Licensing update

Challenging the actions of public bodies in licensing matters continues to come before the courts: failure to properly follow procedural requirements under the legislation and, more fundamentally, by challenging the lawful adoption of the legislation itself. In Funky Mojoe the procedural failures were not considered by the court to invalidate the licensing committee’s decision and in Call A Cab a similar conclusion was reached about procedural failings by the authority when resolving to adopt taxi legislation.

The case of Mu Mu has been joined by a number of other such challenges to review decisions made by local authorities. In Funky Mojoe v London Borough of Redbridge, it was argued that the licensing committee had no jurisdiction to consider the review application as the notice advertising the review was defective. It failed in two respects to comply with the requirements of the Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005 and further it referred to two separate premises licences. First, the ‘grounds’ for the review were not set out in the notice, which referred only to the licensing objectives engaged. Second, three lines of the notice were typed in 14-point font rather than the required 16-point. The committee rejected these and other submissions.

Small print

On appeal, the district judge accepted that the notice was defective but held that the court is required to look at the consequences of non-compliance in considering whether the committee had jurisdiction and the decision of nullity (R v Soneji 2006 1 AC 340).

In deciding what parliament intended, the judge accepted the council’s submissions that the court must look at, among other things, whether there was substantial performance of the statutory requirement (in this case, ‘yes’ as the review was fully advertised albeit with errors) and if there was any real, rather than hypothetical, prejudice or injustice (in this case, ‘no’). It was also held that a person who could read 16-point font could read three lines mistakenly written in 14-point font.

The judge went on say that there was strong public interest in the case being dealt with on its substantive merits without further delay. And with no evidence of substantial prejudice or injustice to the licence holder, the non-compliance did not come near the degree or status that would go to the committee’s jurisdiction. Consequently, despite the defects in the notice, it was held that the committee had jurisdiction to consider the review. The judge also held that on the facts it was proper for the review and notice to cover both premises licences. An appeal has been lodged to the High Court.

No notice

In Aylesbury Vale District Council v Call A Cab [2013], the Divisional Court considered the effect of the authority failing to follow the statutory procedures laid down for adopting the Local Government (Miscellaneous Provisions) Act 1976. A taxi company and its director were prosecuted under s46(1)(d) of the Act for operating a private hire vehicle without a licence. The District Judge dismissed the prosecution on the basis that the 1976 Act had not been lawfully adopted 24 years ago in that the council had not sent a copy of the newspaper notice to a number of parish councils.

Aylesbury Vale could not prove it had notified the parish councils as its correspondence files had been destroyed. It produced minutes from a 1989 meeting that had authorised its secretary and solicitor to serve the notices but could offer no evidence that any parish had been notified. The council argued that it could prove the newspaper notices had been placed, that there was no reason why the parish councils would not have been sent copies and that the presumption is that official acts have been carried out correctly.

The defendant director searched the archives and produced 12 of 112 parish council records – none of which recorded receipt of the relevant notice. The defence submitted that there was no need to interrogate all 112 parish records as it could be inferred that copies of the notice had not been sent to the parish councils. In any event, the defence argued, non-receipt by one parish council was sufficient to vitiate the resolution. The prosecution argued unsuccessfully that the case of R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] demonstrated that the courts do not treat every procedural lapse as invalidating the administrative acts.

 

Indispensable tools for licensing practitioners Licensing practitioners are fortunate in the scope and quality of the books available and the past few months have brought some new editions of leading licensing texts. New editions of three licensing books and a supplement for a fourth have been published. While the erudite and admirably comprehensive textbook Manchester on Alcohol and Entertainment Licensing Law (£85 and for which a supplement has recently been published) forsakes its jaunty cover for the third edition, Paterson’s Licensing Acts has abandoned 121 years of plain brown wrapper for a rather fetching more graphic approach. More importantly, the editors of Paterson’s are once again to be congratulated on producing the definitive up-to-date reference work on alcohol, entertainment and gambling law (with useful sections on taxis and street trading also provided). It remains an indispensable tool for licensing practitioners and its two volumes plus CD-ROMs (£295). A welcome new edition of Licensed Premises: Law, Practice and Policy incorporates ‘policy’ into the title to reflect the nature and tone of the volume. Kolvin and his contributors have called on their vast collective experience to produce a fascinating practical and theoretical analysis of the legal regulation of licensed premises. The book (£115) is accessible, well written and highly recommended. The Licensing Law Handbook second edition presents, as with the first one, a useful and manageable guide to alcohol and entertainment licensing law and procedure. It achieves very well its aim of producing a clear and concise practical guide (£63).

 

Rational thought

The Divisional Court, while accepting that it was not irrational for the District Judge to find on the evidence before him that the authority had breached the notification requirements, held that he should have gone on to consider the consequences of non-compliance. The first step would be to determine the imputed intention of parliament as to the effect of procedural non-compliance and whether there was any prejudice to those making the challenge.

It found that: “...reading the statute as a whole and recognising the complete lack of prejudice to the defendants from non-compliance with the statutory requirements beyond the fact that non-compliance might give them an argument whereas validity would deprive them of it... if there is substantial compliance with the statutory provision, the act is not invalid... I am satisfied that this is a statute in respect of which substantial compliance with the requirement means that the act is valid even if the compliance has not in all respects been completed.” The court remitted the case back to the District Judge to consider these matters. SJ

Roy Light is a licensing barrister practising from St John’s Chambers