Licensing update

Conducting appeals

The Court of Appeal has provided additional significant guidance on the way in which appeals to magistrates' courts from licensing authority decisions should be conducted. An interesting example of the process in action, provided by a recently reported appeal at South Western Magistrates' Court, is discussed below. The practice of reporting the decisions of magistrates' court appeals, particularly where presided over by a district judge (crime), appears to be growing. These reports provide interesting and useful insights for practitioners, and, no doubt, arguments for them to adopt in their own appeals.

The nature and scope of appeals from licensing authorities to the magistrates' court has continued to come before the higher courts. As mentioned in my last update (Solicitors Journal 155/37, 4 October 2011), application of the leading case of R (on the application of Hope and Glory Public House Ltd) v City of Westminster Magistrates' Court [2011] EWCA Civ 31 has been considered in R (on the application of Townlink Ltd) v Thames Magistrates' Court [2011] EWHC 898 Admin and R (on the application of Developing Retail Ltd) v East Hampshire Magistrates' Court [2011] EWHC 618 Admin.

In Khan v Coventry Magistrates' Court [2011] EWHC Civ 751, the Court of Appeal further considered the appeal process, referring with approval to Hope and Glory where 'it was accepted by all parties that the hearing before the magistrates was a re-hearing at which the parties were entitled to call evidence and that the court was bound to make its decision on the basis of all the evidence before it'. In Khan the licensing authority revoked a premises off-licence on the evidence of underage sales of alcohol from the premises. An appeal to the magistrates' court was dismissed and the revocation upheld. At the appeal new evidence was introduced by a trading standards officer relating to the seizure by HMRC of suspected duty-evaded alcohol from the shop before the review application being made and reports from a local resident of large deliveries of alcohol to the premises from a van 'at strange hours several times a week'. These matters had not formed part of the review hearing.

The appellant objected to this evidence but it was admitted by the magistrates. Leave for judicial review was granted on the sole ground that 'the magistrates did not have jurisdiction to consider grounds of complaint other than those that had been raised in the notice of intention to seek a review and any representations received by the licensing authority in response to it pursuant to the statutory procedure'. The court was not persuaded by this argument and rejected the contention that the effect of section 181(2)(b) of the 2003 Act 'was to limit the grounds on which the magistrates could base their decision to those which were raised before the licensing authority'. Rather, 'the magistrates were, in effect, starting from scratch and could consider whatever material might be put before them that was relevant to the licensing objectives and to their decision'.

However, the court stressed the person 'whose licence is under threat ought to know the nature of the case against him so that he has a fair chance of meeting it'¦ What is required is that proper procedures be in place in the magistrates' court to ensure that both parties are aware in advance of the hearing of the case they have to meet and the evidence on which it will be based.'

This highlights an issue concerning the directions made at the pre-trial hearing. In some courts exchange of evidence and skeleton arguments is ordered to be made simultaneously; in others the appellant is ordered to serve first; and in some the respondent is ordered to serve first. The need for each party to be fully informed of the case it has to meet, rather than seeking any perceived tactical advantage in the order of disclosure, must be paramount at any pre-trial hearing.

The appeal process from the decision of a licensing authority was also considered in Cherwell District Council v Anwar [2011] EWHC 2943 (Admin). This was a taxi case in which the authority had refused to renew Mr Anwar's hackney and private hire licences. Mr Anwar had been convicted of an assault by beating up his wife, so his licence renewals were refused on the bases that he was not a fit and proper person and the need to ensure public safety and protection. The magistrates' court on appeal reversed the decision and the authority appealed by way of case stated to the High Court. Unfortunately, Hope and Glory was not cited to the court, and, although previous case law was, it is submitted that Hope and Glory (and the cases that followed) rather than Anwar should be used to guide magistrates' courts in taxi appeals.

The magistrates reversed the authority's decision on the basis of hardship that would be suffered by Mr Anwar's family as a result of the refusal to renew the licences. Anwar is useful in that the court reiterated the fact that protection of the public rather than the personal circumstances of the licence holder is the criterion on which decisions on renewal should be made and remitted the case back to the magistrates. Lastly, the court dealt 'briefly, with the issue of whether this licence constitutes a 'possession' within the meaning of that term in article 1 of the first protocol of the European Convention on Human Rights'. Counsel in the case agreed that it did not and the court spent little time coming to the same conclusion. As such, Anwar does not appear to add to the jurisprudence on this issue.

