Mat Boden VS Westminster Council: ROUND 2

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Mat Boden VS Westminster Council: ROUND 2

2nd October 2013

Mat Boden VS Westminster City Council from The Busking Project on Vimeo.

Last September Mat Boden was charged by Westminster City Council of being too loud while busking in Covent Garden and refusing to give his ID to a council warden. He was fined £500. Below are the details of his appeal.

Oh yeah, and if you don’t know what I’m talking about, read our post on Mat Boden’s last court appearance.

THE APPEAL

Mat’s Legal Team

When I turned up, Mat, now sporting a WWII pilot moustache and an almost full head of hair, was surrounded by a tall, skinny, neat man in a stylish grey suit (his lawyer), a man with one of those funny white wigs (his barrister, Mr. Watkins), and a solemn-faced man who looked like a very sensible bureaucrat (Mr Cobbing, his environmental noise expert).

Think about it for a second. This case was a busker contesting a £500 fine for making too much noise. And he’d managed to raise not just a great lawyer, but a top-end sound expert and a top-end barrister (who had previously worked in the case attempting to extradite Wikileaks founder Julian Assange). Bam. After the disappointment of the last case, though, Mat was still expecting to lose.

The Warden’s Testimony

When The Warden took to the stand, he beefed up his previous statements. He said Mat hadn’t just been shouting, he had been screaming. He changed the distance at which he had been standing from Mat’s show from 30 meters to 20 meters. And he complained that Mat had mocked him to the audience.

Mat’s barrister managed to get The Warden a little flustered and defensive. Every time The Warden had to answer “yes” to one of the questions posed, he would say “it could be, yes” — the “yes” rising in pitch as if to say “Yeah, but so what?” It became obvious that the man was capable of being annoyed…unreasonably so.

However, it did seem that the judge was taking The Warden’s side — twice he interrupted Mat’s barrister to complain about his line of questioning. Like this one: “This has nothing to do with the case, unless you’re suggesting he’s a jumped up official who loves his position, who was acting officiously because he can. Is that what you’re saying?” Mat’s barrister: “Yes”.

We broke for lunch. Both the lawyer and barrister agreed: things were not looking good.

Mat’s testimony

In my opinion, Mat was very cool headed. For those of you who know him, you’ll know that he can be combative at times, not willing to give up ground. And yet as the prosecution interviewed him, he didn’t retaliate to the implications the prosecuting barrister was making.

Perhaps Mat’s best moment is when he divulged some trade secrets to the court, like a magician revealing how he does his tricks. He denied that his contortion act was painful enough to make him “scream” (like The Warden had stated), and that it would be bad for the show: “Audiences want the whiff of discomfort, they don’t want to see pain. During the climax of the show they are intrigued, captivated and slightly disgusted, but not annoyed.”

He said that it is ridiculous that The Warden would have been unable to hold a conversation 20 meters away: “to my dismay, I’ve observed my audience having conversations with each other, right in front of me.” Instead, he believes that The Warden was annoyed because Mat had refused to stop performing when he was asked: the noise itself was not the problem.

“People COULD be annoyed, though?” the prosecution asked. “Sure, but not REASONABLY,” Mat responded.

When asked why, then, he feels he has been approached several times by Westminster Council officials and asked to stop, Mat said he believed it was a policy by Westminster Council, and that in the run-up to the Olympics they wanted to get all the buskers out. This argument was not questioned further.

The expert’s audio report

This was by far the most entertaining part of proceedings. The environmental noise expert, Mr Cobbing, had taken recordings of one of Mat’s shows in Trafalgar Square, and measured the ambient noise and background noises in the area.

The prosecution’s sound expert’s testimony stated that Mat had been breaking several rules regarding noise pollution. Mr Cobbing was asked to respond. Despite sharing the same readings and reports, their testimonies varied wildly.

Cobbing said that Westminster recognises in their own environmental noise reports that Trafalgar Square is one of Westminster’s noisiest areas. He also said that there are well-established guidelines on what constitutes enough grounds for “noise nuisance”. When asked about the readings taken of Mat’s show, and to relate the decibel levels to normal life, he was frank:

“You’d expect this level of noise on the way to court this morning. I passed construction work, even traffic that would have reached the same noise levels. Most environmental noise is not static: it fluctuates. And Mat Boden’s performance was well within the norms.

“In an open space like Trafalgar Square, the drop off in noise levels would be sharp as you got further away from the amp. The measurement taken showed that a combination of Mat’s amp, and of the crowd cheering, was 84 decibels. At 10 meters, that would drop to 81 decibels. At 20 meters, that number would be between 75 to 80 decibels.

“To put this into perspective, with continual background noise at 90+ decibels it might be hard to have a conversation. From 85 to 90 decibels you’d have to raise your voice, much like I am now. But at 20 meters away, when the noise level from Mat’s show would be below 80 decibels, there’s no reason to suggest that The Warden would be significantly hindered in having a conversation. After all, the background noise in Trafalgar Square is over 70 decibels, sometimes 85 decibels, depending on where you are.”

In other words: the warden was lying.

Mr Cobbing was asked about what he thought about the expert report supplied by the prosecution. His response was firm.

“On a professional level, I’m quite disappointed: I was on the team that wrote the legislation that the prosecution has alluded to. It has been taken quite out of context. That legislation was written about the environmental noise pollution of factories and power stations, things that are running day and night in residential areas; it’s not supposed to be used to determine the levels of a performance in an open space in one of the noisiest parts of a city.

“It’s a complete abuse of the standard. No weight should be attached to this report at all. And although Mat might have turned down his amplifier during the show I was measuring, there’s one thing he would have no control over: the noise from the crowd. He could not supress the volume at which the crowd was cheering.”

“So what do you think about the report in general?” Mat’s barrister asked. “At best, it’s unfortunate.” “And at worst?” “Misleading.”

The prosecution asked one last question.

“It is our assertion that it is POSSIBLE that the quality and level of the noise Mr Boden was creating could have been distracting and annoying enough to stop The Warden having a conversation.”

Cobbing paused for a few seconds.

“That might be the opinion of the court. But it’s a matter of physics that this is not the case. Annoyance covers a wide spectrum, from mild irritation to physical discomfort and anger. I cannot imagine that anyone would be put off by this noise at that distance.

“If the court finds the defendant guilty because of the level of noise that The Warden experienced, the logical conclusion is that it would be impossible for us to have conversations on busses or trains without breaking the law.”

BOOM.

Defendant’s Conclusion

Mat’s Barrister stood to give a final conclusion to the judge, before the judge left to deliberate. He said there was a plausible other explanation: The Warden was uncertain about the noise, so he went to investigate. He’s paid to do that. He knew Mat because of their several previous interactions, and was annoyed Mat refused to stop making the noise. The Warden could then not make a dispassionate judgment. Mat had broken no law. Therefore, Mat did not need to supply his details. And so the entire case should be thrown out.

The Verdict

The judge ruled in Mat’s favour. The charge was dropped, Mat (and the Street Performers Association) would be paid back their money. Mat could even apply for loss of earnings due to his equipment being stolen — but he won’t.

An interesting point is that the judge said that if Westminster really did want to weed out characters like Mat from Trafalgar Square, they should implement a licensing program. This is actually something that the Street Performers Association agree with.

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