entered a not guilty plea.

Ann Summers argued as a preliminary point that the prosecution was an abuse of process and it should be stayed. This was on the basis of three grounds namely:

• The prosecutor was acting ultra vires
• The offence under the 1982 Act was not amenable to private prosecution
• The prosecution was unfair and had been brought for an improper motive as the criminal law was being used by a competitor to try to level the commercial playing field.

District Judge Snow found in favour of Ann Summers in relation to every ground and had "no hesitation in granting the stay" as the prosecution was an "affront to justice.”

In making his Judgment, the District Judge made new law as he held that the offence of operating as an unlicensed sex shop was not amenable to private prosecution – an issue which had not been determined previously.

The right to conduct a private prosecution is an ancient right (see Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435 and the recent authority of Mitting J in Ewing v Davis [2007] EWHC (Admin) 1730) albeit one which in modern times is used relatively infrequently by either natural or legal persons. The right is expressly preserved by section 6 of the Prosecution of Offences Act 1985.

However, the District Judge held that the 1982 Act was an unusual statute because the local authorities have an absolute discretion as to whether or not to adopt Schedule 3 at all: if the legislation is not adopted, then no offence under paragraph 20 is created. Further, even where a local authority has adopted Schedule 3, they are empowered to waive the requirement of a sex establishment licence and regulatory and enforcement powers under the 1982 Act are also reserved to the local authority.

The District Judge held that given the elaborate regime which had been put in place by Parliament to preserve these issues to the local authority in question, the 1982 Act adopted a different regime to an ordinary General Public Act. The District Judge was satisfied therefore that within this legislative regime Parliament had reserved the right to bring a prosecution to the local authority and consequently there was no right to bring a private prosecution.

This is an important decision as it opens up the opportunity of preventing private prosecutions from being pursued in circumstances where the right to do so has not been expressly excluded by statute but where the statutory regime in question has been reserved to a specific statutory body. It confirms that in these circumstances a private person's remedy lies with Judicial Review and not the criminal law.

Danielle Williamson is an associate at Pinsent Masons. She can be contacted via 020 7667 0300 and This email address is being protected from spambots. You need JavaScript enabled to view it..