IT’S IMPORTANT TO NOTE THAT THE VIEWS EXPRESSED IN THIS ARTICLE ARE THOSE OF THE AUTHOR (NICK BROAD), AND NOT OF THE PARTIES INVOLVED

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Last Thursday, the Westminster Magistrates Court convicted a busker of annoying a council official.

It sounds ridiculous, but that was the ruling.

THE SETTING

Mat Boden, a 27-year-old contortionist from London, set up his act on the north side of Trafalgar Square on a Monday afternoon. He played music through his amp, laid down ropes, slid a metal plank into the centre of his circle, set up an amended bicycle, put the metal plank on top of it, and addressed passer-bys through his wireless headset. A crowd formed, people started laughing and Mat began his show.

THE BYELAW

The law above is article 3 of the City of Westminster’s “Byelaws for Good Rule and Government (No. 2)”. These byelaws are there to protect people — they give cops and council officials the power to stop someone from being abusive.

However, there are two parts of this law that are imprecise enough to be contentious:
1) “reasonable cause for annoyance”. Whose right is it to judge what’s reasonable?
2) “other persons in the neighbourhood”. If you’ve only annoyed a council official, who has received no other complaints, is that enough?

It is our belief that in this case neither of these criteria were met.

THE CASE

1. Other persons in the neighborhood
The prosecution had to prove that “other persons in the neighbourhood” could include the official himself, and that no other person need be offended.

But why would the law be written that way if this were true? Surely “other people” means “not the official issuing the orders” — otherwise, it would be written as “for any individual”, or just left out entirely. Is there any need for a law to state that people outside of the vicinity (in other words, people who cannot hear the noise) have no reason to be annoyed? Obviously not.

2. Reasonable cause
Second, the prosecution needed to prove that Mat Boden was giving people “reasonable” cause to be annoyed. Considering the circumstances, this, too, is contentious:

  • The background noise in Trafalgar Square is 80-85db
  • That’s roughly what you’d hear from an electric shaver, vacuum cleaner, garbage disposal, toilet flush, or ringing telephone (at the average distance you are from such noises).
  • There are also two large fountains in the square (pictured above), which create a ton of noise.
  • The nearest buildings are a long way away.
  • If Mat is too loud, he will annoy his close audience, pushing them away.
  • Mat has been doing his act for 8 years, and has performed in Trafalgar Square hundreds of times (3 times a day, 3 times a week)
  • He has never been given a ticket for his performance before
  • Mat also doesn’t use loud music (it’s really a comedy show), nor a chainsaw, or any other loud equipment. The main noise is his voice.

THE PARTICULARS

When Mat began his show, a council official (“The Witness” – TW) was standing 30 meters (90 feet) away. TW was so annoyed at Mat’s sound that he was impelled to walk past an amplified guitarist, to ignore a shouting preacher, and to request that Mat stopped making noise.

Mat told TW that he was contravening any law. There is some discrepancy over what happened next, but both parties agreed that at some point Mat was handed a copy of the rules by TW. As Mat believed no law was being broken, he refused to give the official his ID.

There are a few details here that should be recognised:

  • The witness said he’d asked Mat to stop playing, but his notes said he’d asked Mat to “move on”.
  • The witness had appeared on an undercover TV show that was trying to ascertain whether the officials were doing a good job. On that program, TW was seen harassing another busker.
  • The witness said he’d introduced himself to Mat with a copy of the byelaw in his hand. As he and Mat were acquainted, this seems unlikely. Mat said no byelaw was produced until much later in the conversation.
  • The witness was made aware of Mat’s presence in the square when he heard the sound of Mat dragging the metal cover over to the bicycle. Although this is a loud and unpleasant noise, it only lasted a few seconds. For the byelaw to have been broken, Mat would have had to continue making that noise.
  • The witness said that Mat had been shouting through his amp. Mat disagreed, as this isn’t likely — the microphone is there to stop Mat from needing to shout, and shouting through a headset would distort the sound.
  • It is important to remember that although The witness may have been annoyed by Mat’s voice, “Busking” itself is not on trial. It is completely legal to busk in Trafalgar Square, regardless of how “good” you are. The prosecution had to prove that being annoyed at Mat had nothing to do with the witness’s personal taste.
  • And before you think that Mat may not be good, he is one of the buskers who can draw and keep a crowd in minus temperatures throughout the winter months. He is invited to perform internationally. And The Busking Project has seen his family-friendly show — it’s hilarious.

THE RULING

There is one other point that is important here. This was not a civil case, this was a criminal one. Therefore, the prosecution had to prove BEYOND REASONABLE DOUBT that Mat was guilty of the crime. And yet, the witness’ statements had been called into question, as was his objectivity, as was the likelihood of his testimony, as was the validity of his actions in the first place.

In fact, it is obvious from the ruling that the magistrate was convinced that Mat’s act had been proper. The penalty for breaking these laws is £5,000 plus costs (another £1,500). Also, if it was shown that his equipment had been used in an illegal fashion, it would be destroyed.

Although the magistrate convicted Mat of wrongdoing, she only issued a £500 fine, and refused the council right to demolish his equipment. She gave him a “conditional discharge” — a ruling that basically says “you were in the wrong, but no punishment should be issued, as you have done no wrong”.

In other words, the ruling was a joke.

THE RAMIFICATIONS

What worries us at The Busking Project is that Mat’s performance was deemed illegal for annoying someone who could hear his act 30 meters away. At that distance, the show wouldn’t be significantly louder than the background noise. In our minds, this could mean that ALL street shows are immediately illegal, if they bug ANYONE.

And if that’s correct, surely every policeman and council official in the country has the power to prevent all of you from performing, depending on whether they like you or not.

We can’t have that.