The practice of reporting decisions of magistrates' courts on licensing matters is mentioned above. A recent example is Mitchells and Butlers Leisure Retail Ltd v London Borough of Wandsworth [87] LR October 2011. Here, a public house premises licence review resulted in nine conditions being added to the licence. Five of the conditions concerned the use of privacy shields on all Chip and PIN machines used at the premises; the aim being to prevent crime by way of 'shoulder surfing'. Having reviewed the evidence and the manufacturer's operating instructions, the district judge removed the five conditions on the basis that they were neither necessary nor proportionate. The report is a good illustration of the operation of Hope and Glory, for, as the district judge put it: 'Whilst I am reminded that this court ought not lightly to reverse their (in this case the sub-committee's) decision'¦ I am satisfied that on the basis of all the evidence now before me it is appropriate to do so.'

Licensing reform

It is now some five months since the Police Reform and Social Responsibility Act received Royal Assent and we still await commencement dates. At the end of 2011 the Home Office put the 'earliest possible' start date at 6 April 2012 for all sections of the Act other than early morning restriction orders, the late night levy and locally set fees. These last three have a provisional start date of October 2012 and the minister has indicated that the new fee structure, to be introduced by way of regulations, is unlikely fully to take effect until 2013.

The Home Office launched a consultation, 'Dealing with the problem of late night drinking: a consultation on secondary legislation for the late night levy and early morning restriction orders', on 17 January 2012. The late night levy will allow local authorities to charge a levy for late night licences to contribute to the cost of extra policing, and EMOs will allow licensing authorities to restrict the sale of alcohol in all or part of their areas, to any time between midnight and 6am.

As the Home Office puts it on its website, the consultation 'is an opportunity for licensing authorities, the licensed trade and its representatives, police officers and the public to share their views on the details of the regulations that will implement these policies. In particular, it asks for views on what categories of premises should benefit from exemptions and reductions under the measures, with the intention to avoid penalising premises that are not part of the wider late-night economy.' There is an online form for responses on the Home Office website and the consultation closes on 12 April 2012.

Other reforms to the licensing regime under the 2003 Act will be made by way of amendment to the statutory guidance issued by the secretary of state under section 182 of the 2003 Act. These include guidance on provisions in the new Act such as replacing 'necessary' with 'appropriate', providing that licensing authorities accept all 'reasonable' representations from the police, lowering the evidential burden for cumulative impact areas and increasing the scope for CIPs to apply to the off-trade. The projected date for the revised guidance is April 2012. Other related work that the Home Office is conducting includes a review of the mandatory code to assess its impact on businesses, banning below-cost sales of alcohol (duty plus VAT) and the Department of Health is developing a new alcohol strategy.

Paterson's: the latest edition

Paterson's Licensing Acts 2012 has been published. This is the 120th edition. Of its three editors, Simon Mehigan QC has been in post for 18 editions, Jeremy Phillips for 15 and Mr Justice John Saunders for nine. This makes Mehigan and Phillips the longest serving editors of Paterson's, apart from JN Martin who was sole editor for 27 editions, from the 70th to 96th. Paterson's has long been recognised as the leading textbook authority on licensing and with such a wealth of experience in the editorial team it continues to be an essential tool for the serious licensing practitioner.

If Paterson's had a weakness it was that navigation can sometimes be difficult for the uninitiated. Unsurprisingly, the current editors have been cautious in their modernisation of the work. However, perhaps with the confidence born of a combined 40 plus years of editorship, recent editions have become more comprehensive (the inclusion of taxi and street trading licensing) and have benefited from judicious editing, pruning and explanation. The preface to the alcohol and entertainment volume contains an excellent survey of 2011 case law coupled with an admirable preview of the operation of the Police Reform and Social Responsibility Act. Paterson's has the advantage over competing works of annual publication. As such it remains the most up-to-date work on the ever-changing licensing landscape. At £280 it represents a sound investment and money well spent.